Attorneys

If a homeowner defaults on their mortgage the lender usually forecloses on the home and the homeowner loses it.  What happens to the renters who pay their rent every month but live in homes whose owner has not been paying the mortgage?

If you are a renter in a home or apartment building that is being foreclosed upon you are likely to be evicted.  Do you have the right to stay?  Not likely.  Will the lender who holds the mortgage be able to evict you if you choose to stay? Yes.

If you have a lease how can that lease be thrown out?  It’s a contract; shouldn’t the new owner be required to fulfill the contract?

Each state may vary but it is likely your lease can be canceled for two reasons.  The first may be due to a clause in most leases that cancels it in the event of a foreclosure. The second is a part of property law called “first in time is first in right.”  That means that if you rent a residence which is subject to a mortgage, the mortgage holder’s interest in the property is senior to your interest because it was entered into first.

Apartment building owners are usually required by their lender to include the foreclosure clause in their leases.  Lenders require this clause because it helps protect from an unnecessary risk.  If a building is foreclosed on, the lender must sell it to recoup the loan.  Lenders believe that at a foreclosure sale an empty building will sell for more than one that is occupied by tenants. If the value of a foreclosed property drops it may hinder the restorative effect a foreclosure is supposed to provide. This may leave the borrower “under water,” still owing even though the property has been sold.

Because many tenants of foreclosed buildings are helpless during a foreclosure, Congress may soon change the law.  The Mortgage Reform and Anti-Predatory Lending Act of 2007 will force new owners of foreclosed properties to honor existing leases.  The bill has been passed by the House of Representatives and is currently being discussed in the Senate Banking Committee.

The Congress may also soon pass other legislation that will indirectly help those who rent.  The bill will enable troubled homeowners to get new mortgages.  The bill is being debated in the House Financial Services Committee and will allow the Federal Housing Administration to loan up to $300 billion to distressed homeowners.  If passed, it is likely that most of this money will not go to owners of multi-unit buildings or to people who bought second homes for the purposes of renting them.  But it will still benefit renters.

Investors in second properties naturally have their own home as their priority.  If they can only make one mortgage payment they will pay the mortgage for the home they live in.  If the bill is passed some of those homeowners who will benefit will also own second homes that they rent.  If their monthly payments become lower they are more likely to be able to keep their second mortgages current as well.  Thus a trickle down affect will help those who rent.

For more information on foreclosure, Contact an experienced real estate law attorney in your area today.