TENANT’S RIGHTS: Federal Law Protecting Tenants Reinstated in 2018

History

During the subprime mortgage crisis, millions of homes were lost to foreclosure. Of these, many were inhabited by unsuspecting, blameless tenants who were forced to immediately vacate. In response, Congress enacted the Protecting Tenants at Foreclosure Act of 2009 (“PTFA”). [1]

Under the new law, if a lease preceded the foreclosure notice, the new owners could not force “bona fide”[2] tenants to move out before the end of their lease, unless they planned to use the property as their primary residence, or where the lease was month-to-month, in which case tenants still had to be given 90 days’ notice.

Problems with the PTFA

The PTFA was not widely known, was self-executing[3] and lacked enforcement mechanisms.  Amendments to include a private right of action were proposed in the House and Senate,[4] but never passed. Courts, upon scrutinizing the statute and its legislative history, determined it also lacked even an implied cause of action, and that because it was “silent as to any right or remedy” at best it merely created an eviction defense for tenants. Logan v. Us Bank National Association, 10-55671 (9th Cir. 2013).

The notice period rule was ill-defined, leaving it subject to unpredictable jurisdictional interpretation. In 2011, the Arizona Appellate Court addressed the notice issue. The parties’ dispute began when the Bank of New York acquired property at a trustee’s sale.  One day after recording the trustee’s deed, the bank sent the property’s month-to-month tenant a 5-day notice to vacate and threatened legal action for noncompliance. The tenant stayed. The bank filed a Forcible Entry and Detainer 97 days later. The tenant argued that the bank had not given her the requisite 90-day notice under the PTFA. The bank argued that it had, ultimately, given her 90 days.  The trial court, while acknowledging the inherent confusion in the PTFA’s notice requirement, sided with the bank.

Disagreeing, the Appellate Court held that because the bank’s written notice to vacate gave the tenant 5 days, the “unannounced 90-day delay” did not constitute appropriate notice under the PTFA’s requirement. Bank of New York Mellon v. De Meo, 254 P.3d 1138 (Ariz. Ct. App. 2011).

The PTFA Expires; The PTFA is Suddenly Restored

Despite its issues, the PTFA did create essential basic protections for tenants. Congress extended it through 2014, but then let it expire under its sunset provision after further revival efforts failed.

In 2018, Congress passed the Economic Growth, Regulatory Relief, and Consumer Protection Act (“Protection Act”). The Protection Act repealed the sunset provision of the PTFA, fully restoring it as if the provision had not taken effect. The repeal permanently reinstates protection for tenants in foreclosed residential properties in all states. The law preempts state laws that give tenants lesser protections, but does not limit state laws giving them greater ones.

If you are a tenant being subjected to a foreclosure eviction, our Tucson attorneys can help you to understand, and enforce, your rights and remedies under federal and state tenancy laws.

 

[1] 155 Cong. Rec. S20911 (daily ed. August 6, 2009)

[2] i.e. not the foreclosed mortgage-holder, their parent, child or spouse, where the lease was arms-length and the rent was not substantially less than fair market value unless it was subsidized.

[3]Federal Register, Vol. 74 No. 120

[4]159 Cong. Rec H7309 (daily ed. November 20, 2013); 159 Cong. Rec. S8457 (daily ed. November 21, 2013); 150 Cong. Rec S3425 (daily ed. June 4, 2014)

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