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House is in foreclosure; what are tenant's rights?

January 16, 2011|By Martin Eichner

Question: I have been renting a house for the last eight months. I rent on a month-to-month basis. Last week my landlord served me with a 30-day notice to terminate the tenancy. However, a month earlier there was a notice of trustee sale posted on my front door. I know enough about foreclosure to understand that the trustee sale will mean the end of my current landlord's ownership of the house. If the trustee sale occurs before my 30 days expire, can the new owner still enforce that notice and require me to leave?

Answer: Assuming you are a bona fide tenant under the federal Protecting Tenants at Foreclosure Act, the current 30-day notice will not be enforceable once the foreclosure trustee sale has occurred. "Bona fide" means that you are not related to the owner and can document a genuine rental agreement between you and your current landlord.

If you are a month-to-month bona fide tenant, the new owner taking title as a result of the trustee sale will be required to give you a new 90-day notice to terminate your tenancy. Even if you don't qualify as bona fide under the tenant protection law, California Code of Civil Procedure Section 1161b requires a new 60-day notice to terminate your tenancy after the trustee sale has occurred.

Of course, if your current 30-day notice expires before an actual trustee sale, you are subject to being evicted by the current owner. California law requires written notice of only the original trustee sale date, and in today's foreclosure atmosphere, these sale dates are often postponed one or more times. There is no easy way for you to keep track of the sale.

Before the sale, you can try to learn the status by contacting the person listed as "trustee" on the original notice that was posted at the house. Once the trustee sale has occurred, the new title will be recorded at the office of your county recorder. If people show up at your front door claiming to be the new owners or agents of the new owners, don't believe them unless they produce an actual deed properly recorded as a result of the trustee sale.

Eichner is director of Housing Counseling Programs for Project Sentinel, a Sunnyvale, Calif.-based mediation service. To submit a question, go to http://www.housing.org.

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