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Eviction Following Foreclosure

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Overview of the Foreclosure Process

For informaiton on the foreclosure process, please see Mortgage Foreclosure.

How To Find Out If Your Rental Unit Is In Foreclosure?

Knowing whether a prospective rental property or your current rental property is in foreclosure is very important.  Although you may pay your rent consistently and on time, if your rental unit is foreclosed upon, you may still be evicted by the new owner (although see below for information on legal protections that apply to you if your rental unit is foreclosed).

Although state law now requires a landlord to disclose in writing to a prospective tenant if the property to be rented is in foreclosure, people do not always comply with the law and there is no similar obligation as to current tenants.  To find out if a rental unit is in foreclosure:

    1. Go to the Clark County Assessor website;
    2. In the top left corner, click on address search and then enter the address;
    3. You should see a listing with the exact address. Click on the “parcel number” and write it down;
    4. Next, go to the Clark County Recorder website;
    5. Click on the “search records” link which is the second listing on the upper far left side of the site;
    6. Click on "Parcel #" and enter the relevant parcel number into the search screen and choose to see all document types or, under “Category,” select only foreclosure documents;
    7. This will give you your search results and should show whether or not a Default has been filed, meaning that the homeowner is delinquent in their mortgage payments, and if a Notice of Trustee Sale has been filed, meaning that the home is going to be sold.

Type of Notices

What notices you receive will depend on whether you are the tenant of a rental unit going into foreclosure or the owner.  If you are the owner of a property going into foreclosure, click here ( link to pg.) for information on your rights and obligations.

If you are the tenant of a residential rental unit that is in foreclosure, you should receive the following notices depending on the stage of the foreclosure process:

Prior to the rental unit being sold:
A Notice of Sale that is to be posted on the property and mailed to the tenant.  

After the rental unit has been sold or title transferred to the bank: 

After the appropriate notices have been given and the tenant has not moved:
The new owner of the home may serve the tenant with a complaint for eviction.

Tenant's Rights Following a Foreclosure Sale

Are You Renting a Residence Which Is Being Foreclosed Upon?

Under previous Nevada state law, if you were renting a dwelling unit which is foreclosed upon, you could be served with a notice requiring you to leave within 3 days.  If you did not leave the new owner could file an eviction action against you.

Effective 5/20/09, a new federal law grants you important new rights.  The Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22 includes a nationwide 90 day pre-eviction notice requirement for tenants in foreclosed properties.

Can the person, bank or other institution who buys the building at foreclosure make me leave right away?

No.  The new owner needs to end your tenancy by giving you a notice to leave of at least 90-days. If you have an unexpired lease, you may be able to stay until the end of the lease.

What can I do if the new owner says I have to leave in less than 90 days?

You can send a letter telling the new owner about the law. See the sample letters at the end of this section.

  • Keep a copy of the letter you send.
  • It may help to go to the post office and pay for a return receipt to make the new owner sign to prove they got your letter.
  • If you get a green receipt signed by the new owner in the mail, save it.

You must also offer to pay the new owner your rent and live up to the other terms of your lease.

What can I do if the new owner serves me with a notice to leave within 3 days?

You should contact a lawyer immediately.  See legal resources.

If you unable to contact a lawyer, call the new owner immediately.  Tell the new owner about the law and say that you are entitled to at least a 90 day notice.  State that if the new owner tries to evict you that you will defend based on the new law.

What happens if I don’t pay the new owner rent or violate other terms of my lease?

If you are late with your rent, the new owner can send you a notice giving you 5 days to pay, move or file an affidavit with justice court explaining that that you have a legal excuse not to pay. See How To Respond To An Eviction Notice/ Non-Payment of Rent  link   If you violate other terms of your lease the new owner can send you a notice stating that you either “cure” the breach of the lease or move within 5 days.  If you don’t cure and have not moved within 5 days, then the new owner can send you a notice giving you 5 days to move or file an affidavit with justice court explaining that that you have a legal excuse not to move.  See How To Respond To An Eviction Notice/ Lease Violations.

What if I have a lease that has more than 90 days left?

In most cases, the new owner cannot evict you until the end of the lease. There are two exceptions.

  • If the new owner wants to use your home as their primary residence, the new owner only has to give you a 90-day notice to leave after they become the owner.
  • If you do not pay your rent or violate other terms of my lease the new owner may evict you as described above.

What must the 90 day notice say?

The new federal law applies to both single family homes and large apartment complexes. It also applies to weekly as well as monthly rentals.  It does not specify what the notice should say.

Effective 10/1/09, NRS 40.255 creates additional notice requirements for “residential (4 units or less) foreclosures” of dwellings rented by the month or longer.  The 90 day period should be contained in a notice of change of ownership which must include a statement:

   (a) Giving the contact information for the person to whom rent should be paid;

   (b) Notifying you that the rental agreement with the previous owner or landlord continues in effect through the notice period, and

   (c) Notifying you that failure to pay rent or comply with any other term of the agreement or applicable law constitutes a breach of the rental agreement and may result in eviction proceedings.

For larger complexes and dwellings of all sizes rented for periods shorter than 30 days no specific form of notice is required.  For both “residential foreclosures” and large complexes the notice must allow you the time required to move under the new federal law.  If the new federal law is not extended by Congress, state law notice periods will govern.

What if I do not want to stay 90 days or for the remainder of my lease?

Effective 10/1/09, NRS 40.255 following “residential (4 units or less) foreclosures” of dwellings rented by the month or longer, tenants may vacate at any time during the notice period without penalty.  No record of eviction may be entered if you vacate within the notice period.

In any case, you may be able to negotiate to see what the new owner might offer if you agree to move early.  Many banks which foreclose may offer you a “cash for keys” option.

What if I wish to continue renting the dwelling?

You may be able to negotiate to see what the new owner might offer you a new lease or agree that you can remain longer than 90 days. 

When should I first be informed that my dwelling is in foreclosure?

For most tenants the 90 day notice should come as no surprise.  Starting 10/1/09, NRS 107 requires in “residential (4 units or less) foreclosures” that at the same time the lender serves the owner (your landlord) with a “notice of default and election to sell”. that you get written notice which allows you to break the lease and move at any time.  This notice should come at least 90 days prior to the foreclosure sale.  That notice must also describe your rights and responsibilities under Nevada eviction procedures.  The notice must be both posted on the property and mailed to you.

The separate notice must be in substantially the following form, which describes a tenant's rights in the event of a mortgage foreclosure.

What can I do if the new owner serves me with a summons and complaint asking a court to evict me without giving me notice?

You should contact a lawyer immediately.  See legal resources. 

If you unable to contact a lawyer, go to the Clerk of the court on the summons and complaint immediately. File an answer with the court that says the new owner failed to give the notice required by the Protecting Tenants at Foreclosure Act, Pub. L. No. 111-22, §702 (2009).   You may obtain a form answer with instructions.

Go to court on the date the court sets for a trial and take with you:

  1. the copy of your letter to the new owner,
  2. the green return receipt, if you received one,
  3. the copy of the new law that is attached to this notice and
  4. a copy of your lease, if you have one.

What can I do if a sheriff or constable arrives at my door to evict me?

Tell the sheriff or constable that if you received no eviction notices or you were not served with a summons and complaint.  Ask for time to go to court to get the order evicting you set aside.

You should contact a lawyer immediately.  See legal resources.

If you unable to contact a lawyer, go to the Clerk of the court on the eviction order immediately. Say that you want to file an emergency motion to vacate the eviction order.

What happens to my security deposit?

The previous owner is required by NRS 118A.244 to either (a) return your security deposit or (b) transfer it to the new owner.  Frequently, however, that return or transfer does not take place.  However, in any cases the new owner “ has the rights, obligations and liabilities of the former landlord as to any securities which are owed at the time of transfer”.

What if I am a section 8 tenant?

You have all of the rights listed above regarding your lease and the requirement that the owner give you a 90-day notice to leave.

You also have additional protections.

  • The Section 8 Housing Assistance Payment contract continues.
  • The foreclosure is not a lawful reason to terminate your lease.

Call your Section 8 worker and tell the worker what is happening. You can also send a letter telling the new owner about the law. See the sample letters at the end of this section.

What can happen if I do not leave by the end of the notice period?

If you do not leave voluntarily or enter into an agreement which allows you to stay, the new owner may evict you at the end of the notice period (90 days or the expiration of the lease).  To evict you the new owner must serve you with a summons and complaint. 

May I be evicted after my home is sold at a foreclosure sale?

Yes.  After the foreclosure sale the highest bidder (usually lender) becomes the new owner.  If you do not leave voluntarily or enter into an agreement which allows you to stay, the new owner may evict you.

What must the new owner do prior to evicting me?

Prior to filing an eviction action with the court  NRS 40.255 requires the new owner to first serve you with a 3 day “notice to quit”.  If you do not move out within 3 judicial days (excludes weekends and holidays), the new owner may serve you with a Summons and Complaint for Unlawful Detainer which asks the court for an order evicting you.

I heard that a new federal law gives me 90 days to move following foreclosure.  Doesn’t it protect me?

The “Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22” does not protect a homeowner who defaults on a mortgage.  It only protects “bona fide” tenants who were renting from the owner at the time of foreclosure.

Can I rent to a friend or a family member in to get the extra 90 days?

Under the “Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22”, a lease or tenancy shall be considered bona fide only if--

  • the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant;
  • the lease or tenancy was the result of an arms-length transaction; and
  • the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit's rent is reduced or subsidized due to a Federal, State, or local subsidy.

What can I do if I get a 3 day “notice to quit”?

If the foreclosure sale was legitimate, you will need to move unless you make an agreement with the new owner which allows you to stay.  For example, the new owner may agree to rent the property to you.  Also to save the cost of evicting you, the new owner may agree to give you extra time to move.  If you are unwilling or unable to reach an agreement with the new owner you may remain until a court orders you to move.

What can I do if I am served with Summons and Complaint for Unlawful Detainer?

Your basic choices are to do nothing or respond by filing an answer.  If you do not file an answer within the time specified, the new owner may apply to the court for a default judgment against you.  Generally you have 20 days to answer but the new owner (now called the Plaintiff) may have obtained an order from the court “shortening the time to answer”.  If so , you must file your answer within the shortened time or face a default.  Under JCRCP 108, the time to answer may not be shortened to less than 10 calendar days after service of the summons and complaint.

What can I gain by filing an answer?

Filing an answer can get extra time to move if the new owner will not agree voluntarily.  You can get extra time 3 ways.  First you may get the eviction dismissed if you have a defense.  For example, if the new owner failed to properly serve you with a 3 day notice to quit, the court could dismiss the eviction and force the new owner to start the process again by serving you with a new 3 day notice.  Second, the court process including holding a hearing will add time.  Third, you may ask the judge to delay the day that a sheriff or constable can evict you by granting “stay of execution” to give you extra time to move.

In unusual cases, filing an answer may lead to the possibility of reopening the foreclosure it self if it was not done legally.  This will probably necessitate the services of an attorney.

Can I lose anything by filing an answer?

When you file an answer, you will need to pay a filing fee unless the court grants a waiver based upon your inability to pay.  Under NRS 69.020 and NRS 69.030. if the court ultimately decides that the Plaintiff is entitled to evict you the court may order that you pay the Plaintiff’s costs including attorneys’ fees.  The Plaintiff may also ask the Court to award money damages if you damage the property (commit “waste”).

How do I file an answer?

You may obtain a form answer with instructions.

What can I do if I am also served with an order to show cause?

In addition to serving you with a Summons and Complaint for Unlawful Detainer, the Plaintiff may also serve you with an order to show cause why a temporary writ of restitution should not be issued.  A writ of restitution is an order from the court evicting you.  A temporary writ of restitution gives possession to the Plaintiff pending a final order at the end of the case.  A Plaintiff must post a bond to get a temporary writ of restitution. 

Except for extraordinary circumstances, an order to show cause hearing to determine whether a temporary writ of restitution shall issue may not occur until at least 11 calendar days after service of a summons and complaint. 

The “show cause” hearing is not the trial on the merits.  Under JCRCP107, a trial to enter a permanent writ evicting you can be set no earlier than 20 calendar days after service of summons and complaint.  If a “show cause” hearing is scheduled, a default judgment shall not be entered until such hearing has occurred, even if the time to answer has passed.

You should appear at the hearing to tell the judge about any defenses which you have.  You can also request a stay (extra time to move if you need it).  If the hearing is held earlier than 20 calendar days after service of the summons and complaint on you, remind the judge that under JCRCP 107 a trial on the merits to enter a permanent writ evicting must be scheduled at a later date

Should I move before the sheriff or constable locks me out?

Yes.  If an order evicting you is entered, make every effort to move yourself and all of your belonging out before the sheriff or constable locks you out .  If you cannot remove your belongings in time, try to schedule a reasonable time to return for them.  If you do not remove them within a reasonable time, the new owner may store them and charge you a reasonable fee.  Later they may be sold to pay the fee.

Sample Letters

Sample Letter for Non Section 8 Tenant to Send to New Owner
Date: _________________
To: _________________
_________________
_________________
Dear Landlord,
I am writing this letter in response to the notice of termination dated _________.
The Protecting Tenants at Foreclosure Act, Pub. L. No. 111-22, §§ 701-704 (2009), which became law on May 20, 2009, applies to state eviction proceedings.
This act requires that a new owner who took title to residential rental property through foreclosure must honor existing leases until the end of the lease term.
There are three exceptions to this rule: 1) if there is an existing term lease and the new owner wants to occupy the foreclosed property as a personal residence before the end of the lease term, 2) if there is an existing term lease with less than 90 days to the end of the lease term, or 3) if the existing lease on the foreclosed property is a month-to-month tenancy or a tenancy at will. In each of these cases, the owner must provide the tenant at least 90 days notice to terminate the tenancy.
Because the notice sent on __________does not comply with this law, I ask that you rescind (withdraw) the notice.
Sincerely,
________________
Tenant name


Sample Letter for Section 8 Tenant to send to the Landlord
(Name and address of tenant)
(Name and address of owner)
_________________
_________________
_________________
Date:
Dear Landlord,
I am writing this letter in response to the notice of termination dated _________.
The Protecting Tenants at Foreclosure Act, Pub. L. No. 111-22, § 702 - 703 (2009), that became law on May 20, 2009, applies to state eviction proceedings. This law requires a person or entity who acquires ownership of residential rental property through foreclosure to take subject to (be legally bound by) the Section 8 voucher lease and Housing Assistance Payments (HAP) contract. A new owner can only terminate the lease and HAP contract by giving the tenant at least 90 days notice of termination prior to the end of the lease. If the Section 8 lease and HAP contract have less than 90 days remaining in their term, or if the new owner who takes title at foreclosure wants to occupy the premises as his or her personal residence, the new owner may terminate the lease only after giving the tenant at least 90 days notice of such termination.
Because the notice sent on __________falls short of the 90-day notice required by law, I ask that you rescind (withdraw) the notice.
Sincerely,
________________
Tenant name

Eviction of Occupants Following a Foreclosure Sale - Landlords

How can the purchaser of residential property at foreclosure sale evict the occupants?

The answer depends upon who the occupants are.  If you purchase a dwelling unit at a foreclosure sale which is occupied by the previous owner (the person who defaulted on the mortgage) you can serve the occupants under NRS 40.255 with a notice requiring them to leave within 3 days.  If the occupants do not leave you can file a “formal eviction” action against them.  See How To File A “Formal” Eviction Action.

If however, the dwelling is occupied by bona fide (legitimate) tenants who were renting from the previous owner, different rules apply.  Effective 5/20/09, a new federal law grants new rights  to tenants.  The Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22 includes a nationwide 90 day pre-eviction notice requirement for tenants in foreclosed properties.  Unless extended by Congress, the Act expires on December 31, 2012.

How do I know if the occupants are “bona fide” tenants?

The Helping Families Save Their Homes Act of 2009 only protects “bona fide” tenants who were renting from the owner at the time of foreclosure.  Under the Act, a lease or tenancy shall be considered “bona fide” only if--

  • the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant;
  • the lease or tenancy was the result of an arms-length transaction; and
  • the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit's rent is reduced or subsidized due to a Federal, State, or local subsidy.

Can a purchaser at foreclosure sale make tenants leave right away?

No.  You must first to end the tenancy by giving a 90-day notice to leave. Moreover, if the tenants have an unexpired lease, they may be able to stay until the end of the lease. If the occupants are not “bona fide” tenants, you may serve the occupants under NRS 40.255 with a notice requiring them to leave within 3 days.  If the occupants do not leave you can file a “formal eviction” action against them.  See How To File A “Formal” Eviction Action.

What is the procedure for giving the 90 day notice ?

The new federal law applies to both single family homes and large apartment complexes.   For larger complexes (5 units and more) no specific form of notice is required. 

Effective 10/1/09, NRS 40.255 creates additional notice requirements for “residential (4 units or less) foreclosures”.  You must send a notice of the change of ownership which must contain a statement:

   (a) Giving the contact information for the person to whom rent should be paid;

   (b) Notifying the tenant that the rental agreement with the previous owner or landlord continues in effect through the notice period, and

   (c) Notifying the tenant that failure to pay rent or comply with any other term of the agreement or applicable law constitutes a breach of the rental agreement and may result in eviction proceedings.

For both “residential foreclosures” and larger complexes the notice must allow the tenant the time required to move under the new federal law.  If the new federal law is not extended by Congress, state law notice periods will govern.

How do I serve the notice on the tenant?

Thenotice must be served under NRS 40.280 in one of the three following ways: 

1.         Serving the tenant personally, in the presence of a witness;

            2.         If the tenant is not at the rental premises, leaving a copy with a person of suitable age and discretion” (at least 14 years old) in which case a copy must also be mailed to the tenant; or

            3.         If the tenant’s place of residence or business cannot be ascertained, or a person of suitable age or discretion cannot be found there, you can post a copy of the notice on a conspicuous place at the rental unit and mail a copy to the tenant.  NRS 40.280(1)

Please note, that if you later must seek a court order evicting the tenant, you must file a “proof of service” with the court.  If you do not have the required documentation, the court may require you to start over again with a new notice. The “proof of service” must include either:

            1.         A statement, signed by the tenant and a witness, acknowledging that the tenant received the notice on a specified date;

            2.         A certificate of mailing issued by the United States Postal Service (certificates of mailing issued by contract postal units will not suffice); or

            3.         The endorsement of a sheriff, constable or other process server stating the time and manner of service.

What happens if the tenant fails to pay rent or violates other terms of the rental agreement during the notice period?

During the notice period you step into the shoes of the former landlord.  Both you and the tenant have the rights and responsibilities set out in the Nevada Residential Landlord and Tenant Act at NRS Chapter 118A.  Therefore, if the tenant is late with rent, you can serve a notice giving the tenant 5 days to pay, move or file an affidavit with justice court contesting the eviction.  See How To File A Summary Eviction Action.  If the tenant violates other terms of the rental agreement you can serve a notice stating that the tenant must either “cure” the breach or move within 5 days.  If the tenant fails to cure and has not moved within 5 days, then you can send the tenant a 5 day notice to move or file an affidavit with justice court contesting the eviction.  See How To File A Summary Eviction Action.

What if the tenant has a lease with more than 90 days remaining?

In most cases, you cannot evict the tenant until the end of the lease. There are two exceptions. First, if you want to use the dwelling as your primary residence, you are required to give the tenant only a 90-day notice to leave. Second, if the tenant fails pay rent or violate other terms of the lease you may evict the tenant as described above.

What if the tenant does not want to stay 90 days or for the remainder of the lease?

You and the tenant may negotiate for an earlier move.  For example, you could offer some financial incentive to leave sooner.

Starting 10/1/09, NRS 40.255 allows the tenant of a “single family residence” to break the lease and move at any time after you purchased the property at foreclosure sale.  A “single family residence” means a structure that is comprised of not more than four units.  If such tenants move within the notice period no record of eviction may be entered against them.

What happens to the tenant’s security deposit?

The former owner is required by NRS 118A.244(1) to either (a) return the tenant’s security deposit or (b) transfer it to the new owner (you).  Frequently, however, that return or transfer does not take place.  In any case you have the same “the rights, obligations and liabilities of the former landlord as to any securities which are owed at the time of transfer”.  See NRS 118A.244 (1)(b).  Therefore you must either pay the tenant an amount equal to the security deposit or send a itemized list of deductions for claimed damages to the tenant  within 30 days under NRS 118A.242(2). Caution: if you do neither the tenant may sue you for an amount equal to double the security deposit.  See NRS 118A.242(3).

What if the occupant is a section 8 tenant?

A Section 8 tenant has a portion of the rent paid by a public housing authority (PHA) pursuant to a lease and a Housing Assistance Payment (HAP) contract with the former owner.  Section 8 tenants have all of the rights under the Helping Families Save Their Homes Act of 2009 listed above. They also have two additional protections: (1) the HAP contract continues in effect with you taking the place of the previous owner and (2) the foreclosure is not a lawful reason to terminate the tenant’s lease.   If the occupant claims to be a section 8 tenant, contact your local PHA.

What can I do if the tenant has not left voluntarily by the end of the notice period?

After the expiration of the notice period, you may serve the occupants with a Summons and Complaint for Unlawful Detainer which asks the court for an order evicting them.  How To File A Summary Eviction Action.

After obtaining possession, what duty do I have to maintain the vacant property?

Any vacant residential property purchased at a foreclosures sale pursuant to NRS must be maintained in compliance with both local ordinances and new provisions of NRS Chapter 107, effective 10-1-09 requiring the purchaser to care for the exterior of the property, including:

(a) Limiting the excessive foliage which could lower property values;

(b) Preventing trespassers from staying on the property;

(c) Preventing mosquito larvae from growing in standing water; and

(d) Preventing any other condition that creates a public nuisance.

If the purchaser violates the law and fails to correct the problem following notice, a civil penalty of up to $1,000 a day may be imposed.

Obligations Of Landlords Facing A Foreclosure Sale

May I rent property which is the subject of foreclosure proceedings?

Yes, but you must disclose in writing to a prospective tenant that the property to be leased is subject to foreclosure.   A willful violation of this requirement constitutes a “deceptive trade practice” for which you may be sued by the prospective tenant or the Attorney General of Nevada.

May a tenant break a lease if the property goes into foreclosure?

Starting 10/1/09, NRS 107 requires that at the same time the trustee serves you with a “notice of default and election to sell” that the tenant occupants be given written notice which allows them to either: (1) terminate the lease or rental agreement and move out or (2) remain and possibly be subject to eviction proceedings.   That notice must also describe their rights and responsibilities under Nevada eviction procedures.  The notice must be both posted on the property and mailed to the tenants.

Regional Justice Center
200 Lewis Avenue
Las Vegas, NV 89155

Family Courts and Services Center
601 N. Pecos
Las Vegas, NV 89155

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