Tuesday, November 16, 2010
Tenant Rights and Legal Defense: Tenants Have Rights Even After Foreclosure
Tenant Rights and Legal Defense: Tenants Have Rights Even After Foreclosure: "Tenants renting houses, condominiums or apartments that have been sold at foreclosure are often caught by surprise when they learn that the ..."
Monday, October 18, 2010
Tenants Have Rights Even After Foreclosure
Tenants renting houses, condominiums or apartments that have been sold at foreclosure are often caught by surprise when they learn that the landlord has lost the property. Many times the landlord or leasing company keeps tenants in the dark as long as possible and tenants may not even be aware of the foreclosure until after the property has already been sold. Even though these circumstances may be a surprise and a hardship, tenants do have rights in this situation and should not be afraid to assert them. These rights will not allow you to stay in the property for the long term, however, they are designed to allow tenants enough time to move from the residence with a sense of order instead of an abrupt dislocation.
After a property has been sold at a foreclosure, the new owner must give those who live at the property notice that the property has been sold and that their lease interests have been terminated. Under Federal law, this notice must give the tenants living in a foreclosed property at least 90 days to vacate. If the tenant has a fixed term lease which extends longer than 90 days, then under certain circumstances, that tenant can remain in possession for the full term of the lease provided that he or she continues to pay rent to the new owner. If the lease is not for a fixed term, or if the term of the lease will expire before the end of 90 days, then the tenant does not have to pay rent to the new owner during the 90 day period to vacate. If a tenant remains living in a foreclosed property beyond 90 days after receiving notice to vacate the property, then the new owner may proceed to court and file an unlawful detainer to evict the tenants.
After a property has been sold at a foreclosure, the new owner must give those who live at the property notice that the property has been sold and that their lease interests have been terminated. Under Federal law, this notice must give the tenants living in a foreclosed property at least 90 days to vacate. If the tenant has a fixed term lease which extends longer than 90 days, then under certain circumstances, that tenant can remain in possession for the full term of the lease provided that he or she continues to pay rent to the new owner. If the lease is not for a fixed term, or if the term of the lease will expire before the end of 90 days, then the tenant does not have to pay rent to the new owner during the 90 day period to vacate. If a tenant remains living in a foreclosed property beyond 90 days after receiving notice to vacate the property, then the new owner may proceed to court and file an unlawful detainer to evict the tenants.
Unlike a tenant living in a foreclosed property, the former owner must vacate the house or condominium within 3 days. Most notices that are posted on properties after foreclosure include a reference to the 90 days that a tenant can remain in possession, but often emphasize that owners must leave within 3 days. Some also make it sound as though many tenants will not qualify for the 90 day period. The reason for this is that the people who manage the property for the buyer at foreclosure, usually real estate brokers, want to get the occupants out of the house as quickly and inexpensively as possible. Many times these agents will show up at the house and offer cash for keys if you are a “bona fide tenant.” They will often ask to see rental agreements or other proof that someone is actually residing in the property as a tenant. A tenant is under no obligation to disclose any information about whether he or she is a tenant, and many times the person offering to discuss your bona fides as a tenant will tell you whatever they think is likely to make you want to move.
The truth is that it is not a difficult standard under the law to show that you are a bona fide tenant. All that is required is that you have lived at the property since before it was sold at foreclosure, that you paid a reasonable amount of rent, and that you not be related to the former owner. Even if you are behind on the rent, or you don't have a written rental agreement, if you are a tenant that meets the qualifications mentioned above, then you have a right to remain in possession for 90 days after receiving notice of the foreclosure sale.
Many of the owners that buy properties at foreclosure simply choose to go ahead and file an unlawful detainer action to evict the occupants at the property by suing the former owner and Does, or unknown occupants. The reason that they do this is because it forces the tenants living at the property to file a response in court if they want to take advantage of the 90 day period to remain in possession. The Plaintiff must give a copy of the summons and complaint to the people living in the house. Witihin this packet there will be a document entitled Prejudgment Claim of Right to Possession. If a tenant residing at the property receives such a complaint before the expiration of 90 days notice, then he or she needs to go to court and complete and file this Claim form. If the court does not receive any Claim of Right to Possession from a tenant at the property within 10 days that the complaint is served, then the Plaintiff seeking to evict can asks for a default judgment to be entered against the former owner and all unknown occupants. The court will usually grant the default judgment and issue a writ for the Sheriff to evict all occupants. This can happen in just a matter of a couple weeks.
If you are a tenant living in a property that was recently foreclosed and you receive a summons and complaint which names the former owner of the property as the defendant, then it is very important that you contact an attorney that handles unlawful detainers or your local legal aid society.
For more information on another blog devoted to this subject check out http://tenantsforeclosure.blogspot.com/
If you or someone you know someone living in a place that may be affected by foreclosure, please tell them they do have rights. They should try to speak with a lawyer if possible. If they qualify for the free services provided by the Legal Aid Society, they can call 877-534-2524 for help. Help in filling out legal forms is available at clinics in the Courthouses.
The following information applies to residents of foreclosed homes within San Diego County:
For South County residents, Unlawful Detainer Clinic is held Monday through Friday from 9AM to 12:30 at the Southbay Courthouse, 500 West Third Avenue, 1st Floor, Room 155, Chula Vista, California.
For more information regarding attorneys that represent tenants, visit us at www.tenantdefenders.com.
This article is for informational purposes only and does not constitute legal advice since it does not apply to any particular case, situation, or set of facts.
The truth is that it is not a difficult standard under the law to show that you are a bona fide tenant. All that is required is that you have lived at the property since before it was sold at foreclosure, that you paid a reasonable amount of rent, and that you not be related to the former owner. Even if you are behind on the rent, or you don't have a written rental agreement, if you are a tenant that meets the qualifications mentioned above, then you have a right to remain in possession for 90 days after receiving notice of the foreclosure sale.
Many of the owners that buy properties at foreclosure simply choose to go ahead and file an unlawful detainer action to evict the occupants at the property by suing the former owner and Does, or unknown occupants. The reason that they do this is because it forces the tenants living at the property to file a response in court if they want to take advantage of the 90 day period to remain in possession. The Plaintiff must give a copy of the summons and complaint to the people living in the house. Witihin this packet there will be a document entitled Prejudgment Claim of Right to Possession. If a tenant residing at the property receives such a complaint before the expiration of 90 days notice, then he or she needs to go to court and complete and file this Claim form. If the court does not receive any Claim of Right to Possession from a tenant at the property within 10 days that the complaint is served, then the Plaintiff seeking to evict can asks for a default judgment to be entered against the former owner and all unknown occupants. The court will usually grant the default judgment and issue a writ for the Sheriff to evict all occupants. This can happen in just a matter of a couple weeks.
If you are a tenant living in a property that was recently foreclosed and you receive a summons and complaint which names the former owner of the property as the defendant, then it is very important that you contact an attorney that handles unlawful detainers or your local legal aid society.
For more information on another blog devoted to this subject check out http://tenantsforeclosure.blogspot.com/
If you or someone you know someone living in a place that may be affected by foreclosure, please tell them they do have rights. They should try to speak with a lawyer if possible. If they qualify for the free services provided by the Legal Aid Society, they can call 877-534-2524 for help. Help in filling out legal forms is available at clinics in the Courthouses.
The following information applies to residents of foreclosed homes within San Diego County:
For South County residents, Unlawful Detainer Clinic is held Monday through Friday from 9AM to 12:30 at the Southbay Courthouse, 500 West Third Avenue, 1st Floor, Room 155, Chula Vista, California.
- For East County residents, Unlawful Detainer Clinic is held Mondays, Wednesdays, Fridays from 8:30AM to 12 noon and Tuesdays and Thursdays from 9:30AM to 12 noon at the East County Courthouse, 250 East Main Street, 1st Floor next to Department 1, El Cajon, California.
- For Central residents, Unlawful Detainer Clinic is held Monday through Friday from 1PM to 3PM and Tuesdays and Thursdays from 9AM to 12 noon at the Hall of Justice, 330 West Broadway, 2nd Floor, Civil Business Filing Office, San Diego, California, 92101.
- For North County residents, Unlawful Detainer Clinic is held Mondays and Thursdays from 12 noon to 3PM in Department 35-Annex at the North County Courthouse, 325 South Melrose Drive, Vista, California 92081. Spanish-speakers must bring a translator.
For more information regarding attorneys that represent tenants, visit us at www.tenantdefenders.com.
This article is for informational purposes only and does not constitute legal advice since it does not apply to any particular case, situation, or set of facts.
Friday, October 15, 2010
San Diego Tenants Right to Know Regulation
Are there any laws in San Diego that prevent a landlord from evicting a tenant?
In California, there are no statewide laws that prevent a landlord from evicting a tenant, provided that the landlord gives the appropriate written notice to terminate. There are many cities that have enacted ordinances to protect tenants and limit how and when landlords can raise rents and evict tenants. The City of San Diego does not have any rent control, however, The Tenants Right to Know Regulation is a San Diego Municipal Ordinance enacted in 2004 that provides residential tenants with some protection against arbitrary evictions.
The ordinance requires that if a tenant has lived at the same residence for at least two years, then a landlord wishing to terminate the tenancy must provide a written notice that explains why the tenancy is being terminated. Note that this law does not apply to non-payment of rent cases, which can be brought by a landlord if the rent is due and unpaid after giving three days written notice to the tenant demanding the payment of rent.
The Tenants' Right to Know Regulation includes a list of permissible reasons why a landlord may evict even a long-term tenant. If your landlord is trying to evict you for a reason that is not included among the acceptable reasons listed, or doesn't list a reason at all, then you have a right to demand the reason why the tenancy is being terminated, and if your landlord attempts to evict you with giving a valid reason, then you have a legal defense in court. Contact a us at www.tenantdefenders.com.
The text of the regulation in full follows below.
§98.0701 Purpose of Tenants’ Right to Know Regulations
The purpose of these regulations is to promote stability in the San Diego rental
housing market and limit adverse impacts on long-term residential tenants displaced
and forced to find replacement housing in the expensive and limited San Diego
housing market. The regulations protect the rights of long-term residential tenants by
limiting grounds for their eviction and requiring landlords to provide notice of such
grounds. The rights conferred by these regulations are in addition to any provided in
state or federal law.
§98.0702 When Tenants’ Right to Know Regulations Apply
This division applies to the rental of any rental unit (as defined in section 98.0720) in
the City except as specifically exempted in section 98.0725.
§98.0720 Definitions
The following definitions apply to the administration and enforcement of this
division:
“Condominium” means the same as defined in sections 783 and 1357 of the
California Civil Code.
“Landlord” means an owner, lessor, sublessor or any other person or entity entitled to
offer any residential unit for rent or entitled to receive rent for the use and occupancy
of any rental-unit.
“Resident manager” means a person who resides on the premises and is employed to
perform or to be responsible for the operation and/or maintenance of the rental-units
on the premises.
“Rental-unit” means a room or a group of two or more rooms designed, intended, or
used for human habitation. Rental-units include apartments, condominiums, stock
cooperatives, single-dwelling units, and hotel units not exempted under section
98.0725.
“Single-dwelling unit” means a single detached structure containing one dwelling unit
for human habitation and accessory buildings appurtenant thereto located on a lot or
parcel and all housing services provided in connection with the use or occupancy
thereof.
“Stock cooperative” means the same as defined in California Business and
Professions Code section 11003.2.
“Tenancy” means the right or entitlement of a tenant to use or occupy a rental-unit.
§98.0725 Exemptions
The following shall be exempt from the requirements of this division:
(a) Institutional Facilities. Housing accommodations in any hospital, convent,
monastery, extended care facility, asylum, nonprofit home for the aged,
fraternity, or sorority house, housing accommodations owned, operated, or
managed by a bona fide educational institution for occupancy by its students
or rental-units that require intake, case management or counseling and an
occupancy agreement as part of the occupation.
(b) Agency Owned or Subsidized Units. Any rental-unit owned, operated, or
subsidized by any government agency, and which is therefore subject to
substantially similar or greater state or federal eviction controls.
(c) Rooms Rented to Boarders. A rental-unit in which the landlord owns the
rental-unit, shares kitchen or bath facilities with the tenants, and also occupies
the rental-unit or a unit in the same building as his or her principal residence.
(d) Rental-Units in Hotels, Motels, or Rooming Houses Rented to Transient
Guests which do not qualify as Single Room Occupancy Hotel Rooms
pursuant to San Diego Municipal Code Chapter 14, Article 3, Division 5.
(e) Mobile Homes. Mobile homes subject to Mobilehome Residency Law
(California Civil Code, Chapter 2.5).
(f) Transient occupancies defined by California Civil Code section 1940(b).
§98.0730 Termination of Tenancy
A residential tenancy of more than two years duration shall not be terminated, nor
shall its renewal be refused, except for one or more of the following reasons:
(a) Nonpayment of Rent.
(b) Violation of Obligation of Tenancy. The tenant has violated a lawful and
material obligation or covenant of the tenancy, except that the following may
not be grounds for termination or nonrenewal of a tenancy:
(1) The failure to surrender possession of the rental-unit upon the
expiration of a specified term, except as provided in
section 98.0730(e);
(c) Nuisance. The tenant is committing a nuisance or permitting a nuisance in, or
is causing damage to, the rental-unit or to the appurtenances thereof or to the
common areas of the housing complex containing the rental-unit, or is
creating an unreasonable interference with the comfort, safety, or enjoyment
of any of the other residents of the housing complex.
(d) Illegal Use. The tenant is using or permitting the rental-unit to be used for an
illegal purpose.
(e) Refusal to Renew Lease. The tenant who had a written lease or rental
agreement which terminated on or after April 26, 2004 has refused, after
written request by the landlord, to execute a written extension or renewal
thereof within the written period prescribed by the lease or state law for a
further term of like duration with similar provisions.
(f) Refusal to Provide Access. The tenant has refused to give the landlord
reasonable access to the rental-unit for the purpose of making repairs or
improvements, or for the purpose of inspection as permitted or required by the
lease or by law, or for the purpose of showing the rental-unit to any
prospective purchaser or mortgagee.
(g) Correction of Violations. The landlord, after having obtained all necessary
permits from the City of San Diego, seeks to recover possession of the rentalunit
for necessary repair or construction when removal of the tenant is
reasonably necessary to accomplish the repair or construction work.
(h) Withdrawal of Residential Rental Structure from the Rental Market. The
landlord intends to withdraw all rental-units in all buildings or structures on a
parcel of land from the rental market.
(i) Owner or Relative Occupancy. The landlord, or his or her spouse, parent,
grandparent, brother, sister, child, grandchild (by blood or adoption), or a
resident manager plans to occupy the rental unit as their principal residence.
§98.0750 Notice to Tenant
Any landlord who attempts to terminate a tenancy pursuant to any of the grounds set
forth in section 98.0730 shall provide the tenant a written notice to quit or terminate
which recites the grounds under which the landlord is proceeding. The landlord shall
provide the notice prior to or at the same time as the written notice of termination set
forth in Civil Code section 1946, or a three-day notice described in Code of Civil
Procedure sections 1161 and 1161a, is served on the tenant
§98.0760 Affirmative Defense
In any action by a landlord to recover possession of a rental-unit, the tenant may
raise as an affirmative defense any violation or noncompliance with the provisions of
this division.
If you live in the City of San Diego and have received a notice to terminate your tenancy that you believe violates the City ordinance, then you should talk to an attorney about your situation.
Speak to a tenants lawyer about your situation
In California, there are no statewide laws that prevent a landlord from evicting a tenant, provided that the landlord gives the appropriate written notice to terminate. There are many cities that have enacted ordinances to protect tenants and limit how and when landlords can raise rents and evict tenants. The City of San Diego does not have any rent control, however, The Tenants Right to Know Regulation is a San Diego Municipal Ordinance enacted in 2004 that provides residential tenants with some protection against arbitrary evictions.
The ordinance requires that if a tenant has lived at the same residence for at least two years, then a landlord wishing to terminate the tenancy must provide a written notice that explains why the tenancy is being terminated. Note that this law does not apply to non-payment of rent cases, which can be brought by a landlord if the rent is due and unpaid after giving three days written notice to the tenant demanding the payment of rent.
The Tenants' Right to Know Regulation includes a list of permissible reasons why a landlord may evict even a long-term tenant. If your landlord is trying to evict you for a reason that is not included among the acceptable reasons listed, or doesn't list a reason at all, then you have a right to demand the reason why the tenancy is being terminated, and if your landlord attempts to evict you with giving a valid reason, then you have a legal defense in court. Contact a us at www.tenantdefenders.com.
The text of the regulation in full follows below.
San Diego Municipal Code Chapter 9: Building, Housing and Sign Regulations
Article 8: Housing
Division 7: Tenants’ Right to Know Regulations
§98.0701 Purpose of Tenants’ Right to Know Regulations
The purpose of these regulations is to promote stability in the San Diego rental
housing market and limit adverse impacts on long-term residential tenants displaced
and forced to find replacement housing in the expensive and limited San Diego
housing market. The regulations protect the rights of long-term residential tenants by
limiting grounds for their eviction and requiring landlords to provide notice of such
grounds. The rights conferred by these regulations are in addition to any provided in
state or federal law.
§98.0702 When Tenants’ Right to Know Regulations Apply
This division applies to the rental of any rental unit (as defined in section 98.0720) in
the City except as specifically exempted in section 98.0725.
§98.0720 Definitions
The following definitions apply to the administration and enforcement of this
division:
“Condominium” means the same as defined in sections 783 and 1357 of the
California Civil Code.
“Landlord” means an owner, lessor, sublessor or any other person or entity entitled to
offer any residential unit for rent or entitled to receive rent for the use and occupancy
of any rental-unit.
“Resident manager” means a person who resides on the premises and is employed to
perform or to be responsible for the operation and/or maintenance of the rental-units
on the premises.
“Rental-unit” means a room or a group of two or more rooms designed, intended, or
used for human habitation. Rental-units include apartments, condominiums, stock
cooperatives, single-dwelling units, and hotel units not exempted under section
98.0725.
“Single-dwelling unit” means a single detached structure containing one dwelling unit
for human habitation and accessory buildings appurtenant thereto located on a lot or
parcel and all housing services provided in connection with the use or occupancy
thereof.
“Stock cooperative” means the same as defined in California Business and
Professions Code section 11003.2.
“Tenancy” means the right or entitlement of a tenant to use or occupy a rental-unit.
§98.0725 Exemptions
The following shall be exempt from the requirements of this division:
(a) Institutional Facilities. Housing accommodations in any hospital, convent,
monastery, extended care facility, asylum, nonprofit home for the aged,
fraternity, or sorority house, housing accommodations owned, operated, or
managed by a bona fide educational institution for occupancy by its students
or rental-units that require intake, case management or counseling and an
occupancy agreement as part of the occupation.
(b) Agency Owned or Subsidized Units. Any rental-unit owned, operated, or
subsidized by any government agency, and which is therefore subject to
substantially similar or greater state or federal eviction controls.
(c) Rooms Rented to Boarders. A rental-unit in which the landlord owns the
rental-unit, shares kitchen or bath facilities with the tenants, and also occupies
the rental-unit or a unit in the same building as his or her principal residence.
(d) Rental-Units in Hotels, Motels, or Rooming Houses Rented to Transient
Guests which do not qualify as Single Room Occupancy Hotel Rooms
pursuant to San Diego Municipal Code Chapter 14, Article 3, Division 5.
(e) Mobile Homes. Mobile homes subject to Mobilehome Residency Law
(California Civil Code, Chapter 2.5).
(f) Transient occupancies defined by California Civil Code section 1940(b).
§98.0730 Termination of Tenancy
A residential tenancy of more than two years duration shall not be terminated, nor
shall its renewal be refused, except for one or more of the following reasons:
(a) Nonpayment of Rent.
(b) Violation of Obligation of Tenancy. The tenant has violated a lawful and
material obligation or covenant of the tenancy, except that the following may
not be grounds for termination or nonrenewal of a tenancy:
(1) The failure to surrender possession of the rental-unit upon the
expiration of a specified term, except as provided in
section 98.0730(e);
(c) Nuisance. The tenant is committing a nuisance or permitting a nuisance in, or
is causing damage to, the rental-unit or to the appurtenances thereof or to the
common areas of the housing complex containing the rental-unit, or is
creating an unreasonable interference with the comfort, safety, or enjoyment
of any of the other residents of the housing complex.
(d) Illegal Use. The tenant is using or permitting the rental-unit to be used for an
illegal purpose.
(e) Refusal to Renew Lease. The tenant who had a written lease or rental
agreement which terminated on or after April 26, 2004 has refused, after
written request by the landlord, to execute a written extension or renewal
thereof within the written period prescribed by the lease or state law for a
further term of like duration with similar provisions.
(f) Refusal to Provide Access. The tenant has refused to give the landlord
reasonable access to the rental-unit for the purpose of making repairs or
improvements, or for the purpose of inspection as permitted or required by the
lease or by law, or for the purpose of showing the rental-unit to any
prospective purchaser or mortgagee.
(g) Correction of Violations. The landlord, after having obtained all necessary
permits from the City of San Diego, seeks to recover possession of the rentalunit
for necessary repair or construction when removal of the tenant is
reasonably necessary to accomplish the repair or construction work.
(h) Withdrawal of Residential Rental Structure from the Rental Market. The
landlord intends to withdraw all rental-units in all buildings or structures on a
parcel of land from the rental market.
(i) Owner or Relative Occupancy. The landlord, or his or her spouse, parent,
grandparent, brother, sister, child, grandchild (by blood or adoption), or a
resident manager plans to occupy the rental unit as their principal residence.
§98.0750 Notice to Tenant
Any landlord who attempts to terminate a tenancy pursuant to any of the grounds set
forth in section 98.0730 shall provide the tenant a written notice to quit or terminate
which recites the grounds under which the landlord is proceeding. The landlord shall
provide the notice prior to or at the same time as the written notice of termination set
forth in Civil Code section 1946, or a three-day notice described in Code of Civil
Procedure sections 1161 and 1161a, is served on the tenant
§98.0760 Affirmative Defense
In any action by a landlord to recover possession of a rental-unit, the tenant may
raise as an affirmative defense any violation or noncompliance with the provisions of
this division.
If you live in the City of San Diego and have received a notice to terminate your tenancy that you believe violates the City ordinance, then you should talk to an attorney about your situation.
Speak to a tenants lawyer about your situation
Introduction to Tenant Defenders
The purpose of this blog is to provide information to tenants living in California, and especially in San Diego, with information regarding tenant rights, to provide links to resources and professionals that assist tenants with legal disputes.
I am attorney working in the historic Barrio Logan just south of downtown San Diego at a firm that specializes in tenant rights and consumer advocacy including defending against unlawful collections lawsuits, auto fraud and deceptive trade practices.
Please visit our website at http://www.tenantdefenders.com to learn more about us.
I am attorney working in the historic Barrio Logan just south of downtown San Diego at a firm that specializes in tenant rights and consumer advocacy including defending against unlawful collections lawsuits, auto fraud and deceptive trade practices.
Please visit our website at http://www.tenantdefenders.com to learn more about us.
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