Eviction After Foreclosure
WARNING:
THIS BLOG MUST BE UPDATED to reflect the provisions of the "Protecting Tenants At Foreclosure Act," Public Law 111-22, signed into law by President Obama on 5/20/09
The purchaser at a foreclosure sale may evict tenants in possession of the subject building even if their leases have not expired. This is because most leases contain a "subordination" clause which provides that the lease and tenant's rights are subordinate to all present and future mortgages.
The purchaser at a foreclosure sale may obtain possession by way of a writ of assistance [RPAPL Section 221] or by bringing a holdover proceeding in housing court [RPAPL Section 713(5)].
If the purchaser elects to bring a holdover proceeding, the purchaser must serve the tenant with a ten-day notice pursuant to RPAPL Section 713(5) and "exhibit" a certified copy of the Deed to the tenant. The ten-day notice must be served in accordance with RPAPL 735, that is, in the same manner as a notice of petition and petition.
The requirement to exhibit the Deed can be satisfied by annexing a certified copy of the Deed to the ten-day notice. The Deed need not be certified by the County Clerk - it is sufficient if an attorney certifies the Deed pursuant to CPLR 2105. Practice pointer: the attorney's original signature, in ink, must appear on the certification and the certification page must be on the last page.
Tenants may assert the following defenses to a holdover proceeding brought pursuant to RPAPL Section 713(5):
THIS BLOG MUST BE UPDATED to reflect the provisions of the "Protecting Tenants At Foreclosure Act," Public Law 111-22, signed into law by President Obama on 5/20/09
The purchaser at a foreclosure sale may evict tenants in possession of the subject building even if their leases have not expired. This is because most leases contain a "subordination" clause which provides that the lease and tenant's rights are subordinate to all present and future mortgages.
The purchaser at a foreclosure sale may obtain possession by way of a writ of assistance [RPAPL Section 221] or by bringing a holdover proceeding in housing court [RPAPL Section 713(5)].
If the purchaser elects to bring a holdover proceeding, the purchaser must serve the tenant with a ten-day notice pursuant to RPAPL Section 713(5) and "exhibit" a certified copy of the Deed to the tenant. The ten-day notice must be served in accordance with RPAPL 735, that is, in the same manner as a notice of petition and petition.
The requirement to exhibit the Deed can be satisfied by annexing a certified copy of the Deed to the ten-day notice. The Deed need not be certified by the County Clerk - it is sufficient if an attorney certifies the Deed pursuant to CPLR 2105. Practice pointer: the attorney's original signature, in ink, must appear on the certification and the certification page must be on the last page.
Tenants may assert the following defenses to a holdover proceeding brought pursuant to RPAPL Section 713(5):
- improper service of the notice
- improper service of the notice of petition and petition
- defective notice
- failure to "display" certified copy of Deed to tenant or improper certification
- failure to name the tenant as a party defendant in the foreclosure proceeding
- naming tenant as "John Doe" without making a "diligent inquiry" to learn the tenant's true name (see CPLR 1024) or
- tenant is protected by rent stabilization or rent control.
The holdover petition need not allege whether or not the building is a multiple dwelling or, if the premises is a multiple dwelling, that a multiple dwelling registration statement has been filed.
The tenant who entered into a lease after the foreclosure proceeding has been commenced does not have a defense so long as the plaintiff in the foreclosure proceeding filed a notice of pendency after filing the foreclosure proceeding and before the tenant entered into the lease.
posted by Linda Rzesniowiecki at
12:48 PM
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