Tenant Rights During Foreclosure Workshop for Tenants Marc Potvin

Tenant Rights During Foreclosure Workshop for Tenants Marc Potvin & Myrta Cupeles Neighborhood Legal Services 170 Common St., Lawrence MA (978) 686-6900 February 17, 2009

What is the foreclosure problem? Foreclosures are exploding Tenants are living in bad housing because owners not taking care of properties New owners want properties empty New owners using “cash-for-keys” inducements and eviction threats to pressure tenants to move out Forced moves are stressful to families Vacant properties are bad for neighborhoods

What is a “foreclosure”? Legal process for a lender to take ownership after a borrower stops paying a loan (mortgage) Four Steps Step 1 - Give notice to owner Step 2 - File Complaint in Land or Superior Court Step 3 - Hold a foreclosure auction Step 4 - File a foreclosure deed at the Registry of Deeds

Basic Legal Rights: Your Tenancy Survives a Foreclosure Foreclosure does not automatically end any tenancy Tenants do not have to move just because the landlord lost the property in foreclosure Tenancies at wills (no lease / month-to-month) continue on same terms as before Leased tenancies convert to tenancies at will It is illegal for the new owner to treat tenants as trespassers, do a lock-out, or shut-off utilities

Basic Facts for Tenants: The bank, person or company that purchases at the foreclosure auction becomes the new owner and landlord with full responsibility for repairs If the new owner or its agent tells a tenant that they must move, the tenant does not have to Only a judge can evict a tenant; self-help evictions and lock-outs are illegal It is usually best to stay unless a tenant already wants to leave and has a good place to go to

Don’t Be Tricked by Cash-For-Keys Cash-for-keys offers ( 500 – 30 days) are a cheap scam to pressure tenants into moving fast Cash-for-keys offers are almost never a good deal The cash won’t cover moving or security deposit Tenants must sign away their legal rights: return of security deposit, damages for utility shut-offs, bad conditions, etc. Tenants usually do much better in court, both in money and time

What If You Sign & Change Your Mind? If you sign a cash-for-keys agreement and you change your mind because the situation changes, or you cannot or do not want to move, you don’t have to move You likely will not get paid and you probably gave up legal claims But the new owner must still go to court to evict you, and you can still raise defenses and ask for more time

Facts for Subsidized Tenants (Section 8, MRVP, etc.): Tenancy continues after foreclosure During first 12 months of a tenancy the new owner can evict only “for cause”: tenant must violate the lease After 12 months a new owner can terminate only for “good cause,” which may include “business or economic” reasons Owner must prove that vacant unit is a good business or economic reason

Should You Pay Your Rent During a Foreclosure? Tenants are responsible for paying rent Until a foreclosure sale, tenants should continue paying rent to the old landlord Always get receipts If you cannot locate the old landlord, hold the rent & put it in a separate bank account, if possible Tenants should stop paying rent to the old landlord when there is a foreclosure sale A new owner has the right to collect rent

Should You Pay Your Rent During a Foreclosure? Beware of the old landlord attempting to collect the rent. If in doubt, hold rent and put it in a separate bank account, if possible Keep receipts to prove payment If new owner did not give notice and later claims rent due, tenant can defend & force new owner to sue old owner for rent actually paid to the old owner

What if the new owner refuses rent? New owner may refuse rent or won’t request it Questionable technique to avoid admitting tenancy Good technique to cause you to fall behind in rent If rent is refused, send a certified letter to new owner offering to pay rent & asking to whom you should pay Keep copy! Save rent money, and put it in a separate bank account, if possible

Tenants in Condos Condo fees are the responsibility of the owner, not the tenant If the owner fails to pay the condo fee, the condo association is legally permitted to demand and collect rent from the tenant until the balance owed is paid off Keep condo demand letters Get and keep receipts for all payments to association

Right to Utilities After Foreclosure Utilities covered: water, sewer, electric, gas, heat If tenant had a lease: a new owner steps into the shoes of the old owner If tenant at will: new owner must pay for all utilities, except those that the tenant agreed to pay under a written agreement with the old landlord Problem: foreclosing entities often ignore utilities for which they are responsible. This lead to shut offs

Dealing with Utility Shut-Offs Contact new owner immediately & demand action to prevent shut-off or restore service Contact utility company & request service be restored or not be terminated due to the foreclosure. Tell utility that landlord lost property in foreclosure If problem remains, call Dept. of Telecommunications & Energy (DTE) Consumer Hotline - 800-392-6606 Many utilities will not shut-off when informed of foreclosure status Don’t have utilities put in your name; only the owners DET staff can and do order utilities to restore service If these fail, go to Housing Court for a Temporary Restraining Order (TRO) to order new owner to pay the utility bills and provide service

What if you are living in bad conditions? Owners are responsible for making repairs to an apartment and common areas, including snow removal Tenants should always notify an owner of problems All housing must meet the standards of the State Sanitary Code Retaliation against the law – penalty is 3 times monthly rent In eviction case, presumption of retaliation within 6 months of complaint or request for code inspection Notice also can go to RE agent, prop. manager or lawyer If pre-foreclosure, notify current landlord; if post-foreclosure, notify new owner Notify in writing. Keep a copy This is proof that the tenant notified the owner and owner knows about problems

If Bad Conditions Continue If bad conditions continue ask for an inspection by Inspectional Services Department at City Hall (978) 620-3130 in Lawrence Tenants can request a full inspection of apartment and all common areas (hallways, laundry rooms, basement, outside) ISD will give tenant a report of code violations and will order owner to make repairs ISD should re-inspect and may take the owner to court Tenants should clean up before inspection to avoid citation Take pictures and write date on back

How do I get repairs made? First complain to the owner in writing If no response, call ISD for an inspection If serious or emergency conditions, get ISD report and go to Housing Court for a Temporary Restraining Order (TRO) TRO will order owner to make immediate repairs TRO can be brought against prop. manager or R.E. agent if owner not known

Evictions After a Foreclosure If new owner cannot persuade tenant to leave, the only option is to begin the formal eviction process To evict an owner must follow specific legal procedures: Give tenant a valid “notice to quit” File a complaint in court Prove case and overcome tenant defenses

Evictions in a Nutshell Notice to Quit Court Summons & Complaint Tenant Answer Tenant Options Discovery Transfer to Housing Court Court Hearing Mediation Judgment or Dismissal Obtaining a 6-12 month Stay

Eviction Step #1 - Notice to Quit Before a landlord can evict, the tenant must be given a written notice of tenancy termination (called a “notice to quit”) Often uses phrases such as “tenant must deliver up” or “vacate” the apartment Notice will state a date for the tenant to move You do not have to move by the date! A notice to quit does not determine who is entitled to have legal possession of an apartment Only a judge can decide

Help is Available to Tenants Don’t panic if you get a Notice to Quit or Summons and Complaint If you receive a Summons and Complaint come to a NLS Foreclosure Eviction Clinic Get advice Get help with completing your Answer and Discovery forms Remember – you are likely to do better at court

Eviction Step #2 – Court Complaint Landlord can go to court only after the notice period is over Legal filing called a “Summons and Complaint” Complaint must state the reason for the eviction Complaint can be brought by owner or agent Must be served by a constable or sheriff Will state “Answer Date” and “Original Trial Date” Answer Date will be about 7-14 days after service Original Trial Date in Lawrence is the Thursday after the Answer Date

Step #3 – Tenant files “Answer” The Answer is the document you file to tell your side of the case Easy-to use Answer forms are available from: It will include your Defenses May include Counterclaims against the owner Neighborhood Legal Services or On-line at www.masslegalhelp.org The Answer must be delivered to the court and the landlord (or landlord’s attorney) by the Answer Date shown on the Complaint

Major Foreclosure Eviction Defenses Technical Defenses No notice to quit or defective notice to quit Does not end tenancy on a rent day Does not give a full rental period Unclear or misleading language Owner files complaint before notice to quit expired Complaint not signed by an attorney (if corporate landlord) Owner can’t prove ownership (no foreclosure deed) Complaint is defective or not served All tenants not named Reason is different from notice to quit

Major Foreclosure Eviction Defenses Bad conditions Interference with utilities or use of the home (Breach of Quiet Enjoyment) Security Deposit & Last Month Rent Violations Retaliation - for complaint of bad conditions Discrimination (i.e. Section 8, familial status)

Why Use Tenant Discovery Great tool to get information to prepare your case If tenant requests Discovery by the Answer date, the trial date is automatically postponed for 2 weeks 3 types of Discovery Interrogatories (Questions) – up to 30 allowed Requests for Documents Requests for Admissions – owner must admit or deny facts Easy-to-use discovery forms are available from NLS or at www.masslegalhelp.org

Transfer from District Court to Housing Court If eviction is filed in the District Court you can transfer the case to the Northeast Housing Court Strongly recommended More knowledgeable judges and housing specialists Usually postpones trial date How? File a “Transfer Form” with District and Housing Court before the Trial Date Form available at NLS or at www.masslegalhelp.org

Understanding Security Deposits Foreclosure does not terminate security deposits Mass. law requires old landlord to transfer deposit to new owner at time of sale (rarely done in foreclosures) Tenants can recover deposits from: Old landlord (can be a problem because insolvent or gone), or New owner, unless new owner is the foreclosing entity and a bank charted by Mass. or the U.S. Best to bring as counterclaim against new owner because it can serve as an eviction defense On anniversary date a landlord is required to pay the interest to the tenant or inform the tenant to deduct the amount from the next rent payment If you already moved, send a 30day demand letter and follow with Small Claims lawsuit Under G.L. ch. 93A, tenants can win triple damages in a small claims action

Tenant Counterclaims Claims brought against owner for money damages Use to pressure bank into giving a lease or more money and more time for a move out Bad Conditions (rent rebate) Breach of Quiet Enjoyment (no heat, no utilities, lock-out, unlawful entry, bad conditions) (3 X Rent)

Tenant Counterclaims Unfair or Deceptive Practices (Consumer Protection Violations – scare tactics) Infliction of Emotional Distress Headaches, stomachaches, insomnia) Retaliation (3 X Rent) Security Deposit Violation

Eviction Step #5 – Court Hearing Thursdays is eviction day at Housing Court NLS staffs a “Lawyer-for-the-Day” table Case referred to a Housing Specialist for mediation Banks agreeing to tenancies or better move out deals when faced with worse care scenarios Services range from advice, assist in mediation, to full representation at trial Tenant has good defenses – likely to keep possession Tenant will win damages If no agreement reached, case goes before judge

Even if you lose your case . . . You still get time Tenants are entitled to seek 6 months time to find a new place to live Called a “stay” of the execution If tenant is elderly or disabled, stay can extend to 12 months

Final Words Almost never take a “cash-for-keys” offer Write to the owner about bad conditions Ask for a ISD inspection Use court process to obtain more money, more time or keep their apartment Attend a NLS Eviction Clinic NLS can assist you to file your Answer and prepare for court Tenants will almost always do better at court

Questions and Answers