Q. I am a truck driver and came home to find out that my landlord had defaulted on his mortgage of the house I rent and now the bank has started foreclosure proceedings. Do I have a home or am I just out on the street?
A. Property laws are state specific so you will need to speak with an attorney in your town about the laws that apply. Many states follow the Uniform Residential Landlord and Tenant Act, which can be found on the Internet. That said, the first thing I would recommend is that you send a certified, return receipt letter to the mortgage holder/bank that includes a copy of your current lease to put them on notice you are occupying/leasing the property and that they must honor the lease. They may or may not have to honor the lease, but at least you have moved the burden to them.
Whatever you do, make sure you comply with all the provisions of your current lease and do not be late on any payments. The most common issues that will enable the landlord to terminate your lease would be failure to pay on time; unauthorized pets; unauthorized persons (persons not named in the lease) residing/staying in the property; “waste” (intentional or negligent damage) to the rental property caused by the tenant; and material disturbances of other tenants (like loud music or parties). The landlord must provide written notice to the tenant and give them a reasonable amount of time to fix the problem.
Failure to fix the problem (paying the rent or locating a new home for that “cousin” that has been using the extra bedroom, or getting rid of the dog) the landlord accuses you of will enable the landlord to begin eviction/unlawful detainer legal action. This means the landlord will file a lawsuit against the tenant. Followed by serving notice to the tenant by certified mail, sheriff or process server, and in some jurisdictions the landlord can attach the notice to the door of the leased property. This “nail & mail” notice serving works in most jurisdictions and allows the lawsuit to proceed.
Upon receipt of the eviction/unlawful detainer, the tenant has the right to answer in court and state his or her defenses such as improper notice, improper rent accounting, or necessary repairs withheld from the rent, or even discrimination. An eviction/unlawful detainer action is usually a “summary proceeding” in court and moves quickly through the process. This total eviction/unlawful detainer case can be resolved in 20 to 30 days or up to several months depending upon the judge and the tenant’s defenses.
Failure to show up at the hearing will result in a default judgment favoring the landlord allowing for damages to the property, balance of rent owed, attorney fees and court costs and a writ of possession. A writ of possession is paperwork from the court to the sheriff or marshal to remove the tenant and his possessions from the leased property and return possession and control to the landlord, which means you are on the street.
This foreclosure issue is hitting a lot of renters who have no way of knowing it’s coming. As a renter/lease holder, you need to make sure with any lease you have you honor the lease provisions. The thing working in your interest is the banks usually do not want to take the property back and if they do they usually want you to continue the lease. There is nothing worse for a bank than to have a lot of empty properties sitting around with no one interested in buying them. Empty properties are targets for vandals, fires and animals.
I am often asked what a residential lease should not contain. I always tell the renter/lease holder it should not contain anything that takes advantage of you; all the rules and regulations should treat both landlord and tenant fairly. The URLLT Act above specifically mentions:
§ 1.403. [Prohibited Provisions in Rental Agreements]
(a) A rental agreement may not provide that the tenant:
(1) agrees to waive or forego rights or remedies under this Act;
(2) authorizes any person to confess judgment on a claim arising out of the rental agreement;
(3) agrees to pay the landlord's attorney's fees; or
(4) agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.
Should you receive a notice of eviction/unlawful detainer, the first thing you should do is to talk to the landlord to resolve any issues. If that is not possible, then collect all your rent receipts (you do keep these right?), letters to or from the landlord, a copy of your lease, any receipts you have paid to fix or repair the property and go quickly to a local attorney who does a lot of landlord/tenant work. They may be able to keep you in the property, allow you sufficient time to locate another property or minimize the amount of money you will have to pay the landlord.
Jim C. Klepper is president of Interstate Trucker Ltd., a law firm dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the 48 states on both moving and nonmoving violations. He is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at discounted rates. A former prosecutor, he is a lawyer who has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Driver’s License.