Florida Foreclosures and Tenants

It’s certainly not unusual for a tenant to be the only defendant to make a court appearance in a foreclosure. Why am I here? What’s become of the lease? My rent? How long can I remain in the house?

As to the first question, tenants are joined as defendants in foreclosure as a matter of economy, avoiding the potential expedient of commencing a separate eviction action as well as giving the purchaser at the foreclosure sale (usually the suing lender) recourse to a writ of possession (a court order telling the tenant to move). The tenant becomes a trespasser once title passes. See, Redding v. Stockton, Whatley, Davin & Co., 488 So.2d 548 (Fla. 5th DCA 1986).

As to the second question, the new owner usually is not a party to the lease. If that’s the case, she bears none of the legal obligations created by the lease. The new owner has no dog in the tenant’s fight.  This is not to say that the landlord is absolved of liability for breaching the lease but only that relief will await another proceeding, usually in small claims court.

The answer to the last question was provided in 2015: Florida’s good-faith tenants only have 30 days of grace after the delivery of a written notice of termination from the new owner.  (A similar federal law, the Protecting Tenants at Foreclosure Act of 2009, expired in 2014. See, https://www.occ.treas.gov/news-issuances/bulletins/2011/bulletin-2011-15.html). The notice can be mailed.

Florida Statutes sec. 83.561 provides:

(1) If a tenant is occupying residential premises that are the subject of a foreclosure sale, upon issuance of a certificate of title following the sale, the purchaser named in the certificate of title takes title to the residential premises subject to the rights of the tenant under this section.

(a) The tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day notice of termination.
(b) The tenant is entitled to the protections of s. 83.67.

(c) The 30-day notice of termination must be in substantially the following form:


You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on   (date)  . If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your belongings from the premises. You are obligated to pay rent during the 30-day period for any amount that might accrue during that period. Your rent must be delivered to   (landlord’s name and address)  .

(d) The 30-day notice of termination shall be delivered in the same manner as provided in s.83.56(4).
(2) The purchaser at the foreclosure sale may apply to the court for a writ of possession based upon a sworn affidavit that the 30-day notice of termination was delivered to the tenant and the tenant has failed to vacate the premises at the conclusion of the 30-day period. If the court awards a writ of possession, the writ must be served on the tenant. The writ of possession shall be governed by s. 83.62.

(3) This section does not apply if:

(a) The tenant is the mortgagor in the subject foreclosure or is the child, spouse, or parent of the mortgagor in the subject foreclosure.
(b) The tenant’s rental agreement is not the result of an arm’s length transaction.
(c) The tenant’s rental agreement allows the tenant to pay rent that is substantially less than the fair market rent for the premises, unless the rent is reduced or subsidized due to a federal, state, or local subsidy.
(4) A purchaser at a foreclosure sale of a residential premises occupied by a tenant does not assume the obligations of a landlord, except as provided in paragraph (1)(b), unless or until the purchaser assumes an existing rental agreement with the tenant that has not ended or enters into a new rental agreement with the tenant.
History.s. 1, ch. 2015-96.

As mentioned earlier, the termination of the lease is enforced by Florida Rule of Civil Procedure 1.580:

(a)     Issuance. When a judgment or order is for the delivery of possession of real property, the judgment or order shall direct the clerk to issue a writ of possession. The clerk shall issue the writ forthwith and deliver it to the sheriff for execution.

(b)     Third-Party Claims. If a person other than the party against whom the writ of possession is issued is in possession of the property, that person may retain possession of the property by filing with the sheriff an affidavit that the person is entitled to possession of the property, specifying the nature of the claim.

Thereupon the sheriff shall desist from enforcing the writ and shall serve a copy of the affidavit on the party causing issuance of the writ of possession. The party causing issuance of the writ may apply to the court for an order directing the sheriff to complete execution of the writ. The court shall determine the right of possession in the property and shall order the sheriff to continue to execute the writ or shall stay execution of the writ, if appropriate.

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