Q: I just purchased a property at Trustee’s Sale; how do I get rid of the occupants still residing in the unit?
A: You must first determine whether or not the occupants are a former owner or a bona fide tenant. It may be difficult to determine this fact, so it is suggested that you serve upon the property a Notice to Vacate, which asks any tenant to provide proof of a tenancy. This notice typically asks for a copy of the lease or rental agreement and rent receipts.
Q: What is a bona fide tenant?
A: A tenant is only considered bona fide if he/she is not the former owner or a child, spouse, or parent of the former owner; the tenancy was the result of an arms-length transaction; and the rent per the terms of the tenancy is not substantially less than fair market rent for the property. The agreement also must have been entered into before the Trustee’s Sale took place.
Q: How do I determine what fair market rent is?
A: In order to determine fair market rent you must look at the area the unit is in. Go online and look up what other similar units in the area are renting for or consult a real estate agent. If the tenant is claiming they only pay $700 a month for a four bedroom house in an upscale area, odds are this would not be considered a bona fide tenant because the unit is being rented for far below fair market rent.
Q: How many days notice does the former owner get to vacate as opposed to a bona fide tenant?
A: If the former owner is living in the unit they are only entitled to three days notice to vacate. If the occupant is a bona fide tenant he/she is entitled to remain in the property through the end of their lease. If there is no lease but a month-to-month agreement instead then the tenant is entitled to 90 days notice to vacate.
Q: The tenant appears to be bona fide but has two years left on their lease. I plan on occupying the unit as my primary residence. Is there a way to terminate the lease agreement early?
A: Yes, per the Protecting Tenants at Foreclosure Act, if the new owner of the property plans on occupying the unit as their primary residence, they may terminate the lease effective on the date of sale by serving a 90 day notice to vacate to the tenant.
Q: I have served a three day notice to vacate upon the former owner and they failed to vacate at the end of the three day period. Now what do I do?
A: Now you start the eviction process. It is strongly recommended you hire an attorney for this, as the typical unlawful detainer forms may not be used in post-foreclosure proceedings. You will need to provide your attorney with the Notice to Vacate, the declaration of service and the recorded Trustee’s Deed Upon Sale naming you as the new owner of the property.
Q: I purchased the property at Trustee’s sale but have not recorded the Trustee’s Deed yet. How does this affect the eviction process?
A: While you may serve the notice to vacate the day you purchased the property at the foreclosure auction, you may not file the unlawful detainer action without the recorded deed. Further, the trustee’s sale shall be deemed final and perfected as of 8 A.M. on the actual date of sale only if the Trustee’s Deed is recorded within 15 calendar days after the sale. If the deed is not recorded within 15 days after the sale, the title is deemed perfected the date of recording. This means if you were unable to record the deed within 15 days but served the notice to vacate already, you would need to reserve the notice to vacate.
Q: Are there any alternatives to going to eviction to get rid of the occupants?
A: It is fairly common practice for the new owner to offer money to the occupant in exchange for surrender of possession. This is called a cash for keys agreement. Remember to only give the occupant the cash after he/she has delivered possession to you. Should the occupants not agree to a cash for keys deal, then your only other alternative is to file the eviction.
Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 18 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM. Walk-in’s welcome -no appointment necessary. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected]