Evictions

Evictions after Foreclosure

Only a Court Can Evict You

After foreclosure, banks or lenders who take over residential buildings often attempt to evict the tenants based on the unfounded belief that it will be easier to sell the building without occupants in it. Many hire local real estate agents to try to intimidate the tenants and force them out of their apartments. But no matter what type of tenancy you have, it is illegal for the bank to treat you as a trespasser or try to force you out of your home by locking you out or shutting off your utilities.⁹ Tenants in foreclosed properties have the same rights as tenants in other buildings. Only a court can evict you!

'Cash for Keys' Offers

Many banks will try to avoid the time and expense of a formal eviction and will instead try to pressure tenants to leave. In most cases, a real estate agent hired by the bank will try to intimidate tenants or take shortcuts in the hope that the tenants do not know their rights and will just leave.

Typically, the agent offers the tenants a small sum of money (usually $500-$1,500) to move out quickly. They imply that this is an official 'cash-for-keys' program and that if the tenant does not accept this offer right away, she will have to move out without compensation. This is not true. Tenants who defend themselves against eviction in court often are able to stay in their homes—or move out later when they are in a better position to do so, and with more money.

But, despite the name, most cash-for-keys offers go far beyond giving up the keys. These offers require tenants to give up all their legal claims against the new owner, including their right to return of their security deposit or damages for utility shutoffs or bad conditions. Some offers even contain clauses that make the tenant legally responsible for any problems or injuries that occur at the property. In legal terms these are called liability waivers or indemnifications.

If you do decide to accept a cash-for-keys offer, make sure you read and understand any written agreement before you sign it. If, after you sign a cash-for-keys agreement, your situation changes and you cannot, or do not want to, move out, you do not have to leave on the date to which you agreed. While you probably will not get the money you were offered, and although you may have agreed to give up certain legal claims, the new owner still cannot evict you without going through court.

Defending Yourself in Court

If the bank cannot persuade a tenant to leave, it might begin a formal eviction. In order to legally evict a tenant after a foreclosure, the new owner, like any landlord, must follow specific procedures.

First, it must notify you that it is ending or terminating your tenancy by sending you a written notice called a notice to quit. If your tenancy is not subsidized, this notice must give you at least one rental period's notice of the termination and must terminate your tenancy on a day that rent is due. More complicated requirements apply for Section 8 and other subsidized tenancies. For more information on notices to quit, see the section Receiving Proper Notice in Chapter 13.

After the notice period is over, the new owner must serve you with a court complaint for eviction and then go to court and present evidence. The new owner will not necessarily win the eviction case against you. After a foreclosure, you are still a legal occupant of the property. As a legal occupant you have a right to present a defense to a no-fault or non-payment of rent eviction. If the new owner has violated the lease in any significant way or violated any other law related to the tenancy, you could win your eviction case.

Many tenants have a defense to eviction after foreclosure as a result of the bad conditions in their home (see Repairs section in Landlord-Tenant Relationship after Foreclosure) or due to the improper treatment of their security deposit (see Getting Your Security Deposit Back After Foreclosure).¹⁰ To support your defense, it is important to have notified the new owner about the bad conditions and offer to pay rent as soon as possible. For more information on defenses to eviction, see the section Important Legal Defenses and Counterclaims in Chapter 13.

For a bank or other entity to be able to evict a tenant after a foreclosure, it has to prove that it actually is the owner of the property. Frequently, the bank that acquired a building has not yet filed a foreclosure deed in the Registry of Deeds, or even signed that document, by the time it starts the eviction case. If the bank cannot prove that it owns the property with a signed foreclosure deed, you should ask for the eviction case to be dismissed by filing a motion with the court. If the property you live in is registered land,¹¹ rather than recorded land, you can get the case dismissed if the foreclosure deed was never registered in the Registry of Deeds, even if it has already been signed.¹²

You may also be able to avoid or postpone an eviction if the new owner has used the wrong name on the notice to quit or the court complaint. Often, the new owner after a foreclosure will try to start an eviction case without even learning the names of the tenants who live at the property. Instead, it will send the notice to quit or the complaint to the former owner or to other people it thinks might live at the property.

If you receive a notice to quit or a court complaint that does not have your name on it, do not ignore it. Even though the new owner has made a mistake and you are entitled to a defense in an eviction case, you must take certain steps to make this mistake known to the court. After the owner files the eviction case in court, you should file a motion asking the court to dismiss it. You should explain in your motion that the notice to quit or the court complaint, or both, did not have your name on it. The court may require you to intervene in, or join, the case in order to bring this motion because technically you are not part of the case.

Staying in Your Home after the Eviction Case

Even if the eviction case is over and the lender or other new owner has won, the owner cannot physically evict you from your home if you are not a named party in the eviction case. After a landlord wins an eviction case, it receives a document called an execution from the court. The executionlists the names of the individuals who can be evicted under the judgment.

If you were a tenant at will or a tenant with an unsubsidized lease before the foreclosure, then the execution must list all adult members of your household. If one of the adults in your household is not named on the execution, then it cannot be used to evict your family.¹³ If you have a subsidized tenancy, then only the head of household who signed the lease must be listed on the execution.

Whether you have a subsidized or unsubsidized tenancy, you can ask the court to stop the eviction by requesting a temporary restraining order to prevent the owner from using the eviction judgment against you. To do this you need to file a Temporary Restraining Order form (see Form 15). If a sheriff or constable comes to evict you before you have had time to get a temporary restraining order, and you were not named in the eviction case, you should try to prove to him that you are a lawful tenant and that you are not the person named in the court judgment. Show him copies of any lease or other rental agreement you had with your old landlord, utility bills, a driver's license, mail, and any other documents that show your identity and your address. Ask him not to use the court judgment against you since you were not involved in the case.

Even if you lose your eviction case, you can ask the court for more time to move. Massachusetts law allows the court to postpone the eviction of tenants (whether after foreclosure or not) by issuing a stay of execution of the court judgment (see the section called Postponing the Eviction in Chapter 13). This stay of execution is available as long as the eviction is not the result of the tenant violating the lease. How long you can stay is a matter for the court to decide. Disabled and elderly tenants (60 years of age or older) may ask for up to 12 months and all other tenants may ask for a stay of up to six months. So even if the new owner wins in court, you may be able to get significantly more time to move than the time period banks usually give as part of their cash-for-keys offers.¹⁴