Oftentimes, when a lender forecloses on real estate collateral, the lender will purchase the property at the foreclosure sale. Once the lender has title to the property, it has the right to take possession of the property. However, sometimes, the previous homeowner or a tenant may not voluntarily vacate the property. When this happens, the lender will be required to evict the previous homeowner or tenant from the property before it can take possession.
How to Evict a Previous Homeowner
When the property is purchased at a foreclosure sale, the clerk of the court will file a certificate of sale and serve a copy of the certificate of sale on each party to the foreclosure lawsuit. § 45.031(4), Fla. Stat. If no objections are made to the sale within ten days after filing the certificate of sale, the clerk will file a certificate of title and serve a copy of the certificate of title on each party to the foreclosure sale. § 45.031(5), Fla. Stat. Once the certificate of title is filed, the sale is confirmed, and the title to the property passes to the purchaser. § 45.031(6), Fla. Stat.
If the previous homeowner refuses to vacate the property, the purchaser will have to file a motion for writ of possession with the court to obtain possession of the property. When the court enters an order granting the motion, the clerk of the court will issue a writ of possession, which the purchaser then delivers to the sheriff. Fla. R. Civ. P. 1.580.
Once a writ of possession is obtained, it is important to check the process and procedure with the local sheriff’s office. For example, in Jacksonville, Florida, the purchaser will be required to provide the Civil Unit of the Jacksonville Sheriff’s Office with:
- the original writ of possession, a certified copy of the writ or an electronic copy of the writ, which was signed and certified by the clerk of the court and three copies for service;
- a nonrefundable fee of $90.00; and
- a contact name and number the officer is to call with the date and time for the eviction.
The clerk at the Sheriff’s Office will prepare the paperwork, and provide it to the officer. The assigned officer will usually post the notice of eviction on the property the following day, or shortly thereafter, and will schedule the eviction with the purchaser. On the scheduled eviction day, the purchaser or purchaser’s agent will meet the officer at the property, and the officer will turn possession of the property over to the purchaser. Once the purchaser has possession of the property, the officer will provide a stamped true copy of the writ of possession with the date, time, and the officer’s signature. The officer will then return the original writ of possession to the court.
How to Evict a Tenant
Federal Protecting Tenants at Foreclosure Act
The federal Protecting Tenants at Foreclosure Act of 2009 (“PTFA”) took effect on May 20, 2009 and expired on December 31, 2014. However, on May 28, 2018, President Trump signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018, which permanently restored the PTFA, effective June 23, 2018.
The PTFA provides protection to tenants from evictions as a result of a foreclosure on the property they occupy. Under the PTFA, the purchaser will take title to the foreclosed property subject to the tenant’s rights. To evict a tenant, the purchaser must give the tenant at least 90 days’ notice. However, if the tenant signed a “bona fide” lease before foreclosure, the purchaser must allow the tenant to remain in possession of the property for the term of the lease, unless the purchaser sells the property to a person who intends to occupy the property as their primary residence. A lease is “bona fide” if:
- The tenant is someone other than the mortgagor, or the child, spouse, or parent of the mortgagor;
- The lease or tenancy was the result of an arms-length transaction; and
- The rent due under the lease is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a federal, state, or local subsidy.
Florida Law
In 2015, the Florida legislature created Section 83.561 of the Florida Statutes to fill the void caused by the expiration of the PTFA at the end of 2014. The statute mirrored the PTFA, however, a purchaser could evict a tenant on 30 days’ notice, instead of 90 days’ notice. When the PTFA was permanently restored in 2018, the Florida legislature repealed Section 83.561 and replaced it with Section 83.5615.
The new Florida statute, Section Section 83.5615, mirrors the PTFA and requires purchasers to provide tenants with 90 days’ notice of eviction. Like the PTFA, if the tenant signed a bona fide lease before foreclosure, the purchaser must allow the tenant to remain in possession of the property for the term of the lease, unless the purchaser sells the property to a person who intends to occupy the property as their primary residence. If the tenant does not vacate the property after the 90-day period, or after the term of the lease expires, the purchaser can apply to the court for a writ of possession, as discussed above.
Check Local Rules and Administrative Orders
Before filing a motion for writ of possession with the court to obtain possession of the property, lenders should check the local rules and any applicable administrative orders. For example, the Eleventh Circuit (Miami-Dade County) will not issue a writ of possession in foreclosure actions involving residential properties “without evidence that all parties involved in such action have been properly served, notice of hearing has been provided, and a hearing is held before the court.” Failure to comply with the local rules or administrative orders may result in the court denying a motion for a writ of possession.
Conclusion
If the previous homeowner or tenant remains in possession of the property following a foreclosure sale, the purchaser can have the previous homeowner or tenant evicted. Tenants require at least 90-days’ notice for eviction. If the tenant does not vacate the property within 90 days, or the previous homeowner does not vacate the property after the foreclosure sale is confirmed, the purchaser can file a motion for writ of possession with the court. However, if a tenant has a bona fide lease, it may be able to remain in possession of the property for the remaining term of the lease.
Authors:
- Austin B. Calhoun, Esq.
- Melissa G. Murrin, JD Candidate