Post-Foreclosure Evictions
How do I find out if my landlord is in foreclosure?
Property records are available to the general public. Your local county recorder’s office will have a notice of default (initiating the foreclosure process), the notice of sale (the last notice before the sale), and any other foreclosure notices required by law. Transfer of title documents will also be available. These documents demonstrate who has legal title of your dwelling. Most recorder offices require the parcel number of your property. This information can usually be obtained from the county tax assessor.
I just received a notice of default. What is this?
The most common foreclosure process in Nevada is the trust deed foreclosure contained in NRS Chapter 107. If your landlord failed to make a mortgage payment, the bank or its agent must first serve a notice of default and election to sell. With the notice of default, the bank must also serve a Notice of Tenant’s Rights. The Notice of Tenant’s Rights purportedly informs you of your rights as a tenant. Read the section “Notice of Tenant’s Rights” for more information.
Three (3) months must elapse before the bank can continue with the foreclosure. All of this time you must pay rent to the landlord or you can be evicted. Although mandatory mediation is required in Nevada, your landlord does NOT have the right to mandatory mediation. Informal mediation with the lender is always available to your landlord and this may delay the foreclosure process. It is not uncommon for the notice of default to provide more than 3 months.
I just received a Danger Notice. What is this?
NRS 107.080 requires a Danger Notice to be sent to owner occupied housing 60 days before the sale of the dwelling. Usually, the bank or its agent sends this notice much sooner. NRS 107.080 does not require this notice to be sent to you or your landlord, but the banks still send it. It basically notifies the landlord that the home may be lost in the foreclosure process.
I just received a notice of sale. What is this?
Three (3) months after the notice of default, or after the mediation process has concluded, whichever is longer, the bank must then sent a notice of sale. This notice must advise the landlord that the dwelling will be sold 21 days (or more) after the notice of sale is recorded. You will also receive a Notice of Tenant’s Rights. The Notice of Tenant’s Rights purportedly informs you of your rights as a tenant. Read the section “Notice of Tenant’s Rights” for more information.
Your landlord has until 5 day before the sale at auction to save the dwelling from foreclosure.
Do I have to pay the rent if the landlord is in foreclosure?
Yes. Even though the landlord may not be paying the mortgage, you must continue to pay the rent as long as you live in the dwelling and the landlord owns the property. NRS 118A.210 requires a tenant to pay rent for use and occupancy of a dwelling. If rent is not paid, the landlord can evict you with a 5 day pay rent or quit notice. If you do not pay the rent, you will be evicted.
Do I have to let a real estate agent in to my dwelling?
Yes. The landlord or real estate agent has a right to show your dwelling to potential buyers. The landlord or real estate agent must provide 24 hours notice and you cannot unreasonably withhold your permission to allow these showings.
A landlord in Nevada does have the ability to enter the dwelling unit for the purposes of inspection, to make necessary repairs or to provide necessary services, or to exhibit the dwelling to prospective buyers, future tenants, workmen, or anyone else with a bona fide interest in inspecting the premises. NRS 118A.330(1).
Is a lock-box legal?
No. A lock box is not legal under Nevada law because the landlord must provide 24 hours notice before entering your dwelling. A lock box is a locked container that is attached to your front door handle. The container holds the key to your dwelling.
NRS 118A.330 requires the landlord to provide 24 hours advance notice before entering your dwelling, except in emergencies. You cannot unreasonably withhold your consent if the landlord or real estate agent wants to show your dwelling to potential buyers. If the landlord or real estate agents provides 24 hours advance notice, accesses your dwelling based on purposes of showing the dwelling to prospective buyers, and visits at reasonable times during normal business hours, then you may not be able to do anything about it.
However, a lock box provides little or no notice and you can refuse to allow the landlord or real estate agent to put the lock box on your door. If the landlord installs a lock box on your door without your permission, you can remove the lock box.
NRS 118A.500 allows you to seek an injunction to stop the landlord from abusing the right to access your dwelling. A lock box would be an abuse of the landlord’s right to access your dwelling. You should send a written request to the landlord asking the landlord to respect your rights under NRS 118A.330. NRS 118A.500 allows you to terminate the rental agreement or seek an injunction if the landlord abuses access.If you send written notice to the landlord, you should request that the landlord remove the lock box and provide 24 hours advance notice before showing the dwelling.
Asking the landlord to comply with NRS 118A.330 is not a reason to evict you. In fact, it would constitute retaliation under NRS 118A.510 and provide a defense to an eviction notice.
If you allow the lock box and want to change your mind, you should notify the landlord. You can refuse to let the landlord or real estate agent into your dwelling without advance notice and you can use reasonable force or call the police if the landlord or real estate agent enters and will not leave.
24 hours notice is not needed in any emergency. Showing the home to potential buyers is NOT an emergency.
What is the foreclosure process in Nevada?
The most common foreclosure process in Nevada is the trust deed foreclosure contained in NRS Chapter 107. If you landlord failed to make a mortgage payment, the bank or agent must first serve a notice of default and election to sell.
Three (3) months must elapse before the bank can continue with the foreclosure. All of this time you must pay rent to the landlord or you can be evicted. Although mandatory mediation is required in Nevada, your landlord does NOT have the right to mandatory mediation. Informal mediation with the lender is always available to your landlord and this may delay the foreclosure process. It is not uncommon for the notice of default to provide more than 3 months.
With the notice of default, the bank must also serve a Notice of Tenant’s Rights. The Notice of Tenant’s Rights purportedly informs you of your rights as a tenant. Read the section “Notice of Tenant’s Rights” for more information.
After the mediation process has concluded or 3 months, whichever is longer, the bank must then sent a notice of sale. This notice advises the landlord that the dwelling will be sold 21 days (or more) after the notice is recorded. You will also receive a Notice of Tenant’s Rights.
The landlord has until 5 days before the sale to pay the bank and stop the foreclosure. 21 days after the notice of sale is recorded or later, your dwelling will be sold at auction.
What happens after the foreclosure auction?
Often, the bank will take back the property if no acceptable bid is made at the foreclosure auction. After title to the property is taken away from your landlord, you can voluntarily leave after the foreclosure and we recommend providing notice to the new owner. NRS 40.255 provides this right.
If you stay, you must pay your rent and abide by the terms of your lease. The new owner must honor your lease and cannot evict you until it expires. If the new owner will be moving in, then the new owner must provide a 90 day notice.
If your lease has expired, the new owner must still provide a 90 day notice. The terms of your lease are enforceable during these 90 days. After the 90 days expire, the new owner must serve a summons and complaint for unlawful detainer. If this procedure is followed, you will not have a defense to the eviction, but can file an answer and appear at your hearing to ask the judge for more time to move. By law, the judge can allow up to 10 extra days before ordering your eviction.
These rights only apply if you are a bona fide tenant under the Protecting Tenants At Foreclosure Act. If you are not a bona fide tenant, the new owner is still required to serve you a 60 day notice under NRS 40.255.
What is “cash for keys”?
“Cash for keys” is a voluntary program where the new owner of a home will give you money in exchange for your promise to leave in certain amount of time. The new owner will also ask you to clean the premises before leaving. If the new owner will only pay you after you move out, then you should get the cash for keys offer in writing.
What if the landlord sells my dwelling?
If the landlord sells your dwelling , then the new owner must provide a 3 day notice. These three days do not include weekends, holidays, or days the court is closed. After the 3 days, the new owner must serve a summons and complaint for unlawful detainer. This process takes at least 3 weeks. You can answer the complaint and appear at your hearing, but you will not have a legal defense if the new owner follows this procedure. You can ask the judge for more time to move and by law, the judge must allow up to 10 extra days before eviction.
I received a 3 day notice. Is this legal?
Many lawyers violate state and federal law when they serve a 3 day notice after foreclosure and a tenant occupies the dwelling. A 3 day notice is only valid after the landlord voluntarily sells the dwelling and it is never appropriate in a tenant occupied dwelling after the forced foreclosure sale. If you are a bona fide tenant, then the new owner must at least provide 90 days before any eviction. This is your right under the Protecting Tenants at Foreclosure Act. Even if you are not a bona fide tenant, Nevada law requires at least 60 days before any eviction under NRS 40.255.
Nevada law does allow you to enforce these laws in an eviction hearing. After you 3 day notice expires, the lawyer or new owner must serve a summons and complaint for unlawful detainer. In your papers will be notice of a hearing. We strongly suggest you file an answer and go to your hearing. We have a model answer that you can file in response to the summons and complaint. For further assistance, you can hire an attorney by calling the Nevada State Bar Lawyer Referral Service at (800) 789-5747.
Do I need to show my lease to the new owner?
No. You do not need to show the new owner your lease. However, you must demonstrate to the court that you are a bona fide tenant. While a lease helps establish that you are a bona fide tenant, there are other ways. Rent receipts, utility bills, and statements from neighbors also work. See the information on the Protecting Tenants at Foreclosure Act to see if you qualify as a bona fide tenant.
At a minimum, you must establish that you are NOT the former owner of your dwelling to qualify under Nevada law for 60 days notice under NRS 40.255.
I have been told to record my lease with the county recorder. Will this help?
Not really. While recording your lease will provide notice to any new owner that you live in the dwelling, it will not necessarily stop the new owner from serving an eviction notice and does NOT require the new owner to honor your lease.
What is the Protecting Tenants At Foreclosure Act? Does it protect me?
The Protecting Tenants At Foreclosure Act is a federal law that applies to any property after foreclosure. It requires the new owner to provide at least 90 days notice before any eviction. If you have a lease, the new owner must honor your lease except if the new owner will be moving in. Then, only 90 days notice is required and the new owner does NOT have to honor your lease.
This federal law only applies if you are a “bona fide” tenant. A bona fide tenant is anyone: (1) who is not the child, spouse, or parent of the landlord, (2) who does not pay substantially less than fair market rent for the dwelling, and (3) whose lease with the former landlord was the result of an “arms-length transaction.” If you are the parent, spouse, or child of the landlord, or do not pay fair market rent, then you are probably not a bona fide tenant. However, Nevada law still requires the new owner to serve a 60 day notice under NRS 40.255.
What about my security deposit?
After the foreclosure, sale, or the property otherwise changes hands, your landlord has to either return the security deposit to you, after making any deductions allowed under NRS 118A.242 (see section on security deposits), or transfer your deposit (minus the deductions) to the new owner. If the security deposit is transferred, the new owner then has the same obligations as the previous landlord and must return the deposit or provide a written accounting within 30 days after you move out. If the security deposit is not transferred and not returned to you, you can sue the old landlord under NRS 118A.242 if more than 30 days has expired after the property transfers. You will likely, though, want to name both the old landlord and the new owner in any lawsuit to recover your deposit as both may be liable depending on the circumstances of each situation and this is an unsettled area of law.
The new owner cannot charge you an additional security deposit for 30 days or the duration of your rental agreement, whichever is longer. If your deposit was transferred, or the new owner charged an additional deposit, the new owner should return your deposit or supply a written accounting within 30 days after you move out. If not, you can sue the new owner. The lawsuit against the new owner would be based on a violation of NRS 118A.242 (see above).
What is a Notice of Tenant’s Rights?
NRS 107.087 requires lenders to serve you a Notice of Tenants Rights with a notice of default and notice of sale. This Notice of Tenant’s Right is supposed to provide notice of your rights during the foreclosure process. Among other things, this Notice states that during the foreclosure process:
You may either: (1) terminate your lease or rental agreement and move out; or (2) remain and possibly be subject to eviction proceedings under chapter 40 of the Nevada Revised Statutes.
You must use caution before following this advice. Nevada law does not contain any substantive provision allowing you to move out after a notice of default or notice of sale is served to your landlord. The Notice is the only place you will find this alleged right. Also, this advice impairs the landlord’s contract with you and whenever any law impairs a contract, it is subject to constitutional challenge.
NRS 40.255(6)(a) does contain the substantive right to move out after the foreclosure auction. This is a substantive right and it does not impair any contractual right. If you want to move out, we recommend moving only after the foreclosure sale.
The other problem with the Notice of Tenant’s Rights is the following:
If the property is sold and you pay rent by the month or any other period of time that is 1 month or longer, you should generally receive notice at least 60 days in advance. Under Nevada Revised Statutes 40.280, notice must generally be served on you pursuant to chapter 40 of the Nevada Revised Statutes.
The Protecting Tenants at Foreclosure Act requires 90 days notice, whether you pay rent by the week or by the month. The only requirement is that you must be a bona fide tenant. Please review the information under Protecting Tenants at Foreclosure Act for the definition of “bona fide tenant.”
