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jamelia12680 · Nov 15, 2011, 12:56 PM

Hello I prepaid my rent in 2006 for the next 10 years and that it has been 5 years, I found out that the landlord is losing the property do to foreclosure. Can I file a lien against the property that I currently live in and prepaid my rent for?

AK lawyer · Nov 15, 2011, 01:11 PM

Originally Posted by jamelia12680

Hello I prepaid my rent in 2006 for the next 10 years and that it has been 5 years, I found out that the landlord is losing the property do to foreclosure. Can I file a lien against the property that I currently live in and prepaid my rent for?

No, probably not. If there were provision for such a non-consensual lien (and I strongly doubt it; prepaying rent for 10 years is something I have never heard of before), it is doubtful that it would trump a duly recorded mortgage.

What ever possessed you to pay rent 10 years in advance? :eek:

Do you have a written lease?

jamelia12680 · Nov 15, 2011, 01:22 PM

Re AK Lawyer: The person was a friend of mines and I had just gotten a lump sum of money, so I decided to help him out by paying the money upfront. Yes, I have a lease that states that I have prepaid the rent for 10 years dated 10/1/2006. He was a real estate guru at the time and said that If I didn't live there he would give me the money back in installments of $700 per month, so I jumped on the opportunity. Not sure what to do now??

AK lawyer · Nov 15, 2011, 03:46 PM

Originally Posted by jamelia12680

... Not sure what to do now???

Again, I don't know that there is anything you can do to secure your pre-paid rent.

Even under any circumstances one could imagine (your friend giving you a security interest in the property, or your being considered a co-investor in the property), your interest would, I assume (if you invested this money after the date of the mortgage being foreclosed), be junior to the mortgage. Therefore, foreclosure of the mortgage would wipe out any security interest you might have.

You could, of course, sue him. But if he is in foreclosure he may well be judgment-proof. Is the property owned by your friend personally, or is titled in the name of some other entity?

ScottGem · Nov 15, 2011, 04:24 PM

This is interesting. Under law passed a couple of years ago (see the sticky at the top of this forum for details) the new owner in a foreclosure must honor an existing lease. So if you have a lease that is prepaid for 10 years, they may be required to honor it. The question is because the lease doesn't specify an expiration date, but indicates a prepayment.

AK lawyer · Nov 15, 2011, 05:06 PM

Originally Posted by ScottGem

This is interesting. Under law passed a couple of years ago (see the sticky at the top of this forum for details) the new owner in a foreclosure must honor an existing lease. So if you have a lease that is prepaid for 10 years, they may be required to honor it. The question is because the lease doesn't specify an expiration date, but indicates a prepayment.

Good point. You mean the sticky at the top of the Real Estate Law Forum. And I am embarrassed to admit that I forgot the "term of the lease" exception in Section 702 (a) (2) (A):

" SEC. 702. Effect of foreclosure on preexisting tenancy.
(a) In general.—In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to—

(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and

(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure—

(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1);
..."

Good catch.

Keep in mind that the Protecting Tenants at Foreclosure Act of 2009 is scheduled to sunset at the end of next year, so it still might not completely protect OP, but still, ScottGem's comment is a lot better than I was able to provide. :o

Also, if OP was given a very good deal on the place (I don't know if this is the case, but I wouldn't be surprised), (s)he should be prepared for the new owner to argue that the lease wasn't a "Bona fide lease" as defined.

Fr_Chuck · Nov 15, 2011, 10:24 PM

If the lender knows of this lease, it well could be one that they would never complete the foreclosure. Since they would not want to be liable for up keep costs with no money coming in.

A prepaid lease is so uncommon, esp for so long, this will perhaps create some new case law as it is fought out in court.

ScottGem · Nov 16, 2011, 04:23 AM

Originally Posted by Fr_Chuck

A prepaid lease is so uncommon, esp for so long, this will perhaps create some new case law as it is fought out in court.

That's why I said this is interesting. I hope the OP will keep us informed how this pans out.

AK lawyer · Nov 16, 2011, 06:08 AM

Originally Posted by Fr_Chuck

If the lender knows of this lease, it well could be one that they would never complete the foreclosure. Since they would not want to be liable for up keep costs with no money coming in.
....

The mortgagee would be well advised to wait until about October 1, 2012, and then send OP a 90-day notice. And, in the mean time, plan the foreclosure so that the judgment of foreclosure isn't entered until December 31, 2012.