Evicting A Tenant After Foreclosure

Find out what legal procedure must be used to evict a tenant following the foreclosure and sale of a home.


Overview

If you bought a residential property at a foreclosure sale, before you take any action to evict someone who is on the property, you need to answer one very important question:  Is the person on the property the former owner's tenant or is it the former owner him or herself?

This question is important because the answer will tell you what eviction process you can or must use.

If the person living on the property you bought is the former owner (the person who defaulted on the mortgage and lost the house to foreclosure), click to read Evicting a Former Owner After Foreclosure.

If, on the other hand, the person living on the property is a tenant who was renting from the former owner, there are special rules and procedures that apply.  Those rules and procedures are discussed below.  You can also click to read Tenant's Rights and Duties After Foreclosure for more information.


Q&A - Tenant Eviction After Foreclosure


How can I evict the occupants from the residential property I purchased at a foreclosure sale?

The answer depends on who the occupants are.  If you bought a rental property at a foreclosure sale that is occupied by the former owner (the person who defaulted on the mortgage), you can serve the former owner with a notice requiring him or her to leave within three days.  (NRS 40.255.)  If the former owner does not leave, you can file a "formal" eviction case.  Click to read Evicting a Former Owner After Foreclosure.

If, on the other hand, the house you bought is occupied by tenants who were renting from the former owner, there is a Nevada law that protects the tenants.  NRS 40.255 requires you to serve the tenant with a notice of change of ownership.  The notice must typically allow the tenant to stay on the property for sixty days. (You can find a link to a notice form below.)

During that time, the new owner and the tenant have all the rights and duties of other Nevada landlords and tenants.  If the tenant violates the lease or Nevada law, the tenant can be evicted like any other tenant (including by "summary" eviction).  The tenant can leave at any time during the notice period without any obligation to the new owner.  The new owner is also free to negotiate with the tenant for a new lease, purchase, or a payment to vacate.

Can I make the tenants leave right away?

You must typically give the tenant a sixty-day notice to leave. (NRS 40.255.) If the tenant pays rent by the week or some period shorter than a month, the notice should give the tenant at least the number of days in that period. (NRS 40.255(2).)

What must the notice to the tenant say?

Nevada law requires the new owner to provide the tenant with specific information. The "notice of change of ownership" required by Nevada law must:

  • Give the tenant the name and address of the person to whom tenant must pay rent;
  • Inform the tenant that the lease with the former owner or landlord continues in force through the notice period, and
  • Tell the tenant that if he or she fails to pay rent or comply with the lease or Nevada law, the landlord can file for an eviction.

    (NRS 40.255(4).)

Nevada's law applies only to "residential foreclosures" of "single family residences" of four units or less. (NRS 40.255(8).)

A form Notice of Change of Ownership is available, free of charge, at the Self-Help Center, or you can download the notice by clicking one of the formats underneath the form's title below:

NOTICE OF CHANGE OF OWNERSHIP PURSUANT TO NRS 40.255 
Word Fillable |Pdf FillablePdf Nonfillable | Form Guide 

How do I serve the notice on the tenant?

The notice must be "served" (delivered) as required by NRS 40.280 in one of the three following ways:

  1. Serving the tenant personally, in the presence of a witness;
  2. If the tenant is not at the rental property, leaving a copy with a person of suitable age and discretion (at least 14 years old) and mailing a copy to the tenant; or
  3. If you do not know the tenant's residence or place of business, or a person of suitable age or discretion cannot be found there, posting a copy of the notice in a conspicuous place at the rental property and mailing a copy to the tenant.

    (NRS 40.280(1).)

If you later need to seek a court order evicting the tenant, you must file "proof of service" with the court.  If you do not have the required proof, the court may require you to start over again with a new notice.  The "proof of service" must include one of the following:

  1. A statement, signed by the tenant and a witness, acknowledging that the tenant received the notice on a specified date.  (NRS 40.280(3)(a).)
  2. A "certificate of mailing" issued by the United States Postal Service.  (A "certificate of mailing" is not the same as "certified mail."  A "certificate of mailing" is a white receipt that can be obtained from the post office upon mailing.)  (NRS 40.280(3)(b).)
  3. The endorsement of a sheriff, constable, or other process server stating the time and manner of service.  (NRS 40.280(3)(c).)

What happens if the tenant fails to pay rent or violates some other term of the lease during the notice period? 

During the notice period, you step into the shoes of the former landlord.  Both you and the tenant have the rights and duties set out in the lease agreement (if there is one) and the Nevada Residential Landlord and Tenant Act (Chapter 118A of the Nevada Revised Statutes).

If the tenant fails in the tenant's duties (by, for example, failing to pay rent, breaching the lease, or committing some kind of nuisance on the property), you can evict the tenant just like any other tenant (and you can utilize the "summary" eviction process).

For more information, click to read Types of Eviction Notices and Filing a Summary Eviction.

What if the tenant does not want to stay sixty days?

The tenant is not obligated to stay the full sixty days.  Under Nevada law, following "residential (4 units or less) foreclosures," tenants can vacate at any time during the notice period without any penalty or obligation to the landlord.  (NRS 40.255(6).)  No record of eviction can be entered if the tenant vacates within the notice period.  (NRS 40.255(5).)

If you want the tenant to leave before the sixty days expire, you can try to negotiate with the tenant to see whether the tenant is willing to move out early.  (NRS 40.255(6).)  You can even offer a money payment to the tenant – often called "cash for keys" – in exchange for the tenant vacating early.

What if the tenant wants to stay longer than the sixty days?

You and the tenant are free to negotiate a new lease or some other arrangement that allows the tenant to stay on the property longer than the sixty-day period.  (NRS 40.255(6).)

What happens to the tenant's security deposit?

When the property is sold, the former owner must either (a) return the security deposit to the tenant or (b) transfer it to the new owner.  (NRS 118A.244(1)-(2).)  In reality, that frequently does not happen.

Consequently, Nevada law gives the new owner "the rights, obligations and liabilities of the former landlord as to any securities which are owed" at the time the property is transferred.  (NRS 118A.244(1).)  In other words, the new owner is responsible for all security deposits.  And the tenant can sue the new owner for the return of those deposits if necessary.

CAUTION!  Within thirty days after the tenant vacates, you must either pay the tenant the security deposits or send the tenant an itemized accounting of deductions for claimed damages.  (NRS 118A.242(2).)  If you do neither, the tenant can sue you for double the security deposits.  (NRS 118A.242(3).)  For more information about security deposits, click to read Security Deposits.

What can I do if the tenant has not left voluntarily by the end of the notice period?

If the tenant does not leave voluntarily or enter into an agreement with you to stay, you can evict the tenant at the end of the sixty-day notice period. To evict the tenant, you must serve the tenant with a summons and complaint and follow the "formal" eviction process.

Learn how to file a "formal" eviction case by clicking to visit Filing a Formal Eviction. That page will walk you through the process step by step. But because you are evicting a tenant after foreclosure, you will need to subtitute the following forms for a couple of those listed on the "Filing a Formal Eviction" page:

  • In Step 1, the notice you must serve on the tenant is the Notice of Change of Ownership discussed above.
  • In Step 3, you need a different Complaint for Unlawful Detainer. To get the correct complaint form, click one of the formats underneath the form's title below:

COMPLAINT FOR UNLAWFUL DETAINER (AFTER SALE) 
Word Fillable | Pdf FillablePdf Nonfillable | Form Guide 

Also, you may be required to pay a filing fee in excess of $71, depending on the dollar amount of the damages you are seeking in your complaint. Check the filing fee schedule of the court where you are filing to verify.

  • In Step 4, you need a different Application for Order to Show Cause. To get the correct application form, click one of the formats underneath the form's title below:

APPLICATION FOR ORDER TO SHOW CAUSE WHY A TEMPORARY WRIT OF RESTITUTION SHOULD NOT ISSUE (AFTER SALE) 
Word Fillable | Pdf FillablePdf Nonfillable | Form Guide 

Except for the forms listed above, use all of the forms and instructions on the Filing a Formal Eviction page. 

After I get possession, what duty do I have to maintain the vacant property?

Once you get possession of the property you bought, you must maintain the exterior of the property in compliance with both local ordinances and NRS 107.110(2), which requires:

  1. Limiting excessive foliage which could lower property values;
  2. Preventing trespassers from staying on the property;
  3. Preventing mosquito larvae from growing in standing water; and
  4. Preventing any other condition that creates a public nuisance.

If you fail to correct any problem following notice, a civil penalty of up to $1,000 a day may be imposed.  (NRS 107.110(5).)