AZ Court of Appeals Upholds Unprecedented Federal Tenant Protections

The Arizona Court of Appeals recently ruled that under federal law a tenant living in a foreclosed home was entitled to a ninety-day notice to vacate before the new owner could require the tenant to move, even though Arizona landlord tenant law only required a five-day notice to vacate. See Bank of New York Mellon v. De Meo, 607 Ariz.Adv.Rep. 33 (App. 2011).

A tenant was living in a home with a month-to-month lease agreement with the homeowner. After the homeowner defaulted on the mortgage, the bank foreclosed. The bank delivered the tenant a five-day notice to vacate pursuant to A.R.S. § 12-1173.01 after the foreclosure sale. More than ninety days later the bank filed a lawsuit to evict the tenant.

At the eviction trial the tenant argued that she was entitled as a month-to-month tenant to the ninety-day notice required by the Protecting Tenants at Foreclosure Act of 2009 (“PTFA”). The bank argued that, because the eviction lawsuit was filed more than ninety days after the five-day notice had been delivered to the tenant, the tenant was not entitled to any additional time. The trial court ruled in favor of the bank, and the tenant appealed to the Arizona Court of Appeals.

The Arizona Court of Appeals reversed the trial court’s decision, holding that the PTFA requires that the effective date in the notice to vacate cannot be less than ninety days notice to a month-to-month tenant. Therefore, the five-day notice to vacate delivered to the tenant was insufficient. The fact that the lawsuit was filed after ninety days, and not just after five days, was irrelevant.

The Protecting Tenants at Foreclosure Act of 2009 was part of the Helping Families Save Their Homes Act of 2009.

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