How to Evict Occupants After Buying a Foreclosed Property in New York

Can You Evict Someone After Buying a House at a Foreclosure Auction?

Generally, yes, provided the purchaser has a legal right to possession and follows the appropriate procedure.

When a property is sold pursuant to a foreclosure judgment, the successful bidder ordinarily receives a referee's deed transferring ownership.

However, ownership does not authorize the purchaser to physically remove occupants without following applicable law.

If the property remains occupied, the purchaser may need to commence a summary proceeding under Article 7 of the New York Real Property Actions and Proceedings Law (RPAPL).

In appropriate circumstances, the purchaser may proceed under RPAPL § 713(5), which specifically addresses possession following a foreclosure sale.

Other circumstances may require a different proceeding.

The critical first step is identifying the occupant's legal status and determining the proper statutory basis for recovering possession.

What Is RPAPL § 713(5)?

RPAPL § 713(5) is an important provision governing post-foreclosure possession proceedings.

It generally permits a summary proceeding where property has been sold in foreclosure, the deed delivered pursuant to that sale (or a properly certified copy) has been exhibited to the occupant, and the statutory requirements have been satisfied.

The proceeding is subject to the protections afforded to qualifying tenants under RPAPL § 1305.

Unlike an ordinary landlord-tenant eviction, the purchaser may not have any lease or rental agreement with the person occupying the property.

The purchaser's right to possession instead arises from the foreclosure sale and the applicable statutory provisions.

However, the availability of this procedure must be carefully evaluated. It is not necessarily available to everyone who subsequently acquires an interest in a foreclosed property.

Does the Foreclosure Purchaser Have to Serve a 10-Day Notice to Quit?

Generally, a purchaser proceeding under RPAPL § 713(5) must serve the statutory 10-day notice to quit before commencing the summary proceeding.

The notice advises the occupants that the purchaser is seeking possession and demands that they vacate.

A properly prepared notice should identify the property, establish the purchaser's claimed right to possession, and provide the required period to vacate.

The purchaser must also address the statutory requirement concerning exhibition of the foreclosure deed or a properly certified copy.

Service must comply with applicable New York law, and the purchaser should retain reliable proof of service.

An incorrectly prepared or improperly served predicate notice can jeopardize the eviction proceeding, even when the purchaser has a valid deed and a legitimate right to possession.

A 10-day notice is not a universal substitute for the different notices that may be required when the occupant is a protected tenant.

Why Is the Referee's Deed Important?

The referee's deed is one of the most important documents in a post-foreclosure eviction.

It establishes the transfer of title following the foreclosure sale and may support the purchaser's standing to seek possession.

Under RPAPL § 713(5), the deed delivered pursuant to the foreclosure sale, or a copy certified in accordance with applicable law, must be exhibited to the occupant.

Simply claiming ownership is not the same as satisfying this statutory requirement.

In preparing a post-foreclosure proceeding, the purchaser's attorney should examine the deed, the foreclosure judgment, the identity of the purchaser, and the chain of title.

The deed's execution, delivery, and recording history may also be relevant.

This becomes particularly important when the person seeking possession is not the original foreclosure auction purchaser.

What if You Bought the Property From the Bank or Another Investor?

This is a particularly important issue for real estate investors.

Suppose a bank purchases a property at a foreclosure auction. The bank later sells the property to an investor, who receives a new deed.

The investor now owns the property, but the former homeowner remains in possession.

Can the investor simply use RPAPL § 713(5) to evict the occupant? Not necessarily.

In Sequoia Partners, LLC v. Ali, 67 Misc. 3d 133(A), 2020 NY Slip Op 50493(U) (App. Term, 2d Dept. 2020), the court dismissed a post-foreclosure summary proceeding brought by a purchaser who acquired the property from the original foreclosure purchaser.

The court concluded that the subsequent purchaser could not maintain the particular proceeding under RPAPL § 713(5).

Although RPAPL § 721(3) identifies certain subsequent grantees among persons who may maintain summary proceedings, that provision does not automatically establish a substantive ground for eviction under RPAPL § 713(5).

A subsequent purchaser may own the property and have a legitimate right to possession, but still need to establish an independently authorized legal basis for the proceeding.

Depending on the circumstances, other legal theories or an ejectment action may need to be considered.

For investors buying properties from banks, foreclosure purchasers, or other investors, this issue should be reviewed before preparing the predicate notice.

Can You Evict the Former Homeowner After Foreclosure?

A former homeowner who remains in possession after foreclosure is not necessarily in the same legal position as a tenant who rented an apartment from the former owner.

The former owner generally does not become a protected rental tenant merely by remaining in possession after losing title.

For a direct foreclosure purchaser, RPAPL § 713(5) may provide an appropriate means of recovering possession, assuming its requirements are satisfied.

However, a purchaser should confirm whether the occupant was a party to the foreclosure, whether there are applicable stays or other orders, and whether any additional rights or defenses exist.

The purchaser should also avoid treating every occupant as the former owner. Family members, renters, and other individuals may have different legal rights.

What if the Foreclosed Property Is Occupied by Tenants?

A tenant renting the property from the former owner may have legal protections that do not apply to the former homeowner.

New York RPAPL § 1305 provides important protections for qualifying residential tenants following foreclosure.

Depending on the circumstances, the tenant may be entitled to remain in the property for at least 90 days after the required notice, or for the remainder of a qualifying lease term.

The new owner generally must provide information concerning the tenant's rights and the new owner's identity and address.

Federal protections under the Protecting Tenants at Foreclosure Act may also apply to qualifying bona fide tenants.

A purchaser should therefore determine whether an occupant has a written lease, an oral rental agreement, or another legally protected tenancy.

The existence of a tenancy can significantly affect the notices required and the earliest date on which an eviction proceeding may be commenced.

A foreclosure purchaser should not assume that every occupant can be removed after only 10 days.

What Is the 90-Day Notice Requirement After Foreclosure?

For tenants protected under RPAPL § 1305 or applicable federal law, a 90-day notice may be required.

In some circumstances, a qualifying tenant may have the right to remain for the balance of an existing lease, even when that period exceeds 90 days.

The applicable rights depend on the nature of the tenancy, the terms of the lease, the foreclosure circumstances, and any applicable exceptions.

The purchaser should carefully determine which notice requirements apply before attempting to recover possession.

The 90-day tenant-protection rules should not be confused with the separate 10-day notice associated with RPAPL § 713(5).

Different occupants may have different rights, even when they reside at the same property.

Does New York's Good Cause Eviction Law Apply After Foreclosure?

New York's Good Cause Eviction Law can raise additional questions when an occupied foreclosed property is involved.

The law applies to certain covered residential tenancies in New York City and in municipalities outside New York City that have adopted it, subject to statutory exemptions.

However, the fact that a former homeowner or other occupant remains after foreclosure does not automatically establish a landlord-tenant relationship or make the occupant a covered Good Cause tenant.

The purchaser must examine the nature of the occupancy, the applicable municipality, the property's characteristics, and any statutory exemptions.

Where required, the purchaser must also comply with applicable Good Cause Eviction disclosure provisions.

The analysis may differ substantially between a former owner who remains after foreclosure and a tenant occupying a rental apartment.

How Long Does It Take to Evict Someone After Foreclosure in Nassau or Suffolk County?

There is no single guaranteed timetable.

The duration depends on the applicable notice period, service requirements, court scheduling, whether the occupants contest the proceeding, and whether any legal or procedural complications arise.

A straightforward matter may move more quickly than a contested case involving a disputed tenancy, title questions, defective notices, bankruptcy filings, or multiple occupants.

A purchaser should also account for the time required to obtain a warrant of eviction and schedule enforcement with the appropriate Sheriff or Marshal.

For investors planning renovations, resale, or rental of the property, these potential delays should be considered before purchasing an occupied foreclosure property.

Common Mistakes Foreclosure Purchasers Should Avoid

Several mistakes can substantially delay recovery of possession.

One is assuming that ownership alone authorizes immediate removal of the occupants.

Another is using a 10-day foreclosure notice without determining whether the occupant is a protected tenant entitled to additional notice.

A third is failing to comply with the statutory requirements concerning the foreclosure deed.

Perhaps the most significant mistake for investors is assuming that a subsequent purchaser has precisely the same statutory remedies as the original foreclosure auction purchaser.

An improperly selected legal theory can result in dismissal, requiring the purchaser to begin again under a different procedure.

Careful preparation before service of the first notice can save considerable time and expense.

How Does a Post-Foreclosure Eviction Proceeding Work?

Frequently Asked Questions About Post-Foreclosure Evictions