Is There a Lease? Part 1

HNWReal Estate, Landlord/Tenant, and Zoning

eviction noticeIt is no secret that residential tenants of a property being foreclosed upon are subject to the protections of the Anti-Eviction Act, which mandates a series of steps and notices to provide a tenant before you lock him or her out of the property he or she is living in.  This is why in a foreclosure matter, the tenants or occupants of the building are joined as defendants.  But at the same time, the person who lives at the property must qualify as a tenant in order to be covered under the protections of the Anti-Eviction Act.  The case of HomeBridge Financial Services, Inc. v. Michael R. Santesse, et al., Docket No. A-3555-17T1 (May 1, 2020) examines those protections in the context of an oral lease.

The Plaintiff recorded a mortgage on a residential property in Cape May County owned by the Santesses in 2012.  Unbeknownst to the Plaintiff, the Santesses transferred the property to their daughter Theresa Hooks.  In 2014, the parties stop making mortgage payments and in 2015, a foreclosure action is filed.  With no response by any of the parties during the action, the court enters a judgment of foreclosure and directs a sheriff sale.  At the sale, the Plaintiff becomes the winning bidder of the property, and seeks a writ to remove from the property any occupants.  Out of nowhere, in November 2017, the occupant of the property, Nicole Becica, files a pro se motion asking for a stay of the removal claiming she needs more time to leave the premises.  This was granted, and the court ordered a hearing to determine if Nicole had a lease on the property.  The court also ordered her to pay rent for November and December, when the hearing would occur.  In December, Nicole fails to show up at the hearing, and the court orders the removal to proceed in January.  She then files another motion in January asking again for the removal to stop, which the court grants and schedules a hearing on the lease issue a couple days after.

In the next part, I will examine her arguments and how the courts reacted to her matter.

If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

Written by Stephen W. Kornas, Esq. of Hanlon Niemann & Wright

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