In most Pennsylvania counties, it is relatively simple to search through the appropriate recording offices and/or courts to see what liens may be present on a piece of real estate that is currently the subject of a mortgage foreclosure or a sale. However, it’s a rather dangerous assumption to assume that such inquiry will reveal the sum total of all possible liens on such real estate—unfortunately, that’s just not the case.

Instead, a wise individual should order a formal title search on the real estate from a reputable and experienced title searcher. Not only will this search show all of the “record” liens on the real estate, but most title searchers will also go the proverbial extra mile and look into liens that may not show up on record in Pennsylvania. This could include domestic relations arrears, PA corporate tax liens, and/or Department of Public Welfare/Department of Human Services liens for assistance.

A good title searcher will also indicate the presence of a recorded declaration of condominium, or documentation from a homeowners’ association. This information could point the way toward any liened sums due the condominium association or homeowners’ association.

In summation, if you have an interest in a specific piece of real estate, the title search can be worth its weight in gold… not only to see if there’s any public, lien-related documentation on the property, but to find out what most of us can’t see under the surface.

In the aftermath of the 2008 financial crisis, one of the pieces of legislation that was intended to be considered “Main Street”-friendly, which is another way of referring to legislation that is supportive of locally owned small businesses and residences, was the Protecting Tenants at Foreclosure Act (“PTFA”).  In short, this statute provided protection for tenants who occupied residential real estate that was subject to mortgage foreclosure.

The PTFA permitted any occupant who was a non-relative of a foreclosure defendant who occupied real estate under an arms-length, bona fide lease for fair rental value, to remain in the property for the balance of the lease term. If the lease did not have a fixed remaining term, occupants were allowed to remain in the property for 90 days before a foreclosing mortgagee could commence ejectment proceedings.

Despite its good intentions, unfortunately the PTFA wound up creating more problems than it solved before it was eventually retired at the end of 2014, because it effectively turned foreclosing lenders into reluctant landlords.  Even worse, there was very little case law, be it federal or state, that arose to properly interpret the PTFA, as its originally written provisions were less than clear, and any case law that did exist often varied from jurisdiction to jurisdiction.  In Pennsylvania, virtually no case law existed that interpreted the PTFA.

This changed in August of 2015, with the entry of the trial court’s decision in Bosco Credit VI Trust Series 2012-1 v. Hofer, et al. (Blair County Court of Common Pleas, August 5, 2015), which was an ejectment case that called into question the applicability of the PTFA.  I represented the plaintiff in this case.

The Court eventually held that, considering the purported lease was not for fair rental value under HUD guidelines for the area, the protections of the PTFA did not apply, and therefore the ejectment of the tenant could proceed.

Although the Bosco Credit case has been appealed to the Superior Court of Pennsylvania, its existence represents what is very likely Pennsylvania’s first foray into the murkiness created by the PTFA.