Will filing bankruptcy affect my apartment lease?
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If your rental payments are current, getting debt relief by filing bankruptcy will not affect your lease agreement. Learn how filing bankruptcy will affect your real estate lease.
Written by Attorney Andrea Wimmer.
Updated August 25, 2020
If you’re current with your rental payments and plan to keep living in the rental, everything will stay essentially the same. This article will provide an overview of the type of information you’ll need to provide on your bankruptcy forms and what typically happens with a residential lease after a Chapter 7 bankruptcy case is filed with the court. For more detailed information about leases and bankruptcy, check out our Guide to Leases in Bankruptcy.
Listing the Lease Agreement
You’ll have to list your lease on Schedule G. Schedule G specifically only lists “unexpired leases and executory contracts.” If you’re current with your rent payments, this is the only place your lease appears on your forms. All you’ll need your landlord’s name and contact information.
If you’re behind on rent, make sure to also list this as a debt on your Schedule E/F. You’ll again need the landlord’s name and mailing address along with the approximate amount of back rent you owe.
Notifying the Landlord
Renters don’t have to let your landlord know ahead of time that they're filing bankruptcy. However, the court will send a copy of Official Form 309A to the landlord after the case is filed. So, especially if your landlord is an individual (rather than a business or property management company), it may not be a bad idea to give them a heads up, as they may not know how it impacts them when a tenant files for bankruptcy .
Paying Rent After Filing Bankruptcy
You have to pay rent after filing bankruptcy. If you’re keeping (“assuming”) the lease, you have to keep paying your full rent (including any fees if you make late payments) and any other obligations under your lease agreement until the lease term is over.
If you’re using bankruptcy as an opportunity to get out of the real estate lease early and you move out before filing bankruptcy, you don’t have to keep paying rent. But, if you’re still living in the property, make sure to pay rent for the time that you lived there after your case is filed. This is a post-petition obligation and the bankruptcy discharge won’t apply to it.
Can I be evicted after filing bankruptcy?
No. As long as you’re current with your rent payments and haven’t violated any other terms of the lease agreement, the landlord can’t evict you just because you filed bankruptcy.
If you’re behind on rent payments when your case is filed, the automatic stay prevents the landlord from evicting you - at least temporarily. But, if you want to stay in the home (keep the lease), you’ll need to make arrangements to catch up on the back rent.
If you’re behind on rent and don’t want to bring the lease current, the landlord has to ask the court to “lift” the automatic stay for them so they can move forward with an eviction proceeding.
The provisions of the Bankruptcy Code protect you from any collection actions for back rent as of the date your bankruptcy case is filed. So, while the landlord can evict you from the rental property, they can’t make you pay for this pre-petition debt. But, as mentioned above, be prepared to pay rent for the time that you remain in the property after your case is filed.
The Automatic Stay and Eviction Judgments
It’s a little different if your landlord got an eviction judgment against you before you file bankruptcy. In that case, the bankruptcy law will protect you from eviction only if certain requirements are met. If you can’t meet these requirements, the landlord can evict you without first getting permission from the bankruptcy court.
What are the requirements to get automatic stay protections after an eviction judgment?
At the time your bankruptcy petition is filed, you have to certify to the court - under penalty of perjury - that state law allows you to cure the default that led to the eviction judgment in the first place. Additionally, you have to deposit all money that comes due within 30 days from your filing date with the clerk of the court. If you can’t do both, your landlord can move forward with the eviction process.
What should I expect when it comes to renewing my lease?
A bankruptcy filing should not impact your ability to renew your lease. That being said, many landlords use credit checks when deciding whether to offer or renew a lease agreement. It’s entirely up to the landlord whether to renew your rental agreement when the term is up. This is true whether someone files bankruptcy or not.
If your landlord is an individual (i.e. not a business or property management company) it may be helpful to explain to them that your bankruptcy actually makes you a more reliable tenant, as your disposable income no longer has to go towards debt payments or be subject to garnishments, making it easier to make your lease payments. If you're planning on moving, can also explain this to any potential landlord and that, combined with a security deposit and good rental history, will help in finding a new rental, even with a less than perfect credit history.
Upsolve can help
If you’re struggling with more debt than you can ever hope to pay off, filing bankruptcy may be right for you. Upsolve’s Learning Center contains free educational articles like this one for anyone interested in filing a personal bankruptcy. Eligible individuals who want to file Chapter 7 bankruptcy but can’t afford to pay for a bankruptcy attorney are able to use Upsolve’s free web tool to prepare their bankruptcy forms and file on their own (“pro se”).
