Legal Possession of the Rental Unit between the Landlord and the Tenant
Legal Possession of the Rental Unit
The landlord-tenant lease agreement is a legal contract that defines the rights and responsibilities of landlord and tenant. The landlord has the right to receive rent for the use of the property. The tenant receives the right to the possession and use of the rental property free from interference from the landlord.
At the expiration of the lease term the tenant has no legal right to occupy the rental property. In general a landlord knows when the tenant has surrendered the property and relinquished all rights. The tenant has: notified the landlord of the intent to move; removed personal belongings; completed the move-out inspection; and turned in the keys. The tenant’s actions signify voluntary relinquishment of the right to occupy the property.
The issue of legal possession can arise if the landlord erroneously assumes the tenant has returned possession of the property. If that was not the intent of the tenant, there can be potential problems. Legal remedies may be required to return possession of the rental property to the landlord.
Questions of possession may arise when the tenant appears to either be holding over after the expiration of a lease or to have abandoned the property in the midst of the lease term. What a landlord can do or must do depends on how the vacancy occurred and can vary significantly among states.
Holdover by Tenant
If the tenant stays on after the expiration of the lease, the tenant becomes a holdover tenant. Despite the expiration of the lease, in order to remove the holdover tenant from the property, the landlord in many states must serve the holdover tenant with a notice to vacate the property, stating the date upon which the tenancy ended. If the tenant does not vacate by the end of the notice period, the landlord can file an eviction lawsuit. There are some states that do not require a notice to a holdover tenant and allow the landlord to immediately file an eviction lawsuit upon expiration of the lease.
Abandonment of Rental Property
The issue of possession is especially a problem when a tenant appears to have abandoned the property without any notice, but has left some belongings behind. The problem is knowing whether the tenant has permanently left and intended to leave the belongings for disposal by the landlord. If the tenant instead plans to return at a later date to retrieve the belongings, or even to re-occupy the property because the tenant did not intend to give up possession of the property, there can be problems. If the landlord is in the process of filing what was assumed to be a vacancy, there is a greater problem.
Even if the tenant is past due with rent, the tenant still has the right of possession. The right of possession exists independently of paying rent unless a court ordered eviction has been completed.
A landlord should not take possession of the rental property until he is certain that the tenant intended to relinquish possession of the property. Before worrying about installing a new tenant, a landlord must be sure the old tenant does not have possession rights. While following proper procedures according to specific state laws could mean delays in filling a vacancy and collecting rent from a new tenant, failure to do so can expose the landlord to various potential liabilities including being sued by the old tenant.
Breaking lease
The landlord may have some indications that a tenant may be intending to leave before the end of the lease term, i.e. breaking the lease. Routine monitoring of the rental property, information from neighbors, or changes in tenant behaviors may point to signs of a sudden move by the tenant and a potential unexpected vacancy for the landlord. Ignoring early warning signs may lead to greater potential landlord losses for rents, property damages, and possession.
It may be the best course of action to initiate communication with the tenant to remind the tenant of his obligations under contract. The tenant will suffer loss if the lease is broken and may damage his future ability to qualify for housing. The landlord may determine it is beneficial to negotiate mutually acceptable terms of lease termination. While there may still be loss, it can be minimized and the important issue of possession can be quickly resolved. The negotiated terms should be in documented in writing and signed by landlord and tenant to acknowledge termination of the tenancy.
Lease Agreement
The lease agreement can help to minimize questionable vacancy issues. A lease agreement should include a clause that requires written specific notice of intent to vacate. Notice should be given per the timeframe as required by state statute or if not specified, the number of days required by the landlord, usually a minimum of thirty days.
The lease should contain clauses regarding procedures to follow for vacating the property and what actions might be taken by the landlord if procedures are not followed, including any required by statute. The lease language should clearly detail what the tenant must do when vacating and what will happen if the tenant fails to act as agreed.
As an example, in order to provide definitive knowledge of when possession has transferred, a lease clause could state that all tenant belongings must be removed and keys must be returned when the tenant has fully vacated and that failure to do both will result in (1) continued accrual of rent and any relevant late charges, (2) charges for the costs of storing and or disposing of the abandoned belongings, and (3) a locksmith charge.
Some states have statutes that define how a landlord may proceed to recover possession when the tenant appears to have abandoned the rental property. When the state statute defines such procedures, the lease agreement should include the procedures as defined by statute.
Absent any statute prohibiting it, the lease agreement should contain a clause that specifies the length of time that the tenant may leave the property without prior notice to the landlord (e.g., 10 days) and provides that the property may be considered abandoned if such notice was not provided to the landlord.
There could be many reasons why a tenant would fail to give a required notice of extended absence. The landlord should make reasonable effort to locate the tenant or obtain information regarding the tenant’s absence. Information supplied by the tenant on his application form, such as emergency contact information or personal references, may provide a contact name and phone number.
Statutory Possession
When a landlord is considering whether or not he has gained legal possession of a rental property, he must be aware of any specific state requirements regarding possession. Such possible requirements can vary significantly among those states which have them.
For example, a state may specify that the landlord does not have possession absent a specific action such as the keys being turned in. Absent such an action, state law may require that the landlord perform “abandonment” procedures or commence a forcible detainer action (eviction).
An abandonment procedure typically requires that the landlord has not seen the tenant for some period (e.g., 7 days) and rent has not been paid for at least some period (e.g., 10 days). The landlord can then (and only then) post an abandonment notice on the door stating that he will be taking possession of the unit at a future date (e.g., 5 days later). All periods must be as specified by the statute of the particular state. Although such a statute could significantly delay readying the property for a new tenant, failure to follow the statute puts a landlord at risk.