Tenant Abandonment of Rental Unit
What can a landlord do if he/she suspects a tenant has abandoned the rental unit? Being unsure whether the tenant is really gone for good or intends to come back to occupy the rental unit leaves the landlord at a disadvantage.
An unannounced departure by a tenant creates problems for a landlord in retaking possession of the rental unit. Additionally there may be issues of disposition of tenant personal items left behind in the unit. If not handled in the appropriate legal manner according to state statutes for abandonment of rental premises, a landlord could potentially be subject to claims by the tenant that the landlord violated the tenant’s rights to privacy and enjoyment of the rental unit, claims of damage, destruction or unauthorized removal of tenant personal possessions from the unit, or claims of damages and suffering as a result of a landlord’s lock-out of the tenant from the unit without cause.
Tenants can disappear for a variety of reasons. Many times a tenant leaves because of money problems, such as past due rents, or lease violations and skips out ahead of being evicted. Tenants have personal reasons to leave unexpectedly, such as family issues, job duties, or an extended vacation. Perhaps, a single occupant may have had a medical emergency requiring hospitalization. A landlord will need to establish the reasonable belief that the rental unit has been abandoned by the tenant. The landlord cannot make an assumption regarding the tenant’s intent and action in absenting himself from the rental unit nor guess whether the tenant will return. The tenant may truly intend to return to the rental unit but has failed to communicate his absence and future plans to the landlord.
Most states address the issues of abandonment of real and personal property through specific statutes including notice requirements and waiting periods to be followed if a landlord believes a rental unit has been abandoned and/or tenant personal property has been left behind in the unit.
While each state may differ in how the statute addresses the issue of abandonment and requirements for regaining possession of rental property, in general, landlords must make an effort to investigate and establish reasonable belief for tenant abandonment of the rental unit.
An important consideration before assuming abandonment is whether the tenant is current in his rents. If the tenant is current with rent, many states do not consider a unit to be abandoned. The tenant is absent from the unit but still legally in possession of the unit as long as the tenant has not violated lease terms and conditions. Abandonment must be proved by investigation of the matter.
There may be red flag indications that the unit is no longer occupied but the landlord does not have the legal right to immediately retake possession of the unit. The most simple and direct way to determine the circumstances of the matter is for a landlord to make reasonable effort to contact the tenant and ask the tenant if the tenant is coming back to occupy the rental unit. If the tenant responds that he does not intend to return, the landlord should request the tenant document in writing that the tenant has permanently moved out of the rental unit with no intention to resume the tenancy. With the tenant’s signature and date the document serves to transfer possession of the unit from the tenant back to the landlord. If the tenant cannot be reached or reached in a timely manner, to establish reasonable belief of abandonment a landlord may take steps such as:
- Entry and inspection of the rental unit as a health and welfare check. Complying with statutory requirements for landlord entry for permissible purpose, a landlord can conduct a brief inspection of the unit to determine if the unit is unoccupied, whether tenant personal possessions are still in the unit, whether utilities have been shut off, whether there is evidence of physical damage or safety issues, or whether tenant pets have been left unattended. For the landlord’s protection it is advisable for a third party to accompany the landlord during the inspection to act as the landlord’s witness as to the condition of the unit. Appropriate, reasonable action must be taken to safely shelter any pets that have been left behind as well as preventative measures taken to protect the unit and its contents from damage until further investigation and resolution can be made.
- Contacting neighbors to determine if they have any information regarding the tenant’s absence or have noticed evidence of the tenant moving out.
- Speaking with the tenant’s emergency contact to determine if he/she has information regarding the tenant’s plans, knowledge of tenant’s move-out, or forwarding information for the tenant.
- Determining if a change of address notice has been submitted to the post office. A landlord may choose to send a letter to the tenant with return receipt requested with notification of the address where the letter was delivered.
There could be unusual circumstances that underlie an extended absence by the tenant. The landlord must make a good faith effort to consider a number of factors before concluding the rental unit has been abandoned.
Many states require the landlord to notify the tenant regarding the belief of abandonment in order to officially establish abandonment and terminate the lease. In those states a landlord must provide the required official notice using the required delivery method to the tenant at the tenant’s last known address regarding the landlord’s stated belief that the property has been abandoned. The official notice gives the tenant a respond by date to refute the property has not been abandoned. If there is no response, the lease is terminated and the tenant is held responsible for payment of unpaid rent and fees and for any damages.
The landlord may use the tenant’s security deposit for unpaid rents, fees, or property damages. If the amount owed exceeds the amount of the security deposit, the landlord will need to file a claim in a small claims court for the balance due.
When a lease is terminated a landlord must secure the rental unit by changing locks and taking appropriate steps by statute to remove and store the former tenant’s personal possessions that were left in unit.
Many states have abandoned property statutes and the requirements greatly. They generally require landlords to provide written notice to tenants regarding the handling of tenant property that was left behind. The notice typically includes:
- A detailed inventory of the property abandoned,
- An estimated value of the abandoned property,
- The address of the storage facility where the property may be claimed,
- The deadline set by state statute to reclaim the property,
- The final disposition of unclaimed property specified by state statute.
State statutes will provide guidance on what to do if the tenant does not respond to the legal notice within the designated timeframe. As examples, in some states landlords may discard the property, arrange for sale of the property to apply against the costs of storage, donate the property to a non-profit organization, retain the property for landlord use, or surrender the property to a designated state agency.
It is a landlord’s best practice to document the reason(s) why the landlord suspected the rental unit had been abandoned and what actions were taken to recover possession of the rental unit and final distribution of tenant personal possessions left in the unit. In the event of a wrongful lock-out claim by the tenant the landlord can present evidence of a reasonable belief of abandonment of real and personal property.
Adequate documentation could include the date of the tenant’s last rent payment, landlord notices of lease default, or pending eviction action. Additionally when conducting an inspection of the rental unit, a landlord should document the condition of the rental unit including photos of conditions such as spoiled food, garbage and trash, unsafe or unsanitary conditions, or abandoned pets. Interviews with neighbors and emergency contacts should be documented with date, time, and a summary of discussion. Copies of official notices including delivery method that were sent to the tenant should be kept in the tenant’s file. Information should also be kept regarding utility shut-off notices, and storage receipts and invoices.