Tenant Abandonment of Rental Unit
Discovering a rental unit which is currently leased but apparently unoccupied leaves a landlord to question whether the tenant has abandoned the unit without giving notice or whether the tenant has left for an extended period for personal reasons.
There are a number of reasons that a tenant could be absent from their unit for a lengthy period of time. A tenant owing past due rent may skip out ahead of being evicted. Tenants have personal reasons to leave unexpectedly, such as being called to handle a family emergency, being arrested and held in jail, being hospitalized for medical reasons or simply taking a long vacation.
A landlord will need to establish reasonable evidence that the rental unit has been abandoned by the tenant in order to gain possession of the unit. The landlord cannot make an assumption regarding the tenant’s intent and action in absenting himself from the rental unit. The tenant may truly intend to return to the rental unit but has failed to communicate his absence and future plans to the landlord.
An unannounced departure by a tenant creates problems for a landlord in retaking possession of the rental unit. 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 quiet enjoyment of the rental unit. The tenant may file 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.
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 tenant personal property has been left behind in the unit.
An important first 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 proven by investigation of the matter.
In some cases, it is the tenant’s rent default that alerts the landlord to the tenant’s absence. Even when the landlord can establish the tenant’s rent default as probable cause for the abandonment, the landlord must fully investigate the circumstances to establish clear evidence supporting a finding of abandonment. Using a reasonable person standard, the landlord must follow due process of the law to investigate the matter and evaluate his findings. All reasonable efforts should be made to contact the tenant and documented in writings as to the type and number of attempts and the associated results.
If the landlord is able to contact the tenant directly, the landlord should inquire what the tenant plans to do, such as return to the unit or surrender the unit back to the landlord. If the tenant responds that he does not intend to return, the landlord should request that the tenant document in writing that the tenant has surrendered the rental unit to the landlord with no intention to continue the tenancy and return the unit keys to the landlord. With the tenant’s signature and date on the release document and the receipt of keys the landlord has evidence to transfer possession of the unit from the tenant back to the landlord.
If the tenant cannot be 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 to the unit, whether there are health 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 contacts to determine if they have information regarding the tenant’s plans, knowledge of the 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 mail a letter to the tenant with return receipt requested with notification of the address where the letter was delivered.
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 deliver 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.
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. State statutes will provide guidance on what to do with the tenant’s personal property if the tenant does not respond to the legal notice within the designated timeframe. 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.
In some states landlords may either 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.
Documentation of the process is important to protect the landlord against claims of wrongful actions. Documentation of every action taken should be done including reviewing status of the tenancy regarding lease default, efforts made to reach the tenant, notes from interviews with tenant emergency contacts, notes from interviews with neighbors, other attempts to locate tenant, notices sent, responses to notices, utilities correspondence and notice of shutoffs, returned mail, and storage receipts for safekeeping of tenant personal possessions. During unit inspections, conditions of the rental unit should be documented with photos and videos of each room, noting evidence of tenant personal property left behind. Abandoned vehicles should be reported to law enforcement to determine legal disposition.
A landlord may wish to consult with an attorney experienced in landlord-tenant matters if there is reasonable doubt whether the tenant has abandoned the rental unit. It may be the better practice to proceed with applicable legal actions, such as formal notice to the tenant and filing an eviction action in the applicable jurisdiction governing the property location.
As a practical matter to help minimize the negative impact of tenant abandonment, a landlord’s lease agreement should contain language that details specific terms about tenant abandonment of a rental unit and abandonment of tenant personal property. An extended absence clause included in the lease might state that the landlord requires the tenant to notify the landlord in advance of an extended absence by the tenant and that during the tenant’s absence from the rental unit the landlord may enter and inspect the rental unit as reasonably necessary to maintain the unit and inspect for damage and needed repairs.