Do You Have Possession?
Do You Have Possession?
Whether the tenant left at the end of his lease term, terminated his lease early upon mutual agreement, or left in the midst of his lease term without even telling you, the fact is you have a vacancy. However, what you can or should do next can depend on how the vacancy occurred as well as what might have been left behind.
There are a number of potential issues regarding landlord possession of a rental unit and landlords do not always consider the ramifications of assuming that the tenant has returned possession when that was not the tenant’s intent.
There are also issues regarding tenant personal property still on the premises after it appears that the tenant has moved out.
What a landlord can do or must do when there is any question regarding the tenant’s intent to vacate varies significantly among states. Accordingly, while we will in this article provide discussions about some of the issues, landlords must research and understand the laws of their particular states.
Who Is In Possession?
The landlord should consider the issue of possession whenever there is any question as to whether or not the tenant has truly vacated the premises, that is, he intended to relinquish possession back to the landlord.
This is especially a problem when a tenant appears to have abandoned the unit 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 or, instead, plans to return at a later date to retrieve the belongings, even to re-occupy the unit because the tenant did not intend to relinquish possession of the premises. This can still be an issue
even though the tenant is not current with rent because the right of possession exists independent of paying rent unless a court ordered eviction has been completed.
Accordingly, a landlord should not take possession of the leased premises unless and until he/she is sure that the tenant intended to relinquish possession of the premises. Doing so otherwise can expose the landlord to various potential problems.
Following proper procedures causes delays of a few days, even a couple of weeks, and delays in collecting rent from a new tenant means lost income. However, failure to follow the laws of your state can result in problems, even result in being sued by the departing tenant. Accordingly, before worrying about what to do regarding filling a vacancy, you need to be sure that you have legal possession of the unit. That is, you need to be sure that the
old tenants have no possession rights. In some states, one must even use care in entering the unit when not certain as to the tenant’s intent and plans.
The question of whether the tenant has actually given up possession usually becomes an issue when the tenant appears to either (1) be holding over after the expiration or termination of a lease or (2) to have abandoned the premises in the midst of the lease term.
In the first case, extra caution is warranted if the tenant has not (1) turned in keys, (2) written or at least phoned to confirm vacating or a planned immediate departure, (3) given any other indication of certain vacating, or (4) removed all
belongings from the property without mentioning that he intended to leave the items for disposal by the landlord.
In the second case, the tenant appears to be no longer living at the property even though time remains on the lease, perhaps even time for which rent has been paid, and some of his/her personal property may remain on the premises.
Statutory Possession
When a landlord is considering whether or not he/she has gained legal possession of a rental unit, he/she must be aware of any specific requirements in the statutes of his state. Such possible requirements 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 rent has not been paid for at least some period after it was due (e.g., 10 days) and the landlord had been unable to contact the tenant for some period (e.g., 7 days). The landlord can then (and only then) post an abandonment notice on the door stating that he/she will be taking possession of the unit at some date (e.g., 5 days later). All periods must be as specified by the statute of the particular state. Although such a
statute significantly delays getting the unit ready for a new tenant, failure to follow the statute can put a landlord at risk.
Of course, any personal property left on the premises must be dealt with as required by the state’s abandoned property laws, as discussed later.
Minimizing Possession Issues
Minimizing questionable vacancy issues begins with the lease agreement. Absent any statute prohibiting it, the lease agreement should contain a clause(s) that specifies the length of time that the tenant may leave the property without prior notice to the landlord (e.g., 7 or 10 days ) and provides that the unit may be considered abandoned if such notice was not provided. The clause should meet any statute requirements that might exist.
One must, of course, take great care when utilizing such a clause because there could be a lot of reasons why a tenant failed to give the required notice. For example, the tenant is in the hospital ICU following a heart attack or an auto accident.
Accordingly, a landlord must make some effort to track down the tenant or information regarding the tenant. Efforts might include calling the tenant at his place of employment and/or the emergency contact and/or any personal
references that should have been provided with his application.
The lease should also contain a clause(s) regarding procedures for vacating and what actions might be taken by the landlord if procedures are not followed, including any required by statute. That is, words as to what the tenant must do
when vacating and what will happen if the tenant fails to act as agreed.
For example, in order to provide definitive knowledge of when possession has transferred, a clause could state that all 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 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 premises. When your state defines such procedures, the lease agreement should include the
procedures as defined in the statute.
Certainty about vacancy can also be enhanced by regularly monitoring the property beginning a short time before the tenant is expected to be vacating. It can be useful to stop in when it appears that the tenant has nearly finished loading the truck. At this time, you can confirm intent, mention the need to return the keys, and remind the tenant of the lease clauses and the penalties for failing to follow the procedures. If possible, have the tenant’s lease agreement with you when doing this. Furthermore, if possible, a signed written agreement listing what is being left behind and stating that the tenant understands that he will be charged for disposal would be very useful. At a minimum the landlord should
write a memorandum regarding the visit and the discussions.
Sometimes a landlord has information to indicate that tenants are leaving well before the end of a lease – i.e., breaking the lease. Either the landlord has been monitoring the property and has noticed evidence of a planned move or another tenant or an adjacent property owner or tenant has voiced suspicions or actual knowledge of the possible departure to the landlord.
In this case, immediately talk with the tenants and make sure that they understand the implications of breaking the lease and the potential impact on their ability to rent or buy a home in the future. Consider negotiating mutually acceptable terms of lease termination. It is better to obtain quick and clean possession rather than have disputes after the fact even if you must give up some rent. If the tenant is leaving before the end of the period for which rent has been paid, doing this can provide a head start on preparing the unit for a new tenant. The negotiated terms should be in writing and include clauses regarding paid rent, possible forfeiture of some or all of the security deposit, and abandoned items.