A tricky issue in property management is how to determine a property is abandoned? Unfortunately, abandonment is usually not so simple as a home left broom-clean with keys sitting on the counter. Abandoned properties usually look like a home that you could come home to..with evidence that nobody is coming.
Clues That A Property Is Abandoned
The following are the obvious clues:
- The rent is not being paid.
- There is no answer when trying to call. Multiple messages left with no return call from the tenant.
- Posted notices stay posted.
- Neighbors have not seen your tenants in weeks.
- The named emergency contact knows nothing.
If there are enough clues, activate the clause in the lease that allows the manager to inspect the interior of the home.
Entering The Possibly Abandoned Property
When entering the suspected abandoned property it may become confusing. The home may look lived in…except for the smells of spoiling food in the refrigerator. It becomes even more confusing if pets are found in the home. Deciding if the pets have been also abandoned becomes a sad and difficult part of the detective work.
Assuming that most of the items in the checklist receive no response, and visual clues are present after entry, it is time to retake the property. The first step is to re-key the home. Taking this action can trigger though a whole bunch of legal trouble if the tenant comes back. Be prepared to post one more notice at the home informing the tenant that the home was determined to be abandoned and to contact the landlord for access.
Be careful-assuming that the tenant has abandoned the property. Document the reasons the re-taking of possession has occurred. You wan tot discourage any legal actions due to sloppy procedures or conclusions. The goal is to return the property to a cash flow positive state as quickly as possible. Clearly documenting with dated notes and images will help head off lawsuits or provide a much better defense if the tenant returns.
And they often do.
Personal Property Left Behind In The Abandoned Property
It is their personal property that causes them to return. Maybe when they abandoned they just needed to figure out where to move and it took a month or two to figure that out. Believe me, it has not crossed their mind that they can’t just store their personal belongings for free in the home they were leasing. The landlord must properly store the items in the home. Otherwise there is the risk of a lawsuit that will be very difficult to defend. The landlord could be ordered to pay the former tenant for loss of their personal property!
The rules on personal property notices, storage, and disposal vary be state. Know your states requirements and be very carefull before disposing of any of the tenants belongings determined to have value.
Make Sure Your Lease Addresses Abandoned Property
Most leases will address abandonment and this is where the manager needs to start. Another strong weapon against future disputes is to have a tenant acknowledge, in writing, their understanding of the landlord’s process to determine if a property is abandoned.
Here is the language in our lease.
ABANDONMENT: If Tenant abandons the Premises or any personal property during the term of this Lease, Landlord may at its option enter the Premises by any legal means without liability to Tenant and may at Landlord’s option terminate the Lease.
Abandonment is defined as absence of the Tenants from the premises, for at least fifteen (15) consecutive days without notice to Landlord. If Tenant abandons the premises while the rent is outstanding for more than 15 days and there is no reasonable evidence, other than the presence of the Tenants’ personal property, that the Tenant is occupying the unit, Landlord may at Landlord’s option terminate this agreement and regain possession in the manner prescribed by law.
How To Enforce and Document The Abandoned Property Clause?
The difficult part of this particular clause is to prove that the home was not occupied for 15 consecutive days.
Date and time stamp photos are the best tools to document a property is abandoned. Pictures of the posted notice over a 15 day period are powerful. Even if you can’t visit the home 15 days straight, tape over all door entries. The tape will have to be cut in order to open a door. Photograph the home, with date and time stamp, as often as possible during the 15 consecutive day period showing that the tape was not broken or removed.
The best option may be to have your attorney file for eviction after the first late pay. In defending the eviction, your lease’s abandonment clause and date stamped pictures of abandonment, along with proof of non-payment, should be enough to regain possession.