Today’s Question? My tenant’s utilities have been turned off. Can I re-take possession of the unit?

Retaking possession of a property can be a tricky situation.  Landlords who wish to  take possession when it is not clear that the tenant has vacated must weigh the risk of  a lawsuit for unlawful eviction with the lost time and income that can result from delay.  If you are considering retaking possession of your property because of abandonment of the premises, you should look at all the circumstances before taking any steps to remove your tenant’s belongings. The safest way to protect yourself from being sued for an unlawful eviction is to use the court system to retake possession, but sometimes landlords want to avoid using the courts because it can be time consuming.

If you are faced with the decision of whether to retake possession of your property it is probably a good idea to document your reasoning. Ordinarily, a landlord has no right to retake possession of the property just because a tenant has failed to maintain the utilities.  However,  disconnected utilities can be evidence that the tenant has abandoned the residence.  If you find that the utilities in your property have been disconnected, it may make sense to visit the property and talk to your tenant.  If your tenant is still actively living there, you probably do not have grounds to retake possession.  But, if you find that all of the utilities are shut off and the furniture has been removed, it may be appropriate to retake possession without resort to litigation.

If you decide to retake the possession because of abandonment, it is a good idea to document your reasoning. One way to do that would be to send your tenant a dated letter that explains that you have noticed that the property appears to be vacant and that any possessions left in the property will be discarded after 14 days.  The letter might also explain the reasons you have come to those conclusions and give the tenant a way to contact you to collect leftover possessions if you have changed the locks.

Remember, if you decide to retake possession without filing an eviction there is no way to ensure that your tenant will not sue you for unlawful eviction, but an ounce of prevention is always worth a pound of cure.

Today’s Topic: Abandonment by The Tenant

Sometimes tenants for one reason or another need to be away from the property for extended periods of time. Sometimes the tenant may be traveling. Other tenants simply decide to leave the unit permanently before the lease is up. Whatever the reason for these extended absences, the landlord will probably want to be informed. Unfortunately, tenants often do not tell the landlord that they will be leaving.

Abandonment can put the landlord in a tough position because it is often hard to determine whether the tenant has left the premises for good. One way to avoid any question about whether the property has been abandoned is by including a clause in the lease that requires the tenant to give notice of absences from the property that will extend beyond 14 days.

The new landlord tenant act provides the landlord some recourse if the tenant leaves the property for more than two weeks without giving notice. First, the landlord can take legal action against the tenant for damages caused by the tenants failure to give notice of an extended absence. Second, the landlord may go into the unit if it is necessary while the tenant is gone. Third, the landlord may consider the lease terminated and re-let the unit to another tenant. Finally, if the landlord finds that the tenant has left personal items behind in the unit, there is no duty to store or safeguard the tenant’s possessions. As such, the landlord can throw the items away or liquidate them as desired.

§ 35-9A-423. Remedies for absence, nonuse and abandonment.

(a) If a rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of 14 days pursuant to Section 35-9A-304 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.

(b) During any absence of a tenant in excess of 14 days, the landlord may enter the dwelling unit at times reasonably necessary.

(c) If a tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. But such duty shall not take priority over the landlord’s right to first rent other vacant units. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, it terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.

(d) If a tenant leaves property in the unit more than 14 days after termination pursuant to this chapter, the landlord has no duty to store or protect the tenant’s property in the unit and may dispose of it without obligation.