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.

What’s An Alabama landlord to do?

The first thing to do is to try to determine if the tenant is in the process of moving or has abandoned the property.  Obviously, if the tenant dropped off the keys to the unit, there isn’t much of a question as to the tenant’s intent. If the tenant simply left the property with no notice either by abandonment or because eviction was eminent, you may want to make an effort to determine whether the tenant intended to abandon the property.

Some things to consider would be:

• Whether there are expensive items that the tenant would probably take if they were moving.
• Whether the utilities are on.
• Whether the neighbors can give you an idea of how long it has been since the tenant has been on the property.
• Whether there is old mail in the mailbox addressed to the tenant.
• Whether the items left in the apartment have been moved  or the number of items has decreased since your last visit.

If you have satisfied yourself that the tenant has left the property, you have no duty to house the tenant’s belongings for more than 14 days. Once that period has passed, you may dispose of the property in any way that you see fit, including sale or discarding the items.  As always, if the removal of the tenant’s items causes you to spend money or resources to clean the property, you may, of course, deduct those expenses from any security deposit that may have been due the tenant.