Abandonment of a Lease

A residential lease is a specific type of legal agreement, entered into when a tenant rents property from a landlord to use for residential purposes. Similar to other lease agreements, a residential lease contains the terms and conditions of the lease. Some examples of such terms and conditions include the date on which the lease will expire, and how often the tenant is expected to pay rent.

Additionally, a residential lease agreement will generally provide guidance regarding the various legal rights and obligations of the signed parties. In opposition to commercial leases, a residential lease is specifically drafted in order to ensure that a residential property offers sufficiently habitable living conditions. This lease also ensures that the landlord will not interfere with the rights of a residential tenant, unless absolutely necessary.

When a tenant’s rent goes unpaid, and the landlord is unable to contact the tenant regarding the matter, the landlord may assume that the tenant has abandoned the property without notice. This is referred to as tenant abandonment. In such instances, there are certain steps that a landlord can take in order to reclaim the property and collect damages for any unpaid rent.

It is important to note that many lease agreements also contain provisions which state that if rent is overdue for a specific amount of time, the lease is considered to be abandoned. The same applies if the tenant leaves the premises without notifying the landlord for a specified timeframe.

The laws that govern lease abandonments can vary significantly between states, including the required waiting periods before property is considered abandoned, procedures for how to handle the tenant’s personal property, and a landlord’s duty to mitigate damages. It is essential to review state-specific statutes and consult with a local lawyer to ensure compliance with applicable laws.

If a landlord does not follow the proper legal requirements when handling an abandoned property, they can face legal consequences, such as a lawsuit from the former tenant for a wrongful eviction or illegal disposal of their property. A landlord can also be held liable for damages if they do not properly mitigate their losses by not making reasonable efforts to re-rent the unit.

Even though certain aspects of handling a lease abandonment may seem straightforward, some tasks are best handled by an attorney, such as navigating state-specific laws, interpreting a complex lease agreement, and representing a landlord in court when a dispute arises. A lawyer will also help ensure that all actions the landlord takes are legally compliant, which minimizes the risk of future legal issues.

How Long Does a Tenant Have to Be Gone before a Property Is Considered Abandoned?

In terms of how long a tenant must be gone before a property is considered to be abandoned varies from state to state. Generally speaking, before moving away from the property, a tenant must provide a Notice To Vacate so that their landlord can make all necessary arrangements on their end.

It is important to first determine if the property has actually been abandoned, in legal terms. Some examples of questions that may be asked in order to ascertain if the property has been abandoned include:

• Has the tenant fallen behind on their rent payments, or are they facing eviction?
• Are any significant items missing from the property, such as a bed?
• Have any valuable items been left behind?
• Have the utilities been turned off?
• Has the tenant’s emergency contact been questioned?
• Is the tenant responding to any form of communication?

Most states will not consider a lease to be abandoned if rent is current, or if essential items have been left in the property. Generally speaking, most states require landlords to store abandoned property in a safe location for thirty days before disposing of it.

In general, most state laws require that landlords must wait a specific time period before they are allowed to dispose of a tenant’s belongings. The specific time varies by location, but is often 30 days. A landlord should review local laws and consult with local attorneys to ensure they are in compliance.

What Are a Landlord’s Steps After a Lease Has Been Abandoned?

Once a landlord suspects that the lease has been abandoned, and the rental premises have also been empty without notice for a period of time, they should take the following steps:

• Enter and Investigate: The landlord may legally enter the unit in order to conduct a brief check. This check is intended to see if the tenant has actually abandoned the lease, as well as their personal property. After several unsuccessful attempts to contact and call out to the tenant, the landlord may use their key to enter into the home;
• Proper Notice: A landlord may attempt to provide what’s known as an Abandonment Notice to Tenant. This is to be sent to the tenant’s known address. They may also post a notice on property that is believed to be abandoned;
• Securing Property: Once the deadline has passed, and the landlord is absolutely sure that the unit is abandoned, they may change locks on the unit and re-rent as soon as reasonably possible. It is important to note that the landlord has the duty to minimize their financial losses by re-renting the unit as soon as possible; the former tenant is liable for rent owed up until the day on which the new tenant moves into the property;
  • In some lease abandonment situations, a landlord may incur costs related to finding a new tenant, for example, advertising or property upkeep. Whether or not these costs may be passed on to the tenant who abandoned the property will depend on their lease agreement and local laws. In some jurisdictions, landlords are allowed to recover reasonable expenses they incurred while trying to mitigate their losses.
• Collect Owed Rent: The landlord may use the former tenant’s security deposit in order to compensate themselves for the unpaid rent, as well as to repair any damages. If the amount owed exceeds that of the security deposit, the landlord can legally file a claim in small claims court in order to recover this amount. However, it is important to keep in mind that the landlord can only collect unpaid rent up to the date a new tenant moved into the former tenant’s unit; and/or
• No-Self Help: If the landlord suspects that the tenant has not actually abandoned the property, but they are not paying their rent, the landlord cannot use self-help measures to physically remove the tenant out of the unit. What this means is that the landlord cannot force the tenant out physically. Additionally, they cannot change the locks. Landlords may only evict a tenant by using their state’s court procedures.

A landlord will likely have to prove the lease was abandoned, so it is important to maintain thorough documentation. This can include a copy of the lease agreement, records that the rent went unpaid, any written communications with the tenant, photos or videos of the abandoned property, and proof of any attempts to re-rent the unit. This evidence can be used to show the tenant’s intent to abandon the property as well as the landlord’s efforts to mitigate their damages.

What Are the Consequences of Abandoning a Leased Premises?

There are a number of consequences for abandoning a leased premises. Such consequences can vary from state to state, although they are generally similar to each other. If a tenant leaves a rental unit prior to the lease’s expiration, without providing adequate notice, some or all of the following consequences may occur:

• The property’s landlord can terminate the tenant’s lease in order to re-rent the property to someone else;
• The landlord can allow the police or other similar authorities to search the property without violating any of the tenant’s Constitutional rights;
• Some jurisdictions have determined that after a specified amount of time, the landlord can legally dispose of any personal property that the tenant left behind; and/or
• The landlord can take the tenant to court in order to recover unpaid rent for the time period in which the premises were vacant.

What Are a Landlord’s Remedies If a Tenant Abandons a Lease?

To reiterate, a landlord’s remedies if a tenant abandons a lease can vary from state to state. If the tenant abandons a leased premises, the landlord may legally terminate the lease. Additionally, the landlord may sue the tenant for any unpaid rent. The landlord may keep the tenant’s security deposit in order to pay for any unpaid rent, and cover any required repairs that were caused by the tenant. If the amount that is owed by the tenant exceeds the security deposit, the landlord may sue the tenant in small claims court in order to collect the amount owed.

Once again, the landlord has a duty to mitigate their losses by re-renting the premises to a new tenant. They must take reasonable and timely steps to re-rent the premises; and, the landlord can only recover any unpaid rent until the date the new tenant moves into the property. If the landlord fails to take reasonable steps in order to re-rent the premises, they cannot collect any damages that they could have avoided.

Should I Speak to a Lawyer?

Whether you are the landlord or the tenant in circumstances involving abandonment of a lease, you should contact an experienced local landlord-tenant lawyer as soon as issues arise.

Because abandonment of a lease can vary from state to state, an area attorney will be best suited to helping you understand your state’s laws and how they will influence your legal options. Finally, an experienced landlord-tenant attorney will also be able to represent you in court, as needed, while protecting your legal rights as either the landlord or the tenant.