The abandonment process can be a quick and inexpensive way for landlords to regain legal possession of their property after tenants split without formally surrendering the unit; but it could also become a lengthy and expensive nightmare when done incorrectly.
Too often we see landlords fail to follow the abandonment procedures correctly and promptly (or in some cases, more than a year later) get sued. This may happen after a landlord takes possession of a seemingly abandoned apartment and later receives a letter with the dubious allegation, “you took my grandma’s diamond ring (or other costly item) from my apartment illegally!” While this claim may seem unpersuasive, much less provable in court, a judge could side with the tenant if the abandonment procedures were not done correctly. Don’t let this happen to you.
Here’s what you need to know:
- Although the Texas Property Code does not specifically define “abandonment,” Texas common law and the TAA lease offer guidance. Under paragraph 42 of the TAA lease, a person has abandoned the apartment unit only if all of the following have occurred: (1) everybody appears to have moved out in landlord’s reasonable judgment; (2) clothes, furniture, and personal belongings have been substantially removed in landlord’s reasonable judgment; (3) the tenant(s) has been in default for non-payment of rent for 5 consecutive days, or water, gas or electric service for the apartment not connected in the Landlord’s name has been terminated or transferred; and (4) the tenant has not responded for 2 days to the Landlord’s notice, posted on the inside of the main entry door, stating that the Landlord considers the apartment abandoned.
- Landlords should therefore 1) verify that the tenant has been in default for non-payment of rent for 5 consecutive days, or that the water, gas, or electric service for the apartment has been terminated; 2) photograph each room of any unit that the landlord believes is abandoned; 3) post a 2-day abandonment notice on the inside of the main entry door; and 4) list the reasons that the landlord believes the unit is vacated on the abandonment notice.
- Landlords should also support their findings with evidence. For example, at least two people should walk through the abandoned unit so there is more than one witness and, as noted previously, taking a few photographs showing the inside of the unit is recommended. Additionally, landlords should take a photograph of the abandonment notice after it’s posted on the inside of the main entry door. Likewise, landlords should retain a copy of the abandonment notice for their records. Once a landlord fulfills the requirements of paragraph 42, the landlord may remove the contents of the premises abandoned by a tenant and retake possession of the leased unit.
- Paragraph 14 of the TAA Lease Contract addresses how to handle any personal property left behind in the abandoned unit. 14.3 through 14.6 give a landlord authority to remove and discard or store abandoned property without liability for casualty, loss, damage, or theft. They also require tenants to pay reasonable charges for the packing, removing, storing, and selling of the abandoned property. Additionally, Paragraph 14.6(A) allows landlords to throw away the abandoned property or give it to a charitable organization.
- Finally, Paragraph 14.6(C) allows landlords to sell abandoned property that they don’t throw away or give to charity. If landlords choose to sell the property, however, they must strictly follow the language contained in 14.6(C), including giving the tenants written notice at least 30 days prior to the sale (we recommend 33 days to allow for mailing), by sending the notice to the tenants’ last known address. The notice must 1) be sent by both regular mail and certified mail (return receipt requested); 2) itemize the amounts the tenants owe; 3) state the date, time, and place of the sale; 4) provide the name, address, and phone number of the person to contact about the sale; and 5) advise the tenants of their right to redeem the property. The proceeds from the sale should be applied to the amounts owed by the tenants – first to rent, and then to the packing, removing, storage and sale expenses of the property. If the proceeds of the sale are more than the tenants owe, the excess amount must be mailed to the tenants’ last known address within 30 days after the sale.
We hope this information is helpful; however, please note it is provided for informational purposes only, and is not legal advice and does not create an attorney-client relationship.
Victor Huhem, Huhem Law Firm, is an AATC Member attorney. For more information on any of legislative or government affairs topics, contact Perry Pillow at 817-616-0354 or email him at firstname.lastname@example.org.