Redbook Blues: Gone

by John Gillespie, WAK Property Management, AATC's Government Affairs Committee Chair

The past few months have been a challenge for all of us.  But I did manage to learn a few things during this pandemic. First, our industry is blessed with incredible professionals onsite and in the corporate office.  Second, our suppliers have navigated an ever-changing procurement world. Most importantly, I learned, that this too, will pass.    

Along the way, I was also reminded that some, not all, but some residents can be childish. You reach out to them during the COVID-19 crisis; they refuse to respond. You gently remind them about unpaid rent, and they pout, sulk, frown, and mope. Some refuse to talk to you.    

Some residents never grow up. You increase the rent; they become crybabies—whining and complaining about greedy landlords. You send them a lease violation, they tattletale on other residents. You try to collect rent; they throw a temper tantrum.    

As immature as these behaviors are, taking their toys and going home is far worse—a.k.a. abandonment. Skipping-rope is fun; skipping-out on a lease contract is not. Fortunately, the TAA Lease and TAA REDBOOK are excellent resources to help you deal with skippers in a calm, rational, and adult manner.  

If you suspect a resident has skipped, begin by reading and rereading Paragraph 41.3 of the TAA Lease Contract. This paragraph contains an exact definition of abandonment (including the death of a sole resident). The “abandonment” definition states:  

“You have abandoned the apartment when all of the following have occurred: (1) everyone appears to have moved out in our reasonable judgment; (2) clothes, furniture, and personal belongings have been substantially removed in our reasonable judgment; (3) you’ve been in default for non-payment of rent for 5 consecutive days or water, gas or electric service for the apartment not connected in our name has been terminated; and (4) you’ve not responded for 2 days to our notice left on the inside of the main entry door, stating that we consider the apartment abandoned. An apartment is also ‘abandoned’ 10 days after the death of a sole resident.”  

According to TAA’s legal counsel, there are four requirements that all must be met to consider a dwelling “abandoned.” First, everyone must appear to have moved out in your reasonable judgment. Second, clothing, furniture, and personal belongings must have been substantially removed in your reasonable judgment. Third, the resident must have been in default for non-payment of rent for five consecutive days. Alternatively, the gas, water, or electricity has been terminated or transferred by the resident. Fourth, the resident has not responded for two days to the notice of abandonment left by the owner inside the main entry door.   

The REDBOOK adds this caution: the term “abandonment” is a contractually defined term; therefore, you must be able to conclude that all of the elements contained in the definition have been met before deeming the apartment “abandoned” and removing the property.   

Abandonment is a four-way test. So, ask yourself, has this apartment really been abandoned? Just because their rent payment is six-days late does not mean they have abandoned the unit. A bare apartment with minimal furniture, no personal items, and little clothing does not mean it has been abandoned. If you or your staff have not seen or heard from a resident for an extended period does not mean the unit is abandoned.  If utilities have been cut-off, this does not constitute abandonment. If their neighbors tell you they are gone, it does not mean it is abandoning.    

However, if any of the above scenarios occur, and you strongly suspect that a rental unit has been abandoned, place a Notice of Abandon Dwelling on the inside of the main entry door. This sample notice is available in the REDBOOK. If they fail to respond to this notice within two days, you have satisfied one of the four abandonment requirements.    

If you reasonably conclude that all of the elements of “abandonment” four-way test have been met (i.e., unpaid rent, stuff is gone, utilities off, and non-response to notice), you can begin the make-ready process (change the locks, walk for damages, do the trash-out, schedule repairs, etc.).  

Finally, review your rights and obligations, as described in Paragraph 14 of the TAA Lease Contract. One man’s trash is another man’s treasure. Paragraph 14.3 gives you the right to immediately throw away or give to charity any property left in an abandoned apartment (with an exception for animals and property left after the death of a sole resident). More importantly, Paragraph 14 gives you legal cover from lawsuits claiming that you unlawfully or prematurely threw-out or gave-away the resident’s property that was left in the dwelling after the resident vacated the residence.  

While nationally, abandonment may decrease during the pandemic, you may see increases in abandonment at specific properties. Residents who are unable or unwilling to pay large outstanding balances may abandon the apartment. 

Bottom-line, declaring a rental unit abandoned requires property management professionals to be reasonable even when a resident acts like an irresponsible, spoiled brat.   

John Gillespie, WAK Property Management, is the AATC Government Affairs Committee Chair. For more information, contact Perry Pillow at ppillow@aatcnet.org.