Spoiler alert: residents can be childish. Some residents just 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 late fees, 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 of the TAA Lease Contract. This paragraph contains very precise definitions of surrender and abandonment (including the death of a sole resident). TAA Lease Paragraph 41.2 states that a unit is considered surrendered if either of the following occur: 1) it is past the move-out date and it appears in the owner’s or owner’s representative’s “reasonable judgment” that no one is living in the unit, or 2) the leaseholder has returned all keys and access devices listed in Paragraph 5 of the TAA Lease.
The TAA Lease Paragraph 41.3 states that a unit is considered abandoned if all the following occur: (1) everyone appears to have moved out of the unit; (2) the resident(s) stuff (i.e. clothes, furniture, personal belongings, etc.) have been “substantially removed”; (3) tenant is 5-days in default for non-payment of rent, or water, or gas or electric service has been transferred into the owner’s name; and(4) the resident has not responded for 2-days to a notice left on the inside of the main entry door stating that the owner considers the unit abandoned. An apartment is also ‘abandoned’ 10 days after the death of a sole resident.”
Abandonment is a four-way test. So, ask yourself, has this apartment really been abandoned? Just because their rent payment is six-days late, doesn’t mean they’ve abandoned the unit. A bare apartment with minimal furniture, no personal items, and little clothing doesn’t mean it has been abandoned. If you or your staff have not seen or heard from a resident for an extended period doesn’t mean the unit is abandoned. If utilities have been cut-off, it doesn’t constitute abandonment. If their neighbors tell you they’re gone, it doesn’t mean it is abandoned.
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, then you have satisfied one of the four requirements for abandonment.
If you reasonably conclude that all the requirements of the “abandonment” four-way test have been met (i.e. unpaid rent, stuff 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.).
Texas Property Code Section 54.044(d) allows landlords to remove abandoned property from a rental unit, but Section 54.045(a) states that abandoned property may not be sold or otherwise disposed of unless authorized in a written lease. Paragraph 14.6 of the TAA Lease allows property (except pets) that remains in the unit after surrender or abandonment or left outside more than one-hour after a writ of possession has been executed to be thrown away or given to charity. Paragraph 14.6 also provides a process for the sale of abandoned property (if there is anything worth selling).
Carefully review your rights and obligations as described in Paragraph 14 of the TAA Lease Contract. One man’s trash is another man’s treasure. 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 dwelling.
As for animals, TAA recommends you contact the city animal control department or local humane society. No need for pets to suffer because of their owner’s neglect.
TAA Lease Paragraph 41.3 considers a unit abandoned 10-days after a sole-resident dies; however, the landlord must strictly adhere to the terms in Paragraph 41.3 for such a contractual abandonment to occur Paragraph 22.2 of the TAA Lease allows a deceased tenant’s legal representative to give 30-days written notice to terminate the lease without penalty when a sole resident dies. The resident’s estate is liable for rent until the lease is terminated. The estate is also liable for charges, damages, and other unpaid amounts.
Needless-to-say, the death of a resident is a difficult situation for all involved (family, neighbors, on-site staff, owners, etc.); compassion and professionalism are essential. Owners always have the option to allow a deceased resident’s legal representative to terminate the lease sooner—use your common sense and best judgment.
Bottom-line, declaring a rental unit abandoned requires property management professionals to be reasonable even when a resident is irresponsible and unavailable.
Michael Payne, Allmark Properties, is the AATC Government Affairs Committee Chair.