Abandonment is a timeless issue. Clients never stop asking about it since abandonment scenarios happen regularly. Because failure to follow abandonment best practices can cost you thousands, or even tens of thousands of dollars, this month we want to reinforce everything you need to know about abandonment.
In layman’s terms, abandonment means that the tenant has left, and is not coming back. Abandonment turns on the answer to two questions. Has the tenant left? Does the tenant intend to give up his right to possess or occupy the unit? While there are common signs of abandonment, such as removal of personal property, there is no black and white test. Courts determine the answers to abandonment questions on a case-by-case basis. However, Colorado law is clear on the effect of abandonment. If a tenant has abandoned a rental unit, you may take possession of the unit without having to evict.
The 2008 Colorado Warranty of Habitability Act (WHA) made it illegal to retake possession of a unit without a court order (evicting) unless the tenant abandoned, and reinforced common law abandonment indicators. The WHA provides that “it shall be unlawful for a landlord to remove or exclude a tenant from a dwelling unit without resorting to court process,. . . unless the dwelling unit has been abandoned by the tenant as evidenced by the return of keys, the substantial removal of the tenant’s personal property, notice by the tenant, or the extended absence of the tenant while rent remains unpaid, any of which would cause a reasonable person to believe the tenant had permanently surrendered possession of the dwelling unit.”
If the tenant abandons (voluntarily gives up possession of the unit), any reentry by you is not wrongful. If your tenant challenges in court, you bear the burden of proof on the two abandonment elements (tenant was gone and tenant’s intent was not to come back). Establishing the tenant’s intent can be problematic due to lack of direct evidence. Direct evidence of abandonment includes turnover of keys, and written notice of intent to vacate. Verbal statements (I’m moving out) are also direct evidence of abandonment, but lead to “he said, she said” scenarios, which should be avoided. Always proceed with caution when relying on a verbal statement of intent to vacate, especially when you walk the unit and it doesn’t appear that the tenant has moved out. Frequently, proof of the tenant’s intent not to return can only be established through circumstantial (indirect evidence).
What constitutes circumstantial evidence that a tenant has abandoned a unit? While not a complete list, the following facts, coupled with the tenant being gone, are circumstantial evidence of a tenant’s intent to abandon: rent is unpaid; can’t contact tenant after repeated attempts over time; no one has seen the tenant; the tenant’s vehicle is gone; utilities and/or phone is disconnected, or has been transferred back to the landlord or community; all food has been removed, or remaining food is spoiling; toiletries removed; most furniture has been removed, especially beds; mail is stacking up, or is forwarded; children have not been seen, or are not in school; storage locker emptied; clothing removed.
We have a simple rule regarding abandonment scenarios. You should always evict if it is a murky situation, a close call, or if there is any doubt regarding the tenant’s intent to abandon. A lawful court order granting you possession of the unit (an eviction) is an inexpensive insurance policy against a tenant’s potential future claims that the tenant had not abandoned, and you wrongfully threw out the tenant’s property. You should always err on the side of caution. In unclear cases, it makes no sense to risk thousands or tens of thousands of dollars of future liability to save the small cost of an eviction.