In a perfect world, no tenant would ever move out until his lease expired. He would provide a thirty-day notice (if required), move out on the last day of the month, and turn in the keys when he moved out. Unfortunately, not all tenants are perfect. In fact, many tenants are less than perfect! In the real world, tenants don’t provide proper notice, don’t stay until the end of the lease, and don’t turn in the keys.
Every week the Firm receives client telephone calls asking, “I think my tenant abandoned the apartment. Can I throw his stuff away and change the locks?” The answer to this question can be simple or somewhat complicated depending on the situation. This article will discuss the law of abandonment, what to do when a tenant abandons, and how to protect yourself when a tenant abandons.
SURRENDER v. ABANDONMENT
The first question to ask yourself when a tenant moves out prior to the lease expiration is whether the tenant has actually vacated the unit. Ideally, the tenant has either: 1) turned in the keys, 2) given written notification that he moved out, 3) or both. Under any of these three scenarios the landlord has the absolute right to take possession of the premises, change the locks, and prepare the premises to be re-rented. The landlord has the right to take possession because the tenant has legally surrendered the premises. Surrender is the tenant’s absolute admission that he has moved out. Even if the tenant leaves personal belongings behind, the landlord has the right to throw them away. As long as there is a surrender, the landlord will not face liability for disposing the tenant’s belongings. When there is more than one tenant on the lease it can be more difficult to determine a surrender. It may be possible that one tenant intends to surrender the premises to the landlord but the other tenant intends to stay. Unless the lease provides otherwise, the landlord must have a surrender of all the tenants in order to retake possession. This means that 1) all tenants turn in all the keys, 2) all tenants sign a notification that they have moved out, or 3) all tenants sign the notification and turn in the keys. The landlord still might have the legal right to retake possession if there is not a surrender from all tenants, but the issue becomes a little more complicated. This leads into the issue of abandonment. It could be that one tenant surrenders (by turning in his keys) and the other tenant abandons (doesn’t turn in the keys, but moves out). The result is the same, i.e. the landlord retakes possession, but the analysis is more involved. The landlord has to determine if the second tenant has abandoned.
LAW OF ABANDONMENT
The law of abandonment is more involved than surrender. Surrender is straightforward, but abandonment usually involves a more detailed analysis of the situation. Abandonment has 2 requirements: 1) proof of the act of abandonment (moving out) and 2) the intent to relinquish the premises to the landlord. As long as there is an abandonment, the landlord can legally re-take possession of the premises without going through the eviction process. The “act” of abandonment is established by the fact that the tenant is no longer physically present at the property. The “intent” of physically present at the property. The intent of abandonment is much more difficult to determine because intent is in the mind of the tenant. As we all know, it can be impossible to know what’s in the minds of our tenants!
Under Colorado law the key to the abandonment issue is intent and whether the tenant by his words and conduct abandoned the premises. Whether the tenant has abandoned is question of fact and burden of proof is on the landlord.
There are various indicators to determine whether the tenant’s intent is to abandon. The following list is not exhaustive. This is a list of common indicators, but each situation is different and must be analyzed on a case-by-case basis.
1) the landlord’s knowledge of the tenant’s whereabouts; 2) the amount and nature of personal property left in the premises; 3) any and all communication between the landlord and tenant; 4) the length of tenancy in comparison to the time the tenant has been absent; 5) the status of mail delivery, utility billings, and house keys; 6) the payment of rent.
This list is not comprehensive. There are any number of other unique situations that come up that would satisfy all of these factors for abandonment but the tenant has not abandoned.
By far the most common scenario that we receive questions about involves a tenant who has not turned in keys or signed a notice to vacate and there is no surrender. The tenant has not been seen on the property and either the landlord or the neighbors have seen a moving truck or the tenant moving out. The landlord either looks in the window or enters the unit. The tenant is nowhere to be found. The unit is not cleaned. There are still personal belongings in the premises.
Every landlord has experienced this situation. What to do? Retaking the premises and changing the locks without doing an eviction is the fastest way to get possession. However, it is certainly not a risk-free proposition. Because the question of abandonment is a question of fact to be determined by all of the facts and circumstances in each case, the safest practice is to always obtain a court order for possession of the property. By obtaining a court order, the landlord eliminates the risk of a lawsuit down the road for throwing away the remaining belongings. If the tenant has truly abandoned, the landlord is likely to quickly obtain a court order for possession without any resistance and the sheriff can be scheduled for a physical move date. Many clients go through complete eviction process unless there is a complete surrender, either by turned in keys or notice to vacate. But, as we all know, evictions take time and money. Other clients will not go through the eviction process every time. The abandonment question really comes down to a judgment call for the landlord based on the landlord’s experience, knowledge of the situation, and analysis of the factors that are listed above. If the only thing the tenant left behind is garbage and broken down furniture, the tenant is probably gone. But, if the tenant still has food in the refrigerator and personal items in the bathroom (e.g., toothpaste, soap), the tenant might not have abandoned. If there is any question, GO THROUGH WITH THE EVICTION. Remember, one man’s trash is another man’s treasure!
Another typical scenario goes like this: Tenant has not paid rent for the month. Landlord drives by the premises and sees a moving truck or a neighbor tells the landlord he saw a moving truck. The tenant has not contacted the landlord about moving out or turned in the keys. The next day, the landlord makes an inspection of the premises. The unit is completely empty and the keys are on the counter. This would be a surrender and the landlord should retake possession.
A scenario that our office receives many questions about involves a tenant who calls the landlord and leaves a voice mail stating that he has moved out. The landlord goes to the property. No one is home, there are no keys left behind and there is a decent amount of “junk” left behind. This is another judgment call. In favor of an abandonment, the landlord has the telephone message and what looks like a tenant who left junk behind. Going against an abandonment, you have a unit with personal belongings and no keys. The landlord has to use her/his best judgment.
Within the last month the office has received client calls about the exact same scenario – maybe it’s a trend. Under each scenario the tenant paid rent for the entire month. The landlord then sees the tenant moving out at the beginning of the month, but the tenant doesn’t turn in keys. The landlord takes possession because he thinks the tenant has moved. Then, as you might guess, the tenant claims he has not moved out and sues the landlord for wrongful eviction.
This scenario is a good example to apply the two part abandonment test. First, did the tenant “act” to move out. Based on the fact that the tenant moved out, it could be argued that the meets this part of the test. Second, did the tenant intend to “relinquish control” of the premises. As you can see, this is the difficult part of the test to figure out. While it appears the tenant moved out by removing all personal belongings, the tenant did not intend to surrender possession and came back to the premises.
It is always a good idea to enter the unit before making your decision on whether the tenant has moved out. Many clients are unsure if they have this legal right. Legally, the lease must have a provision that gives the landlord the right to enter in order for the landlord to enter. Most leases have clauses that state the landlord can enter for the purposes of inspection, repairs, etc. As long as the lease has a similar clause, the landlord has the absolute right to enter the unit and the landlord should always make an inspection to determine if the tenant is still living there.
The trickiest scenario is when it appears that the tenant has abandoned but leaves behind personal property. The landlord is placed in the uncomfortable position of having to determine the tenant’s intent. The landlord can simply dispose of the tenant’s personal belongings but will always run the risk of a “wrongful eviction.” The safest course of action is to go through with the eviction and the sheriff’s move out.
In Part Two of this article, coming next month, we will discuss the actual process of taking possession of the premises, how to protect yourself when disposing of a tenant’s personal belongings, and what happens if the landlord gets sued for wrongful eviction.