Is The Unit Really Abandoned?
By:
Harry Heist, Attorney at Law
The electric is off, the water is off, the unit is filthy and filled with trash, empty beer cans, some clothes, piled up unclaimed mail, and the neighbor tells you that they saw the tenant pack up and leave last week. Is the unit abandoned? Can you take possession of the unit and get it ready for the new tenant? Not if you want to follow the law and protect yourself from liability!
The 3 ways to legally gain possession of a rental unit are surrender, eviction or abandonment. When it comes to determining whether a unit is abandoned, we have to ignore logic, common sense and intuition and look solely to the law. FS 83.59 states “ When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he is absent from the premises for a period of time and equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence”
Basically this means that the appearance of the unit, the fact that the electric was off or a neighbor’s observations are all irrelevant. We just have to ask some simple questions:
- Were the tenants (all tenants!) absent for 15 days?
- Is the rent unpaid?
- Did the tenants tell us in writing that they were coming back?
These are the legal requirements of abandonment. Failure to follow this can result in costly lawsuits in which the judge will be sympathetic to the tenant because you failed to follow the law. The burden of proof imposed on the wronged tenant is extremely low, and the tenant can easily fabricate the alleged missing contents of the unit, resulting in a large judgment and liability to pay the tenant’s attorneys fees, which could be substantial. When a property manager “jumps the gun” and takes possession too soon, many attorneys will readily take a case like this on a contingency fee basis, making it easy for the tenant to have access to the legal system. The tenant can sue for the lock out prohibited practices and of course the claimed value of the items he or she claims are missing. The property manager could face other serious consequences in court, including criminal charges, charges of wrongful eviction, conversion, and liability for anything the tenant claimed was in the unit!!
In some cases, the property manager has knowledge that the tenant is gone, but someone else is living in the unit. Is this person a squatter or trespasser? You would think so, but if this person states that he is in there with the permission of the tenant or is renting from the tenant, it does not matter whether the original tenant is gone. The unit is simply NOT abandoned. Some property managers attempt to call the police when an unknown person is remaining in the unit, but usually the police will state to the property manager that it is a “civil matter” and tell you that you must evict the person. Calling the police is always worth a try, because the person in the unit may in fact be a trespasser or squatter completely unknown to the original tenant and if so will often readily leave.
In the event you accidentally take possession too soon and the tenant returns, try to calm the tenant, call your attorney immediately, and get the tenant to write down what he or she says is missing and the approximate value. If you have only changed the locks and have not removed any belongings, you
will need to let the tenant back in, regardless of how much money, if any, the tenant owes you. After this you can proceed with the normal route of eviction after proper notice, or possibly the tenant will surrender the premises.
Remember that A UNIT IS LEGALLY ABANDONED UNDER FLORIDA LAW IF ALL OF THE FOLLOWING IS IN PLACE:
- NO ONE HAS BEEN IN THE RENTAL UNIT FOR A FULL 15 DAYS AND YOU CAN PROVE IT.
- THE RENT IS UNPAID.
- NO TENANT OR OCCUPANT HAS GIVEN YOU ANY NOTICE, VERBAL OR WRITTEN STATING THAT THEY ARE GOING TO PAY THE RENT OR COME BACK AT A LATER TIME.
If you have followed the aforementioned 3 standards of abandonment, you will probably be safe in taking possession. We recommend that you take pictures or videotape each room of the rental unit prior to taking possession. Training your staff, especially maintenance staff, is crucial to avoiding mistakes in taking possession. Lastly if a unit is chock full of personal belongings and other items and you are baffled as to
why a person would up and leave all these items behind, we strongly recommend that you give notice if you have not done so already and file an eviction as this will be your absolute safest route. The tenant could be in jail or have been Baker Acted to a mental facility and the last thing you need is to deal with that tenant when he or she gets out and finds out that you have taken full possession of the unit. If you are ever unsure,
always give your attorney a call to get an opinion on the matte
Harry Anthony Heist, Attorney at Law, Harry Anthony Heist has been an attorney since 1989 and is the founding partner of the Law Offices of Heist, Weisse & Lucrezi, P.A. (www.evict.com) Attorney Heist trains thousands of property managers each year and writes legal articles appearing in a number of trade publications.
