RE: LANDLORD/TENANT: ABANDONMENT, SURRENDER & PERSONAL PROPERTY
RE: Landlord/Tenant: Abandonment, Surrender and Personal Property
A good portion of my clients own residential rental properties and need to understand the difference between Abandonment, Surrender and Unlawful Detainer. It is also important to understand how to dispose of property left behind by the tenant.
Termination of Tenancy.
A residential tenancy is terminated by either: (1) Abandonment; (2) Surrender; or (3) Unlawful Detainer.
Agents should never be involved with the: (1) Abandonment; (2) Surrender; or (3) Unlawful Detainer process on behalf of the owner. The agent should not post notices, leave business cards or do anything to assist the owner with the abandonment, surrender or unlawful detainer process.
I always encourage owners to use the Unlawful Detainer process instead of relying on Abandonment or Surrender. This way the eviction is to be handled by court order and the lock-out by the Sheriff. This is the safest way to evict a tenant with the least amount of exposure.
If the owner does not satisfy the requirements for Abandonment, Surrender or Unlawful Detainer, then the owner is potentially liable for damages to the tenant for Wrongful Eviction. If the agent assisted the owner, then the agent is liable for Wrongful Eviction.
Abandonment is when a tenant has left a property before expiration of the lease with no intent to return. Abandonment is a specific legal process that requires a landlord to follow three steps before changing the locks and regaining possession:
- 1. First landlord must show a “reasonable belief” that the property has been abandoned. A “reasonable belief” is established by the following factors observed by the landlord:
- a. Rent remains unpaid for at least 14 days;
- b. Utilities are turned off;
- c. Mail is not picked-up;
- d. Furniture has been moved out; and
- e. Neighbors have not seen the tenant for days or months.
- 2. Second, landlord must serve to the tenant’s last known address a written Notice of Abandonment using the exact language required by Civil Code Section 1951.3(c), which is available on-line.
- 3. Third, the property cannot be declared abandoned unless the tenant fails to respond to the Notice of Abandonment within 18 days after service by mail (15 days if served in person).
If the landlord fails to follow the law, then the tenant can sue the landlord for Wrongful Eviction and recover three times actual damages.
If the agent participated in the Abandonment process, then the agents gets sued as well and may owe damages to the tenant.
Although Abandonment terminates the lease, the landlord can still recover past, present and future damages in any additional remedies provided for in the lease agreement.
Surrender is a “mutual written agreement” between landlord and tenant to terminate the lease.
A surrender is accomplished when the tenant gives a 30-day written notice terminating a month-to-month tenancy. A surrender may also be accomplished when a tenant gives written notice of an early termination of the lease (i.e. tenant wants to vacate the premises early).
The landlord should carefully review any surrender agreement to make sure that they are not releasing the tenant from amounts that remain unpaid under the lease. The surrender should be restricted to just the date the tenant is vacating and turning possession over to the landlord.
Although a surrender agreement terminates the lease, the landlord can still recover past, present and future damages in addition to any additional remedies provided for in the lease agreement.
Tenants Personal Property.
What happens if the tenant leaves personal property at the end of the lease? The answer depends upon whether the reasonable value of the property left behind is less than or more than $300.00.
If the value of the property is less than $300.00, then the landlord may keep, discard or sell the property without notice to the tenant. The landlord should take pictures and carefully document each item left behind in the event of a challenge by the tenant.
If the value of the property exceeds $300.00, then the landlord must carefully follow the requirements of Civil Code Section 1983(b), which requires that the property be sold at public sale (i.e. yard sale by the storage facility) after the following conditions have been met:
- 1. Landlord can remove the property and must place it in a safe place for storage (i.e. commercial storage locker);
- 2. Landlord must give written Notice of Abandonment of Property to the tenant that: (1) identifies the personal property being stored (i.e. couch, chair, pictures, etc.); (2) identifies the location where the personal property can be picked-up; (3) states the per diem storage cost; and (4) states that the property will be sold if not picked-up within 18 days;
- 3. Landlord must publish Notice of Sale in the local newspaper prior to selling it; and
- 4. Landlord may deduct storage, publication and other costs incurred with the sale. The landlord must pay the balance to the County as unclaimed property.
Landlords must carefully follow these rules or they will be subject to possible claims for substantial damages by the tenant based upon conversion of personal property.
I have litigated two cases for Unlawful Eviction where the tenant dragged my agent through expensive litigation because these rules were not followed. Each case cost my agent tens of thousands of dollars in legal fees.