Sometimes it is not always clear whether a tenant has abandoned the rental property or not. It is important to make a determination the proper way, because if the landlord simply takes the property back, but the tenant has not abandoned, the landlord may become liable for damages to the tenant for wrongful or constructive eviction. Therefore, the landlord or property manager needs to follow good procedures when he or she suspects the tenant has abandoned the premises.
Determine if Tenant Abandoned Property
Abandonment is when the tenant essentially vacates the premises with no intent to occupy the premises. F.S. sec. 83.59(3)(c) states as follows on the issue of abandonment:
[The landlord shall not recover possession of a dwelling unit except] 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 or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence.
Questions to ask:
- Has the tenant been absent one-half of the period rental payment?
- Is the tenant current on rent?
- Did the tenant provide written notice of intended absence?
- What evidence is there to support abandonment?
If You Have Actual Knowledge…
If you have actual knowledge that the tenant has abandoned, then you may take possession pursuant to the above statute.
If you have actual knowledge that the tenant has not abandoned, the rent is current, or the tenant has notified you in writing of the intended absence, then do not proceed to terminate the lease on abandonment.
If You Don’t Have Actual Knowledge…
If you do not have actual knowledge of abandonment, the statute presumes abandonment has occurred if the tenant is absent for at least one-half of the periodic rent payment and is not current on rent. So, if the tenant pays per month, he must be absent at least one-half a month and is not current on rent. The longer the absence, the more the presumption exists for abandonment.
Determination Procedures
Investigate
Use due diligence to determine if the tenant has abandonment, such as:
- Contact the Neighbors
- Contact utility company regarding services
- Call, email, and reach out to the tenant and points of contact for the tenant
- Inspect the unit (give at least a 24 hour notice to the tenant by posting or other means of notice that your lease allows for inspections under F.S. 83.53)
- Document evidence of from your investigation regarding recent or non-recent use
- Signs of use (food, clothing, dishes, etc.)
- Vehicles in the driveway
- Neighbors’ observations (ask the neighbors questions)
- Utility usage
- Animals being fed
- Other observations relevant to whether the tenant lives there
If abandonment appears probable after you investigate and inspect, consider incorporating the following procedures.
Email (deliver to tenant) Notice of Abandonment Determination to tenant.
If the tenant does not respond to the notice as stated therein, consult your attorney before terminating the tenancy to ensure you have legal grounds to terminate the tenancy.
If the tenant responds, try to get the tenant to state whether or not he has abandoned (or is surrendering possession). Certainty must be obtained as much as possible. Use that communication opportunity to negotiate a written lease termination agreement if that’s your goal.
Before going to the next step, contact our attorney and provide the full and accurate results of your investigation and get a legal analysis before terminating the lease and taking possession.
Terminate Lease and Take Possession
If after investigation–and upon advice of counsel–abandonment is highly probably, then
- Email notice to the tenant that you have terminated the lease and are taking possession of the premises
- Take possession of the property
- Change locks
- Utility transfer
- Secure the property
- Start move-out procedures
- Update the landlord on the situation
Personal Property Remaining
If there is personal property remaining, review the lease agreement for following language under F.S. 83.67.
BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY.
If your lease has this “no rights of storage” provision, you are not required to provide the tenant notice under F.S. 715.104 regarding the abandoned personal property, and you can dispose of the personal property without sending that notice.
If the personal property is valuable, you may exercise the landlord’s lien right under F.S. 713.691:
(1) With regard to a residential tenancy, the landlord has a lien on all personal property of the tenant located on the premises for accrued rent due to the landlord under the rental agreement. This lien shall be in addition to any other liens upon such property which the landlord may acquire by law and may be modified or waived, in whole or in part, by the provisions of a written rental agreement. The landlord’s lien for rent shall attach to the tenant’s personal property at the time the sheriff gives the landlord possession of the premises, but it is not required that the tenant’s property be removed in order to give the landlord possession of the premises.
“(2) When the tenant is the head of a family, personal property owned by her or him in the value of $1,000 is exempt from the lien provided by this section. This subsection does not authorize an exemption any greater than that which may be available to the tenant in s. 4, Art. X of the State Constitution.”
If the personal property has value and you do not intend to exercise a landlord lien, it would be prudent to deliver a Notice of Intent to Dispose Abandoned Property to avoid a tenant’s claim that you are liable for the value of her property.
If the lease does not have a “no rights of storage” provision (see F.S. 83.67), you must proceed under F.S. 715.104 before disposing of the tenant’s property.
Handling suspected tenant abandonment requires careful adherence to legal procedures and thorough documentation to avoid potential liabilities. By following the outlined steps—determining abandonment, conducting diligent investigations, and consulting legal counsel—property managers can effectively manage these challenging situations. If you need expert guidance or support in dealing with tenant abandonment, contact Property Management Law Solutions. Our team specializes in landlord-tenant law and is here to help you navigate these complexities with confidence and precision.
Property Management Law Solutions, LLC is a Florida law firm that specializes in landlord-tenant law and is a landlord-only law firm. We provide statewide services including evictions, consultation plans, education and training, membership plans, lease agreement plans and more. If you are a landlord or property manager, contact us today or subscribe to one of our online membership plans.