Tenant Abandonment: A Blessing or A Curse?

So, your broke tenant who hasn’t paid you in 3 months has apparently abandoned the unit, and the neighbors say they saw the tenant carrying out boxes in the middle of the night. You take a peek and see that the place is cleared out except for an old mattress on the floor, a huge poster of a unicorn on the wall and a box of toiletries in the bathroom. You’re thinking, “What a stroke of luck!” and you start marketing the property for a new tenant.

Not so fast.  While you may think this is a pretty cut and dry issue, you need to at least consider the law of abandonment of the premises.

Florida Statute 83.59(3) (c) sets forth how to determine if a unit has been abandoned: 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.

With that super helpful little nugget out of the way … there are two legal ways to go about this and one real world way. Don’t skip ahead – read both.

The Legal Way:

Either you have actual knowledge of the abandonment or you are just presuming abandonment has occurred. There is nothing in the above fact pattern that would lend itself to actual knowledge of abandonment.  In order to make a presumption of abandonment you must be able to satisfy the elements of a three part test:  1. The rent must be late. 2. The resident did not inform the landlord of an intended absence and 3. The resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments (let’s just say 15 days since that will work for most tenancies).

Number one and two are pretty obvious. Three is where landlords can get in to some trouble. How on earth are you going to prove the resident has not been to the house AT ALL short of 24 hour surveillance? I can think of some ways to monitor the thresholds but they are kind of creepy and not full proof anyway.

The Real World:

Since the legal way is, as is often the case, not very helpful, it is recommended that landlords take a more practical approach and use some common sense. A fall back method to determining abandonment is to consider the value of the property left behind. If the value of the property left behind is $500.00 or more you should not consider the unit abandoned and file for eviction. There is no hard rule about determining the value of tenant’s personal property; therefore a land lord must use his/her best judgment. I know…again, risky. How are you supposed to know that the poster of the unicorn flying over Vegas is a collectible signed by Siegfried and Roy – pre tiger attack. You are required to make a good faith estimation.

So What If You’re Wrong?

Tenant abandonment analysis epitomizes the saying “better safe than sorry”. The penalty for making a mistake on this issue is tenant’s actual damages with a minimum equal to three months’ rent. THEN there is an additional three month minimum if you prematurely get rid of your tenants property left behind – even if it just a bunch of junk worth very little. Now tack on court costs, attorney fees and the possibility of a civil theft claim.  The penalty for being wrong is pretty steep.

So What’s a Landlord to Do? :

From and entirely legal perspective the best advice is to file the eviction and obtain a writ of possession. However, that’s just not realistic for a landlord watching the pennies on his/her investment. Hence, use the $500 rule of thumb  and estimate the total value of all property left behind. If the total value is less than $500 then begin to assess the rest of the facts to determine if the unit has been abandoned.

Good Faith Estimation is the key factor in this analysis. Don’t be in a rush to avoid eviction and get the unit re-rented because the penalties, fines and costs are pretty steep when the solution is something as minor as an eviction.