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Is The Unit Ours Yet?
By Michael Geo. F. Davis, Attorney at Law There are three ways a landlord obtains possession of a rental unit: surrender, abandonment or eviction. Abandonment and surrender are covered here. Once the landlord has obtained possession by any of the three methods, he may be required to deal with the resident’s remaining personal property, if the resident has left any behind. A. Surrender 1. Introduction There is no statutory definition of surrender. The landlord must conclude that the residents have surrendered the rental premises from all the facts and circumstances. A perfect surrender would occur when all residents on the lease together hand the landlord their keys and a signed confirmation of vacating the rental premises, indicating that they are surrendering the premises and relinquishing any rights to personal property left behind, and the unit has no one remaining in it. Most surrenders are not perfect. 2. All Parties Relinquish Right to the Premises It is imperative in any surrender of the rental premises that the landlord is certain, and not simply assumes, that all residents are unequivocally relinquishing their rights to the premises. Given his desire to achieve the minimum vacancy loss, a landlord may be all too willing to rely on general or ambiguous statements, emails, notes or other communications from or by a resident. When dealing with multiple lease signers, the landlord must be sure that the surrender of the premises is the act of all the lease signers. All too often a dispute between roommates ends with one roommate surrendering the premises allegedly on behalf of everyone without the other roommate’s knowledge or consent. A landlord, taking possession of the premises in such circumstances, may find himself liable for locking a resident out or improperly disposing of a resident’s personal property. 3. Written Notification A resident may mail the landlord a letter, send an email or drop a note in the drop-box that he is vacating. Too often these written notifications will be ambiguous as to whether the resident is surrendering the premises on a date certain and disclaiming all rights to any personal property remaining. Even if the notification is clear and certain, such as a signed confirmation of vacating the rental premises on the landlord’s own notice to vacate, if the keys are not returned, the landlord must exercise caution. The resident may have changed his mind. The resident continues to have the right of possession until he actually vacates, regardless of any written notification. The landlord cannot impose the surrender on the resident by physically forcing the resident to move or changing the locks. The landlord’s remedy is an eviction action and/or a lawsuit for damages. 4. Returning the Keys Most people, including many judges, would say the litmus test of surrender is the return of the keys. The return of the keys is just one factor, albeit an important factor, in determining a surrender. In cases when there are multiple lease signers, an equally important factor is who returned the keys. If less than all the lease signers returned the keys, everyone may not have surrendered the premises. The landlord must examine the circumstances to be sure that the keys are being returned by or on behalf of all lease signers. If in doubt, the landlord should contact the absent lease signers to confirm that they too are surrendering the premises. 5. All Residents Sign Confirmation of Vacating There are numerous problems with relying on conversations with or notes from surrendering residents. A landlord relies at his own risk on the representations of the surrendering resident that the absent lease signers are surrendering the premises. When possible, one solution is to have all residents sign a confirmation of vacating the premises and have the keys returned. While a signature can be forged, forging a signature escalates the matter to a crime. Assuming that the landlord had no complicity in the forgery and that the signature is reasonably like the signature on the lease, a forged confirmation of vacating may provide the landlord with some protection from or mitigation of a lawsuit for wrongful possession or disposal of personal property, as well as give the landlord criminal and civil recourse against the forger. 6. Property Inspected A landlord cannot rely on the representations of the resident that the rental premises are empty. The landlord should immediately inspect the premises to insure that no other occupants are present and that the resident’s personal property has been removed. Also, the landlord may sometimes find the keys left on the premises. 7. No Known or Unknown Parties Remaining No one else can be occupying the premises. Even if no one is there, if the landlord finds any remaining personal property, like clothes or toiletries, that suggest some one is still occupying, then the landlord must proceed with caution. The locks should not be changed. Further investigation is needed. It is the resident’s responsibility to have everyone occupying the premises vacate, whether the occupants are there with the consent of the resident or not, authorized or not by the landlord, or on the lease or not. The resident cannot surrender the rental premises if anyone else is occupying it. It is not the landlord’s responsibility to sort through the legality of any occupant’s claim of a right to the premises. The resident will have to seek his own legal counsel to resolve the removal of occupants unwilling to voluntarily vacate. The landlord cannot resolve this for the resident unless the landlord files eviction against the resident and removes everyone with a writ of possession. 8. Early Surrender Situations arise where the resident indicates that he is surrendering the premises early but continues to pay rent through the end of his lease. The resident may need to leave several weeks or months early, for instance, to start a new job elsewhere. The resident may give a written notification and turn in his keys and completely remove all personal property. The landlord should seek his attorney’s advice in these situations. Even though the rent is paid, the tenant is relinquishing his right of possession, which actually helps the landlord mitigate the resident’s potential loss; the resident’s rent obligations have not terminated under the rental agreement. With possession rights relinquished, the landlord can actively seek to find a replacement tenant, but should make clear in writing that the resident potentially remains liable for all rent owed through the end of the lease, pending a reletting. 9. Penalties The penalty for prematurely locking a resident out is the resident’s actual damages, with the minimum damages being an amount equal to three months’ rent. An additional three-month rent penalty applies if the landlord prematurely disposes of the resident’s personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, whichever is greater, the resident is entitled to his court costs and attorney’s fees. Finally, the landlord may face a claim for civil theft and possibly criminal charges. There is an additional danger in a surrender scenario that usually doesn’t exist in an abandonment case. In order to file eviction the landlord needs a reasonable belief that the resident has not surrendered. If he unreasonably files eviction, the landlord may be liable to the resident/defendant for negatively impacting his rental history. B. Abandonment 1. Introduction Under Florida law, there are two ways abandonment can be established: (1) the landlord has actual knowledge of abandonment, or (2) the landlord can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the landlord of an intended absence, and (c) the resident is absent from the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we will consider 15 days as the "period of time equal to one-half the time for periodic rental payments". A fifteen day absence is required for month-to-month tenancies also.) 2. Actual Knowledge The problem with the first standard, actual knowledge of abandonment, is that the law does not define this phrase. There is no statutory definition of "actual knowledge" of abandonment. Neither the attorney nor anyone else can tell the landlord if he has actual knowledge. Either he can claim it or he can’t. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the landlord can claim actual knowledge. The landlord may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the landlord enters his reasons in the resident’s file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the landlord’s actual knowledge. The easiest case may be when the resident tells or writes the landlord that he intends to break the lease and leave. The landlord checks the property, and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the landlord has actual knowledge. True trash should not be a concern. It is common for a landlord to talk to the neighbors, who will often tell the landlord that they "know" the resident left for good. This is not the landlord’s actual knowledge. It is a factor that the landlord can take into consideration. 3. The Presumption – Rent is Late and No Notice of Intended Absence If the landlord doesn’t have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. The first element, rent being late, is pretty straightforward. Note that the presumption cannot be used if the resident is current in his rent, even if it appears almost certain that he has permanently vacated. The landlord has to wait for rent to be owed under this test. The second element, no notice of intended absence, includes of course, any direct communication from the resident that he will be away from the premises. It also includes any indirect information that the landlord learns, for instance, a neighbor indicating that the resident said he was going on vacation. 4. The Presumption –Not Seen for 15 Days Conclusively establishing 15 days of no activity can be very difficult. Although some landlords have been known to put tape at rental entries to show the requisite lack of activity, for most landlords the conclusion that the resident has been absent for 15 days is a conclusion drawn as their best guess. It’s based on more or less frequent checks of the rental premises, talking to neighbors and any other information that the landlord can gather indicating that no one has been around. The landlord should enter the facts supporting his presumption in the resident’s file. 5. Hospitalization or Incarceration A resident who is behind bars, who is in the hospital or who has been committed by health officials has not abandoned the premises. A resident who is in the hospital or in jail has no choice but to be absent from the premises. A resident who is institutionalized due to possible incompetency, might not be able to make a legally responsible decision to abandon. In these situations the landlord should file an eviction action. Attorneys hold differing opinions on serving a copy of the Three-Day Notice to Pay Rent or a Seven-Day Notice of Noncompliance without Opportunity to Cure on the resident at the hospital, institution or jail. Some find it advisable to avoid the possible confrontation, and perhaps litigation when an uninformed resident returns to find all his possessions gone. Others advise it is not required by statute and may be seen as precedent for the landlord’s self-imposed duty to provide even more assistance or notice to the resident. 6. The Value of the Property The best practical guide to abandonment is the value of the property left behind. Start with the assumption that most people don’t abandon valuable items. This is just as obvious and logical to judges as it is to the person on the street. If the total value of the property is $500.00 or more, than characterizing the rental unit as abandoned is risky. The landlord is advised to forego the abandonment analysis and do the eviction. There are cases of abandonment when the personal property left behind is valued over $500.00; however, these cases are the exception. If a landlord feels that he has such a rare case, he is advised to consult with his attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the landlord ever finds a rental full of furniture, his attorney’s advice is absolutely necessary. If the total value of the property is less than $500.00, the landlord cannot assume that there has been abandonment. The landlord must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the landlord should file eviction and obtain the writ of possession, even if the value of the property is minimal. 7. Type of Property Remaining Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Landlords who find any usable, decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the wisest route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the resident can still tie up the unit by storing personal property within the unit, again making eviction the best option. 8. Other Indications of Abandonment In addition to the type and value of personal property remaining on the premises, the following are some other factors to consider that may indicate that the resident has abandoned. They may assist the landlord in having actual knowledge of abandonment or support the presumption of abandonment: resident statements or writings; neighbor statements; the type and quantity of personal items left behind; utilities cancelled, shut-off or rolled over to the landlord; lack of sleeping arrangements (bed, mattress, sleeping bag); no edible food, canned or otherwise; rotting food in the refrigerator or kitchen in general; no pet food or water, if the resident had a pet; in single family home rentals the lawn, shrubbery or pool is not maintained, when these are the resident’s obligations under the lease; and responses from emergency contacts. Note that the landlord can only leave a request with the emergency contact for the resident to get in touch with the landlord. He should not disclose any information to the contact, as such is a breach of the resident’s privacy. All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance. For instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession. In establishing the condition and value of the remaining items or the condition of a rental that gave rise to the landlord’s findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items should not be taken and included in the resident’s file. 9. Notice of Abandonment It is not advisable to use a notice of abandonment or other such written warning. They have little, if any, legal significance. They are often posted on the resident’s door. In case of a break-in and an ensuing lawsuit, this posted warning can later to be found to be negligence on the landlord’s part. 10. Dangers Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the landlord has the writ of possession as the available statutory remedy to remove the resident’s personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases. The landlord must remember that even if the presumption is established by the landlord, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The landlord must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the landlord must accept in relying on the presumption. If the landlord receives credible information from a reliable source that would lead a reasonable person to have doubts that the resident is abandoning his property, then the landlord should not invoke the presumption of abandonment. A court may find that the landlord had a duty to investigate to the extent investigating was feasible and reasonably available. At a minimum a landlord cannot ignore information. 11. Penalties The potential penalties for improperly locking a resident out or disposing of his personal property is the same for a mistaken abandonment as for a mistaken surrender: the resident’s actual damages with the minimum damages being an amount equal to three months’ rent for each offense, as well as possible civil theft or criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the landlord is ever in doubt about whether abandonment of the rental unit has occurred. |
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