Not Surrender... Not Abandonment... Something else?

Question

Hi, all. Texas residential lease expires December 31, 2016. Tenant has paid all rent and appears to have vacated the house. Though she has left significant property that appears to be worth a couple thousand dollars. She is totally non-communicative at this point. In her last message she stated she would probably leave in late November but was happy to pay the December rent as owed (again, she did pre-pay this).

Technically, she has neither Abandoned (because she paid her rent) nor Surrendered (because she provided no definitive written notice specifying her date of Surrender) under the contract.

First question... I would like to enter the property because it looks abandoned and we have a neighborhood issues with vagrant break-ins. Can I do so or must I wait until December 31?

Second question... how long does she have to leave a forwarding address before I can consider myself totally released from any obligation to refund her security deposit?

Appreciate any advice!

Second question... how long does she have to leave a forwarding address before I can consider myself totally released from any obligation to refund her security deposit?

Appreciate any advice!

Greg H. · Answer

Abandonment is Texas in not clearly defined.  It is possible to declare a property abandoned when the rent is current .  Are the utilities still on ? Do you have a TAR lease?

You can access your property without notice at any time that is reasonable and do not have to call the police to do so

Account Closed · Answer

If she's paid Dec rent, you can't do anything until the end of the lease term. Technically, the house is hers, she can move out, come / go as she pleases.

I agree with Account Closed advice on how to handle abandoned stuff of value. I believe Texas law allows you to sell it (in public sale) if not claimed in 30 days. You should always review your state's landlord/tenant law.

You are not released from refunding her sec deposit for lack of forwarding address. You can mail it to the property address, as it is likely she has set up mail forwarding. I would recommend mailing it certified, w/out return receipt because the PO won't forward.

Bill Gulley · Answer

I wouldn't go in until the lease expired, if you do go in, take someone else in with you as you can be responsible for anything missing!

As to the lease expiration  you'll need to give notice for possession, property left must be safe guarded and stored. Depending on your lease agreement and rent deposits, those funds may not be used for holding expenses, only rents and physical damages, depends on how the agreement was written.

Not sure what the holding period is, you can look that up, but you can then sell the property and pay expenses of storage and sale.

She still has it leased, no need to be a helicopter landlord. :)

Mike Cumbie · Answer

Hi @Gunnar F.,

If she paid her rent to the end of December you should let her do her thing until then. If you do not receive rent by the first you can start your eviction process. In this case she paid for a place and if she wants to use it like a self storage unit you were paid. Not sure what your entering is going to do but if you want to, you can give standard notice and enter the unit. I wouldn't touch anything of hers though, she has paid rent on the unit and has a right to quiet enjoyment of said unit. Imagine standing in front of a judge trying to explain why you went in and removed all her stuff when her rent was paid and you had no eviction proceedings going on.

As far as the security deposit, I would do everything in my power to get it to her and worst case have the returned check sitting and waiting for her to return and ask for it.

Good luck in whatever you decide to do.

Account Closed · Answer

Why do you think she's not there? Mail stacking up? Your lease should have a clause requiring written notice if tenant plans to be gone more than two weeks (family emergency, holidays out-of-town etc.). Send her written notice you will be entering to perform weekly fire/safety inspections (turn some lights on/off and raise/lower some curtains) to protect everyone's property. Send certified letter to last known address (your property) stating you intend to take possession at the end of December and put her things in storage. Pay for 30 or 60 days of storage rent and throw a combo lock on the unit. Now her things are the storage yard's problem. Deduct all this plus the mover's bill from the security and wait. She either will or won't contact you for the combination and the remainder of her security. She might even arrange for friends to empty the house (get it in writing) or send you a check for January. Best of luck with your investment.

Rich N. · Answer

As others have said, if the rent is paid up thru Dec 31st... you have to wait.

Only way around this (possibly), is if you think something happen to her in the unit.  Not sure in your state, but you can call the police to meet you for a wellness check and enter the apartment with the police and lock it up with them.

Did she fill an emergency contact on the application ?

If she is wealthy, could she have gone on a vacation/trip because either cold weather or holiday season ?

Mindy Jensen · Answer

@Gunnar F. , I'm concerned about the clause in your lease that says "The Property Code does not obligate a landlord to return or account for the security deposit until the tenant surrenders the Property and gives the landlord a written statement of the tenant's forwarding address, after which the landlord has 30 days in which to account."

Is this state law or did someone write this for you? If it is state law then disregard. If someone write this for you, remember that just because you put it into the lease doesn't mean it is legal or enforceable. Make sure you comply with the laws regarding security deposit return. If you aren't returning anything, make sure you send an accounting of how it was spent.

Shawn C. · Answer

I would consult a real estate attorney in your area. I am sure the hour or two you pay for a consultation can save you thousands in a potential law suite. Good luck and keep us posted,

Levi T. · Answer

Abandonment is not continent on payment. Someone could very well pay you in full for 20 years worth of rent, then just up and abandon the property after a year of usage. You would be fully within your right to give abandonment notices, then put items into storage and rent it out again, then refund the unused balance of the payment as your not permitted to have a windfall as a landlord. After the storage probate has been satisfied per the state, you can auction, sell, or trash the items in storage. You can change locks and use the property itself as storage. This is all per Virginia law.. but I'm not an attorney, so what do I know. Not legal advice.

Rick H. · Answer

Your tenant may just need a safe place to call her home but has a life somewhere else.

I would not be too concerned that a tenant does not put (any) wear and tear on a rental.

Isn't it a typical practice to mail or post a written notice of intent to enter for the purpose of... (Inspect smoke detectors, electrical, etc.).  I think you could probably do this with another trusted individual as suggested above. It could be notes as a welfare check for the benefit a tenant that you are concerned about.

Not Surrender... Not Abandonment... Something else?

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