Rent 9 days late - Tenants gone! Texas

[Anthony Varner]

Hey there, anyone who can help, thanks in advance.   

My tenant is late 9 days and I haven't seen anyone there in a while.  It's a duplex - I'm upstairs, they were downstairs.  The thing is - she told me they were having issues with bedbugs (and then roaches too).  So she was going to throw out the mattresses, sofa, linens, etc., then have the place cleaned/exterminated, before moving back in.  I've asked about payment when it got late and she said she would pay, then didn't pay.  Same thing a couple days later.  I posted the 3-day notice to pay or quit after 6-days late.  Right now is day 3 since the notice posted.     

Does anyone here know the proper way to proceed with this?  I know she just wants to abandon the place rather than stick to the plan.  This is of course breaking the lease but this wouldn't exactly be an eviction case since they are no longer there, right?  

Do I need to get something in writing from her saying that she is not coming back?  Or after today if there's no response and no payment still, am i allowed to simply take back the property?  This is for Houston, TX.

I'm okay with them leaving - i just want to make sure this is handled exactly right.  Want to get in there right away, exterminate, clean, and re-rent it out.  Also I want to make sure this is reported and affects her credit.  

Thanks BP

-Anthony

[Jennifer T.]

I can't speak about TX law.  But I had a "midnight move-out" the day after rent was due a couple years ago.  I posted a 5-Day Pay or Quit on the door and sent them a text message and a longer e-mail.  Basically stating that it looked like they had moved out and asked what was going on.  I also asked them if, they had moved out, I needed their keys back and something in writing that they had vacated the premises.

I explained that, without that written notification, I had no choice but to go to eviction court and legally have the property returned to me.  Plus, I couldn't show the property and get a new tenant...which would mitigate their damages...until then either.  This was the other unit at my personal duplex.  They didn't respond back to me at all for the entire day.  Then, at 10:30PM that night, they SLAMMED a note (ripped from the corner of a piece of paper) into my security door wrapped around one key.   The note was a couple sentences that they had left and a signature.  They'd also ripped the notice off the other door.

Absolutely shocking how mad people get when THEY are in the wrong.  I could not have been nicer and more accommodating with these people and all their "problems" from the second month they'd moved in.  That was my first rookie mistake.  But I was "outrageous" because I wouldn't let them break their lease and live out their security deposit.

[Everett Fujii]

I would highly recommend paying a lawyer for a few hours of their time to review the lease that was signed and your options.

Unless you have it in writing that she is abandoning the place you cannot know for sure that it is her plan.  The worse thing you can do is not go through the eviction process, clean the unit, re-rent it, then sometime between now and before her lease agreement is up she shows back up.  You are then well and truly screwed.

At the very least you need to get lawyers opinion.  It is probably advisable to go through the eviction process.  Document everything, including posting a 24 hour notice to enter the unit then documenting that everything is gone.  

Unfortunately this is the best and safest way for you to ensure that you don't open yourself up to damages for wrongful eviction. She could even have some crap laying around in the house that you dispose of and then comes back claiming you threw away her Picasso. When I did foreclosures for a REIT we threw away someones stuff after 3 months of trying to get in contact with the previous owner. Did not go through a judge or any other official channel. Person came back 3 months later saying they were out of the country. They got a check that was worth multiples more than what was thrown away.

[David Hines]

First of all, I am not a lawyer and you should definitely reach out to a lawyer if you need legal advice.

I am a real estate broker, property manager and investor and I've had a similar situation. If you are using the Residential Lease agreement promulgated by the Texas Association of Realtors, there is a section that deals with exactly this situation. Paragraph 16 covers Move-Out and specifies that a tenant may not abandon the property and outlines exactly what constitutes abandonment. If you follow the lease agreement and establish that the property has been abandoned, you shouldn't need to go through the whole eviction process to take possession of the property.

Let me know if there is anything I can do for you. All my contact information is on my profile page.

[Deanna McCormick]

Is there a way to contact her? Will she pick up?? Just say  you need to meet that she needs to sign that she vacated apartment and you can take possession as of XXX date. That the property inside is abandoned, you could agree to give her like 50 bucks if she'll meet  you.

Otherwise tell her you'll have to gain entry by doing an eviction action because that's the legal way.

Not worried about legal and if she'll be back.. I guess if the furniture was infested I can see why she moved.. and left stuff.. call her give her chance to show up to sign off , if that doesn't happen, change locks, post on door locks changed due to pest control service and proceed with that and eviction.

Or just plain change the locks and be done with it.. she's not coming back just send out security deposit statement to her address she left from, post office will forward.

Have pest control guy come and give you written statement that furniture and belongings are infested and should be disposed of..take photo's of inside. 

IF you do, spray paint BUGS on the furniture so some poor dope doesn't move it into the apartment next door...   

[Ronald Rohde]

Originally posted by @Deanna McCormick:

Is there a way to contact her? Will she pick up?? Just say  you need to meet that she needs to sign that she vacated apartment and you can take possession as of XXX date. That the property inside is abandoned, you could agree to give her like 50 bucks if she'll meet  you.

Otherwise tell her you'll have to gain entry by doing an eviction action because that's the legal way.

Not worried about legal and if she'll be back.. I guess if the furniture was infested I can see why she moved.. and left stuff.. call her give her chance to show up to sign off , if that doesn't happen, change locks, post on door locks changed due to pest control service and proceed with that and eviction.

Or just plain change the locks and be done with it.. she's not coming back just send out security deposit statement to her address she left from, post office will forward.

Have pest control guy come and give you written statement that furniture and belongings are infested and should be disposed of..take photo's of inside. 

IF you do, spray paint BUGS on the furniture so some poor dope doesn't move it into the apartment next door...   

 I would not recommend changing the locks, for residential leases, there are significant penalties for doing so. Plenty of good advice above and I have dealt with "professional" tenants in the past who work the system and maximize the law on their side.

[Anthony Varner]

Thanks everyone, I truly appreciate you all taking the time to share your knowledge and provide some guidance.   

@David Hines that's an excellent point.  I've located the abandonment clause and even stumbled upon a part which mentions bed bugs (and that I'm NOT liable to exterminate for them, which has been on my mind a little).  Seems like the moral here so far is to KNOW YOUR LEASE.  I was so optimistic I kinda skimmed over the abandonment area thinking it wouldn't happen.  Still new at this.

I will post again as things progress in case anyone is interested.  Thank you!

[Greg H.]

Texas law does allow the landlord to declare a property abandoned.  The code does not clearly define abandoned, but i consider :

-Valuables removed

-No contact or no sighting by neighbors

-Utilities off

I would contact the tenant via a text message or email pointing out that it only helps them "move on" to see if they will acknowledged the have skipped out.  Once I received confirmation, rekey and move forward and get the property rent ready.  If not and my criteria above is met, I would declare the property abandoned and move forward.  Take pictures and document

[Cody L.]

I post a notice of abandonment. Wait a bit. Then toss their stuff and move on with a new tenant.

Done that 100s of times.

Sometimes the previous tenant comes back. It's awkward. But I tell them they should have paid their bills.

[Brian Foster]

This looks like a job for Superman! or you could just hire a professional Property Management company and not deal with silly things like this that tenants are so prone to do......

We can help you if you like

[John Pate]

I agree to be careful. We posted on a tenant of ours refusing to pay and took a picture. Then went to court and they required a receipt requested letter. Not legally called for but that is what the judge wanted. Tried cash for keys but no luck there. Then, she actually showed on the court date and they ruled against her. No kidding. 

Once we got in the place was trashed. Roaches everywhere. Even a dead mouse. About 40 large garbage bags of stuff -- we couldn't keep anything. A bunch got taken away from the curb. But ended up paying to have the rest of the junk hauled away. The good news, if there is any, is that with the remodeling (~$7k) we will get an additional $275 a month. Landlording isn't always as easy or glamorous as they make it out on TV. 

[Greg H.]

@John Pate

My guess is the reason was you posted to the outside of the door and not the inside.  The outside of the door only constitutes legal service is you fear for your safety(Before 2016 it was never legal service)

[Dustin Lavender]

You need an abandonment clause in your lease. Below is basically what my abandonment clause says and I more lenient than Arkansas law requires because I do give an additional 3 day notice. Something legal for your state, but along the lines of this would do great:

Property Abandonment by tenant voids all terms of lease agreement. Property will be considered abandoned if rent is due AND tenant cannot be contacted for 10 consecutive days. If property is determined to be abandoned under the lease and in accordance with Texas law, notice will be posted at property of suspected property abandonment giving tenant 3 days to remedy lease violation. After 3 days, landlord will take possession of property. Any personal property abandoned by previous tenant will be disposed of at landlords discretion.

[Greg H.]

@Dustin Lavender

The Texas Property Code already allows the landlord to declare the property abandoned

Disclaimer:  I am not a lawyer

I would not suggest anyone use this terminology in Texas.  Not being able to reach a tenant and rent due would not meet my standard to declare the property abandoned.  I would need additional evidence such as utilities off as well as valuables removed.  Based on your definition, what is the tenant was on vacation and got in an accident and was in ICU for a couple of weeks

"Any personal property abandoned by previous tenant will be disposed of at landlords discretion".  Do you have case law to support this ?  

[Dustin Lavender]

Reply @Greg H. what ifs do not matter in law. As I stated that is arkansas code, which is why I said whatever the OP uses would need to be legal for his state. My lease states what is considered abandonment and restates arkansas code in terms of abandoned property. I can reference arkansas code if you would like. I am not worried about supporting cases. 

As you can see below, I give an additional 3 days notice to the tenant that arkansas law does not require of me. If your rent is past due and I have been unable to contact you for 10 days, by phone, email, at your residence, neighbors haven't seen you there, I post a nice 3 day assumption of abandonment notice stating that I will take possession of the property in 3 days under our lease agreement. Then, I can under our lease and arkansas law consider it abandoned and burn their crap in the back yard if I want to.

Bottom line it's legal here AND it is in my lease.

A.C.A. § 18-16-108 (2017)

18-16-108. Property left on premises after termination of lease.

(a) Upon the voluntary or involuntary termination of any lease agreement, all property left in and about the premises by the lessee shall be considered abandoned and may be disposed of by the lessor as the lessor shall see fit without recourse by the lessee.

(b) All property placed on the premises by the tenant or lessee is subject to a lien in favor of the lessor for the payment of all sums agreed to be paid by the lessee.

[Greg H.]

@Dustin Lavender

What ifs DO matter in the law.  It is called precedent.  I think we can both agree that terms contained in one's lease does in no way override state law

While it is interesting that you can dispose of property in any manner you see fit in Arkansas,  the OP is in Texas .  The Texas Property Code 93.002 requires the landlord to store the property for 60 days

While Texas law does permit a landlord to declare the property abandoned, it does not clearly define what is considered abandoned.  I consider factors such as:

-Have items of value been removed?

-Have the utilities been off for more than 3 days?

-Have neighbors observed anyone at the property?

[Dustin Lavender]

Greg H. I have acknowledged that we are in different state MULTIPLE times now.

I am not a lawyer so seek one out. I did dig into your code a bit including your references.

Texas code 93.002 is in chapter 93 entitled commercial tenancies and clearly applies to commercial leases.

Section 72.101 deals with abandonment of property, but is also not in regards to residential leases.

What I did find relevant was:

Texas code 92.014 allows you to dispose of a deceased persons property as you see fit within 30 days of unclaimed. And section D of that chapter allows you to write your lease differently to SUPERSEDE the entire chapter. Allowing disposal as agreed upon in the lease.

92.332 defines reasons a lease might be terminated. Particularly interesting are sections 3 breach by misconduct and section 6 subsection B (bedbugs could pose a health hazard to other tenants in the OP)

92.0081 does say you can't remove property you provide to a tenant but is not in regards to abandonment. Section 3 of this chapter allows you to change the locks anytime a tenant is late with rent. It requires you to post notice and allow the tenant to get the key at anytime, 24/7 wether they pay the rent or not, but this section is cut-throat.

I can find nothing in the residential code that requires the landlord to do anything with the property once a lease is terminated.

There are also no clear instances that say a lease cannot be terminated for abandonment. Once a lease is LEGALLY terminated, the tenant would have no recourse under the lease.

I'd love to see Texas code reference that force you to store the property for 60 days under a residential lease. I highly doubt in an abandonment situation that Texas would require you to store the property at your expense for 60 days. That is excessively unreasonable.

[Christine Kankowski]

One suggestion, before you put anyone else in there, make sure you get a profrssional company to make sure there are no bedbugs.  they do not leave with regualr carpet cleaning and can be very hard to get rid of.  IN california now, we actually have to give a disclosure about bedbugs and have to disclose if the place was treated for bedbugs.

Best of luck!