Eviction moratorium + Tenant abandonment ????

Question

I need help! I inherited a tenant when I recently purchased a property and she has not paid rent for August or September. She has been trying to move out so I was giving her time, but since she hasn't been back to the property in 3 weeks (still crap in the unit), I am trying to figure out how that works with the whole moratorium on evictions. I'm about to find a lawyer but thought I'd throw it out to this smart group first! I'm in Denver Colorado.

Jeff Copeland · Answer

The answer will depend on your state laws concerning abandonment.

Best case scenario: If you have contact with the tenant, get her to sign a lease termination, or at least something simple saying she abandoned the unit and you can dispose of anything she left behind.

Often if you tell the tenant you need this in order to avoid having to file an eviction (which is true, there are only three ways to get possession: surrender, abandonment, or eviction), it will elicit a response.

This video pertains to Florida, but has some key takeaways to keep in mind: vimeo.com/295589127

Bill S. · Answer

@April Mattin so a few thoughts here. Be very careful on the words you use. "abandonment" is covered by statute here in Colorado. Trust me, you don't want to go that route. Here are some random thoughts you might consider.

1) Has the tenant left and just left their unwanted stuff behind? Ideally get an email or text from them stating or confirming this condition. If they do that, then clean up and rerent. Be sure to send the security deposit accounting within the allotted time frame.

2). If the tenant won't confirm but you believe they have left, you have a decision to make. You can choose to go the full legal route and pursue eviction, etc via an attorney. The other option is to move all their stuff into a storage space and change the locks. Re-rent the property and hope they don't come back or if they do come back they don't make a stink. You could be in a huge legal battle if you have the wrong tenant. If they do come back and start throwing their weight around then you get out your check book and let them fill in the blank to get them to go away. If you end up in court you will loose and it will cost you more no matter how much you would have paid to make them go away.

3). One thing I have done is to post a notice in the window stating that you believe the tenants have "surrendered" the property back to you and to contact you within 3, 7, 10 or 30 days (you pick) if they have not moved on/surrendered the property. No attorney will advise you of this route as it is not a legal precedence. It's a practical thing you can do help your situation. If they get a hold of you, then you know they are still there. If not, you at least have a some assurance they are not at the property.

Know this, right now, Colorado requires a 30 day notice for non-payment of rent. If you go the eviction route, you have to post notice and wait 30 days to file an eviction. Who knows where we will be legally at that time. Once your 30 day notice expires, you have to file suit and schedule a court date. This might take another 30 days or more depending on which county the property is in to get a court date. After you get a court date and assuming they don't show for court so you get a default judgement, you have at least another 30 days to get the sheriff to do the set out. The point of this is, do not delay. Take action NOW.

Post notice to quit at a minimum. Do it today or tomorrow at the latest.

Based on what you have said, you need to seize control of the situation as it won't go away or get better on it's own.

Jeff Copeland · Answer

@Bill S. @Andrew B. and - Abandonment of a rental dwelling is a very specific occurrence (with a very specific legal definition) and the original poster may indeed have every right to take possession of the unit without pursuing an eviction or cash for keys. I don't understand the comment about it possibly taking years (maybe that relates to claiming ownership of personal property, such as a vehicle left behind?). There is no delay, per se, when a tenant abandons a rental unit: You simply document the abandonment and take posession.

I am not in Colorado and I am not an attorney and cannot give legal advice, but this guy is and he wrote an excellent article on the subject:

https://www.thslawfirm.com/res... (I have no affiliation whatsoever) .

According to the Colorado attorney linked to above:

"What constitutes circumstantial evidence that a tenant has abandoned a unit?  While not a complete list, the following facts, coupled with the tenant being gone, are circumstantial evidence of a tenant’s intent to abandon: rent is unpaid; can’t contact tenant after repeated attempts over time; no one has seen the tenant; the tenant’s vehicle is gone; utilities and/or phone is disconnected, or has been transferred back to the landlord or community; all food has been removed, or remaining food is spoiling; toiletries removed; most furniture has been removed, especially beds; mail is stacking up, or is forwarded; children have not been seen, or are not in school; storage locker emptied; clothing removed."

To be fair, he does recommend extreme caution, and pursuing an eviction if there is any doubt. But that was before COVID - In some jurisdictions, an eviction is not even possible right now, so it's important for owners and PMs to understand the other means of legally taking possession of an empty unit.

As I stated in my earlier post, a written agreement terminating the lease signed by both parties is ideal, and written confirmation from the tenant that they have abandoned/surrendered their unit and you can dispose of the stuff they left behind is the next best approach.

But in the absence of these options, the landlord or PM has to weigh the risk of the tenant taking legal action to recover whatever possessions they left in the unit (which in my experience is usually not very high) against the cost of an eviction and several months of lost rent while awaiting an eviction judgement and writ of possession.

To be clear: I'm not saying claiming abandonment and re-renting the unit is the best or only option here (I don't have all the details and only the original poster @April Mattin can make that call) - I'm simply saying abandonment is one legally recognized option that is on the table and landlords and PMs should be familiar with the state laws on the subject. It's another tool in the toolbox, and sometimes it's the right tool for the job.

Maria Bakaj · Answer

@April Mattin

For the non-payment part, have you reached out to her and let her know that there are rental assistance programs in the state during Covid-19?

For the eviction part, I have read that evictions in CO are still being done on a case to case basis even with the new moratorium.  If you google and look for the article "The New Eviction Moratorium isn't Bulletproof" in the Coloradoan, you can read up a bit on this so that way you are prepared for a conversation with an attorney.

I try to stay on top of all of this as I have tenants and I try to help out my clients with this as well, but it's tough in this ever changing environment.

Good Luck!

Andrew B. · Answer

Your advice is very confusing. You start by explaining that "abandonment" is defined by statutes. That's correct and can differ from state to state, but then it sounds like you're advising OP do everything BUT pursue abandonment.

The best option, besides convincing the tenant to turn over possession, is to use your state statutes to determine if the unit is legally considered abandoned. Usually, this means utilities are shut off, keys are left on the counter, no items of value in the unit, etc, but you should follow local laws. If the unit is abandoned you can go inside, film and document everything, then remove all items and re-rent. Local laws may force you to store anything left inside for a period of time.

Perhaps there is a local nuance I'm missing, but in general, pursuing abandonment is always better than pursuing an eviction.

Theresa Harris · Answer

Option 1, tell her you will give her $500 if she has all of her stuff out by a set date and hands over the keys.  Only give her the money when you get the keys and inspect the place.  Option 2, tell her she's not living there and offer to put a pod in the driveway for her stuff so you can get moving on finding a new tenant.

Bill S. · Answer

@Jeff Copeland that is the firm I use. The point of his writing was not to go the abandonment route but to use eviction. Abandonment if contested becomes a legal mess and if you notice all the test items mentioned. How do you prove that all of those boxes were checked? Especially if the tenant disagrees and you end up in court in front of a judge. It's all case law and in reality, each judge does what they think is fair for the tenant unless the landlord can without a doubt prove the tenant is an idiot or an outright thief.

The point is, if you don't do an eviction and move forward with taking possession of the unit you are skating on thin ice legally. Practically, it's a gamble you may want to take in the situation where an eviction may take months in our current COVID-19 environment. In most cases, if you are careful and the tenant isn't playing a game to set you up, you can retake possession and move on with life but a lawyer will never advise you to do that. I have done it a number of times with no bad outcome but I will say it's not for the faint of heart.

Bill S. · Answer

Yes. The "local nuance" is at play here. In Colorado, I was told legal abandonment is not a route to regain possession of a rental unit. I am not an expert but as I understand it, the state statute requires abandoned property to be turned over to the state to be reclaimed at a later date by the lawful owner. The process can be years. The short story is the lawyer I use for evictions and landlord/tenant issues (the firm does 90% of the evictions in Colorado) said the route is eviction and "don't use the word abandonment in your notices or you will regret it should the issue end up in court". I do know in some states that legal abandonment is faster/better/cheaper than eviction but as I understand it, Colorado is not one of them.

April Mattin · Answer

Thank you Bill for the tips. I had posted the quit notice on Sunday evening. And texted and left voice message. But no response. At least I started the process now so the clock is ticking. Thank you all again for your feedback!

Zachary Ray · Answer

Whatever you decide do it fast as processing may take a while on all ends.

Eviction moratorium + Tenant abandonment ????

Most Popular Reply