ABANDONMENT OF THE PREMISES

There are three ways a manager obtains possession of a rental unit: surrender, abandonment, or eviction. Surrender and eviction with a writ of possession are covered in other articles. This article deals with some aspects of abandonment.

The manager often finds himself confronted by an empty unit with all, some or none of the resident’s personal property remaining. The manager may have had varying degrees of contact with the resident about his vacating. We will assume that the manager cannot validly claim that the resident has surrendered the property. The choice left is to file for eviction in order to obtain a writ of possession and move the resident’s remaining belongings to the property line OR to consider the rental unit abandoned and dispose of the remaining personal property as the manager sees fit.

The Conclusion

As you read this article, bear in mind the following conclusion. The most important consideration in the manager’s decision to rely on abandonment or file an eviction will usually be the value of the resident’s remaining property. The value of the property should be examined at the outset. A good rule of thumb is this: if the total value of the property is $500.00 or more in the manager’s good faith estimation, then the manager is advised to file eviction and obtain a writ of possession. If the total value of the property is worth less than $500.00, the manager can continue with his examination of the facts to ascertain whether the rental unit has been abandoned.

Special Circumstances

Special circumstances may arise where the lease in question does not have a proper abandoned property clause or there is no lease. If the total value of the property is $500.00 or more in the manager’s good faith estimation, then obtaining a writ of possession becomes an imperative. In these special circumstances, if the total value of the property is less than $500.00 and the manager strongly believes abandonment of the rental unit has occurred, the manager will need to follow abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.

The Statute

Florida Statute 83.59(3)(c) sets forth how abandonment of the rental unit is determined: (c) When the resident has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the resident 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 resident has notified the manager, in writing, of an intended absence; or Under Florida law, there are two ways abandonment can be established: (1) the manager has actual knowledge of abandonment, or (2) the manager 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 manager of an intended absence, and (c) the resident is absent form the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we shall speak of 15 days as the “period of time equal to one-half the time for periodic rental payments”. The same is true for month-to-month tenancies.)

The problem with the first standard, actual knowledge of abandonment is that the law does not define this phrase. There at least two major problems with the second standard, presumption of abandonment. First, it can be very difficult to establish 15 straight days of no activity in the absence of around the clock camera surveillance. Second, even if you can prove all three elements of the test, the presumption can be overcome in court.

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 manager 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 Penalty

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 manager 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, which ever is greater, the resident is entitled to his court costs and attorney’s fees. Finally, the manager may face a claim for civil theft and possibly criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the manager is ever in doubt about whether abandonment of the rental unit has occurred.

The Practical Guide – The Value of the Property

Since this area is so bereft of any firm statutory guidance, the manager must turn to some practical standards to operate in the real world. The best practical guide 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 the courts 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. We often advise to forego the abandonment analysis and do the eviction. It’s not that there is never a case of abandonment with property valued over $500.00, only that it is rare and grows rarer as the value of the property increases. If a manager feels that he has such a rare case, he is advised to consult with his eviction attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the manager 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 manager cannot assume that there has been abandonment. The manager 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 manager must file eviction and obtain the writ of possession, even if the value of the property is minimal. That being the case, we turn to a discussion of the statute.

The Statute – Actual Knowledge

As previously indicated there is no statutory definition of “actual knowledge” of abandonment. Neither the attorney nor anyone else can tell the manager 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 manager can claim actual knowledge. The manager 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 manager enters his reasons in the resident’s file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the manager’s actual knowledge.

The easiest case may be when the resident tells or writes the manager that he intends to break the lease and leave. The manager checks the property and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the manager has actual knowledge. True trash should not be a concern.

It is common for a manager to talk to the neighbors who will often tell the manager that they “know” the resident left for good. This is not the manager’s actual knowledge. It is a factor that the manager can take into consideration.

The Statute – The Presumption

If the manager 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. As mentioned above, conclusively establishing 15 days of no activity can be almost impossible. Although some managers have been known to put tape at rental entries to show the requisite lack of activity, for most managers it’s a conclusion drawn as their best guess. It’s based on more or less frequent checks of the rental, talking to neighbors and any other information that the manager can gather indicating that no one has been around. The manager should enter the facts supporting his presumption in the resident’s file.

Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Managers 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 most prudent 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.

The manager must remember that even if the presumption is established by the manager, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The manager 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 manager must accept in relying on the presumption.

Considerations in Abandonment

In addition to value of personal property remaining on the premises, the following are some other factors to consider that may indicate the resident has abandoned. They may assist the manager in having actual knowledge of abandonment or support the presumption of abandonment.

1. Resident statements or writings;

2. Neighbor statements;
3. Responses from emergency contacts; the manager can only leave a request with the contact for the resident to get in touch with the manager. He cannot disclose any information to the contact, as such is a breach of the resident’s privacy;
4. The type and quantity of personal items left behind;
5. Utilities cancelled, shut-off or rolled over to the manager;
6. Lack of sleeping arrangements (bed, mattress, sleeping bag);
7. No edible food, canned or otherwise;
8. Rotting food in the refrigerator or kitchen in general;
9. No pet food or water, if the resident had a pet;
10. Single family homes: lawn, shrubbery or pool not maintained, when these are the resident’s obligations under the lease.

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.

Pictures

A final word on proof: in establishing the condition and value of remaining items or the condition of a rental that gave rise to the manager’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 are not taken and included in the resident’s file.