Abandonment: Throw Away Trash, Not Your Rights

The abandonment process can be a quick and inexpensive way for a landlord to regain legal possession of leased property after a tenant vacates without formally surrendering the unit. However, it can also become a lengthy and expensive nightmare when done incorrectly.

Too often we see landlords sued by tenants, because the landlord failed to follow the abandonment procedures correctly, as outlined by TAA lease ¶ 41.3. The landlord then receives a letter, sometimes a year later, with the dubious allegation, “you illegally took my grandma’s diamond ring (or other costly items) from my apartment!” Although this claim may seem unpersuasive, much less provable in court, a judge could side with the tenant if the abandonment procedures were not followed. Don’t let that happen to you.

            What You Need to Know:

Although the Texas Property Code does not specifically define “abandonment,” Texas common law and the TAA lease offer significant guidance.[1] Under paragraph 41.3 of the TAA lease, a person has abandoned the apartment unit only if all of the following have occurred:

(1) everybody appears to have moved out in landlord’s reasonable judgment; (2) clothes, furniture, and personal belongings have been substantially removed in landlord’s reasonable judgment; (3) the tenant(s) has been in default for non-payment of rent for 5 consecutive days, or water, gas or electric service for the apartment not connected in the Landlord’s name has been terminated or transferred; and (4) the tenant has not responded for 2 days to the Landlord’s notice, posted on the inside of the main entry door, stating that the Landlord considers the apartment abandoned.

Landlords should have multiple agents (i.e. a manager and assistant manager) verify that all four of the above referenced elements have been completed before regaining possession of the leased premises. Moreover, the landlord should ensure that it has at least two people inspect the leased premises and deliver the Notice of Abandonment, so that it has multiple witnesses.

Additionally, landlords should ensure that they protect themselves from frivolous lawsuits by gathering evidence during the abandonment process. Accordingly, landlords should: 1) photograph each and every room of the unit that the landlord believes is abandoned; 2) post and photograph the 2-day abandonment notice, which the landlord must place on the inside of the main entry door; and 3) document, in writing, all of the reasons the landlord believes the unit is vacated on the abandonment notice. Refer to the sample Abandonment Checklist for a helpful reminder and guide. Landlords should retain all copies, notes, and evidence of the abandonment process for their records. Once a landlord fulfills the requirements of paragraph 41.3, the landlord may remove the contents and regain possession of the leased premises.

This article is designed for informational purposes only. Neither the article, nor any of the information contained therein constitute legal advice. Moreover, an attorney-client relationship does not exist between the reader and Huhem Law Firm. If you have any questions, we recommend that you contact an attorney.

[1] SEE CHARETTE V. FITZGERALD, 213 S.W.3D 505, 511-12 (TEX. APP.—HOUSTON [14TH DIST.] 2006, NO PET.); BYLER V. GARCIA, 685 S.W.2D 116, 119-20 (TEX. APP.—AUSTIN 1985, WRIT REF’D N.R.E.); TAA LEASE ¶¶ 14.3, 14.4, 14.5(B), 14.6(A)(1), 32.1(C), 41.3 AND 41.4.