Landlord Rights When a Tenant Abandons Property
A lease is a contract between the lessor (landlord) and lessee (tenant). In modern days due to Covid and the impending lift of the moratoriums on rent collection, landlords may find themselves in scenarios where their tenants abandon the property because they can no longer pay. The following article discusses what happens after a tenant abandons real property.
Abandonment: Abandonment occurs when the lessee leaves the premises vacant with the intention not to be bound by their lease. Abandonment differs from surrender in that, in abandonment there is no consent from the landlord. Surrender in contrast is a consensual termination of the lease before the date set forth in the lease. It relives both parties of their duties under the contract after the surrender date. Surrender can occur with express consent in the form of a writing or by operation of law when the parties do something that implies they have consented to surrender. In the event there is abandonment, a landlord has various rights:
LANDLORD’S RIGHTS UNDER COMMON LAW
1. Sue for unpaid rent as it comes due;
2. Retake possession of the property, resulting in surrender; or
3. Retake possession of the property and relet the premises, suing the original tenant for the difference between the lease rent rate and the rate the landlord in good faith will receive for the property.
LANDLORD’S RIGHTS UNDER MODERN LEGISLATION
(Civ Code § 1951.2(a))
If a tenant abandons the property, the landlord is entitled to recover prescribed damages. When a tenant fails to pay rent for at least 14 consecutive days the landlord may send notice to the tenant expressing the landlord’s belief that the tenant has abandoned the lease.
If the landlord chooses to send notice, the notice must specify the date on which the lease will terminate, and this date must not be less than 15 days after the notice’s personal service, or not less than 18 days after deposit in the mail. It must either be personally delivered or sent by first class mail, return-receipt requested.
However, the landlord is not required to send notice to reclaim the abandoned property. But, if the landlord mistakenlyretakes the property (meaning the tenant has not actually abandoned) then the landlord will be liable for trespass, forcible entry, and/or forcible detainer.
After notice is properly given, the lease will terminate if the tenant fails to do any of the following:
- Reply by the termination date signaling their intent not to abandon; or
- Pays all or portion of the unpaid rent; or
- Proves either that they had paid rent—meaning there was no rent unpaid for 14 consecutive day—or similarly that the lessor’s belief that tenant abandoned was not reasonable
DAMAGES RECOVERABLE
Landlord has a duty to mitigate damages (i.e. in good faith attempt to re-lease the property during the remainder of the lease period). If landlord fails, they will have that amount counted against them when the court calculates what they can recover from the tenant. Landlord has four options for remedy:
1. Collect past due rents only on the date that the tenant abandons; or
2. Collect damages that accrued from time of abandonment till time of award minus amount landlord would’ve received had they re-let the property; or
3. Collect remainder of rent landlord would have received under the lease only if the lease allowed the landlord to do so OR landlord attempted in good faith to re-let premises and could not; or
4. Collect any other amount necessary to compensate the landlord for all the detriment proximately caused by the tenant’s failure to perform lease obligations or which were reasonably foreseeable; or
5. Keep the lease active and sue on rent as it becomes due if proper terms are in the contract.
If you believe your tenant has abandoned the property prematurely and you want to understand your legal rights, give our office a call at 1-800-233-8521 for a free phone consultation today.