Home Abandonment – A Primer
Home abandonment is a term that strikes fear into the hearts of property owners and tenants alike. Its implications can range from the minor to the catastrophic, wreaking havoc on communities and causing endless legal battles. Commonly, property owners face significant financial losses, while tenants are left without a safe place to live. Beyond individuals, communities as a whole suffer as property values decline and crime rates increase.
Essentially, home abandonment occurs when a property is unoccupied or left derelict for a certain period of time, indicating that the residents have vacated the property with no intent to return. Tenants may abandon a property because of their own financial issues or because of the property’s poor condition . Homeowners may physically abandon their residence or it may be abandoned as a result of foreclosure, with banks and other financial institutions assuming ownership of the property. Unfortunately, empty homes attract criminal activity, which results in rampant loitering and trespassing.
Legal requirements regarding home abandonment vary depending on the type of property and jurisdiction. There are several laws with specific provisions aimed at tackling the issue of home abandonment. For instance, many states have enacted laws that require landlords to go through a legal process before declaring a rental property as abandoned and evicting tenants. Similarly, in some states, mortgages must proceed through foreclosure before a lender can take ownership of a property that has been abandoned by the owner.
What is Home Abandonment?
When determining whether a home has been abandoned, the definition of home abandonment varies across jurisdictions. Abandonment at common law refers to an intent to abandon, as coupled with act pursuant to that intent. Subject to legislative enactment, the courts have defined "abandoned" properties and the standards by which to determine whether property has been abandoned. No two statutes are the same and the same jurisdiction may have different definitions depending upon the context in which it is being used. In every case involving property abandonment, however, there is a common focal point – the intent of the owner of the property. For example, the state of New Jersey regulates the abandonment of real estate by N.J.S.A. 55:19-81, which provides in relevant part that "[a]s used in this act, ‘abandoned property’ means and shall include any improved or unimproved real property or any improvement thereon, … which has been vacant and subject to unauthorized entry for a period of six months." The term "vacant" has been defined by courts as "the absence or missing of a substantial corporeal presence of people." Similarly, the State of Massachusetts has defined abandonment of property. In Commonwealth v. Sullivan, 75 Mass.App.Ct. 262, 262 (Mass. App. 2009), for example, the Court held that "An intent to abandon is inferred from the condition of the premises and acts of the owner evidencing a relinquishment of his or her property rights. Specifically, the inquiry is whether the owner has vacated the property without any intention of returning." Even within the State of New York the meaning of "abandonment" has been defined differently. Within the context of actions to recover real property, the court defined "abandonment" as "the voluntary relinquishment of all right, title and interest in a piece of real property." "This means that the holder of a possessory interest that is subject to return to the landowner must intend never to exercise that interest." See Fatovick v. Douglas, 1167 N.E.2d 498 (N.Y. 2009). In New York, the courts have further defined "abandonment" as "the failure to use a right or privilege within the time and in the manner prescribed by law; and the loss of that right or privilege as a result of such failure, or the loss of one’s personal property by failure to reclaim it with in the time limited by law." See Split Rock Heritage v. Garrison, 298 A.D.2d 274 (2d Dept. 2002). Because of these varying definitions and standards, it is imperative to consider the laws of your state and local jurisdiction when determining whether property has been abandoned for the purposes of adverse possession.
Home Abandonment Laws in Your State
Home abandonment laws differ slightly in each U.S. state. Alabama law on home abandonment states that if a property has not been occupied or rented for six consecutive months, the property is considered abandoned. Variations of this section continue for any property that is unoccupied or uninhabitable for the length of a year or more. Both subsections also have regulations for the type of "notice" that must be provided to the tenant. Arizona has a two-part process for dealing with abandoned property. First, if an Arizona tenant misses a payment, but makes up for the payment within two weeks, the landlord must then protect the property, either as-is or as necessary. If the tenant fails to pay twice, the landlord must send notice that the tenant is to abandon the property via certified mail. If 10 days go by and there is still no action, the landlord can clean house with no liability. California home abandonment law states that "under specified conditions, the rental unit shall be deemed abandoned." Different circumstances include that rent is not received, a holdover term is in force, the landlord reasonably believes the tenant is absent, and the landlord has made reasonable efforts to contact the tenant. Florida law allows a written request to the tenant for a one-year lease and if it is not met, the unit will be deemed abandoned. In summary, the property is abandoned if: "1] The lease term has expired and the tenant has removed from the property all personal property or all personal property left in the dwelling has a fair market value that is $500 or less; 2] The utility service to the rental unit has been disconnected for at least one full billing period; 3] Your lease is terminated under Section 1962.361, etc." Illinois has similar guidelines to other states that turn a unit into a "deadbeat" if it hasn’t been occupied for more than 120 days. Subsections within this section also apply if wages or salaries have not been paid to workers at a property or other similar circumstances. Kentucky’s law states "A tenant abandons a rental agreement when the tenant vacates [or] surrenders the dwelling unit and [1] knows that the landlord has exercised the landlord’s rights and remedies under KRS 383.205; or [2] gives notice of the intention to vacate to the landlord and vacates prior to the date specified in the notice." New York defines house abandonment as when "any person fails to pay any assessments or installment charges due on … house closing costs, other than real estate taxes … and for a period of one year, said property remains vacant and the owner of the loanholding it, or the duly-authorized agent of said owner, shall service and collect all such charges, and make all necessary repairs on the premises which are usual or customary for the general locality, and insure said premises against loss or damage by fire, flood and windstorm …."
Property Owner Obligations and Options
A property owner’s rights and obligations can often seem like a grey area when it comes to home abandonment and repossession. A commonly held assumption is that a property owner is entitled to take positive action, such as changing the locks or throwing out a squatter’s possessions. However, the law requires careful adherence to process in order to avoid possible compensation claims.
An owner or landlord seeking to repossess property must have the legal right to do so. The most common situation is where property has been abandoned or has fallen into disrepair. However, an owner or landlord must first follow the proper legal procedure before being entitled to take action to repossess the property, otherwise they risk actionable claims being taken against them, such as an action in trespass against the occupier of the property or an action under the Protection from Harassment Act 1997 where the occupier of the property brings a claim for harassment against the owner. Claimants who succeed in such claims have been awarded damages that can be substantial and in some instances are awarded punitive damages.
It is also important to note that an owner or landlord is entitled to repossess a property if they have received vacant possession. However, the receipt of vacant possession requires all tenancies in respect of the property to be terminated, which may not occur until the end of the notice period or tenancy term. This, along with obtaining vacant possession, is therefore considered to be a requirement which can be difficult to fulfil in order to effectively repossess a property. Once the owner has taken back possession, the owner is required to follow the proper procedure for dealing with any items that belonged to the previous tenant or owner.
Where a landlord is seeking to repossess a property after the expiry of a residential tenancy agreement, they must provide 2 months’ notice of the proposed possession date to the tenant. There are additional requirements for landlords of houses in multiple occupation (HMO), such as the licensing schemes introduced by the Housing Act 2004. A landlord of an HMO seeking to repossess their property must give a minimum of 24 hours’ notice to enter the property and has the option of entering the property without permission to prevent injury to persons or damage to property. In some cases, landlords of HMOs will also need to obtain an order from the Residential Property Tribunal to repossess their property.
Where the property is commercial rather than residential and has been abandoned, some landlords will remove any items left in the property without notice in order to re-let the property. However, landlords must bear in mind that the items belong to a former tenant, i.e., the owner of the items may bring a claim for conversion against the landlord for the removal of items without notice.
Where a landlord has a reasonable belief that the property has been intentionally abandoned, an urgent application may be made to the court for an order for immediate possession. An urgent possession order allows the landlord to take possession of the property on the same day that the application is heard.
Finally, we advise property owners to seek professional advice before recovering property that they are not entitled to repossess, in order to avoid any toxic situations or potential actions against you following the repossession.
Tenant Options and Remedies
Given that many homes may not go through the foreclosure process, although it might be the only legal process available, tenants could certainly try to sue the lender/trustee for violating the Unlawful Detainer statutes of California. Under California law, a tenant may be able to "stay" eviction proceedings if they can establish that they are making payments under their lease, or any other appropriate terms with the owner. In fact, even if a foreclosure terminates their tenancy, they can still state a claim for wrongful eviction, especially if the lender did not make a reasonable effort to reasonably accommodate their lease. This is an area of law that will most likely evolve, and a court case will probably have to decide under what circumstances may the lender actually be responsible for tenants damages.
A better recourse may be through the California Fair Employment and Housing Act and similar statutes. Under such statutes a tenant may be able to recover actual damages such as attorneys’ fees, emotional distress damages and punitive damages when being forced out to accommodate a family member that needs the unit. Also, retaliation is illegal, and if a tenant can prove that the owner was retaliating for them associating with their current association, then the owner would likely be liable for the penalties in CC § 1942.5(b), which include the tenant retaining possession of the unit and a fine of up to three times the rental value of the unit.
How to Deal with Abandoned Items
If a homeowner vacated the property and left behind personal property, the former treasurer of the association has both the right and the duty to deal with it. If the items have some value, putting them in storage until they can be sold may be the best alternative. Assuming the association has a reasonably sufficient budget for this purpose, the cost for this effort should be avoided by anticipating potential home abandonments. If no money is available for these efforts, that may be justified if the item is junk or if the value of the item is so small that the potential legal responsibility for the effort exceeds the value of the item. As a practical matter, without a properly worded bylaw enforcement policy in place, with respect to truly abandoned personal property such as furniture , lawn equipment or the like, a homeowner or other occupant may choose to leave valuable items behind for the association to deal with. Some homeowners, for example, have been known to periodically abandon expensive cars and lawn equipment just because that may be the less expensive and more convenient thing to do. Realistically, this person is rarely going to return to reclaim the property, and in such cases, the association is all but certain to incur the cost of disposing of the items and cleaning up. For other types of personal property left behind that has even nominal value, a home abandonment policy should include efforts to contact the former owner if possible and to do whatever else is necessary and reasonable to dispose of the items and clean up.
Case Studies – Home Abandonment Issues
Let’s take a look at some examples of home abandonment, to see how they play out in the real world and how the law is applied in order to resolve each case:
Case Study 1: Foreclosure
Sharon purchased a home four years ago after her divorce. She put in a strict, fixed-rate mortgage with no pre-payment penalties. For several years she was fine paying the mortgage, but she then wanted to refinance to take advantage of lower interest rates and lower payment. However, unbeknownst to Sharon, there was a problem with her title: Though her deed does not include the name of her ex-husband, they forgot to remove him from the title, and the old mortgage was actually in his name. When Sharon tried to refinance, she learned of the error and has been unable to refinance ever since. In the time since, she has fallen behind on her mortgage payments, and the bank is moving forward with foreclosure proceedings. Sharon wishes to keep the house if she can but she can’t afford the mortgage or the maintenance any longer. She flees the property in the middle of the night rather than wait for the sheriff to evict her.
The mortgage in this situation is in one person’s name, while the title is in both names. This is a complicated situation, and as we see here, foreclosure is another reason why homes may be left vacant. It is also a good explanation of what it means to abandon a property. An abandonment does not have to occur in just one night; even going through the foreclosure process can be considered abandonment if the owner vacates the home.
Case Study 2: Disappearing Tenants
Jim had some money saved and finally decided to buy an apartment building. He was glad to buy a home he could collect rent from, but in this case he was the tenant and the owner was the landlord. This was more of a college investment for him, and he was able to easily make the down payment and gather a few hundred dollars per month in unspecified fees. The landlord didn’t live in the apartment building, so it was easy for her to ignore the complaints of other tenants and Jim’s lack of compliance with requests. Jim dropped the rent payment and abandoned the apartment, leaving the owner with nobody to pay her rent.
In this case, it is easy to see where the abandonment occurred. Here the owner was the person who abandoned the property rather than the tenant. Having been slow to act in the eviction process, the owner missed out on rent payments over a long period of time, and was at risk of losing her investment. Beyond foreclosure, if Jim’s landlord had waited too long, she may well have had to file an unlawful detainer or evict Jim to recover her property.
Avoiding Home Abandonment Problems
Given the social and economic costs of home abandonment there is no question that education and information for both landlords and tenants regarding the reasons for home abandonment are crucial. The preventative steps towards home abandonment are best served as close to the onset or possible development of the statutory requirements for landlord and tenant relationships pursuant to the Landlord and Tenant Act, 2015. This would be the signing of a lease and the expectations which the government, landlords, tenants, and the community at large have in that arrangement.
Tenants in these arrangements must notify their landlords of any problems regarding safety and expected or anticipated repairs required, in addition to the normal monthly rent. In so doing, tenants and landlords can work towards resolving these issues before they develop into larger problems, which could threaten the tenancy.
Landlords are responsible for any and all breaches of the lease agreement and provincial legislation, in addition to any municipal bylaws and its relationship to the tenancy under a lease. Landlords are also advised to explain, in detail, their own rights under statute and locally enacted bylaws, and what tenants should expect of them. If landlords expect tenants to deliver up certain sums on certain dates, and if they want to maintain their landlord structures which are being rented, this must be made clear in advance.
This does not mean any eviction is unpreventable; it means that there must be an open dialogue between landlord and tenant to resolve any issues before they develop into something larger, including but not limited to, the abandonment of property subject to a tenancy.
Conclusion – Home Abandonment Laws
With the information we have provided here, you should have a better understanding of home abandonment law and requirements. Whether you have been faced with an abandoned home or are just curious about the matter, local laws dictate whether your neighbor has abandoned their property, and if so, what you can do about it . In an effort to keep this information brief, we chose the most common considerations. Homeowners associations or neighborhood groups should contact a professional for up-to-date records regarding local codes for abandoned property.