Abandoned or Absent: How to Handle Unit That May Have Been Vacated
How do you know if a resident has abandoned his unit? What are the signs that it may just be an extended absence instead of abandonment?
HUD recognizes that there may be times when it is necessary to terminate the tenancy of a resident due to extended absence or abandonment. HUD distinguishes abandonment from an absence from the unit by the resident's failure to pay the rent due for the unit and failure to acknowledge or respond to notices from the owner regarding the overdue rent. Chapter 6 of the HUD Occupancy Handbook (Handbook 4350.3) addresses this issue, in a section describing house rules.
Chapter 6, Lease Requirements and Leasing Activities, says owners may establish rules specifying when residents give up their right to occupancy because of their extended absence or abandonment of the unit. Owners may establish these rules as part of the site's house rules, which would be an attachment to resident leases. Under these rules, owners then could initiate action to terminate tenancy in response to an extended absence or abandonment of the unit by the resident or individual listed on the lease for that unit.
As with house rules in general, the decision to establish rules regarding extended absence or abandonment of a unit as part of a site's house rules rests solely with the owner. If owners elect to establish such rules, they must be consistent with the following requirements and guidelines:
Rules regarding extended absence and abandonment must be consistent with state and local law.
Owners may establish a house rule defining “extended absence” as the resident being absent from the unit for longer than 60 continuous days, or for longer than 180 continuous days for medical reasons. Owners may allow exceptions for extenuating circumstances.
If abandonment of a unit is not addressed by state or local law, owners may establish a rule for declaring a unit abandoned. Rules regarding abandonment must be consistent with state and local law regarding nonpayment of rent, specify the actions that the owner will take to contact the resident, and describe the handling and disposition of any resident possessions left in the unit.
Make Process Orderly
The need to terminate a resident's tenancy may not happen often, but when it does, it needs to be handled in a timely and orderly manner and with any legal requirements taken into consideration. Sometimes eviction may be necessary, such as when a resident has committed substantial lease violations or fraud, has not paid rent, or is engaged in drug abuse or other criminal activity. Abandonment of a unit typically does not necessitate eviction.
“Usually when a unit has been abandoned, you don't have to go through the eviction process, because the resident is already gone,” explains Randy Hillard, senior vice president at Pittsburgh-based NDC Real Estate Management. “You would place an abandonment notice on the door for the required period of time.”
State and local laws vary for how much notice you must give; you would be required to follow the letter of the law that applies to all landlord-tenant relationships in your area. Hillard says that a notice of five or 10 days is typical.
Pat Shumaker, regional vice president of Edgewood Management, agrees. Be aware of HUD's guidelines and know your legal requirements, she says. “Local laws could be more restrictive than state laws,” she says. “You need to check with your legal counsel. You can use this information to have a plan for abandonment before it happens.”
Look for Signs
Even if you are fairly certain that a resident has abandoned the unit, you must post the notice. Hillard says there often are signs that a resident is gone. “Usually the utility bills have been turned back into our name, or we get a notice that the utilities have not been paid,” he says. “Sometimes a neighbor says the residents have left.”
If you enter the unit and the resident's personal belongings are still there, that poses a possible different scenario. “If clothing is still in the closet, furniture is still there, and food is in the refrigerator, there's probably something else going on,” Hillard notes. “You could have a resident who's trying to work the system, by keeping units in two different states, for example. That rarely happens any more, but it could.”
What to Do with What's Left Behind
Shumaker advises having a written plan—a standard operating procedure—for dealing with personal belongings left behind if a resident does abandon his unit.
Hillard says that his company has a policy to store such items for 30 days. Often the personal things are claimed within that time frame. If not, the company will sell what it can and dispose of what it can't.
“We make every effort to find the residents,” he says. “Seldom do they leave and we never see them again. Maybe there has been a little legal trouble and they took off, for example. We usually have an emergency contact for residents, and we can reach them that way. Or a family member comes and claims the personal belongings. The situation usually controls what you do.”
HUD wants you to try to do the right thing, Hillard says. “I think HUD rides both sides in these cases,” he adds. “They want you to find out where the resident is and return his personal items. But HUD also wants you to find out if somebody has really abandoned a unit and what is going on.”
Shumaker and Hillard both support having an established plan for dealing with extended absences and abandonment that is a combination of HUD guidance, legal requirements, good business practice, and common sense. Here's a five-step summary:
1. Be aware of HUD's position.
2. Know your state and local laws.
3. Establish house rules that cover extended absence and abandonment scenarios.
4. Make reasonable efforts to find an absent resident.
5. Have a plan for storing and/or disposing of personal belongings left behind.
Randy Hillard: Senior Vice President, NDC Real Estate Management, 4415 Fifth Ave., Pittsburgh, PA 15213; (412) 647-7403; firstname.lastname@example.org.
Pat Shumaker: Regional Vice President, Edgewood Management, Hampton Roads, 20316 Seneca Meadows Pkwy., Germantown, MD 20875, (757) 722-3229; email@example.com.
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