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reddog6422

Registered: 05/21/10
Posts: 1
Reply with quote  #1 
I have a tenant in California, who finally advised me that he is broke, cannot pay rent (I haven't received anything this month, may) and intends to move out. He told me he would move out but has only moved a few things and has left a mess. This is a rural area and the neighbors have told me they haven't seen him in quite some time. The last time he communicated to me on the 12th:
 
"I have most of the things out. I haven t any money until this weekend for gas. I can either have the rest of the stuff out this weekend (I get paid Friday), or I ll have to just lose it. I haven t been staying there at all."
 
Since then he has not moved out and not coommunicated anything to me. Can I legally move all of his stuff out and get rid of them, or do I have to hold them for a certain amount of time?

Thanks for your help.

Eric
OHlandlord

Registered: 01/20/07
Posts: 3,537
Reply with quote  #2 
You can't just remove his stuff just yet.  You need to follow the CA statute below on how to declare the place abandoned.  Post proper prior notice to enter to inspect, go in and document what you find (food, utilities, possessions that are there, etc.).  Document your attempts to contact the tenant and when rent was last paid.  Send a notice of belief of abandonment.  (Hopefully your lease states you have the right to declare abandonment.)  Keep a copy of the notice and take a dated digital photo to prove it was hanging there.  Wait the 18 days, then go in and remove and store the tenant's belongings.  You would be smart to either photograph or inventory the belongings as you remove them.  This prevents the tenant form saying you stole or broke something.  Store the belongings the required number of days, then dispose of them according to the law.

California Civil Code Section 1951.3

(a) Real property shall be deemed abandoned by the lessee, within the meaning of Section 1951.2, and the lease shall terminate if the lessor gives written notice of his belief of abandonment as provided in this section and the lessee fails to give the lessor written notice, prior to the date of termination specified in the lessor's notice, stating that he does not intend to abandon the real property and stating an address at which the lessee may be served by certified mail in any action for unlawful detainer of the real property.

(b) The lessor may give a notice of belief of abandonment to the lessee pursuant to this section only where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the lessor's notice and shall be not less than 15 days after the notice is served personally or, if mailed, not less than 18 days after the notice is deposited in the mail.

(c) The lessor's notice of belief of abandonment shall be personally delivered to the lessee or sent by first-class mail, postage prepaid, to the lessee at his last known address and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to such other address, if any, known to the lessor where the lessee may reasonably be expected to receive the notice.

(d) The notice of belief of abandonment shall be in substantially the following form:

Notice of Belief of Abandonment
To: ___________ (Name of lessee/tenant)
______________(Address of lessee/tenant)
This notice is given pursuant to Section 1951.3 of the Civil Code concerning the real property leased by you at ________ (state location of the property by address or other sufficient description). The rent on this property has been due and unpaid for 14 consecutive days and the lessor/landlord believes that you have abandoned the property. The real property will be deemed abandoned within the meaning of Section 1951.2 of the Civil Code and your lease will terminate on ________ (here insert a date not less than 15 days after this notice is served personally or, if mailed, not less than 18 days after this notice is deposited in the mail) unless before such date the under- signed receives at the address indicated below a written notice from you stating both of the following:

(1) Your intent not to abandon the real property.

(2) An address at which you may be served by certified mail in any action for unlawful detainer of the real property. You are required to pay the rent due and unpaid on this real property as required by the lease, and your failure to do so can lead to a court proceeding against you. Dated: ________
_______________________ (Signature of lessor/landlord)
_______________________ (Type or print name of lessor/landlord)
_______________________ (Address to which lessee/tenant is to send notice)

(e) The real property shall not be deemed to be abandoned pursuant to this section if the lessee proves any of the following:

(1) At the time the notice of belief of abandonment was given, the rent was not due and unpaid for 14 consecutive days.

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, of itself, justify a finding that the lessor did not reasonably believe that the lessee had abandoned the real property.

(3) Prior to the date specified in the lessor's notice, the lessee gave written notice to the lessor stating his intent not to abandon the real property and stating an address at which he may be served by certified mail in any action for unlawful detainer of the real property.

(4) During the period commencing 14 days before the time the notice of belief of abandonment was given and ending on the date the lease would have terminated pursuant to the notice, the lessee paid to the lessor all or a portion of the rent due and unpaid on the real property.

(f) Nothing in this section precludes the lessor or the lessee from otherwise proving that the real property has been abandoned by the lessee within the meaning of Section 1951.2.

(g) Nothing in this section precludes the lessor from serving a notice requiring the lessee to pay rent or quit as provided in Sections 1161 and 1162 of the Code of Civil Procedure at any time permitted by those sections, or affects the time and manner of giving any other notice required or permitted by law. The giving of the notice provided by this section does not satisfy the requirements of Sections 1161 and 1162 of the Code of Civil Procedure.

1951.4.

(a) The remedy described in this section is available only if the lease provides for this remedy. In addition to any other type of provision used in a lease to provide for the remedy described in this section, a provision in the lease in substantially the following form satisfies this subdivision: "The lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations)."

(b) Even though a lessee of real property has breached the lease and abandoned the property, the lease continues in effect for so long as the lessor does not terminate the lessee's right to possession, and the lessor may enforce all the lessor's rights and remedies under the lease, including the right to recover the rent as it becomes due under the lease, if any of the following conditions is satisfied:

(1) The lease permits the lessee, or does not prohibit or otherwise restrict the right of the lessee, to sublet the property, assign the lessee's interest in the lease, or both.

(2) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, subject to express standards or conditions, provided the standards and conditions are reasonable at the time the lease is executed and the lessor does not require compliance with any standard or condition that has become unreasonable at the time the lessee seeks to sublet or assign. For purposes of this paragraph, an express standard or condition is presumed to be reasonable; this presumption is a presumption affecting the burden of proof.

(3) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, with the consent of the lessor, and the lease provides that the consent shall not be unreasonably withheld or the lease includes a standard implied by law that consent shall not be unreasonably withheld.

(c) For the purposes of subdivision (b), the following do not constitute a termination of the lessee's right to possession:

(1) Acts of maintenance or preservation or efforts to relet the property.

(2) The appointment of a receiver upon initiative of the lessor to protect the lessor's interest under the lease.

(3) Withholding consent to a subletting or assignment, or terminating a subletting or assignment, if the withholding or termination does not violate the rights of the lessee specified in subdivision (b).

5001

Super Moderators
Registered: 11/03/06
Posts: 64
Reply with quote  #3 
As you can see from OHlandlord's response, in California, the rent must be unpaid for at least 14 consecutive days, and now you can prepare the two required abandonment notices and serve them appropriately.  Most landlords here in California will also prepare and serve a three-day notice to pay rent or quit along with any abandonment notices.  That's the "legal" way of doing things regarding abandonment.  There is a practical approach too.  All you need to get from the tenant is a statement verbal or otherwise (written is the best) that he has vacated or surrendered possession of the property.  A technique that is used here is to take his application to rent and call his present employer and personal friends and any listing for "in case of emergency."  You may also want to talk to any neighbors and see if they saw him moving out or made any statements about vacating.  The other technique is to prepare a 24-hour notice of entry into subject premises, post it and mail it in and go into the property approximately two to three days thereafter for the purpose of determining if the tenant has abandoned the premises.  Just a phone call from the tenant saying he has vacated should be sufficient for you to go back into possession and retake it (and of course you memorializing that event in writing, even if you have to send it to his last known address).  If after going in to the tenants premises and inspecting the unit to determine if he has in fact vacated, sometimes tenants will leave the keys on a countertop, a scribbled note, no silverware in the kitchen or food in the refrigerator, nor any toiletries like a tooth brush or shaver in the bathrooms, or any other signs that he is actually living or sleeping at the premises.  If there is no response with regard to the three-day they are quit notice, and have waited the 18 day period, from the day you deliver the two abandonment notices that you make a judgment call and go back into taking possession of the property and following the law with regard to abandonment and the care and disposal of any personal property, or you initiate and eviction action called an unlawful detainer.  In most every instance like this, the tenant has more than likely vacated the premises, after the 18 day period, inventory the tenants personal property and obviously take as many photographs that you can and retake the property.  You may also want to contact and eviction attorney to get further advice regarding this situation.  Good luck.
fair_landlord

Registered: 04/07/11
Posts: 3
Reply with quote  #4 
Quote:
Originally Posted by OHlandlord
You can't just remove his stuff just yet.  You need to follow the CA statute below on how to declare the place abandoned.  Post proper prior notice to enter to inspect, go in and document what you find (food, utilities, possessions that are there, etc.).  Document your attempts to contact the tenant and when rent was last paid.  Send a notice of belief of abandonment.  (Hopefully your lease states you have the right to declare abandonment.)  Keep a copy of the notice and take a dated digital photo to prove it was hanging there.  Wait the 18 days, then go in and remove and store the tenant's belongings.  You would be smart to either photograph or inventory the belongings as you remove them.  This prevents the tenant form saying you stole or broke something.  Store the belongings the required number of days, then dispose of them according to the law.

California Civil Code Section 1951.3

(a) Real property shall be deemed abandoned by the lessee, within the meaning of Section 1951.2, and the lease shall terminate if the lessor gives written notice of his belief of abandonment as provided in this section and the lessee fails to give the lessor written notice, prior to the date of termination specified in the lessor's notice, stating that he does not intend to abandon the real property and stating an address at which the lessee may be served by certified mail in any action for unlawful detainer of the real property.

(b) The lessor may give a notice of belief of abandonment to the lessee pursuant to this section only where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the lessor's notice and shall be not less than 15 days after the notice is served personally or, if mailed, not less than 18 days after the notice is deposited in the mail.

(c) The lessor's notice of belief of abandonment shall be personally delivered to the lessee or sent by first-class mail, postage prepaid, to the lessee at his last known address and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to such other address, if any, known to the lessor where the lessee may reasonably be expected to receive the notice.

(d) The notice of belief of abandonment shall be in substantially the following form:

Notice of Belief of Abandonment
To: ___________ (Name of lessee/tenant)
______________(Address of lessee/tenant)
This notice is given pursuant to Section 1951.3 of the Civil Code concerning the real property leased by you at ________ (state location of the property by address or other sufficient description). The rent on this property has been due and unpaid for 14 consecutive days and the lessor/landlord believes that you have abandoned the property. The real property will be deemed abandoned within the meaning of Section 1951.2 of the Civil Code and your lease will terminate on ________ (here insert a date not less than 15 days after this notice is served personally or, if mailed, not less than 18 days after this notice is deposited in the mail) unless before such date the under- signed receives at the address indicated below a written notice from you stating both of the following:

(1) Your intent not to abandon the real property.

(2) An address at which you may be served by certified mail in any action for unlawful detainer of the real property. You are required to pay the rent due and unpaid on this real property as required by the lease, and your failure to do so can lead to a court proceeding against you. Dated: ________
_______________________ (Signature of lessor/landlord)
_______________________ (Type or print name of lessor/landlord)
_______________________ (Address to which lessee/tenant is to send notice)

(e) The real property shall not be deemed to be abandoned pursuant to this section if the lessee proves any of the following:

(1) At the time the notice of belief of abandonment was given, the rent was not due and unpaid for 14 consecutive days.

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, of itself, justify a finding that the lessor did not reasonably believe that the lessee had abandoned the real property.

(3) Prior to the date specified in the lessor's notice, the lessee gave written notice to the lessor stating his intent not to abandon the real property and stating an address at which he may be served by certified mail in any action for unlawful detainer of the real property.

(4) During the period commencing 14 days before the time the notice of belief of abandonment was given and ending on the date the lease would have terminated pursuant to the notice, the lessee paid to the lessor all or a portion of the rent due and unpaid on the real property.

(f) Nothing in this section precludes the lessor or the lessee from otherwise proving that the real property has been abandoned by the lessee within the meaning of Section 1951.2.

(g) Nothing in this section precludes the lessor from serving a notice requiring the lessee to pay rent or quit as provided in Sections 1161 and 1162 of the Code of Civil Procedure at any time permitted by those sections, or affects the time and manner of giving any other notice required or permitted by law. The giving of the notice provided by this section does not satisfy the requirements of Sections 1161 and 1162 of the Code of Civil Procedure.

1951.4.

(a) The remedy described in this section is available only if the lease provides for this remedy. In addition to any other type of provision used in a lease to provide for the remedy described in this section, a provision in the lease in substantially the following form satisfies this subdivision: "The lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations)."

(b) Even though a lessee of real property has breached the lease and abandoned the property, the lease continues in effect for so long as the lessor does not terminate the lessee's right to possession, and the lessor may enforce all the lessor's rights and remedies under the lease, including the right to recover the rent as it becomes due under the lease, if any of the following conditions is satisfied:

(1) The lease permits the lessee, or does not prohibit or otherwise restrict the right of the lessee, to sublet the property, assign the lessee's interest in the lease, or both.

(2) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, subject to express standards or conditions, provided the standards and conditions are reasonable at the time the lease is executed and the lessor does not require compliance with any standard or condition that has become unreasonable at the time the lessee seeks to sublet or assign. For purposes of this paragraph, an express standard or condition is presumed to be reasonable; this presumption is a presumption affecting the burden of proof.

(3) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, with the consent of the lessor, and the lease provides that the consent shall not be unreasonably withheld or the lease includes a standard implied by law that consent shall not be unreasonably withheld.

(c) For the purposes of subdivision (b), the following do not constitute a termination of the lessee's right to possession:

(1) Acts of maintenance or preservation or efforts to relet the property.

(2) The appointment of a receiver upon initiative of the lessor to protect the lessor's interest under the lease.

(3) Withholding consent to a subletting or assignment, or terminating a subletting or assignment, if the withholding or termination does not violate the rights of the lessee specified in subdivision (b).

fair_landlord

Registered: 04/07/11
Posts: 3
Reply with quote  #5 
Dear OHlandlord:

I've read your postings under 'California abandonment' and have taken the actions you suggested in a similiar abandonment case here in California.  I like to ask you what next steps I should take.  Here's the scenario:

I leased
a 4 bedroom house to a man named Bob and his family of four in June 2009 with some hesitation due to shaky credit and surely after a year or so he started paying rent late and in smaller increments.  Things turned bad this year as his last payment received was late January covering rent till Feb 15, 2011.  Feb and March came and gone and on April 1,  he said he would pay on Sun, Apr 3, but what he really did was to move out quietly on Sat, leaving a whole bunch of junk in the garage, did not leave the house keys nor the garage door remote opener, did not leave a note, did not answer calls nor return any calls, and obviously did not pay a dime, they just fled! 

Based on your 5/21/10 posting, I've posted both the '24 hr notice of intention to enter dwelling' and the 'Notice of belief of Abandonment' on the leased premises, and handed the cosigner of the lease both such notices, and also informed him of his obligation to pay  up all the past due rent and damages (the cosigner
actually live next door to the leased property).  However the cosigner said he has no money and asked us not to bother him.

One day after the postings, I went and inspected the property on Apr 5, and took photos of the junk he left behind and noted the items (mostly empty paper cartons, worn toys, some food and the rest garbage).  I then sent his cosigner a third notice titled 'Notice of right to reclaim abandoned property' giving him 15 days to collect his property or it will be discarded since it is deemed to worth under $300 (Civic code section 1988
)By the end of Apr 10, I have still not heard from Bob nor the cosigner.

As long as he has not returned the keys, he needs to pay rent, right?  He has now owed the whole month of Feb, most of March, his next payment would normally be April 16.  I have one month of security deposit held, but he hasn't cleaned the house and there are some minor damages.

Please advise how I should proceed from this point.  I do know where Bob works and has confirmed that he is still working there.  Should I go after the cosigner?  Part of the cosigner agreement stated:

"
The CO-SIGNER guarantees payment of rent and any monetary damages suffered by the OWNER. This may include but is not limited to, unpaid rent or late charges, non-reimbursed utility expenses, damages to the leased premises, as well as attorney fees where applicable in the enforcement of the Lease. "

Does this agreement has any weight in Small Claims Court?  Should I file a case in Small Claims court against both individuals?

Many thanks for your advice.  Take care!

-Connie Y.



The_RRD

Registered: 06/18/12
Posts: 58
Reply with quote  #6 

The Rent Rite Directory offers a free Rental History database to Property Managers and Owners that allows members to input as well as search evictions (before they hit public record), tenants who skip out on rent/collections, proxy renters (those who rent on behalf of unauthorized tenants ie: drug dealers, sex offenders, convicted felons), those who commit lease violations, property damage, and on-property crime. http://www.therrd.com Please help share information with other Real Estate Professionals. 

Cooldrop

Registered: 08/24
Posts: 5
Reply with quote  #7 
New Tenants moved in last month, after two weeks I got a call telling me of a family emergency and they would be leaving and wanted money back.   Told them there was an agreement in place and after viewed property I would contact them, they left the same day of call.   Next day I went - furniture on curb and unit looked like a crime scene/damages throughout  .....  Since last month was paid, I was given only verbal notice, could I have served Notice of Abandonment as of the date of call received???
ahkenaten

Registered: 08/21
Posts: 53
Reply with quote  #8 
You probably could have (check with your state's regulations), but it would have made no difference since they left the very next day. Your next step is to clean up the pkace and get it rented out. Keep the receipts and sue the scum. If they're the type where it won't matter if you sue them because they have no money, then... then there's not much you can do except to take this as a lesson learned :-(
__________________
And that is why tenants should wear leashes... http://ahkenatenkor.blogspot.com/search/label/Real%20Estate
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