Tenant abandonment is a complicated issue and there are no clear answers. The bottom line though, is this: a writ of possession, issued and executed by the sheriff, is ALWAYS the safest option.
First, you need to realize that the law on abandonment of a leasehold is not favorable to a landlord. It turns on the tenant’s subjective intent: to-wit, the tenant has to have the mindset “I am abandoning this property and I have no intention of returning”.
Very few landlords are mind readers and very few tenants (especially those in default under a lease) provide a landlord with unequivocal evidence of their intent to abandon the leasehold. The tenant’s mindset does not have to be reasonable or feasible, it just has to exist. A tenant may argue that he had the intention of turning the utilities back on or that he had the intention of coming back for the “broken down” couch or “discarded trash bags”.
In one recent instance, a landlord learned the hard way that some tenants use plastic trash bags to move their personal property.
As I always point out, “There is a big difference between a tenant that has ‘abandoned’ and one that is ‘taking his time moving out’ and just because the landlord may find the conditions of the leasehold uninhabitable does not mean that the tenant shares his standards.”
Landlords, and the Court, are left at looking to the tenant’s actions as outward manifestations of their subjective intent. The court will look at a variety of factors in determining the tenant’s subjective intent, including: 1) Are the utilities on? 2) What property, if any, is left in the leasehold? 3) Has the tenant surrendered keys? 4) Does the lease contain an abandonment provision?
Short of a tenant returning the keys to the landlord, construing a property as “abandoned” even when factors point towards abandonment is a risky proposition.
Penalties for lockouts and “abandonments” are steep:
• three months’ rent for each instance of lock-out,
• plus actual damages if the tenant’s belongings are misappropriated or discarded.
I have seen a dramatic spike in lock-out claims in the last six months. Legal Services of North Alabama filed suit against three landlords in the month of February (2011) on behalf of tenants who it could reasonably be argued had abandoned their leaseholds. You should always contact an attorney before construing the property as abandoned, as she may have advice on how to minimize your liability exposure should you decide to retake the property.