Abandonment Issues

There is a big difference between a tenant that is “in the process of moving” and a tenant that has “abandoned” the leased premises. Determining the difference is one of the trickiest issues that confronts a property manager. For example, I was recently contacted by a property manager who had a tenant under eviction and faced a situation in which the utilities have been turned off and most of the furniture had been removed from the leased premises, but the neighbors said that the tenant was “still staying there.” The property manager was unsure of what to do and could not reach the tenant by telephone. On the one hand, the property manager wanted her unit back so that she could begin efforts to re-let it. On the other hand, she did not want to expose her apartment complex to legal liability for “wrongfully evicting” a tenant in residence.

As a general rule, “abandonment” refers to a tenant’s voluntary relinquishment of all interests and rights in the leased premises with no intention of reclaiming them. The primary elements of abandonment consist of an intention to abandon plus an overt act by which that intention is carried into effect. Furthermore, the question of abandonment is a factual one, depending on all the surrounding circumstances. Bowdoin Square LLC v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091 (Ala. 2003). From a practical perspective, a returned key coupled with the complete removal of personal property from the leased premises is the purest form of abandonment. However, other facts showing the nonuse of the leased premises (such as a tenant’s change of address card filed with the post office, utilities being switched over to another residence in the tenant’s name, verbal repudiation of the lease coupled with extended absence from the property) are competent evidence of an intent to abandon. Alabama’s version of the Uniform Residential Landlord-Tenant Act speaks to abandonment circuitously, requiring a tenant to notify the landlord of any absences from the leased premises that exceed fourteen days. That fact, while helpful in a consideration of whether the premises have been abandoned, should not be viewed as conclusive.

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