Once a tenant has taken possession of your rental property, there are only three ways for you to legally regain possession: (1) they give you possession (usually by delivering keys); (2) you complete an eviction and have a constable execute the writ of restitution; and (3) you complete the abandonment process. Each means has their benefits and drawbacks. Getting keys is a cheap way of getting possession where the tenant acknowledges you have possession, but it doesn’t get you a judgment for any rents owed. An eviction and writ of restitution gets you a judgment against the tenant, but can take a few weeks and costs some money. Abandonment gets you possession quickly and without expense, but you don’t get a monetary judgment nor do you get any acknowledgement from the tenant or a judge that you have a right to possession. This article will address some of the statutory nuances associated with abandonments.
Before one can complete the abandonment process, the property must be “abandoned.” This word has two specific legal definitions. Just because a property is vacant doesn’t mean it’s abandoned – the criteria first have to be met. Abandonment can exist in one of two ways, depending on whether there is personal property in the unit. First, abandonment exists if the tenant is gone without notice for 7 days and rent is unpaid for 10 days and there is personal property in the unit, but no other evidence that the tenant is still residing there. Second, abandonment exists if the tenant is gone without notice for 5 days and rent is unpaid for 5 days and there is no personal property in the unit. Once these criteria have been met, then the property is deemed abandoned and the landlord can invoke its rights.
Pursuant to A.R.S. § 33-1370(a), if a rental property is abandoned, the landlord must send a notice of abandonment to the tenant via certified mail, return receipt requested, to the tenants last known address and any other alternative addresses. The landlord must also post the notice on the door of the unit. (The underlined portions are important as they are not required for other types of notices in the Residential Landlord Tenant Act.)
Five days after the notice is posted and mailed, the landlord may retake possession and begin the steps to re-rent the premises. Interestingly, A.R.S. § 33-1370(B) says that if a property is abandoned, the tenant’s security deposit is forfeited. This is the only part of the Residential Landlord Tenant Act wherein a tenant’s actions can result in a forfeiture of their deposit. Even with this forfeiture language, a landlord would be wise to account for the tenant’s deposit as usual.
After abandonment, a landlord has a legal duty to store a tenant’s property for 10 days. This is a shorter time period than is required if the landlord obtains possession after a writ of restitution (A.R.S. § 33-1368(E) – 21 days). To get their belongings, the tenant has to pay actual removal and storage costs incurred, except that a tenant always has a right to collect their clothing, tools of their trade, medicine and financial documents.
If provided in the rental agreement, a landlord is allowed to dispose of property it deems of having a value so low that the cost of moving, storage and conducting the sale would be less than the amount obtained. Otherwise, the landlord has a duty to conduct a public auction of the property after properly noticing the sale. If the tenant provides notice that he intends to obtain his property, the tenant has 5 days to get the property provided he pays the moving and storage costs. q
By Mark B. Zinman, Esq., Williams, Zinman & Parham P.C., Mark B. Zinman is an attorney with Williams, Zinman & Parham P.C. He can be reached at 480.994.4732.