Tenants who abandon the tenancy…and their property.

Landlords are not surprised when tenants move out without telling them-especially if they owe a lot of money. The difficulty arises when someone moves out of the tenancy, but hangs on to the keys in order to get a settlement out of the landlord. This is dirty pool but often attorneys for tenants will recommend they stay in the tenancy as long as legally permissible until they have been removed by an unlawful detainer lawsuit.

Here’s a hypothetical example: tenant moves in and stops paying rent. Two months go by and suddenly he has acquired a mold-related illness. He finds an attorney who represents him and tells him to hang on to the keys, even though he really doesn’t live there anymore. The landlord goes to the tenancy after 24 hours written notice and enters, finding the place a disaster. There is rotten garbage and it is obvious the tenant has left and has no intention of returning.

He can issue a “Notice of abandoned tenancy” to the opposing side, which is a written form which gives the other side time to respond. If they do not respond, you can file an unlawful detainer action.

The other more risky option is to just change the locks and remove the garbage. At common law, a landlord can take possession of a tenancy he reasonably believes that the tenant had no intention of returning to. If, for example, the landlord checks the place out and there is no bedding, rotting food in the refrigerator and rotting garbage, then comes three weeks later and nothing is changed, it may be seen by the judge as evidence the tenant had no intention of returning.

Or, if the tenant moved out and claimed mold-related illness, but never asked the landlord to abate or repair anything so he could return, the court could also see that as evidence.

If, however, you use the statutory procedure found in 1951.3 of the Civil Code, you are protected even if you make a “wrong guess”.

The main thing here is to be careful. You can be liable for all kinds of penalties if you just go in and change the locks, and it is a lot more complicated than it sounds. If a law library is available to you, check out “California Landlord-Tenant Practice” CEB guide, page 805 section 18.3.