I’m Leaving You (But Not Really): Dealing with Abandoned Property

Landlords have a lot on their plates these days. With tougher times than ever to serve predicate notice of defaults, greater lag times in court for eviction proceedings, hardships faced by tenants in possession, and all the rest, they still have to deal with seemingly “easy” tasks, like abandoned property (i.e., when a tenant just gets up and leaves).

If a tenant leaves town for a month or two, does not collect mail, and does not respond to texts or emails, is that considered abandonment? No.

If a tenant stops paying rent and vacates most of their things, is that considered abandonment? No.

But if a tenant stops paying rent and verbally tells the landlord that he is not returning, isn’t that abandonment? Still no.

Abandoned Property: Landlord Options

New York Courts take a very broad and loose look at abandonment of the actual property, and landlords have some decent options under the law. The court in Wanich v Bitter, 12 Misc. 3d 1165 (A) made clear that “when a tenant abandons the property, the landlord has three options:

(1) do nothing and collect the full rent due from the tenant; (2) accept the tenant’s surrender, reenter the Premises and rent the property for the benefit of the landlord thereby releasing the tenant of any further liability for rent; or (3) advise the tenant that the landlord is entering and re-renting the property for the benefit of the tenant.”

In short, a landlord is not obligated to mitigate damages upon an abandonment or surrender of property, as in many other situations, which has been upheld in the Court of Appeals in 172 Van Duzer Realty Corp v. Glove Alumni Student Assistance Assn., Inc. Upon abandonment the landlord has the aforementioned options at his or her disposal.

With all that being said, a landlord must be diligent in his or her decision, upon a tenant’s abandonment. Should a landlord choose the option to accept and relet the premises, a tenant is no longer liable. (See Gabin v Goldstein, 131 Miss. 2d 153.) Once the premises are subsequently re-rented, the landlord-tenant relationship is terminated. A defaulting tenant is not entitled to pay back any money lost as a result of this option.

It is important to note that, in the short term, a landlord may not believe reletting the premises is valuable if the market value has decreased. However, a landlord must consider the cost of litigation, time to collect, the ability to collect, and overall value of forcing an abandoning tenant to pay every dollar in accordance with the lease. Sometimes it’s best to cut losses with a tenant who abandons and find a new, willing and able tenant.

Abandoned Property? Or Forgotten?

New York State distinguishes between property that is abandoned by tenants and property that is unintentionally left behind. The core rule of law is that landlords are responsible for safeguarding and returning a tenant’s property. That said, landlords must never assume a property is abandoned absent specific contract language. The best way for a landlord to test whether a property is abandoned is to ask the following questions:

• Is the tenant still paying rent?
• Are the utilities still working?
• What is left in the rental unit?
• Has there been a change of address with the post office?
• What do the emergency contacts for the tenants believe?

Even after an “abandonment,” a landlord has no right to use, sell or discard any of the tenant’s “abandoned” property. A landlord may only do this provided the tenant expressly states that he or she has abandoned the property. Furthermore, a landlord shall generally give a 30-day notice to the tenant regarding their ownership if the landlord believes a tenant has abandoned his or her property.

In sum, for landlords, it is easier than most litigated situations when a tenant abandons leased property. As you can tell, however, abandonment law in New York is not so certain. As such, it rests on the landlords’ shoulders to properly define abandonment in a lease agreement with a tenant, as well as the subsequent actions a landlord may take should property be abandoned. Without clear language, it could be up to a court to decide. You are well advised to proceed with caution.