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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 37097
Experience:  16 years real estate, Realtor. Landlord 26 years
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My tenant stopped paying rent after Jan 2016. He verbally

Customer Question

My tenant stopped paying rent after Jan 2016. He verbally stated that he was leaving by the end of Feb. after only 3 months occupancy on the 12 month lease. He said I could use his deposit for that month's rent. Meanwhile I filed for possession anyway. He appears to have left the premises but it was several days after the end of that month and when he said he would be out. Now that he seems to have been out for a few weeks I changed the locks yesterday.
Apparently he did not get served by the court as he left the court papers on the front door and must not have ever arranged to have his mailbox key assigned upon moving in in November. Today at the trial, at which he did not show, the judge said I couldn't receive possession and had to file for an "alias". I am probably going to gamble and assume he actually is walking away from this property as promised. I do not want to pay a PI to locate his whereabouts and start over with the eviction process. But, he is a smart guy and I am concerned about the possible risk of his return in the future and challenging me since i have no documents proving it is now under my possession again.
The lease does have wording about abandonment after 15 days.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

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I have read your comments but don't see an actual legal question posted..

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If you can post your legal question, I will try to get you an answer..

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Also, how long has he been gone?

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Did he move all his personal property out?

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Turn off the utilities?

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thanks

Barrister

Customer: replied 1 year ago.
I guess the legal questions is- is there some statute of limitations as far as time that I could be held responsible if I proceed with re-renting or even selling the house? If so would I have to prove the period that lapsed by some means?
He left some clothes and lots of trash but some weird things like plat settings on the table and nick-knacks. The power was not terminated (yet) but I switched it over today. The utility company would not tell me his account status except that they would shut it off after a month of non payment. He stopped paying me two months ago so not sure how he paid them and maybe they were about to shut it off anyway.
Customer: replied 1 year ago.
He seems to have been gone about 2 weeks by all appearances.
Expert:  Barrister replied 1 year ago.

Ok, then if you have something in the lease about abandonment, and he has been gone longer than 15 days, then you are allowed to retake possession under the presumption of abandonment.

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But you are still supposed to file a formal eviction action and you are kind of rolling the dice in not doing so.

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DE law states:

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§ 5507 Landlord remedies for absence or abandonment.

(b) The landlord may, during any extended absence of the tenant, enter the rental unit as is reasonably necessary for inspection, maintenance and safekeeping.

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(d) If the tenant wrongfully quits the rental unit and unequivocally indicates by words or deeds the tenant's intention not to resume tenancy, such action by the tenant shall entitle the landlord to proceed as specified elsewhere in this chapter and the tenant shall be liable for the lesser of the following for such abandonment:

(1) The entire rent due for the remainder of the term and expenses for actual damages caused by the tenant (other than normal wear and tear) which are incurred in preparing the rental unit for a new tenant; or

(2) All rent accrued during the period reasonably necessary to re-rent the premises at a fair rental; plus the difference between such fair rental and the rent agreed to in the prior rental agreement; plus expenses incurred to re-rent; repair damage caused by the tenant (beyond normal wear and tear); plus a reasonable commission, if incurred by the landlord for the re-renting of the premises. In any event, the landlord has a duty to mitigate damages.

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(e) If there is no appeal from a judgment granting summary possession under subsection (c) or (d) of this section, the landlord may immediately remove and store, at the tenant's expense, any and all items left on the premises by the tenant. Seven days after the appeal period has expired, the property shall be deemed abandoned and may be disposed of by the landlord without further notice or liability.

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So you are running the risk that the guy could show back up and then claim you didn't properly terminate the tenancy and sue you..

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To guard against this, I would take lots of pictures of how he left it and then inventory any personal property before storing it for a little while, maybe a week, and then getting rid of it. I would also attempt to contact the tenant via letter, text, email, etc, to let them know that you are considering the property abandoned and you will dispose of the remaining personal property if not claimed within X days.

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thanks

Barrister

Customer: replied 1 year ago.
Thanks. One more follow up on what I tried to ask earlier about time limits. Would it seem reasonable to assume if the place was re-rented for a few months hence proving at least that amount of time lapsed without his presence or any contact by him that it I would be free and clear? I am pretty pleased with the service so far and if you can offer anything on this last question I am ready to finalize the service with you. Not sure how many written exchanges I get for the price.
Expert:  Barrister replied 1 year ago.

Would it seem reasonable to assume if the place was re-rented for a few months hence proving at least that amount of time lapsed without his presence or any contact by him that it I would be free and clear?

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I think that would be a reasonable assumption as long as you tried all methods you had to notify him that you considered the property abandoned. The main thing is to show that you have acted reasonably and gave him an opportunity to reclaim any property before you disposed of it.

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thanks

Barrister

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