Question: I rented a room in my home to a male tenant. After several months he disappeared. Twenty days past the rent-due date I tried but was unable to locate him. Seventy five days passed and he reappeared, and he demanded his belongings, claiming that I was a thief. I felt it was abandoned property. I told him that the room was being advertised for rent. Ten days later he returned but I was not at home. I had a guest staying with me and he walked right in and threatened the guest. My guest told him to return when the owner was present. Instead he removed his belongings, and my guest called the police. The police said he had the right to his belongings. I don’t care about his personal possessions or their value.
My question is: What is trespassing? And when does his tenancy stop? What are my rights as a homeowner to protect my property? The district attorney said that trespassing is hard to define and refused to pursue the issue.
James McKinley, an attorney for landlords, replies:
Trespassing is defined as the entering or remaining upon or in any land or structure by an individual who knows he or she is not authorized or privileged to do so. A tenancy continues until it is terminated, either by expiration of a fixed term, mutual consent, after proper notice, etc.
In your case, since no notice was given by or to the tenant, your tenant could argue that he was still a tenant, albeit one in default of the rental agreement, and entitled to enter the premises. A landlord may not accuse a tenant of trespassing, even if that tenant is not paying rent. In the case of a tenant being delinquent in rent for two or more weeks, combined with a good-faith belief that the premises have been abandoned by the tenant, a landlord may have a legitimate reason to believe the premises have been abandoned and should serve a legal notice of belief of abandonment. This notice must either be served personally, which is not likely, since it is believed that the tenant has abandoned the property, or mailed to the last known address. Within the notice period, the tenant must respond in writing to the landlord stating that the property has not been abandoned and providing an address where an eviction or unlawful detainer action may be served by certified mail. If the tenant responds, the landlord must proceed with the eviction action to recover the property. If the tenant fails to respond, the landlord may legally take possession of the rental property. At that point, if a former tenant were to enter the property, he or she would be considered a trespasser.
When a tenant vacates and leaves behind personal property, the landlord is responsible for the care and storage of that property. Often the landlord needs to determine the value of the property and if it exceeds the limitations of state or local law, then the landlord must serve an appropriate legal notice giving the tenant the right to reclaim the property. If the tenant does not reclaim the property within the notice period, and the property does not exceed the statutory limitation, the landlord may dispose of the property in any way he sees fit. If the value of the property is too high then the landlord will need to follow additional procedures such as a publicly advertised auction. It appears that your former tenant has recovered his personal property, so you should have no further issues with him.
Question: I have a tenant whose lease is up soon. He does not plan to renew the lease. The names on the 12-month lease are the tenant, his wife, and his sister as a co-signer. He and his wife divorced and she no longer lives in the rental property. His sister never lived here. To whom should I make out the refund check for the security deposit? To all three names or to the tenant alone?
Property manager Griswold replies:
You should make the check payable to all three tenants listed on the currently valid lease. So unless the tenants that have vacated have given you a written statement releasing any interest they have in the security deposit, you should make the refund check payable to all three named tenants and mail it to the provided forwarding address. Any challenges faced by the remaining tenant in negotiating the check are their issues not yours. Landlords should remember that it doesn’t matter who paid the security deposit, as all tenants on the lease have an equal right to the security deposit absent any specific written agreement to the contrary with the landlord. So don’t fall for the plea of an individual tenant to give them the entire security deposit or you could face a demand for the deposit from one of the other co-signers on the lease.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and James McKinley, principal in a law firm representing landlords.
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