The Three Ways a Residential Landlord May Recover a Rental Property.

By
Services for Real Estate Pros with The Law Office of Mark Tucker

 

A residential landlord can recover a rental property from a tenant in one of three ways.

1. Surrender. The tenant vacates voluntarily and returns possession of the keys.

2. Abandonment. A residential rental property shall be determined to be "abandoned" if a tenant fails to respond after five days from the time the landlord shall post a notice of abandonment on the door to the rental property or any other conspicuous place on the property and send the tenant a copy of the abandonment by certified mail, return receipt requested, addressed to the tenant's last known address and to any of the tenant's alternate addresses known to the landlord. 

3. Eviction.  A landlord files an eviction action, obtains a judgment and then obtains a written order served by the constable directing the tenant to vacate the property.

Even if a tenant has failed to pay rent, or has with recalcitrant impunity breached the lease by bringing in unauthorized pets, roommates, or even trashing the property, a landlord may not recover or take possession of the dwelling unit by action or otherwise, including forcible removal of the tenant or his possessions, willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, except in case of abandonment, surrender or as permitted in this chapter.

If the landlord unlawfully removes or excludes the tenant from the premises or wilfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than two months' rent or twice the actual damages sustained by him, whichever is greater, and the landlord must return all security deposits

 

If a tenant will not surrender a rental property, the best practice and the safest way to avoid liability is to bring an eviction action and obtain a judgment of possession followed by a court order restoring the property back to the landlord. Having the judgment for possession and the order restoring the property creates a powerful legal presumption that a landlord had the right to retake possession of the property. 

 

 

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Re-Blogged 1 time:

Re-Blogged By Re-Blogged At
  1. Wallace S. Gibson, CPM 01/17/2011 06:10 AM
Topic:
Real Estate Market Trends
Location:
Arizona
Groups:
31 Days of January - New Years Resolution
Tags:
surrender abandonment eviction arizona residential property

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Rainer
42,973
Lisa Walston
Atlas Property Group and Abbey Church Properties - Greenwood, IN

I don't know about Arizona, but in Indiana the eviction process is long, difficult, and very costly to the landlord. Choose your tenants well.

Jan 16, 2011 01:59 AM #1
Rainmaker
584,926
Dan Edward Phillips
Dan Edward Phillips - Eureka, CA
Realtor and Broker/Owner

Good Morning Mark, the eviction process is also long in California.  Great post, thanks for sharing the input.

Jan 16, 2011 04:39 AM #2
Rainmaker
1,085,219
Wallace S. Gibson, CPM
Gibson Management Group, Ltd. - Charlottesville, VA
LandlordWhisperer

If landlords do NOT know how to do an eviction, they need an attorney who will do it and the landlord needs to follow the steps and shadow the attorney through the various court appearances to learn the process.

Once a landlord knows the process, it will save them money when they start the process EARLIER because it is not so scary!

Jan 16, 2011 06:48 AM #3
Rainmaker
409,895
Michelle Francis
Tim Francis Realty LLC - Atlanta, GA
Realtor, Buckhead Atlanta Homes for Sale & Lease

Mark, 

Good to know.  We have leased and property managed homes for 10 years in Atlanta.  We have never had an abandonment or evicction, as we exceptionally careful with choosing good tenants through our rental application process.  NO tenant is better than a bad tenant.  

Many times the landlord/owner/agent "have a concern" - then don't rent to them!  

All the best, Michelle

Jan 17, 2011 05:08 PM #4
Anonymous
Anonymous
David

Here in California, eventhough a tenant return the keys of his/her rental unit, it is always better and secure to have the tenant execute a document in which he/she acknowledges the surrendering of his/her rental unit along with eye-witnessess of the landlord, this to avoid a potential future litigation against the landlord for an illegal possession of the rental unit, which may well be seriously costly to the landlord.

According to the ways unlawful detainer matters are handled, it appears that most attorneys representing landlords (especially the most expensive), either don't know with certainty how to handle this type of cases; or, they usually underestimate the tenant's response to an unlawful detainer, more especifically when there are clear (or hidden) defects in the papers supporting the case (i.e. notice(s), proof of service of notice(s), the complaint, proof of service of the complaint, motions, discovery, etc.).

Based on such knowledge, it is alwas better and helpful to challenge the attorney (or person) you are hiring to represent (or assist) you in an unlawful detainer matter.

Dec 03, 2012 08:37 PM #6
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Mark Tucker

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