Abandonment clause in lease... Is it legit? Have you used it?

3 Replies

The lease I've been using for years with our SFH properties includes the abandonment clause pasted below. I don't remember where I got the lease, but I'm in a situation now that fits the criteria listed in it. He moved most of his stuff out 2 weeks ago, hasn't lived in it since, and hasn't paid rent in over 2 months. He doesn't have a vehicle to come get the rest (keeps saying his brother is going to help him & then nothing happens), and he's VERY spotty on answering/replying to calls/texts. I'd like to just move all his left-behind furniture into the basement for him to get later and rent the place out to someone new.

But... is it legal? I haven't run this past an Indiana attorney yet (would have to find one). Have any of you used a clause like this?

Thanks!

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32. Abandonment. If at any time during the term of this lease Tenant abandons the demised premises or any part thereof, Owner may, at his option, enter the demised premises by any means without being liable for any prosecution therefore, and without becoming liable to Tenant for damages or for any payment of any kind whatever, and may, at his discretion, as agent for Tenant, re-let the demised premises, or any part thereof, for the whole or any part of the then unexpired term, and may receive and collect all rent payable by virtue of such re-letting, and, at Owner’s option, hold Tenant liable for any difference between the rent that would have been payable under this lease during the balance of the unexpired term, if this lease had continued in force, and the net rent for such period realized by Owner by means of such re- letting. If Owner’s right of re-entry is exercised following abandonment of the premises by Tenant, then Owner may consider any personal property belonging to Tenant and left on the premises to also have been abandoned, in which case Owner may dispose of all such personal property in any manner Owner shall deem proper and is hereby relieved of all liability for doing so. *Abandonment is defined as any absence of Tenant from the demised premises for five (5) consecutive days while all or any of the rent or other amounts payable and due is unpaid.

I wouldn't take a chance on it.  What state is the property in?  What's the state law on abandonment?  Any time a clause in a contract is contrary to law, it's not enforceable.

If the law in the state where your property is says that you can do whatever you want if it's agreed to in a lease, then you'd be fine.  Some states seem to default to the lease, but double check.

Go for an eviction instead. 2 month's behind on rent? He should already be evicted by now...

Or get from him in writing that he has left the property. Abandonment is always a scary area to meddle with, and like Sue said, I probably wouldn't take a chance on it.

Ditch the abandonment clause. Too wordy. Not necessary.

We don't need to put an abandonment clause in our lease/rental agreement. Our state landlord-tenant law has a clear definition of when the situation is considered abandonment. If the situation fits that definition, then we just post the proper legal notice for abandonment and follow the legal process outlined on the legal notice.

Surprised you didn't start eviction on him for non-payment of rent long ago. At this point, you are unlikely to get any more money from him. But you could get your property back sooner by negotiating with him. Have him sign a Return of Possession form that documents the date he is returning possession back to you. Get the keys if you can, but don't sweat it if you can't. If necessary, rent a U-haul type truck ($35/day) and help him get his stuff out now and delivered to his next place. Rent a storage locker for him if you need to ($50 - $150). Cheaper than eviction.

You can't rent the premises to another tenant while he is still occupying. You can't enter and remove his belongings without following the landlord-tenant law for your jurisdiction.