Have you ever had one of your tenants go to jail? Not just overnight or for a day or two. I mean go to jail — for a while. I have, and it presents some interesting scenarios. What should you as a landlord do? What are you legally obligated to do? Does the tenant still hold possession of the property? How do you regain possession and re-rent your unit? What should you do with the tenant’s stuff?
The answers to the above questions are: it depends. Most of all, it depends on whether or not your jailed tenant will still be able to pay the rent. Most likely, the tenant will lose their job and thus their source of income. This situation will in most cases, unless they have significant resources, make it difficult if not impossible for your tenant to pay their rent.
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What’s a Landlord to Do?
The answer to the above questions also depends on your state and local laws. Some states may address this situation specifically, while others will not. Some states give landlords wide discretion, while others will dictate a specific process.
So what should a landlord in this situation do? Let’s assume that you know your tenant has been jailed and that they have missed paying their rent. What then is the fastest way to get your property back on the rent roll? How do you as a landlord regain legal possession?
You could, of course, move to evict. An eviction would return possession back to you. And actually, depending on your state and local laws, that may be what you have to do. But evictions are costly. They take time and are generally a pain in the butt to deal with. Plus, the jail and sheriff may not be especially helpful in getting your tenant served and to their court dates in a timely manner. And time is a killer in these situations.
There may therefore be another method that you may want to consider. This method could be faster. It could be easier. It could also be cheaper. Plus, it could actually recoup you a bit of money for your time and expenses. What is this other method? It is to follow the legal procedure for abandonment.
Here in Tennessee — and I bet in most other states as well — there are provisions in the state statutes outlining what landlords can do if one of their tenants abandons their property. Abandonment usually applies to a tenant moving out in secret in the middle of the night. But it can also apply to this situation as well. Tennessee, for example, defines abandonment in part as the non-payment of rent along with “reasonable factual circumstances” that indicate the tenant will not be back. So if you know your tenant is going to be in jail for a while, that is a pretty “reasonable factual circumstance.”
Using the abandonment clauses rather than going through an eviction, at least in my experience, is a bit easier to process. Using the abandonment clauses does not require the hiring of an attorney, the filing of court documents and writs, hiring process servers, etc. All you have to do is send a written notice to the tenant’s last known address, which is your property. Yes, there are waiting periods, but it is going to take just as much time to get a court date and writ of possession anyway.
Regaining the Property
After the required waiting period, you can then go in and repossess the property. You can also remove all of their belongings, but you have to store them for 30 days. I know that part may sound like a hassle, and in fact it is, but I generally have some place (in an attic or basement) to store the stuff they leave behind. Once those 30 days have passed, you are allowed to sell the stuff to recoup any expense you may have incurred. You generally cannot do this with an eviction, as everything has to be taken to the curb where it will be immediately picked over by vultures who will leave an even bigger mess behind. Instead by using the abandonment procedure, you can just have a yard or estate-type sale or put the stuff on Craigslist and hopefully get a bit of money for your trouble.
The abandonment clause also has another potential good feature. It allows you to be the “good guy landlord” if you want to be. You may have known your tenant well and realize they made a stupid mistake or otherwise got caught up in the wheels of justice. You could choose not to add to their mounting problems by piling an eviction onto their record or putting all of their stuff out on the street. Obviously, this will depend on your particular circumstances.
So if you find out a tenant has gone to jail for a while, don’t rush to evict if you do not have to. The procedure for abandonment may be less costly, faster, and all around less messy to use.
Landlords: Have you ever had a tenant go to jail? How did you handle it?
Let me know your experiences with a comment!