I think my tenant might have moved. What should I do?
Generally, self-help evictions are prohibited. However, there is an exception: Abandonment statutes allow the landlord, under some circumstances, to retake possession without first obtaining a Court Order.
Montana Code Ann § 70-24-426 is the central statute on abandonment by the tenant. It does not address the most common and difficult problem. In eviction cases the tenants usually move out without going to trial. Usually, by the time the tenants begin moving out, the landlord and the tenant are not on speaking terms. Also, tenants being evicted are often people who behave poorly while under stress of a business dispute. The following are commonly encountered situations:
- The tenants move out over a long time period, so that it is difficult to determine when the tenants have finished moving out so that the landlord can enter and retake possession.
- Tenants leave furniture and/or personal possessions. Can the landlord take the possessions? What does the landlord have to do with the possessions? What may seem worthless to a landlord may be quite valuable to a tenant.
- Tenants’ scumbag friends move in after abandonment. (“Hey, I know a great place to party.”)
The landlord might ask: How do I determine if the rental has been vacated and thus not get sued for preforming a self-help eviction, trespass, and conversion of personal property?
The landlord should use and document his or her use of the reasonable person standard in determining abandonment. Managers should take notes with times and dates and the name of the note taker recording observations like the following: moving or packing of personal belongings, pickup trucks or moving vans being loaded, no lights during evening hours, lack of traffic in and out of the unit, information from neighbors, disconnected phone service, and mail and newspaper pileup.
The Montana Supreme Court has looked to the following factors to determine abandonment: failure to pay rent, failure to pay rent after notification of failure to pay rent, inability to contact the tenant, whereabouts of tenant unknown, unattended and un-cared for pets, ongoing waste/deterioration of the property, no one home, and relatives unaware of whereabouts of the tenant(s). Napier 678 P.2d 1143 (1984).
If the landlord has a strong hunch from the above factors that the tenant has moved out, then he or she should use the most unobtrusive means possible to make a final determination. The landlord should knock on the door, then try to call, then look in the window. All of these activities should be documented in notes with emphasis on the landlord’s initial care to be as unobtrusive as possible. Only after strong determinative factors indicating abandonment is it recommended that the landlord reenter. When the landlord reenters after determining and documenting probable abandonment, he or she should take photographs to demonstrate the condition of the premises and prove abandonment.
My Tenant left some stuff. What should I do?
If the landlord reasonably believes that the tenant abandoned and was not ordered to leave because of a court order, then, after 5 days, the landlord may remove the property in accordance with the following procedure:
- Inventory and safe (reasonable) storage of the tenant’s property.
- The use of cameras and witnesses to document the inventory. This is not really very difficult. It simply involves hiring someone to help pack, having the helper sign the inventory, and quickly photographing the apartment contents. A camera should be kept handy for damages, anyway.
- Notification of the tenant (documentation of a reasonable attempt) to come and retrieve possessions.
- Sending a copy of the inventory to the police.
- A reasonable effort to check for encumbrances. (My clients document having called the “rent-to-own” type businesses about furniture and electronic equipment.)
- Sending a certified letter to the last known address instructing the tenant to retrieve his or her possessions within 15 days or risk their disposal.
- After 15 days, if the landlord has not heard from the tenant, he or she should give the stuff to an auction to sell.
- If the tenant contacts the landlord within 15 days saying he or she wants the property, then the landlord must wait 15 days after this contact before disposing of the stuff if the tenant does not retrieve it. Note that after the 15 day the tenant can no longer rebut abandonment of the personal property.
- If the tenant comes to retrieve the stuff, the landlord can refuse to give it to the tenant until he or she pays for packing and storage. However, my advice is give the stuff back regardless if they pay for packing and storage.
- Note that the landlord has to follow § 30-9-504(3) or Sheriff’s Sale Title 25 chapter 13 part 7 unless the stuff is obviously worthless. If the stuff is obviously worthless, then it may be thrown away.
There is an abandoned car on my property. What should I do?
Landlords often fail to include a lease or tenant handbook clause concerning parking (sample language: “No vehicle shall be parked for more than 3 days in an inoperable condition. If such condition occurs, management reserves the right to have the vehicle removed at the tenant’s expense.”)
In lieu of such language in a lease or tenant handbook:
Taking vehicles into custody. (1) The following law enforcement agencies may take into custody any motor vehicle found abandoned for a period of 48 hours or more on any public highway, or for a period of 48 hours or more on any public highway, or for a period of 5 days or more on any city street, public property, or private property: (a) the Montana Highway Patrol if the vehicle is upon the right-of-way of any public highway other than a county road; (b) the sheriff of the county if the vehicle is upon the right-of way of any county road within the county; (c) the city police if the vehicle is upon a city street within the city. (2) The Montana Highway Patrol, Sheriff of the County, or the City Police may use its or his personnel, equipment, and facilities for the removal and storage of the vehicle, or may hire other personnel, equipment, and facilities for those purposes. (3) At the request of the owner or person in lawful possession or control of the private property, the Sheriff of the county in which the vehicle is located or the City Police of the city in which the vehicle is located may remove and hold it in the manner and upon the conditions provided in subsections (1) and (2). MCA 61-12-401.