Question: A resident has moved out but has not returned the keys. The landlord posted a 24-hour notice to enter and upon entering the unit, discovered it was empty. Can the landlord change the locks and take possession or is the landlord required to post a Notice of Abandonment? The resident did not pay rent for the last month she was there.
Answer: If the tenant has vacated the premises, the landlord has a right to take possession of the rental unit. The owner has three options:
First, file an eviction, although if it is clear that the tenant vacated the property, the landlord may be subject to liability, as an unlawful detainer action is only proper in order to lawfully regain possession of the property.
Second, go through the abandonment of real property process. This is an out-of-court procedure that will give the landlord protection from liability for taking possession of the property without going through the unlawful detainer lawsuit. This procedure is not required by law, but available under the law to create liability protection if the landlord follows the procedure properly. In any event, it does not ensure that the landlord will not be challenged in court. One of the conditions is the landlord’s “reasonable belief" that the unit was, meaning the tenant has vacated without an intent to return. What is "reasonable" is open to opinion and argument. In addition, the process takes a minimum of 18 days to complete.
Third, the landlord can simply take possession of the premises. This has the most risk, but if the landlord acts reasonably, he/she should not be found liable by a court of law. In order for a landlord to be liable, he/she must have failed to act as a reasonable and prudent landlord would act in the same or similar circumstances. If it is reasonable to take over possession in this instance, the landlord should first post a 24-hour written notice of intent to enter the premises. Then, the landlord should enter the unit with a witness, and if the landlord decides to take over possession based upon the condition of the premises, he/she should document the condition of the premises by video camera. This way if the landlord is challenged, he/she has a witness and evidence of the condition of the property. The landlord should also send a letter to the residents’ last known address(s), letting them know that unless the landlord hears from them otherwise, he/she will take over possession of the premises by a date certain. If a tenant is wrongfully subject to an illegal lock-out, the residential landlord could be liable for actual damages and a penalty of up to $100 per day in addition to the attorney's fees incurred by the tenant.
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