In Georgia, you can regain possession of a property from a tenant in just two ways: The tenant conveys possession by giving you the keys or the marshal conveys possession after a lawful eviction procedure. Here is the big risk with presuming properties are abandoned: if the tenant has apparently moved out but NOT conveyed keys to you or the marshal has not done a legal set-out, then you do NOT have clear possession. If you re-key the property, haul off the junk the tenant left behind, and start the turn-key work for a new tenant, you are at risk for a lawsuit for wrongful eviction.
Here is a problem we see several times a year at tenant move-out.
- The tenant has stopped paying rent.
- The tenant has moved out of the property as far as we can tell, BUT:
- The tenant has NOT conveyed keys and
- The tenant has left personal property in the residence. This may be clothes, furniture, food in the pantry, broken TV, etc. Or it may just be what looks to you like sacks of ripe juicy garbage.
In this scenario, you DON'T have keys so you DON'T have possession. What are your options?
I am Andy Ritan with Atlanta Property Management Group in Atlanta, Georgia. This video is part of a series on Do-it-yourself landlording, and this particular video is about a letter I developed which I call "Notice of Abandonment of Property." This letter is available free on our website, atlantapropertymanagement.com, at the DIY Landlording page.
In this scenario, which I call "partial move-out," you have two options:
Option 1: Wait for the marshal to come. If you haven't started an eviction, then you should initiate one beginning with a demand letter, which I describe elsewhere in this series. If an eviction is already in process, wait for the eviction to culminate in a visit from the marshal. This can take months, but if the tenant hasn't given you keys it is the ONLY way to take possession of the property without the risk of a lawsuit for wrongful eviction. If the tenant relationship has become confrontational, if the tenant has already lawyered up, or if you as a landlord have made any mistakes in the tenant relationship that put you at risk, then it may be in your best interest to wait for the marshal to come so that your risk of wrongful eviction is zero.
Option 2: Take possession of the property now. Change the locks, throw out all the stuff the former tenant left behind, do all the turnkey work, put the property on the market, and get a new tenant in there paying rent. You don't face the delay of waiting for the marshal to come, but you do face the risk for a wrongful eviction judgment. Since your tenant has NOT turned over keys and has NOT removed all their stuff, you DON'T have legal possession, and if the tenant sues you for wrongful eviction the tenant will win.
If you wait for the marshal to come, you face vacancy cost of up to several months, plus the risk the property may be vandalized while vacant, etc. If you take possession before the marshal comes, you risk a judgment for wrongful eviction. Neither of these options is a "win" for you.
Here is a "middle path" procedure I have developed that is a compromise between waiting for the marshal to come and simply taking possession of the property immediately upon finding the tenants have moved out.
I send the tenants a copy of my form letter "Notice of Abandonment of Property" by several means:
- I mail a copy to the tenant's last known address, usually the property itself
- I send copies by email and text if I can
- I tape a copy of the letter to the front door.
I give the tenant notice of a week or so, then I
- Rekey the property
- Put a lockbox on the front door with the new key in it
- Take all the tenant's potentially valuable stuff and put it somewhere on the premises for a few weeks or months. This could be a garage, a closet, a back bedroom, or an outbuilding on the property.
- Then I do the turn-key work, working around the old tenant's valuable stuff, and market the property to a new tenant.
Let's say three weeks have passed and the former tenants show up wanting their valuable stuff. Following my procedure, you can still give the tenants their valuable stuff and even return possession of the property if necessary by simply by giving them the combination to the lockbox that contains the keys.
This strategy does NOT eliminate all risk. But if you choose to turn-key a property your tenant has abandoned rather than wait for the marshal to come it will reduce your risk of a wrongful eviction judgment.
I am not an attorney and do not provide legal advice. The materials available at this web site are for informational purposes only. You should contact your attorney to obtain advice with respect to any particular issue or problem.
Good luck out there! If you decide to seek out professional property management I hope you will remember my company: Atlanta Property Management Group.