CHAPTER 6 - ABANDONMENT

            If a tenant defaults in the payment of rent and reasonably indicates by words or actions the intention not to resume or continue with the tenancy, he or she has “abandoned” the rental premises. RCW 59.18.310. 

            As a condition precedent, a tenant must be in default in the payment of rent. A tenant cannot “abandon” the property in the legal sense so long as he or she is current in the rent. This requirement, however, usually is not the problem! The second prong of the abandonment test is the tenant’s intentions. The tenant’s intentions are a question of fact to be determined by a judge or jury. There is no “bright line” or “presumption” to help us determine the tenant’s intentions. I ask my clients what the tenant told them. If the tenant told the landlord he or she was moving back to Montana, then that is a strong indicia that the tenant does not intend to resume the tenancy. Usually it is not that simple—the tenant absconds without talking to the landlord. I advise my clients to talk with neighbors (maybe the tenant told them that they were moving back to Montana). Also, the neighbors may be able to tell you that they saw a moving van. A landlord can enter into a rental unit without notice if the tenant has abandoned, but often the landlord cannot determine abandonment without going into the unit. This creates a classic “Catch 22.” 

            Although the law does not provide a clear answer, I normally advise my clients to provide two-day’s notice of intention to inspect the premises (see RCW 59.18.150). If the notice is gone when the landlord returns to inspect, then a little bell should be ringing in the landlord’s mind that the tenant has not abandoned. I advise my clients to enter premises with caution—I suggest that the landlord knock on both front and back doors and looking in windows (being careful not to appear voyeuristic!) before opening the door. I suggest my clients open the door carefully and call for the tenant.

            It is not unheard of for disgruntled tenants to set booby traps involving everything from a pail of water propped over the door to a shotgun set to discharge when the door is opened. Furthermore, it is not against the law for tenants to simply avoid answering the door. I advise my clients to continue with caution until they are satisfied that the tenant has or has not abandoned and that it is safe to proceed. It is always better to err on the side of caution because of the severe penalties for wrongfully excluding a tenant and/or improperly distraining his or her property. 

            Incidentally, a tenant who is incarcerated, in the hospital or committed to a psychiatric ward has not “abandoned” because it is not his or her intention not to resume or continue with the tenancy. 

            Abandonment must be proven by clear, unequivocal, and decisive evidence. Mike v. Tharp, 21 Wash.App. 1, 583 P.2d 654 (1978).

            Once the landlord concludes that the tenant has abandoned the premises, the landlord may have to contend with items of personal property the tenant has left behind. According to RCW 59.18.310, in the case of abandonment, the landlord may immediately enter and take possession of any property of the tenant found on the premises and may store it in any “reasonably secure place.” This can be on site, in a secure garage or at a rented storage unit.  

            If the value of the property is less than $50, the landlord must provide seven (7) days written notice and may dispose of all of the personal property except for except for “personal papers, family pictures, and keepsakes.” The Statute does not define the term “keepsake.” If the value of the personal property is in excess of $50, the landlord must store the property for at least forty-five 45 days after mailing the written notice. After forty-five (45) days following notice the landlord can sell or dispose of the property including personal papers, family pictures and keepsakes.

            The landlord must make a “reasonable effort” to provide the tenant with a notice that contains:

            ·The name and address of the landlord

            ·The place where the property is stored

            ·Informing the tenant that a sale or disposition of the property shall take place

            ·The date of the sale or disposal, and

            ·Further informing the tenant of the right under RCW 59.18.230 to have the property returned prior to its sale or disposal.

 

            The landlord's requirement to provide notice under is satisfied by the mailing the notice by first class mail to the tenant's last known address and to any other address provided in writing by the tenant or actually known to the landlord where the tenant might receive the notice. The landlord can require that the tenant pay actual or reasonable moving and storage expense before returning the property, but the landlord cannot require that the tenant pay any other damages such as delinquent rent or repair costs before returning the property. The landlord must return the property to the tenant after the tenant has paid the actual or reasonable (whichever is less) moving and storage costs.

            After forty-five days from the date the notice of such sale or disposal is mailed or personally delivered to the tenant, the landlord may sell or dispose of such property, including personal papers, family pictures, and keepsakes. The landlord may apply any income derived from a sale against moneys due the landlord. Any excess income derived from the sale of the property must be held by the landlord for the benefit of the tenant for one year from the date of sale. If no claim is made or action commenced by the tenant for the recovery prior to the expiration of that period of time, the proceeds of the sale may be kept by the landlord.

            As a practical matter, the personal property left by a tenant usually has little or no value and usually constitutes trash and rubbish. I advise my clients to take a photographic inventory of the property and dispose of the trash and rubbish. I advise my clients to retain personal papers, family photographs and things that appear to be keepsakes. If the Landlord disposes of the property without strictly following the law, the measure of damages would be the value of the property, and the tenant has the burden of establishing the value of the property. A landlord could use the photographs to rebut the tenant’s claims. A tenant might be able to assert and claim of “intentional infliction of emotional distress” if the landlord improperly disposed of personal papers, family photographs and keepsakes.

 

            If a tenant abandons the property and there is a substantial period of time remaining before the end of the rental term, the rent continues accrue and the landlord may continue to claim rent as it becomes due subject to a number of conditions and restrictions. The general rule is that when the tenancy is month-to-month, the tenant will be liable for the rent for the thirty days following either the date the landlord learns of the abandonment, or the date the next regular rental payment would have become due, whichever first occurs. When the tenancy is for a term greater than month-to-month, the tenant shall be liable for the lesser of the following:

●The entire rent due for the remainder of the term; or

●All rent accrued during the period reasonably necessary to rerent the premises at a fair rental, plus the difference between such fair rental and the rent agreed to in the prior agreement, plus

●actual costs incurred by the landlord in rerenting the premises

 

            In any event, a landlord has a duty to mitigate his or her damages which means that the landlord must advertise and attempt to rerent the rental unit as quickly as possible.

            The final step in a judicial eviction usually is removing the tenant’s property from the premises. 

In 2008, the Washington State Legislature substantially amended RCW 59.18.312. This statute addresses the issue of handling tenants’ personal property at the time the Sheriff executes a writ of restitution evicting a tenant. Before January 2007, landlords usually deposited a tenant’s personal property to the nearest public area. In January 2007, however, Washington State Court of Appeals in Parker v. Taylor, 136 Wn.App. 524 (2007) ruled that the storage provisions of RCW 59.18;312 were mandatory. The 2008 amendment to the Residential Landlord-Tenant Act reflects a hard-fought compromise between the rental housing industry and the tenant-rights lobby.

            Property stored under RCW 59.18.312 must be returned to the former tenant after the tenant has paid the lesser of the actual or reasonable moving and storage costs or until the property has been sold or disposed of by the landlord in accordance with the procedures discussed below.

            Prior to selling or disposing of the property, the landlord must notify the former tenant in writing of the pending sale or disposal. If the cumulative value of the property is one hundred dollars or less, written notice must be hand delivered or mailed to the former tenant at his actual or last known address, the sale or disposal will take place after seven (7) days. The landlord must retain the former tenant’s “personal papers, family pictures, and keepsakes.” If the cumulative value of the property is more than $100, written notice must be hand delivered or mailed to the former tenant at his actual or last known address that the sale or disposal will take place after thirty (30), the landlord may dispose of the former tenant’s personal papers, family pictures and keepsakes. The statute does not offer any guidance whatsoever as to how landlord’s determine the value of the property. For that reason, I typically advise my clients presume a value of $100 or more.

            In any event, landlords always should take photographs of the premises at the time the Sheriff executes the writ of restitution. A photographic inventory of the personal property your tenant left can be most useful if the former tenant sues you for wrongfully seizing or disposing their property. More importantly, photos can help the landlord establish damages.

            The statute authorizes the sale of the tenant’s personal property after the expiration of the applicable time period, but the statute does not address the issue of the commercial reasonableness of the sale. The landlord may apply any income derived from the sale of the former tenant's property, however, against moneys due the landlord for moving and storing of the property. The amount of sale proceeds that the landlord may apply towards such costs may not exceed the actual or reasonable costs for moving and storage of the property. In the highly unlikely event that the income derived from the sale of the property exceeds the reasonable or actual moving and storage costs, the excess must be held by the landlord for the benefit of the tenant for a period of one year from the date of the sale. If no claim is made or action commenced by the tenant for the recovery of the excess income prior to the expiration of that period of time, the balance must be treated as abandoned property and deposited by the landlord with the Department of Revenue pursuant to chapter 63.29 RCW. Note that the landlord cannot lawfully apply the proceeds of the sale to moneys owed to the landlord for rent, repairs, attorney fees etc. The sale proceeds may be applied only to the reasonable or actual moving and storage costs.