The Basics of California’s Home Abandonment Laws
Home abandonment laws refer to the legal protections for renters and owners when a residency has been abandoned by its owner or tenant. To abandon a home, the owner or tenant must have vacated the premises for an extended period with no intent to return. Unfortunately, it is not uncommon for a tenant to simply leave a home – and all their possessions – suddenly, essentially abandoning the property, and leaving the owner with the burden of either retaining the rental unit as-is or cleaning up trash.
The state and local laws regulating home abandonment vary from jurisdiction to jurisdiction , but these laws typically stipulate how long the owner must wait before taking action, how they must go about complying with the law before moving forward, and whether they may recoup the cost of the clean-up from the former tenant.
It is critical to understand home abandonment laws in order to ensure the owner takes all required steps to properly vacate the tenant. If these steps are not followed, the former renter may be able to return to the unit with some or all of their possessions, and/or the landlord may have to pay for the costs of retrieving their belongings if they proceed incorrectly.
Exploring the definition of Abandonment in California Law
While there is no single set definition of "abandonment" when used in the context of a California residential property, there are two relevant code sections that do help set the minimum criteria for a home being considered abandoned.
Civil Code Section 1951.3(a) defines Unlawful Detainer for unlawful occupation (eviction) as occurring when the tenant "has abandoned the premises." From a landlord or leasing agent perspective, a tenant who has not paid rent is automatically presumed to have abandoned the home for a period of longer than 30 days, regardless of their intent.
Civil Code Section 1941.5(a) defines abandonment for the purpose of justifying action to declare a residential unit uninhabitable. It states that a tenant "shall be deemed to have abandoned a dwelling unit…" when they "are absent from the premises without written consent of the landlord for one week if monthly rent is payable weekly or two weeks if monthly rent is payable monthly unless the tenant is an active duty military service member and has been deployed to a location outside both the territorial limits of the United States and the State of California."
Understanding Rights and Obligations for Home Owners
In California, homeowners have certain rights and responsibilities when it comes to abandoned houses or structures. If a property is owned by the homeowner, they are responsible for maintaining the property, regardless of whether it is occupied or not. This includes the responsibility to ensure that the property is secure from unauthorized entry and to maintain the property in a manner that conforms with any applicable local ordinances.
If a property is found to be abandoned, the county may post a notice on the property requiring the owner to secure the property within a certain number of days. If the owner fails to comply with the notice, the county may take action to secure the property and bill the owner for the cost of the work.
Local ordinances may place additional responsibilities on the homeowner. For example, many communities in California have ordinances in place that require the owners of vacant or abandoned properties to register the property with the local building department within a certain number of days after abandonment. The purpose of these ordinances is to reduce the impact of blight in the community. Depending on the local ordinance, registration may require a fee, a zoning inspection, and even the posting of a vacant building permit on the property.
In some cases, a homeowner may want to take legal action against an entity or individual who is responsible for abandoning the property. In such cases, the homeowner may have a cause of action for damages, such as trespass, conversion, nuisance, or intentional infliction of emotional distress. Moreover, if the property is abandoned due to a construction defect, the homeowner may have additional causes of action under California’s economic loss doctrine.
Abandonment by a Tenant and a Landlord’s Response
Tenant abandonment is a legal term used to refer to the voluntary relinquishment of possession of a rental property by a tenant without the intention to return. Abandonment can occur because of various reasons, including the tenant’s inability to pay rent, death, good faith belief of the tenant that a landlord has created or allowed a noxious condition to exist on the property or the tenant has vacated the premises for other reasons allowing the tenant to believe that further contractual obligations are terminated.
California law permits a landlord to retain possession of the property if a tenant has abandoned a rental property in California, but landlords must follow certain laws and rules. The issuance of a 3-day or 30-day notice to the tenant relating to the abandonment is not always necessary. The landlord is prohibited from taking possession of a rental property without judicial intervention. Eviction proceedings must be commenced against a tenant in an unlawful detainer action which is an expedited proceeding that allows a landlord to regain possession.
Under California law, a rental property is deemed abandoned if:
A. The tenant oftentimes leaves the personal property behind, but there is no requirement to leave personal property behind to establish abandonment, and
B. The landlord reasonably believes that the tenant has vacated the premises with the intention not to return and it appears to the landlord from the facts that he/she has reason to know that the tenant will not return to the rental property.
A landlord must retain possession of the property and cannot remove any personal property left behind by the tenant. If the landlord does so it can result in penalties and liability for wrongful eviction. A landlord can terminate a month-to-month lease with a written 30-Day Notice of Termination. If the lease is month to month, no notice of termination is necessary if the tenant has vacated for more than two weeks.
California law provides certain requirements prior to regaining possession. First, a 15-Day Abandonment Notice must be posted at the rental unit and a copy sent by mail to the tenant at the rental unit. Under certain laws, a landlord of an occupied unit may enter the dwelling to check on the safety and health of an elder or dependent adult and to examine water, gas and electric utilities, if those utilities are available to the unit. A landlord must post written notice in a conspicuous place in the common area of the residential structure no less than 72 hours prior to entry.
Abandonment in Legal Terms of a Home or Property
California law requires a process to formally declare a property abandoned in order for a lienholder to acquire the foreclosed home by a court decision. It may involve going back and forth with another party, such as a homeowner in default or a short-sale potential buyer, before declaring a property as officially abandoned. In general, a formal proceeding is required to declare an abandonment, even if this might seem complicated, especially for someone in foreclosure.
A lis pendens is a legal notice that goes into the public records, warning anyone that a foreclosure lawsuit has been filed, if they were not already aware. A lis pendens is a formal notice of a pending legal claim that will affect the title to a piece of real property. If you do not have a lis pendens, you cannot proceed.
A petition is filed for a "preliminary interlocutory judgment," which is a legal statement declaring whether the property is abandoned or not and allowing the sheriff’s office to evict any occupant. After publication of the application and awaiting any other live claims, the court will issue a writ of possession and sell the property at a trustee’s sale.
While the aforementioned steps are all legally required for California homes that are to be sold after foreclosure through a court decision, it is not the same for condos or townhouses with shared walls.
The Consequences of Home Abandonment
As soon as the person/family is no longer living in the home, the financial liability for the mortgage as well as property tax responsibility remains with the individual(s) who initially signed the documents. If the property is abandoned and not taken possession of by the original owners or another party, the owner cannot assume that because they have not lived in the property for over a year then the mortgage is no longer their financial responsibility.
Similarly, abandonment of the home does not end the property tax obligation. Even if payment is late, the county or city cannot foreclose on the property until the delinquent amount is in excess of available equity. The senior lienholder has first position with respect to the foreclosure process and is entitled to payment in full before the tax claim is satisfied.
If the bank forecloses on the property and sells it, the lender can recover the taxes which were delinquent prior to the foreclosure by deducting that amount from the sale proceeds. So, the mortgage company is receiving its money from the foreclosure whereas the city or county is now less likely to receive the full amount that was owed.
Park Property and Other Fees – Even when a homeowner has abandoned the home (and the property taxes are not being paid) , they still owe any fees or dues that have been charged by a homeowners association. This means that any park property or master plan assessment fees that had been reduced to a judgment against the property would continue to be owed even after the home was abandoned. Any money that was owed to the lender would have the same priority over the valuation of the property as the property tax would against the lender’s investment in the property. This means that the lender is receiving the money that would reimbursed them for what they had invested in the home before the taxes are paid. Foreclosure brings the property to market (or at least to foreclosure) and can help offset the loss to the lender. Through this process, the homeowner may find that there is a deduction against what was owed to the lender as well as fees and dues owed to the homeowner association.
Easements and Liens – In addition to the general financial liability for abandonment of a home, there are other considerations when a home is abandoned concerning easements and liens. Easements are rights which a person may have obtained over a specific period of time. A lien is a legal claim of one party over another’s property, designed to secure the payment of a debt or other performance of an obligation. Ownership of property is not essential for the exercise of his or her rights against the owner, as the actions taken in accordance with the rights accrue to the easement holder, regardless of ownership status. There is no statute of limitations on the holder of these rights and title to the property subject to the easement is of no importance to the holder of the rights. These rights do not terminate upon abandonment of the property. Even when the home is abandoned, the rights of easement will not undergo any kind of change even though the owner has not retained possession or use of the property.
Avoiding Issues with Home Abandonment
To prevent home abandonment issues in their properties, both owners and managers have to play a role. First and foremost, being proactive is vitally important. It’s better to know that a tenant is having trouble paying to live in your property than to be stuck with the consequences of abandonment.
For that reason, the first steps are fairly intuitive to most people. You can’t assume your tenant will pay rent every single month without some sort of communication between you. Proactive property management, including sending reminders when they are late and inquiring about any repeated issues, can make a big difference.
Like any other residents, you should remain in contact with your tenants. Know how many people are living in the property. Are there vehicles that are regularly in the driveway? Having someone check up on this kind of thing on a regular basis will help you know if something is awry in the property and may prevent you from learning about abandonment when it already a foregone conclusion.
If you hear from a neighbor who isn’t getting responses from your tenant or are made aware of a crime happening in the neighbourhood, don’t ignore the warning signs. Investigate the issue further. Likewise, make a concerted effort to have good and regular communication between you and your tenants. This means you might want to consider checking in on them just to see if everything is alright.
Although you shouldn’t overstep your boundaries and disrupt them in their day to day life, opening the lines of communication as a landlord may provide you with benefits in the long-term.
Another good practice is to inspect the home regularly. Once every few months is a good idea. While you do not have a full legal right to enter the home (you must provide reasonable notice), it’s a good idea to check in regularly to ensure that your property isn’t being damaged or doesn’t have disrepair.
While you can’t conduct a full inspection every time, you can walk through the home and check for any signs of a problem. For landlords who have contacted tenants regularly, this short interaction will be welcomed as further proof that you are a fair and hard-working landlord.
Maintaining effective expectations from the outset will also ensure that no parties are unhappy with their arrangements. Agreements should be recorded in writing from all involved parties and any and all changes should also be communicated in writing. For example, if a tenant plans to change residents for a short period of time to care for a family member, it’s best to have this in writing instead of just verbal communication, which could lead to misunderstandings.
Understand your rights, and those of your tenants, and make sure you are resolving any issues before they get too serious. Tenants should be moved out of the property within 60 days of receiving a notice to vacate if they do not respond to attempts to rectify issues in the home. If they cannot be reached, you have even fewer obligations as a landlord, so it’s important to ensure you have already attempted contact before this stage.
Above all, keep a significant line of communication with your tenants while they reside in your property.
Home Abandonment Case Examples and Real Life Applications
Recent cases demonstrate how the law applies in the context of home abandonment and the impact on owners, friends, and neighbors before the California code 1940 comes into play. A recent divorce case held that abandonment of a residence by one spouse did not give the other spouse the right to change the locks without the other spouse’s consent. Even though the wife had abandoned the Mar Vista home some time ago, she was still legally entitled to live there until the divorce was final. Another case example involved settlement of a quiet title action where the deed to a home was issued to a person with unsound mind and the person’s half-sister sought a declaratory judgement to overturn the deed. The court sided with the half-sister.
Examples from the last decade also demonstrate the consequences of home abandonment on one home. After a complaint was filed by the city of Los Angeles that a vacant home was a nuisance, the house was burglarized and vandalized. The owner had abandoned the property because of REO proceedings. Since 1984, Los Angeles city ordinance 41.18(b) furthered state to prohibit individuals from living within 200 feet of a vacant lot or building. A separate case settled in October 2011 revealed how the city misused the power by claiming that the new multifamily complex near a POI was vacant and unoccupied. Former residents of the building were falsely accused. Negative publicity caused many owners to abandon their properties.
In addition, prolonged foreclosure activity can lead to distress and eventual abandonment. In the case of Khang v. Mirabelli, the couple defaulted on their loan after the husband lost his job, and after several years of foreclosure, the property went into receivership. Both the historic erosion of home prices and a permanent lapse in the rental market caused the investors to abandon the property. The new renter then took possession of the property under California code 1940 non-rent control laws.
The problem of home abandonment affects all owners in California and includes residential property owners, landlords, and huge multifamily dwellings. In many instances, owners of individual dwellings neglect to seek advice or assistance, as they are unaware of the San Diego Homeless Outreach Program (SHOP) offered through the office of the solicitor general of the U.S. Department of Housing and Urban Development. This free resource connects vacant building owners with social service providers for the homeless with the goal of turning abandoned homes into community centers.
Conclusion and Home Abandonment Legal Tools
In conclusion, home abandonment can be a complex and emotionally charged issue for many California homeowners, and there are a number of different factors that can be considered in determining whether or not a home has been abandoned. The legal definition of abandonment may be a useful guide in many cases, as it focuses on some of the main legal issues that routinely arise in such situations. A more nuanced analysis of the situation may be necessary to come to a more accurate and complete conclusion of whether or not a home has been abandoned, but it is only by taking into consideration all of the relevant circumstances that a homeowner will have an idea of how a court may rule in any given situation .
As with many different aspects of California law, home abandonment laws involve a complicated and ever evolving mix of statutory law and case law. It is highly recommended that homeowners consult with an attorney in cases involving home abandonment or the risk of it, especially if it is a serious concern. Not only can a knowledgeable and experienced lawyer guide a homeowner through the intricacies of the law and legal process relating to home abandonment, but an attorney can offer valuable assistance when it comes to the various legal options and strategies when dealing with abandonment issues.
For general information on home abandonment and its legal implications, as well as some additional resources, the following are some links that may be helpful.