[RPPTL LandTen] Q regarding abandonment

[Greg Hass]

David,

Please assume it’s a residential lease with no continuous operating covenant.  Also, assume the premises look like Tenants took off in a relative hurry to catch a cruise.

Thanks,
Greg


From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Drobner, David S.
Sent: Friday, February 24, 2012 12:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Q regarding abandonment

Is there a continuous operating covenant? Were the premises cleaned out or left in a state that suggests just a temporary closure with personalty etc. still in place?

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Friday, February 24, 2012 11:55 AM
To: RPPTL Landlord Tenant Committee
Cc: Ryan Parker
Subject: [RPPTL LandTen] Q regarding abandonment

Happy Friday everyone.

I have a quick hypothetical to pose – please assume the facts are as follows:

-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.

LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month.  In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st.  LL also checked and could find no notice of any intended absence from the Tenants.  Thus, LL argues he met the test for presumption of abandonment.

Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current.  They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.

Who wins this fight?

Thanks,
Greg

83.59 Right of action for possession.—
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(3) The landlord shall not recover possession of a dwelling unit except:
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(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
***



Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
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