Tenant missing and no rent paid

[perrine]

We rent a commercial space to our tenant. He utilizes the space primarily for storage and travels several weeks each month. We received a check for rent in January and have not heard from him or seen him since. Desperate to locate him, we contacted a friend (listed on his initial lease application) who informed us that she had heard through another friend that he had lost his phone. She, too, had no way to contact him and had received no communication from him either. She offered to pay his February rent, and we contacted her the last week in February to accept her offer. On March 15th, we sent an email demanding that March rent be paid by March 22nd, and that April rent be received no later than April 1st. Again, we have received no communication by email, phone, or mail. His 1 year lease was up February 28th. At this point, we have to assume that he is on a month-to-month rental agreement since he has not been available to sign a new lease.
What are our rights in terms of eviction? I had read that you need a 60 day "notice to vacate" for commercial properties. Is that correct? Is unpaid rent significant reason to evict? If so, since his friend paid February rent, is he considered delinquent only for March rent? Does his history of late payments for rent have any bearing on the legal outcome of this case, or is that unprovable in a court of law?

 

[army judge]

At this point, we have to assume that he is on a month-to-month rental agreement since he has not been available to sign a new lease.

You should consider it abandonment. If you consider him to be on a month to month tenancy, you further harm yourselves!!! You don't want this person as a tenant. He has abandoned the property. You do yourselves a continued disservice by claiming he is your tenant. If you allow him to remain a tenant, you can not effect his LEGAL eviction.

What are our rights in terms of eviction? I had read that you need a 60 day "notice to vacate" for commercial properties. Is that correct? Is unpaid rent significant reason to evict? If so, since his friend paid February rent, is he considered delinquent only for March rent? Does his history of late payments for rent have any bearing on the legal outcome of this case, or is that unprovable in a court of law?

First off, here is some general advice concerning rental property.
1. Use a well-crafted lease that addresses potential property abandonment. Warning - the landlord tenant abandonment laws will take precedent over any lease.

2. Has the tenant abandoned the property? If the tenant abandons your rental property for 30 consecutive days, you should obtain a form called NOTICE TO BELIEVE ABANDONMENT (or a similar form and process in your state) and complete it, serve it, mail it(regular and certified), and attach it to the door of the property.

3. Allow at least 30 days (maybe more in YOUR state) for the renter to respond. You will be losing rent, but the time elapsed will be important if the matter ends up in court.

4. Start the eviction process. Mail, and post on the door a NOTICE TO PAY RENT OR QUIT form.

5. Wait for 60 days. (Could be more or less in your STATE, check your state laws.) You may now enter the unit to assess the amount of property left in the unit. You can change the locks. You will need to figure out if you should hold a sale, move the property to a storage unit, or rent a dumpster. You will usually need to do a combination of these things. What looks like a collection of "junk" to you will become "valuable heirlooms" if and WHEN it goes to court.

___________________________________________________________

California Civil Code Section 1951.3

(a) Real property shall be deemed abandoned by the lessee, within the meaning of Section 1951.2, and the lease shall terminate if the lessor gives written notice of his belief of abandonment as provided in this section and the lessee fails to give the lessor written notice, prior to the date of termination specified in the lessor's notice, stating that he does not intend to abandon the real property and stating an address at which the lessee may be served by certified mail in any action for unlawful detainer of the real property.

(b) The lessor may give a notice of belief of abandonment to the lessee pursuant to this section only where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the lessor's notice and shall be not less than 15 days after the notice is served personally or, if mailed, not less than 18 days after the notice is deposited in the mail.

(c) The lessor's notice of belief of abandonment shall be personally delivered to the lessee or sent by first-class mail, postage prepaid, to the lessee at his last known address and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to such other address, if any, known to the lessor where the lessee may reasonably be expected to receive the notice.

(d) The notice of belief of abandonment shall be in substantially the following form:

Download a copy: Notice of Belief of Abandonment
Provided by the Human Rights/Fair Housing Commission - does not constitute legal advice. Rev. 3/2007

Notice of Belief of Abandonment
To: ______________________ (Name of lessee/tenant)
_____________________________________(Address of lessee/tenant)
This notice is given pursuant to Section 1951.3 of the Civil Code concerning the real property leased by you at ________ (state location of the property by address or other sufficient description). The rent on this property has been due and unpaid for 14 consecutive days and the lessor/landlord believes that you have abandoned the property. The real property will be deemed abandoned within the meaning of Section 1951.2 of the Civil Code and your lease will terminate on ________ (here insert a date not less than 15 days after this notice is served personally or, if mailed, not less than 18 days after this notice is deposited in the mail) unless before such date the under- signed receives at the address indicated below a written notice from you stating both of the following:

(1) Your intent not to abandon the real property.

(2) An address at which you may be served by certified mail in any action for unlawful detainer of the real property. You are required to pay the rent due and unpaid on this real property as required by the lease, and your failure to do so can lead to a court proceeding against you. Dated: ________
_______________________ (Signature of lessor/landlord)
_______________________ (Type or print name of lessor/landlord)
_______________________ (Address to which lessee/tenant is to send notice)

(e) The real property shall not be deemed to be abandoned pursuant to this section if the lessee proves any of the following:

(1) At the time the notice of belief of abandonment was given, the rent was not due and unpaid for 14 consecutive days.

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, of itself, justify a finding that the lessor did not reasonably believe that the lessee had abandoned the real property.

(3) Prior to the date specified in the lessor's notice, the lessee gave written notice to the lessor stating his intent not to abandon the real property and stating an address at which he may be served by certified mail in any action for unlawful detainer of the real property.

(4) During the period commencing 14 days before the time the notice of belief of abandonment was given and ending on the date the lease would have terminated pursuant to the notice, the lessee paid to the lessor all or a portion of the rent due and unpaid on the real property.

(f) Nothing in this section precludes the lessor or the lessee from otherwise proving that the real property has been abandoned by the lessee within the meaning of Section 1951.2.

(g) Nothing in this section precludes the lessor from serving a notice requiring the lessee to pay rent or quit as provided in Sections 1161 and 1162 of the Code of Civil Procedure at any time permitted by those sections, or affects the time and manner of giving any other notice required or permitted by law. The giving of the notice provided by this section does not satisfy the requirements of Sections 1161 and 1162 of the Code of Civil Procedure.
1951.4.

(a) The remedy described in this section is available only if the lease provides for this remedy. In addition to any other type of provision used in a lease to provide for the remedy described in this section, a provision in the lease in substantially the following form satisfies this subdivision: "The lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations)."

(b) Even though a lessee of real property has breached the lease and abandoned the property, the lease continues in effect for so long as the lessor does not terminate the lessee's right to possession, and the lessor may enforce all the lessor's rights and remedies under the lease, including the right to recover the rent as it becomes due under the lease, if any of the following conditions is satisfied:

(1) The lease permits the lessee, or does not prohibit or otherwise restrict the right of the lessee, to sublet the property, assign the lessee's interest in the lease, or both.

(2) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, subject to express standards or conditions, provided the standards and conditions are reasonable at the time the lease is executed and the lessor does not require compliance with any standard or condition that has become unreasonable at the time the lessee seeks to sublet or assign. For purposes of this paragraph, an express standard or condition is presumed to be reasonable; this presumption is a presumption affecting the burden of proof.

(3) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, with the consent of the lessor, and the lease provides that the consent shall not be unreasonably withheld or the lease includes a standard implied by law that consent shall not be unreasonably withheld.

(c) For the purposes of subdivision (b), the following do not constitute a termination of the lessee's right to possession:

(1) Acts of maintenance or preservation or efforts to relet the property.

(2) The appointment of a receiver upon initiative of the lessor to protect the lessor's interest under the lease.

(3) Withholding consent to a subletting or assignment, or terminating a subletting or assignment, if the withholding or termination does not violate the rights of the lessee specified in subdivision (b).

http://www.thelpa.com/lpa/landlord-tenant-law/california-abandoned_property.html

http://www.caanet.org/AM/Template.c...aggedPageDisplay.cfm&TPLID=81&ContentID=13928

 

[army judge]

Additional information for your review.


What Constitutes Abandonment Of A Rental Property?
A landlord can assume abandonment if:

* The landlord does not know where the tenant is, the tenant is gone, the tenant has left behind furniture and other belongings, and the rent is unpaid for 15 days; or
* The landlord does not know where the tenant is; and rent is unpaid; and tenant`s property is gone.

The landlord must hold any property left behind for 30 days and make reasonable efforts to find the tenant. If, after 30 days the property still remains unclaimed, the landlord may sell the items and use the money to pay back overdue rent.

http://resources.lawinfo.com/en/Leg...constitutes-abandonment-of-a-rental-prop.html

 

[perrine]

Thank you, thank you. I really appreciate your quick response.