Many times, the landlord will not be specifically informed by the tenant that the tenant has "vacated' possession of the tenancy premises, leaving the landlord in doubt as to whether to enter the unit and recover possession or not. Typically, the tenant will not have transferred possession of the keys to the unit, not telephoned the landlord that the tenant has indeed vacated, and not sent any type of correspondence to state that the premises has been "abandoned" by the tenant.

The landlord is then forced to independently determine whether the most financially feasible and appropriate course is to take possession of the premises (1) through the processing of a lawsuit for Unlawful Detainer; or, (2) through the service of a Notice of Belief of Abandonment; or, (3) through taking possession immediately.

The best way that I have been able to explain what decision the landlord should make is by portraying an analogy that I have entitled "55-65-75". The analogy is to driving on the freeway at 55 miles per hour, 65 miles per hour, or 75 miles per hour.

When driving at 55 miles per hour, it takes longer to arrive at your destination than when driving 65 mph or 75 mph. It is also the safest way to arrive from point "A" to point "B". Statistics have proven that there are fewer traffic accidents when driving at the slower speed, and the risk of receiving a speeding ticket is reduced to a minimum.

The analogy to driving 55 mph is to have the tenant evicted through the process of filing a lawsuit for Unlawful Detainer. the lawsuit process will take the longest of the three alternatives; although it is not unheard of for a full case to take only eleven days from start to finish, most typical "default" evictions in Sacramento will take approximately 20-25 days from the time the tenant is served with the lawsuit until the Sheriff finally evicts the tenant. It will also usually be the most expensive process due to the typical attorneys fees and costs of suit of $530 - the fee currently charged by the Law Office of Gary Link for a typical two defendant default eviction (this fee includes all attorneys fees and costs of suit for such a typical eviction, and includes the obtaining of a money judgment at no additional charge! (Fees and rates are subject to change without notice)

Nevertheless, although the eviction process is the longest and most expensive approach, it is the surest and safest way to obtain legal possession of the premises wth a minimum of rish that the tenant will prevail in a later lawsuit brought by the tenant against the landlord wherein the tenant claims that the premises was prematurely or wrongfully restored to the landlord.

The "middle of the road" approach - which is similar to driving 65 mph on the freeway - to determining whether to take possession of the premises without the necessity of filing a lawsuit - may be exercised when there have been at least 14 days of consecutively unpaid rent, AND the landlord has formed a "reasonable" belief that the tenant has abandoned the premises. As with driving a little slower than 75 mph, yet faster than the legal speed limit (thereby increasing the risk of a traffic accident or receiving a speeding ticket), this method will take at least 18 days of the notice, and will expose the landlord to a moderate risk of liability in the event the landlord is determined by a judge or a jury that there was a failure to properly assess the evidence as to whether a reasonable landlord would have formed a "reasonable" belief of abandonment before mailing the "Notice of Belief of Abandonment" to the tenant.

Of course, the central issue for determination is to assess what specific facts exist that could cause the landlord to have a preliminary "reasonable" belief of abandonment of the premises.

The most common facts that a landlord should look for are:

1. Has the electricity and/or gas been turned off?
2. Has the telephone been disconnected?
3. Are papers being delivered at the premises without being removed from the porch?
4. Has the mail carrier informed the landlord or neighbors that there has been a change of address filed by the tenant?
5. Have the neighbors been consulted to inform the landlord that the tenants were seen removing their belongings from the premises?
6. Have the tenants stated to the landlord or others that they were living elsewhere or that they were no longer living at the premises?
7. After conducting an inspection of the premises pursuant to a lawfully served "Notice of Intent to Inspect," was it discovered that...
   • All of the furniture was removed from the premises,
   • There were no toiletries, linen, dishware at the premises,
   • There was no food in the refrigerator or in the cupboards,
   • There is only trash and garbage scattered throughout the unit

The mere fact that the landlord knows that the tenant left personal property on the premises does not, of itself, justify a finding that the tenant has "abandoned" the property.

Unfortunately, a landlord will not usually have the convenience or comfort of having all of the above factors in existence; thus, it is recommended that the landlord then serve a "Notice of Belief of Abandonment" by mailing this written notice by first class mail to the tenant's address, or by personally handing it to the tenant. Clients of the Law Office of Gary Link may obtain this form without any charge.

The landlord will then need to wait 18 days without receiving a legally appropriate response from the tenant before the landlord may deem the premises formally "abandoned" and take possession of the premises.

If the tenant wishes to avoid having the landlord recover possession of the premises in this fashion, within the 18 day period from the date of the mailing of the notice (not counting the day of mailing), the tenant must make sure that the landlord actually receives a written notice from the tenant stating that the tenant (1) does not intend to abandon the real property, AND (2) provide an address at which the tenant may be served by certified mail with an action for Unlawful Detainer.

Obviously, because of the great latitude in interpretation of whether the landlord was initially correct in forming a "reasonable" belief of abandonment of the premises based upon the many factors set forth above, this method is described as the "middle-of-the road."

As with driving on the freeway at 75 mph and risking increased exposure to traffic accidents and speeding tickets, this method exposes the landlord to the highest risk of being sued by the tenant for prematurely and allegedly wrongfully recovering possession of the premises without the tenant's permission.

When the landlord utilizes this approach, and has not exercised the right to judicial intervention with a lawsuit for Unlawful Detainer or the proper service of the "Notice of Belief of Abandonment of Real Property," the landlord must be thoroughly certain - and even this may not be enough - that the tenant has indeed "abandoned" the premises.

Frankly, this approach should not be utilized without first personally meeting with and speaking with Mr. Link.

To those readers who are already in the process of a lawsuit for Unlawful Detainer, in the absence of unusually extreme circumstances, it is generally recommended that you allow the lawsuit to run its course, and await the Sheriff's lock out, rather than taking possession immediately.