Nobody picks up the phone … The mail piles up … The parking space remains empty.

There are certain familiar signs suggesting that a household has pulled up stakes for good. And now you face a dilemma. An abandoned apartment is a revenue dry hole and a waste of assistance, not to mention a potential health and safety hazard, especially when it contains rotting food or pipes that can freeze. So, you don’t want to sit around and wait idly for the tenants to return. But you also don’t want to jump the gun on turnaround. The moment you re-enter to clean out the unit, remove the property, and change the locks, you run the risk that the household will unexpectedly return and sue you for illegal eviction and disposal of their belongings.

The best way to avoid these problems is to prevent extended absences from becoming a guessing game. Establish a house rule that requires households to notify you before leaving the unit for an extended period of time and sets a clear a line, like 30 days, on how long an absence can last before you can treat it as “abandonment.” Here’s how to create such a rule along with a Model Rule, below, that you can adapt with the help of your attorney.   

The Risk of Multiple Residences & Unauthorized Occupants 

It’s not unusual for tenants to maintain multiple residences. For instance, “snowbirds” in the north may keep a separate place in a warmer climate where they can live during the winter months. Leaving a unit unattended for months can put you in a precarious situation, especially if tenants don’t notify you that they’re leaving and intend to return. There’s also a risk that tenants will allow other unauthorized persons to live in their unit while they’re gone. 

These practices also run afoul of the HUD model lease, which states: 

The Tenant must live in the unit and the unit must be the Tenant’s only place of residence. The Tenant shall use the premises only as a private dwelling for himself/herself and the individuals listed on the Owner’s Certification of Compliance with HUD’s Tenant Eligibility and Rent Procedures, Attachment 1. The Tenant agrees to permit other individuals to reside in the unit only after obtaining the prior written approval of the Landlord [Handbook 4350.3, App. 4(a), par. 13].

The Costs of Waiting in Vain for AWOL Tenants to Return

By the same token, waiting in vain for an AWOL household to return could cause you to miss out on collecting vacancy payments from HUD. You might even have to pay back a portion of the monthly assistance on the unit if HUD believes you’ve been unfairly collecting assistance on a unit that’s been abandoned for months. 

There are also property risks to waiting. For example, if the unit is unheated during the winter, pipes are more likely to burst. And since the unit isn’t occupied, you may not find out about the pipe burst for days resulting in greater damage. Not knowing the unit is unoccupied may also cause you to miss out on scheduled preventive maintenance and improvements that you normally perform when tenants are away.  

How to Create Extended Absence & Abandonment Rule

Although the HUD Handbook doesn’t require you to adopt a house rule on absences and abandonment, it does provide guidelines for what such a rule should include if you do adopt one [HUD Handbook 4350.3, par, 6-9(B)(2)]. Like our Model Rule, your house rule should cover eight points:

1. Require households to notify you of extended absences. According to attorneys, the first step is to require households to tell you before they go away for extended periods of a specific duration. Our Model Rule sets the threshold at 30 days or more, although some sites we spoke to require notice for absences of two weeks or more [Rule, par. 1].

2. Cap maximum duration of extended absences. State that extended absences may result in the loss of tenancy rights if they last beyond a specific period. The handbook draws the line at 60 days’ continuous absence, or 180 days if the absence is for medical reasons [Rule, par. 2]. 

Compliance Pointer: The handbook allows for an “extenuating circumstances” exception but doesn’t say what those circumstances are [HUD Handbook 4350.3, par. 6-9(B)(2)(b)(2)]. Just be sure to apply any exceptions you allow consistently to all households to avoid potential fair housing risks, e.g., racial discrimination claims by black households who didn’t get the same exception that you granted to a white household facing the same circumstances.

3. Define “abandonment.” HUD makes it clear that abandonment isn’t the same as extended absence [Handbook 4350.3, par. 6–9]. Define abandonment as including all of the following elements:

• A household is absent from its unit for more than a set period of days;
• The household doesn’t pay rent while it’s absent; and
• The household doesn’t acknowledge or respond to your notices regarding the overdue rent during the absence.

It’s up to you to say how long an absence combined with nonpayment of rent must be to constitute abandonment. But that number must be consistent with state and local law governing abandonment. Thus, while the Model Rule says that management won’t consider a unit abandoned until the household has been absent for more than 30 consecutive days, you’ll need to check with your attorney before using that number [Rule, par. 3]. 

4. Require medical documentation. HUD guidelines say you may allow absences up to 180 days if they’re for medical reasons. But require households claiming medical exemptions to provide documentation from a physician or other healthcare professional certifying their need to be away from their apartments due to an injury, illness, or other medical reason [Rule, par. 4]. And you may allow exceptions for extenuating circumstances [HUD Handbook 4350.3, par. 6-9(B)(2)(b)(2)].

5. Reserve right to do emergency inspection of units you deem abandoned. The HUD lease allows you to enter a unit in case of emergency. If a household has abandoned a unit, an emergency inspection is justified to check for health and safety hazards. The house rule should spell out that you’ll enter the unit for an emergency inspection if you deem it to be abandoned [Rule, par. 5(a)].

6. List efforts you’ll take to notify AWOL household. HUD’s guidelines say house rules should also specify the actions you’ll take to contact an AWOL household. Our Model Rule says you’ll attempt to notify household members in writing at the household’s site address and at the address of any emergency contacts household gave to management [Rule, par. 5(b)].

Compliance Pointer: Be sure to check whether state or local law requires you to take any actions in addition to sending missing tenants a notice, e.g., calling local police, talking to neighbors, or checking with the local utility or telephone company for a forwarding address.

7. Warn that you’ll seek eviction. Your rule should also say that you’ll take appropriate legal action, including termination of assistance and eviction, against households that don’t respond to your attempts to contact them within a specific period, such as 15 days [Rule, par. 6].

8. List steps you’ll take to dispose of household’s property. HUD’s guidelines say your rules must describe how you’ll handle and dispose of the household’s possessions left in the unit [HUD Handbook 4350.3, par. 6-9(B)(2)(b)(3)]. This language will protect you in case missing households return to the site, demand their property, or sue you for property lost or damaged. 

When describing these steps, keep in mind that state or local law generally governs how long a landlord must wait before it can dispose of a household’s property. Typically, landlords must store the property for at least a few weeks after getting an eviction order. Our house rule says management will take written and photographic inventory of the abandoned property and hold it for 30 days after getting an eviction order. It also states that after 30 days, management will give the property to a designated charity or throw it out if the charity won’t take it [Rule, par. 7].