Landlords may not really know how to react when a tenant goes to jail. Even though the tenant has gone away, it doesn’t mean that the lease agreement has as well.
What to Do
The first thing you should do is confirm that the tenant is in jail. Don’t rely on word-of-mouth or intuition. Look the tenant up on your local corrections department’s website. Usually, it’s quite simple to type the tenant’s name into a search bar or browse mugshots for your county.
If you can’t find them, get ahold of their emergency contact and express to them that you are trying to speak with the tenant. Do not mention that you believe they are incarcerated, as it may get you into some legal trouble; the tenant could sue you for defamation. You also shouldn’t change the locks or tamper with the tenant’s belongings before you know what’s going on.
Under ideal circumstances, you will be able to locate the tenant and arrange a visit to speak with them. Along with a notary public, you and the tenant would sign a document that states the tenant has vacated the unit. During this meeting, you would be able to figure out what will happen to the tenant’s possessions and whether or not you want to break the lease agreement.
This document should explicitly state that you have the right to dispose of the tenant’s belongings in the unit, or give them to a named individual who will come and pick them up. The document should also include a “hold harmless” clause, relieving you of any liability for lost or missing items. It’s a good idea to have an attorney write and review the release document for you.
Should You Evict Them?
If a tenant is in jail, it doesn’t necessarily mean that they won’t be able to pay rent. You may not have a reason to evict them. They may have enough savings to cover the rent while they’re away or maybe they have a friend or family member that can help. Make sure that there is not someone else living in the property without your consent. If the tenant’s significant other is residing in the unit and they are capable of paying rent, you may add them to the lease (but only after screening them thoroughly).
If the tenant cannot come up with rent, then eviction may be inevitable. Make sure to follow the standard eviction process and notify the tenant of their eviction. Evictions are costly, however, and may take some time to carry out. You should speak to an attorney if you have any concerns about the procedure. It would ensure that you regain possession of the property.
If you don’t want to go through the eviction process, claiming abandonment may be an easier and faster alternative. Abandonment usually refers to a tenant moving out in the middle of the night without telling anyone. But it can also apply to this situation as well. Part of abandonment involves the non-payment of rent along with factual evidence that indicates the tenant will not be back.
So, if you know your tenant is going to be in jail for a while, you definitely have a reason to consider the unit abandoned. After the required waiting period, you’ll be able to repossess the property. You’re supposed to hold onto the tenant’s belongings for 30 days, but after that, you’re free to do what you wish with the items. Here is an example of an abandoned property notice.
As always, preventing issues begins in the lease. You should have a clause in your lease agreement that outlines specific rules for convicts and evictions. Here’s a sample:
DEVIANT BEHAVIOR. Landlord claims the right to evict the tenant if a) Tenant does not pay rent or other amounts that are owed; (b) Tenant, guests, or occupants violate this Agreement, rules, or fire, safety, health, or criminal laws, regardless of whether arrest or conviction occurs; Tenant abandons the Premises; (d) Tenant gives incorrect or false information in the rental application; (e) Tenant, or any occupant is arrested, convicted, or given deferred adjudication for a criminal offense involving actual or potential physical harm to a person, or involving possession, manufacture, or delivery of a controlled substance, marijuana, or drug paraphernalia under state statute; (f) any illegal drugs or paraphernalia are found in the Premises or on the person of Tenants, guests, or occupants while on the Premises and/or; (g) as otherwise allowed by law.