What is the Texas Notice of Abandonment form?
The Texas Notice of Abandonment Form is generally used in the context of real property, specifically real estate. In Texas, there are generally two kinds of abandonment. Abandonment of real property is when the owner of the property physically vacates a building on the property and leaves the building vacant with no intention of ever returning and making use of the building in the future. Ocean Palms, Ltd. v. BW8 Acquisition Ventures, Ltd.,108 S.W.3d 703, 711 (Tex. App. – Austin2003, no pet.). Abandonment of personal property is technically defined as the relinquishment or giving up of an object or piece of personal property by the owner. Tex. Emp’rs’ Ins. Ass’n v. Moeller, 707 S.W.2d 906, 908 (Tex. 1986). For purposes of this discussion, the Texas Notice of Abandonment Form is used to abandon real property. Courts have generally held that when looking to the definition of abandonment, the term "abandon" means to "yield up possession or relinquish all claim to it, with the intent of not reclaiming it." Estate of Taylor v. Williams, 176 S.W.3d 181, 185 (Tex. App.—Houston [1st Dist] 2004). To meet this definition, an owner must not only intend to give up the property, but he or she must abandon his or her right to regain possession of the property in the future. Id. Because abandonment requires an intent to give up possession and relinquish any claim to the property, a lease with a so-called "exclusivity provision" where the tenant reserves the ban on other tenants can in some cases shield the tenant from a finding of abandonment if the tenant vacates the property, but keeps the lease in place. Cavalier Place, Ltd. v. Prestige Capital Partners , L.P., 587 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2019, no pet.); see also id. at 244. This may seem silly, but it is a point address in a recent Court of Appeals ruling. Being aware of the potential for technical defenses in abandonment cases is important for any business owner looking to evict another party from a property. Before a property owner can properly use the Texas Notice of Abandonment form, the owner must ensure that the property has been abandoned. Until such time as the property has been abandoned, the owner should refrain from taking action to re-enter the real property and take possession through the use of the Texas Notice of Abandonment Form. Abandonment may be established by showing that the named tenant has failed to pay rents for a designated period of time. Foster v. Ward Tree Serv., Inc., 2008 Tex. App. LEXIS 8116, *7-8 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In this sense, non-payment of rent can be strong evidence of abandonment. In addition, in order for the lease agreement to be properly terminated, the owner must show that he or she sent to the tenant, via certified mail, a notice to vacate. McMillian v. Minter, 393 S.W.2d 336, 338 (Tex. 1965). Finally, all tenants must be given proper notice of abandonment, not just the named tenant, unless there is a judicial ripening of the tenancy through successful argument by a tenant that the lease agreement passed to the new tenants. FNMA 2007-FF1 Grp. v. OCWEN Loan Servicing, L.L.C., 505 S.W.3d 669, 677 n.6 (Tex. App.—Dallas 2016, no pet.); see also Emancipation Credit Union v. Watson, 750 S.W.2d 419, 420 (Tex.App.-Texarkana 1988, pet. denied).
Texas Requirements when Issuing a Notice of Abandonment
As with most legal documents, the issuance of a Texas Notice of Abandonment is subject to state law. This section delves into the legal framework that governs the process of issuing a Notice of Abandonment in Texas.
Under Texas Property Code 24.005(a1), a landlord has the right to issue a Notice of Abandonment when they have "reason to believe" that a tenant has abandoned the premises. "Reason to believe" is defined in 24.005(c) as an affirmative defense to wrongful eviction or exclusion. The statute conceives a landlord who has made a physical inspection of the premises and who does not find any personal property, or has had a relative of the tenant appear and remove all of the tenant’s property, to have "reason to believe" that the premises has been abandoned.
- 005(a-1) of the Texas Property Code governs the essentials of a Notice of Abandonment. The Notice must state:
- (1) the date of the notice;
- (2) the date the landlord accuses the tenant of abandoning the premises;
- (3) a request that the tenant respond to the notice to avoid a determination that the premises has been abandoned;
- (4) the date by which the tenant must respond to the notice;
- (5) that the landlord may remove all property belonging to the tenant, and take possession of the premises, if the tenant does not respond or does not give an acceptable reason why the tenant has not responded;
- (6) name, address, and telephone number of a person who can provide factual information about the notice and the tenant’s rights with respect to the property in the notice;
- (7) the street address of the premises claimed to be abandoned;
- (8) a general description of the property claimed to be abandoned in the premises that are specifically named in the notice;
- (9) a list of all lockers, storage units, or drawers in the named premises that are claimed to contain property that is being declared abandoned; and
- (10) the date by which the property must be removed from the premises.
Texas Property Code 24.005(a-1) also requires a landlord to serve the Notice either via a method that creates proof of delivery (such as certified mail, return receipt requested) or by posting the Notice on the door of the premises.
Legal Effect of a Notice of Abandonment If the tenant fails to respond after proper service of the Notice, the landlord is entitled to enter the premises. The landlord can then remove property not owned by the tenant. The landlord is free to dispose of any of this property however they see fit: by sale, discarding it, or otherwise.
The landlord is not required to conduct an auction, nor should they expect to make significant profits from the sale of the tenant’s property. A landlord is entitled to deduct the amount of any storage charges or other money owed to them by the tenant, but cannot retain the balance unless they are able to prove to a court the reasonableness of the sale or its value.
If the tenant responds by asserting he or she did not abandon the property, the landlord must determine whether or not this is so. Essentially, the landlord now has three options: (1) enter the premises and take charge of the property after giving the tenant an opportunity to remove it; (2) deliver the property to the tenant at a mutually agreeable date, time, and place; or (3) store the property at the landlord’s cost for at least 10 days after the tenant was given a chance to remove it.
Form Instructions on Filling the Form
The Texas Notice of Abandonment Form is relatively straightforward. You must include the following information on it:
1) Style of the lawsuit
This is the cause number of the case you filed in the district court for your county, which includes your name and the name of the opposing party.
2) The names and address of the parties to the lawsuit
If you represented yourself and there was a docket number before your name (i.e. John Doe v. Jane Doe, 18-12345), that is the style of the case. If any of the parties in the notice are attorneys, you may be able to provide them in the notice or you can leave them off.
3) A detailed description of the property you want to abandon
You must include the address of the property you wish to abandon in your notice. If you seek to abandon real property, it has to be described by legal description. Generally, you should include the entire legal description, which includes the metes and bounds.
4) The date, time and location of the hearing
It is best to set the hearing where the original suit was filed and where your adversary resides. This is easiest in a smaller town. In general, litigants must stand before the judge who granted either the original or an interlocutory injunctive order. If the original lawsuit was filed in Denton County, Texas, and the adversary resides in Denton County, you will want to have the trial in Denton County.
When to Employ a Notice of Abandonment Form
Use of the Texas Notice of Abandonment Form
An Abandonment Notice is applicable in many different scenarios, and it has greater limitations than some people realize. The most straightforward time for using a Notice of Abandonment Form is when you simply want to terminate a lease prematurely. You can give the owner or landlord the proper amount of notice required in Texas and be out by the expiration date. But what happens if you don’t move out, and the owner doesn’t want you there? Or what if you cannot afford to stay because your finances have changed, and the owner is not sympathetic to your financial plight? Another use of an Abandonment Notice Form is in an eviction case. If you go to court to show that the landlord must allow you to go back on the lease, you may want to present your side to the judge. To do that, you can provide evidence that the landlord or owner has abandoned the property, whereby you can terminate the lease legally. You and your lawyer can also provide proof that you are effectively evicted if no one is granted possession of the property. In either situation, you can use an Abandonment Notice to meet the legal requirements of the lease and eviction laws in Texas. If the threat of eviction is still present, you can use the Notice to Abandon Property to encourage the landlord to reconsider termination of the lease, or you can use an Abandonment Notice to the landlord to show that the lease is terminated. In either instance, it’s important to make sure that the Notice is used appropriately and that you know what you’re talking about with it. Many homeowners and landlords believe that they must wait until the lease expires. They’ll then give a brief period of notice and let their tenants know that they must move out by a specified date (such as the end of the month). While that is often true, what happens if the tenant remains in the property and refuses to leave? An unused notice could enter into a new lease agreement, which could alter the terms and conditions of the previous one. You may think that perhaps an Unlawful Detainer will be the answer, but that’s not necessarily true. An Unlawful Detainer is little more than a request for possession of the property in question. It only proves who had a better right to possession at a certain point in time. It doesn’t terminate the lease, allow you to move back into the property, or even change the rent term. The Texas Notice Form can be helpful for a few reasons. Unfortunately, it’s educational for attorneys, judges, and local authorities as well. Additionally, one or both of the parties’ agreeing to something does not bind the opposing party to that agreement. As such, a landlord can agree that you can stay and simply allow you to stay in the property without any further action on their part. A court-ordered eviction is very costly and requires a lot of time. You need the ability to pay for an attorney and use a lot of your time to follow through. It can be more expensive for everyone involved than necessary, especially if the tenant allows you to take possession of the property without any further problems. Sometimes, however, just issuing the Notice of Abandonment to abandon property can convince the tenant to move in a timely fashion, without the additional delay that comes from going to the court and getting a judgment. A poorly-worded Unlawful Detainer can also result in a legal mess that a court finds unenforceable, which can run you and the tenant into additional and unnecessary court dates.
Penalties for Not Properly Using the Form
The failure to use a Notice of Abandonment Form when it is required can have serious and costly consequences. Landlords have lost their ability to obtain damages in eviction cases because the form was not used properly. Abandonment is a specific and legally defined action. The Court will not allow unauthorized abandonment to replace the properly defined legal abandonment. This problem is especially prevalent when tenants give the keys back to the landlord which many courts interpret as an unauthorized abandonment. Tenants have lost their ability to obtain a judgment against landlords for property that was left abandoned because the form was not properly used.
Landlords should never forget that their right to possession is distinct from their right to the property itself. An abandonment by tenants places possession of the property in the landlord. A forfeiture of the lease may give the landlord the right to possession , but it does not restore title to the landlord. Tenants have been permitted to sue for their property that was left on the premises and awarded damages. Landlords lost their property and tenants did not even owe rent.
Landlords who do not give proper notice to tenants of the abandonment and do not wait the full six months before removing it from the rental premises may not be entitled to reimbursement for its disposition. The Courts are also expecting that landlords make some degree of effort to find the tenant and the property before disposing of it. The cost of replacement of the property may not be sufficient if the landlord does not first sue the tenant for its value.
How to Serve a Notice of Abandonment in Texas
The process of serving a Notice of Abandonment in Texas is relatively straightforward. As of the date of this blog post, the Texas Notice of Abandonment form can be served personally, by regular mail or by certified mail. In the past, there were additional methods of service, including fax, overnight delivery and email, however a recent change in Texas law eliminated these options. While I have no doubt that judges will find ways to accept negligence in this area as long as the tenant is being properly served, it does seem that very soon every tenant will have the right to obtain an eviction that was not properly served a notice of abandonment so landlords, in order to protect their future evictions, should strictly abide by the current law.
So who serves the Notice of Abandonment? Because the notice must be served between the 6th and 10th day after the abandonment, If the premises are abandoned and no tenant can be found, there is no one available to serve the notice. Instead, your eviction attorney or eviction paralegal will file a sworn complaint (a formal petition) asking the judge to allow them to serve the Notice of Abandonment by posting the notice on the front door of the premises. The complaint itself must first be served on any remaining tenant, if there is one, before the posting is done. I have never seen a judge deny this request and most judges will typically allow the service of the notice with no problem. After the notice is posted, the notice must be mailed to the tenant.
Texas Notice of Abandonment FAQ
Below are answers to some of the most common questions I get about using the Texas Notice of Abandonment form.
Q: How long do I have to file the Notice of Abandonment in Texas?
A: You have up to 6 months after receiving the Corpus Delecti Instructions to file the Notice of Abandonment.
Q: How do I file a Texas Notice of Abandonment?
A: A Texas Notice of Abandonment has instructions on where (and how) to file it. Simple as that.
Q: Is a filing fee required when filing the Form?
A: Yes, there is a small filing fee at most locations. However, you can always send in the file via mail. At the time of this writing, there is no fee for filing the Notice of Abandonment when sent via mail.
Q: Is a Texas Notice of Abandonment form filed with any other agency besides the Secretary of State’s office?
A: You may have to file the Notice of Abandonment with the Texas county clerks’ office in your county of incorporation and/or the county in which you are locating your business, if it’s real estate located in Texas .
Q: Do I have to obtain a certificate from the Texas Secretary of State before doing anything else?
A: No, you want to first obtain the certified copy of your filing Receipt from the Texas Secretary of State. This states that your entity has filed its Certificate of Formation in accordance with the Secretary of State rules (Texas Administrative Code). Once that’s complete you’re OK to move forward.
Q: Can I use the Texas certificate of termination for a stock corporation or a professional Association?
A: Unfortunately not. The Texas statutes for the certificate of termination and the Texas Notice of Abandonment are different. You can’t use the Texas Notice of Abandonment for a professional Association or Business Corporation. You’ll instead need the Texas Certificate of Termination.
Q: Can I try to recover administrative business fees for the state of Texas if I have to do a warrant search against my business?
A: Possibly. You may have to ask for a refund of your fees. In some cases, the documents haven’t been received by the secretary of state; in other cases, they simply haven’t been updated in the Secretary of State’s computer system.