- For Attorneys
Property is generally deemed to have been abandoned if it is found in a place where the true owner likely intended to leave it, but it is apparent that the true owner has no intention of returning to claim the item. Abandoned property generally becomes the property of whoever should find it and take possession of it first.
In order to be abandoned, the owner must have intentionally given up possession of the property. This may be proven by the amount of time the property has been left unclaimed by the owner. Unfortunately, Texas law is unclear as to the amount of time the property has to be left unclaimed by the owner in order for the property to be considered abandoned. Also, the owners must have no intent to return and repossess the property or exercise his property rights
Abandonment, if litigated, boils down to a question of fact for a jury, not a question of law for a judge. A person who claims property by abandonment must prove all the elements by clear and satisfactory evidence, not by the preponderance of the evidence applicable in civil suits. The jury ascertains the owner’s intent by considering all of the facts and circumstances.
Mere non-use of property is insufficient to prove abandonment. However, evidence of long and unexplained non-use is admissible as to intent. Likewise, the passage of time in and of itself cannot constitute abandonment. For example, the non-use of an easement for 22 years was insufficient alone, to raise the issue of intent to abandon (Strauch v. Coastal State Crude Gathering Co., 424 S.W. 2d 677). The failure to remove oil field equipment was not technically abandoned, even though it remained unused on the leased premises for four years after the lease expired (Morgan v. Fox, 536 S.W. 2d 644).
The Texas Property Code provides as follows:Section 24.002. (a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person: (1) is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant's right of possession; (2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or (3) is a tenant of a person who acquired possession by forcible entry.
Section 24.005. (a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001.
(b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit unless
the parties have contracted for a shorter or longer notice period in a written lease or agreement.
(e) If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.
(f) The notice to vacate shall be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.
(h) A notice to vacate shall be considered a demand for possession for purposes of Subsection (b) of Section 24.002.
Section 24.0061(a) A landlord who prevails in an eviction suit is entitled to a judgment for
possession of the premises and a writ of possession. In this chapter, "premises" means the unit that is occupied or rented and any outside area or facility that the tenant is entitled to use
under a written lease or oral rental agreement, or that is held out for the use of tenants generally.
(c) The court shall notify a tenant in writing of a default judgment for possession by sending a copy of the judgment to the premises by first class mail not later than 48 hours after the entry
of the judgment.
(d) The writ of possession shall order the officer executing the writ to: (1) post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit
notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted; and (2) when the writ is executed: (A) deliver possession of the premises to the
landlord; (B) instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them; (C) instruct the tenant to remove or to allow the landlord, the landlord's representatives, or other persons acting
under the officer's supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and (D) place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.
(e) The writ of possession shall authorize the officer, at the officer's discretion, to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable
law, part or all of the property at no cost to the landlord or the officer executing the writ.
(f) The officer may not require the landlord to store the property.