Ensuring You Have Legal Possession

Possession is one of those legal concepts that landlords should understand.  Because legal possession, once granted, is not something that can easily be regained.  To regain possession a landlord must either get a court order through eviction or have their tenant voluntarily return it.  Obviously, having your tenant voluntarily return possession to you is the best way to go, but ensuring you have legal possession requires you to take a little action.

What Is Possession?

First, let me explain what legal possession is.  Landlords grant their tenants possession of their property through their lease, which can be written or unwritten (Yes, a handshake in the eyes of the law is a lease and a granting of possession.).  Possession gives your tenant the exclusive right to occupy your property.  This is often done in exchange for some form of compensation, usually money.  That is why we often substitute the more common term “rent” for the legal term possession.  We say that “I rented to John” rather than “I gave possession to John” for example.  Possession is different from ownership.  You can own and possess a property at the same time.  As the owner you can also grant some of your rights, such as possession, to someone else

Once possession is granted to a tenant, they have legal rights.  Some of those rights will depend on the clauses in your lease.  Others will depend on state and local laws.  It is because of these rights that you cannot disturb your tenant, enter unannounced or just change the locks.  It is because of these rights that you may have to evict if they do not want to leave.

Possession always resides with someone, either you or your tenant.  There is never a time that your property is legally not in someone’s possession.  Usually, tenants intend to return possession to you when they move out.  However, the thing landlords need to understand is that intending to do something and actually doing it are two very different things.   You cannot assume a tenant’s intent or actions actually will return possession to you.  Instead you need to ensure that possession is actually and formally returned to you.

How To Get Possession Back

To ensure you regain possession use a form called the Release of Rights of Possession.  This is a simple and short, one page form that will ensure you get legal possession back.  It contains the address of the property, the date the tenant is releasing possession back to you, a statement that they are abandoning anything left in the property and a place for their signature.  We have every tenant that we do not evict or abandon us sign this form.  No matter what the circumstances are.

Is the tenant simply moving out on the best of terms?  We get a signed form.

Is the tenant moving because we asked them to?  We get a signed form.

Is the tenant moving on a cash for keys deal?  We definitely get a signed form.

Using this form will give you a measure of legal protection.  If you have a completed and singed form, your tenant cannot at a later date say you locked them out.  They cannot later claim that you stole their stuff.  In fact, any claim they may think they have later on will be limited.

I have a copy of our Release Form here in Smarter Resources   Download it and use it.  Protect yourself, every time.