COVID-19 and Housing Policies in Place Affecting the Mortgage

THE LEGAL LEAGUE 100

Abandoned Property Law

THE LEGAL LEAGUE 100

COVID-19 and Housing Policies in Place Affecting the Mortgage Industry

COVID-19 and Housing Policies in Place Aecting the Mortgage Industry

Prepared by the Legal League 100

Special Initiatives Working Group

December 2020

COVID-19 and Housing

Policies in Place Aecting the

Mortgage Industry

Presented by the Legal League 100

Special Initiatives Working Group

April 2021

Abandoned Property Law

A State-by-State Review of Existing Law and/or Administrative

Mandates That Can Assist Servicers and Attorneys in

Determining Whether a Property is “Abandoned”

Presented by the Legal League 100

Special Initiatives Working Group

December 2021

THE LEGAL LEAGUE 100

Abandoned Property Law

Prepared by the Legal League 100

Special Initiatives Working Group (SIWG)

Brooke E. Sanchez, Esq.

Kent McPhail & Associates, LLC

Chairman

David Demers, Esq.

Cooke Demers, LLC

Vice Chairman

Ryan Bourgeois, Esq.

Barrett, Dan, Frappier, Treder & Weiss, LLP

Member

David Friedman, Esq.

Van Ness Law Firm, PLC

Member

Michelle Garcia Gilbert, Esq.

Gilbert Garcia Group, P.A.

Member

Seth J. Greenhill, Esq.

Padgett Law Group

Member

Stephen M. Hladik, Esq.

Hladik, Onorato & Federman, LLP

Member (LL100 Chairman)

J. Anthony Van Ness, Esq.

Van Ness Law Firm, PLC

Member (LL100 Vice Chair)

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Background

For many years, and particularly since the volume of foreclosures that took place in 2008 and thereafter,

both the default-servicing world and local ocials have sought ways to improve the handling of vacant

and abandoned properties. These non-performing assets can be constant reminders of yesterday’s

ﬁnancial crises, given the fact that they attract crime and squatters, devalue neighboring properties, and

perpetuate code violations.

Over the past 19 months, the Federal Housing Finance Agency has mandated holds for most GSE loans in

default in response to the COVID-19 pandemic, which caused so many blameless Americans to struggle

ﬁnancially. “Abandoned” properties were one exception to this mandate, because if a property was

abandoned, no resident would be displaced from the home, thereby eliminating policy concerns. In the

absence of any clear and objective universal method available to identify “abandoned” property in this

context, the goal of this report is to provide guidance with regard to making such a determination.

What Is an Abandoned Property?

Mortgage servicers and their attorneys across the country continue to grapple with the challenge of

determining what constitutes “abandoned” property. A property that is “abandoned” is one in which

the owner has no intentions of returning to the property or caring for it. While not synonymous with

abandonment, “vacancy” can be a factor in determining whether a property is abandoned. A “vacant”

property is one in which no one appears to be living. It is clear that deeper analysis is necessary to

determine the legal standards available regarding abandonment—whether judicial, legislative, or executive,

and whether on a state, county, or municipal level.

There is no clear and objective method to identify “vacant” or “abandoned” property. Characteristics may

include:

• What is the physical condition of the structure?

• How long has the property been in that condition?

• Are utilities shut o?

• Are grass and weeds overgrown?

• Is the property boarded up?

• Is mail being delivered?

• Is the property secured (i.e., locked)?

• Does it appear that personal property is on the site?

• Does the property live up to municipal code standards?

• Are municipal citations being remediated?

• Is there trash or debris throughout the property?

• Are automobiles present in the driveway?

• Has copper been removed from the property?

• Are windows broken?

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Who Certiﬁes That a Property is “Abandoned”?

If there is a model deﬁnition of what constitutes an “abandoned” property, the next issue faced is who

can make the decision that the property is “abandoned?” In other words, can a servicer unilaterally make

the decision? Does there have to be an adavit signed by a servicer certifying the vacancy? Does a local

code enforcement ocer have to review and sign a certiﬁcation of abandonment? Can a local property

inspector retained by a servicer make the decision? Is there any judicial involvement in determination of

“vacant” or “abandoned”?

A court order is also a possible remedy in judicial states. A court order reﬂecting the status of the property

as “abandoned” may enable a servicer or lender to proceed with the action, secure the property, and/or

appoint a receiver.

Survey of State Law That May Assist in Determining Abandoned Property

Relevant State Law: The information provided herein is a starting point resource for servicers. The

identiﬁed laws should be read in their entirety and discussed with local counsel in every given jurisdiction.

The opinions in this report provided in this review were not always from an attorney licensed and

practicing in the state, as they relied on research and information from attorneys in the speciﬁc states.

The statutes included are ones currently in eect, as well as proposed legislation where bills are pending in

various state houses. The case law and administrative orders relating to the information are also current to

the best of our knowledge.

A top-down approach is used by looking to see if there is statutory language going directly to what factors

are used to determine whether property is “abandoned” and then moving to case law, administrative

orders, or local ordinances.

(1) Alabama

The Alabama legislature has not deﬁned “abandoned” real property for purposes of foreclosure. Therefore,

the best way to render a ﬁnding as to the abandonment of real property is to review the case law and the

local ordinances, if applicable.

“Abandonment” in Alabama is a question of intention and must be evaluated on a case-by-case basis.

“Toabandonrealpropertythere must be a concurrence of the act of leaving the premisesvacantand

unoccupied with the intention of not returning.” Wilkinson v. United States, 177 F. Supp. 101, 105 (S.D. Ala.

1959) citing Helvering v. Jones, 120 F.2d 828, 830.

“Abandonment of property requires intent plus an act. A sucient act

is one that manifests a conscious purpose and intention of the owner

of personal property neither to use nor to retake the property into his

possession.”Wirth,508 S.W.2d at 267; see alsoMilford,355 So.2d at 689.

Obviously, “[a] determination of abandonment is a ﬁnding of fact.”Newman

Signs, Inc. v. Hjelle,317 N.W.2d 810, 817 (N.D.1982). Johnson v. Northpointe

Apartments, 744 So. 2d 899, 905 (Ala. 1999)

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(2) Alaska

The Alaska legislature has not deﬁned “vacant” real property for purposes of foreclosure. Therefore, the

best way to render a ﬁnding as to whether real property is vacant is to review Alaska’s case law and the

local ordinances.

According to Municipality of Anchorage, ordinance A0201 6 -81(S), in Alaska, a “vacant building” is deﬁned

as a structure that was designed for residential or commercial usethat has not been lawfully used for

residential or commercial purposes for180days. Vacant buildings do not include :

• Vacation properties

• Structures used only as seasonal basis

• Building that has been vacant for less than 365 days. If thebuilding has been continuously oered

in good faith for sale,lease, or rent since the 181st day, it most recently ceased tobe used for lawful

residential or commercial purposes; orbuildings for which there is :

» a valid, open, and current building permit for repair, rehabilitation, construction, or demolition,

» such permitted repair, rehabilitation, construction, or demolition activity is actively

underway,and such permitted repair. rehabilitation. Construction, or demolition is completed

within one year from the date the initial permit was issued.

(3) Arizona

There is no statewide deﬁnition for abandoned property in Arizona for foreclosure purposes; however,

there is case law that interprets “abandonment” for purposes of leased premises. This case law may be a

useful guide as to how the CFPB could interpret abandonment for foreclosure purposes.

For purposes of leased premises, the case law on abandonment by a tenant requires: (1) proof of the act

of abandonment and (2) the intent to relinquish the premises to the landlord. Factors that the Courts

will consider include, but are not limited to, the following: personal belongings in the property, mail

delivery, maintenance of the property, trash and debris located on the property, code violations, whether

the property is secured, and/or whether there is a written notice signed by the borrower stating they are

abandoning the property.

Some local governments within Arizona also have ordinances regarding vacant or abandoned property

registration, which will contain deﬁnitions of abandoned property. Mortgage servicers should consult with

local counsel to review local ordinances where the property is located to determine if there is a statutory

deﬁnition that may apply in that area.

(4) Arkansas

Neither the Arkansas legislature nor its local ordinances speciﬁcally deﬁne or address what makes real

property “abandoned.” Therefore, the best way to analyze and render a viewpoint as to whether property is

“abandoned” in Arkansas is to look at the state’s prevailing case law.

Arkansas’s case law tells us that title to real estate is not lost by

abandonment unless abandonment is accompanied by circumstances of

estoppel and limitation. Maroney v. City of Malvren, 899 S.W.2d 476, 478

(1995) (citing to Helms v. Vaughn, 467 S.W.2d 399 (1971); Carmichael v.

Arkansas Lumber Co., 152 S.W. 286) (1912)).

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(5) California

There is no statutory deﬁnition for “abandoned” or property in California. As such, mortgage servicers

should consult with local counsel to review local ordinances where the property is located to determine if

there is a statutory deﬁnition that may apply.

Some local governments within California have ordinances regarding vacant or abandoned property

registration, which contain deﬁnitions of abandoned property. A review of these ordinances shows that

in order for a mortgage servicer to reasonably believe that a property has been abandoned, the servicer

would need to review a number of factors. Those factors include, but are not limited to, the following:

personal belongings remaining in the property, mail delivery, maintenance of the property, trash and debris

located on the property, code violations, whether the property is secured, and/or whether written notice

was given by the borrower stating they were abandoning the property.

(6) Colorado

There is no statewide deﬁnition of “abandoned” property in Colorado for foreclosure purposes. There is

case law interpreting abandonment for purposes of leased premises. This case law may be a useful guide

as to how the CFPB could interpret abandonment for foreclosure purposes.

For purposes of leased premises, the case law on abandonment by a tenant requires: (1) proof of the act of

abandonment and (2) the intent to relinquish the premises to the landlord. Those factors include, but are

not limited to, the following: personal belongings remaining in the property, mail delivery, maintenance of

the property, trash and debris located on the property, code violations, whether the property is secured,

and/or whether written notice was given by the borrower stating they were abandoning the property.

Additionally, some local Colorado governments have ordinances regarding vacant or abandoned property

registration which will contain deﬁnitions of abandoned property. Mortgage servicers should consult with

local counsel to review such local ordinances where the property is located, in order to determine if there

is a statutory deﬁnition that may apply.

(7) Connecticut

Unlike many states, Connecticut law directly addresses the issue of abandoned real property.

Connecticut Public Act No. 19-92 addresses “abandoned” real estate properties in the state of Connecticut

and lists the factors that determine whether a property has been legally abandoned. A property is

determined to be “abandoned” if:

(1) The building has not been legally occupied for at least twelve months;

(2) the owner has not actively marketed or attempted to sell; (3) there

is evidence that the building has not changed hands to a good faith

purchaser; (4) the building is a nuisance or unﬁt for occupancy; (5)

the building requires substantial work which there has been no eort

to undertake; (6) the condition and vacancy “materially” increase the

risk of ﬁre to property and neighbors; (7) the building is susceptible to

unauthorized entry (by squatters) and either has not been secured or was

secured by the municipality; (8) the building an attractive nuisance for

children; (9) the building an attractive nuisance for crime; (10) the building

has the presence of vermin and/or accumulated debris, uncut vegetation

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or physical deterioration of the building creates increased risk to health and

safety standards; and (11) the building’s appearance negatively impacts the

surrounding economic well-being and property values.

(8) Delaware

Under Delaware law, foreclosure is a judicial process and there is no express vacant or abandoned

foreclosure law. Under statute, for owner-occupied properties, there is a mandatory mediation process. In

cases where the property is not owner-occupied, the case would be exempt from the process. While this is

not an express streamlined option, it does lower the timeframe involved.

(9) District of Columbia

In Washington, D.C., the local government has to ability to take properties that are vacant or abandoned,

and the statute describes the characteristics for a vacant property.

(1)“Abandoned property” means:

(A)A structure:

(i)That is unoccupied by an owner or a tenant; and

(ii)On which the real property tax imposed by§ 47-811has not been paid in 18 months;

(B)A vacant lot on which the real property tax imposed by§ 47-811has not been paid in 18

months;

(C)A structure:

(i)That is unoccupied by an owner or tenant;

(ii)That the Mayor has determined is structurally unsafe; and

(iii)Regarding which the Mayor has issued to the owner a notice requiring that the owner

cause the structure to conform with any provision of the ﬁre code, building code, or

housing code, or to demolish the structure for safety reasons, and the owner has failed

to act in response to the Mayor’s notice within the period of time established by statute,

regulation, or the notice; or

(D)A vacant lot on which a building has been demolished.

(10) Florida

The Florida legislature does not speciﬁcally deﬁne or address “abandoned” real property. Thus, the best

way to analyze and render an opinion as to whether a property is abandoned in Florida is to review the

current state case law, combined with any local ordinances, that address vacant and/or abandoned

property.

Under Florida case law, abandonment goes beyond mere vacancy; additional evidence is required such as:

(1) disconnected services, (2) a person changing their homestead to another property, (3) and/or change in

mail service.

According to Florida case law:

The determination of abandonment of use is a factual question that will not

be set aside on review unless totally unsupported by competent substantial

evidence. See Clegg v. Chipola Aviation, Inc., 458 So. 2d 1186 (Fla. 1st DCA

1984). A party asserting the issue of abandonment bears the burden of proving

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it. Dade County v. City of North Miami Beach, 69 So. 2d 780, 783 (Fla. 1953).

Abandonment must be established by a “clear armative intent.’” Metro. Dade

County v. Potamkin Chevrolet, 832 So. 2d 815, 817 (Fla. 3d DCA 2002) (quoting

Leibowitz v. City of Miami Beach, 592 So. 2d 1213, 1214 (Fla. 3d DCA 1992)).

Nonuse by itself is not abandonment, but is only evidence that may or may not

point to abandonment. Dade County, 69 So. 2d at 783. Further, “equity abhors a

forfeiture,” particularly “when the forfeiture is against the public.” Id. Reduction

in use during renovation or delaying development for legitimate public reasons

is insucient to show abandonment of a speciﬁed use. Leslie Enters., Inc.

v. Metro. Dade County, 293 So. 2d 73 (Fla. 3d DCA 1974). Finally, reversion

based on discontinuance of a particular use is not favored and will be strictly

construed against the grantor. Fla. Power Corp. v. Lynn, 594 So. 2d 789 (Fla. 2d

DCA 1992). Temporary suspension of the use with plans to reactivate the use in

the reasonably foreseeable future will not trigger reversion. Id.

Meigs Props., Ltd. v. Bd. of Cnty. Comm’rs of Okaloosa Cnty., 107 So. 3d 1171, 1175 (Fla. 1st DCA 2013).

The Florida Supreme Court has also said that, abandonment of homestead occurs when, “the owner

removes from the home with no intention of returning, takes up [ ] permanent abode at another place and

pursues [a] livelihood there.” Barlow v. Barlow, 23 So.2d 723, 724 (Fla. 1945).

This precedence, along with municipal ordinances relating to vacant and abandoned properties available

through Muni-Code, will provide guidance on how one can determine “abandonment” of real property

in the state of Florida. Florida’s ordinances generally will provide deﬁnitions for “vacant” real property;

however, the ordinances generally only refer to tangible personal property (not real property) as

“abandoned.” The vacancy aspect of an ordinance is one prong in determining abandonment and personal

property located and abandoned on the real property could be another prong (i.e., abandoned, inoperable

car with no license or valid registration).

(11) Georgia

Georgia does not have a statewide statute or deﬁnition for “abandoned” property. However, Georgia Code

Section 44-14-14 deﬁnes “vacant” property as real property that:

(A) Is intended for habitation, has not been lawfully inhabited for at least 60

days, and has no evidence of utility usage within the past 60 days; or

(B) Is partially constructed or incomplete, without a valid building permit.

Such term shall not include a building or structure containing multiple units with

common ownership that has at least one unit occupied with evidence of utility usage.

While not speciﬁc to abandoned property, this deﬁnition will provide guidance for servicers when

determining whether to proceed with foreclosure.

(12) Hawaii

Unlike many states, Hawaii has statutory law that directly addresses the issue of abandoned real property.

Section 523(A)(15) of the Hawaii Code states that: “all other property, ﬁve years after the owner’s right to

demand the property or after the obligation to pay or distribute the property arises, whichever ﬁrst occurs.”

Therefore, legal counsel in this state has clear guidance on how to advise service providers.

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(13) Idaho

Idaho does not have a statute that deﬁnes vacant or abandoned property.

(14) Illinois

Illinois is one of the few states who statutorily deﬁne “abandoned” property with regard to foreclosure.

In 2013, the Illinois legislature amended the mortgage foreclosure provisions of the Illinois Code of Civil

Procedure to deﬁne “abandoned residential property” as residential property that is not (1) occupied by any

mortgagor or lawful occupant as a principal residence; or (2) is in obvious disrepair according to a list of

enumerated conditions. Speciﬁcally, under this second test, a residential property qualiﬁes as “abandoned

residential property” if:

1. Two or more of the following conditions are shown to exist:

a. Construction was initiated on the property and was discontinued prior to completion, leaving

a building unsuitable for occupancy, and no construction has taken place for at least six

months;

b. Multiple windows on the property are boarded up or closed o or are smashed through,

broken o, or unhinged, or multiple window panes are broken and unrepaired;

c. Doors on the property are smashed through, broken o, unhinged, or continuously unlocked;

d. The property has been stripped of copper or other materials, or interior ﬁxtures to the

property have been removed;

e. Gas, electrical, or water services to the entire property have been terminated;

f. There exist one or more written statements of the mortgagor or the mortgagor’s personal

representative or assigns, including documents of conveyance, which indicate a clear intent to

abandon the property;

g. Law enforcement ocials have received at least one report of trespassing or vandalism or

other illegal acts being committed at the property in the last six months;

h. The property has been declared unﬁt for occupancy and ordered to remain vacant and

unoccupied under an order issued by a municipal or county authority or a court of competent

jurisdiction;

i. The local police, ﬁre, or code enforcement authority has requested the owner or other

interested or authorized party to secure or winterize the property due to the local authority

declaring the property to be an imminent danger to the health, safety, and welfare of the

public;

j. The property is open and unprotected and in reasonable danger of signiﬁcant damage due to

exposure to the elements, vandalism, or freezing; or

k. There exists other evidence indicating a clear intent to abandon the property; or

2. The real estate is zoned for residential development and is a vacant lot that is in need of

maintenance, repair, or securing.

The above can be very instructive to local counsel when advising service providers as to abandoned

property with regard to foreclosure.

(15) Indiana

The Indiana Code provides direct guidance for determining whether a property is “abandoned.”

Under Section 30 of the Indiana Code:

(a)…[f]or purposes of an abandonment determination under this chapter, one (1) or more of the

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following constitute prima facie evidence that property is abandoned:

1. The enforcement authority that has jurisdiction in the location of the property has

issued an order under IC 36-7-36-9 with respect to the property.

2. Windows or entrances to the property are boarded up or closed o.

3. Multiple window panes on the property are broken and unrepaired.

4. One (1) or more doors to the property are smashed through, broken o, unhinged, or

continuously unlocked.

5. Gas service, electric service, water service, or other utility service to the property has

been terminated.

6. Rubbish, trash, or debris has accumulated on the property.

7. The property is deteriorating and is either below or in imminent danger of falling below

minimum community standards for public safety and sanitation.

8. The creditor has changed the locks on the property and for at least ﬁfteen (15) days

after the changing of the locks the owner has not requested entrance to the property.

9. There exist one (1) or more written statements, including documents of conveyance,

that have been executed by the debtor, or by the debtor’s personal representatives or

assigns, and that indicate a clear intent to abandon the property.

10. There exists other evidence indicating a clear intent to abandon the property.

(b) Regardless of whether any of the conditions described in subsection (a) are found to apply, the

debtor’s failure to either:

1. present evidence or objections on the issue of abandonment to the court in writing

before the appearance date speciﬁed in the court’s order under section 4(a)(1) of this

chapter; or

2. appear before the court on the date speciﬁed in the court’s order under section 4(a)(1)

of this chapter; constitutes prima facie evidence that the property is abandoned.

1. one (1) or more of the conditions described in subsection (a) apply; or

2. the circumstances described in subsection (b) apply;

the court shall issue an order ﬁnding that the property is abandoned and enter a judgment in rem

foreclosing the mortgage.

(16) Iowa

The Iowa Code provides a deﬁnition for “abandoned” real property that can be used to provide advice to

service providers regarding foreclosed properties.

Under Chapter 657(A) of the Iowa Code:

“Abandoned” or “abandonment” means that a building has remained

vacant and has been in violation of the housing code of the city in which

the property is located or the housing code applicable in the county in

which the property is located if outside the limits of a city for a period of six

consecutive months.

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(17) Kansas

Kansas statutory law provides a deﬁnition for “abandoned” property that can assist counsel in advising

service providers regarding abandoned property at foreclosure.

Under Chapter 12-1750 of the Kansas Statutes,

“Abandoned property” means:

(1) Any residential real estate for which taxes are delinquent for the

preceding two years and which has been unoccupied continuously by

persons legally in possession for the preceding 90 days; or

(2) commercial real estate for which the taxes are delinquent for the

preceding two years and which has a blighting inﬂuence on surrounding

properties. “Commercial real estate” means any real estate for which the

present use is other than one to four residential units or for agricultural

purposes.

(18) Kentucky

Kentucky law provides perhaps the clearest deﬁnitions for both “vacant” and “abandoned” property.

Chapter 426 of the Kentucky revised statutes provides that:

1. (1) In an action otherwise properly brought to enforce a mortgage or lien against real property,

including a lien …which has been determined by the court to be vacant and abandoned, a sale

of the property shall be ordered expeditiously.

2. (2) Real property shall be considered vacant and abandoned, for purposes of this section only,

if there has been no legal resident or other person legally entitled to occupy the property

residing at the property for a period of forty-ﬁve (45) or more consecutive days and two (2)

or more of the following or similar circumstances which would lead a reasonable person to

believe that the property is vacant exist:

a. Overgrown or dead vegetation;

b. Accumulation of ﬂyers, mail, or trash;

c. Disconnected utilities;

d. The absence of window coverings or furniture;

e. Uncorrected hazardous conditions or vandalism; or

f. Statements of neighbors, delivery persons, or government employees that the property is

vacant.

g. Proof of vacancy and abandonment may be oered by adavit ﬁled at or after the time of

ﬁling of the complaint by the plainti or other lienholder.

3. If the court makes a ﬁnding in the order of sale that the property is vacant and abandoned, the

master commissioner shall sell the property within seventy (70) days of the order.

4. The plainti or other mortgage or lienholder in whose favor the judgment and order of sale

were entered shall apply for an order conﬁrming the sale within twenty (20) days of the date of

the sale and, unless there have been exceptions to the report of the master commissioner, the

court shall act on such application not later than the next regularly scheduled civil motion or

rule day.

5. The master commissioner shall make conveyance of the property on the date the court

conﬁrms the sale, or as soon thereafter as all costs and fees have been paid by the foreclosing

mortgagee or lienholder, or as soon as a third-party purchaser has paid the purchase price.

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(19) Louisiana

Louisiana does not deﬁne “abandoned” property in the context of real estate foreclosure. However, other

areas of the law do attempt to deﬁne abandonment, which can be of assistance for local counsel looking

to advise service providers with regard to abandonment at foreclosure.

Louisiana grants mortgagees and loan servicers the authority to access mortgaged property to perform

maintenance and to protect and preserve abandoned mortgaged property until the property is sold.

Title 9 of the Louisiana Laws Revised Statutes states that:

A. If a mortgagee or loan servicer receives a notice from a governing authority in accordance

with R.S. 33:5062 or R.S. 33:5065 et seq., identifying certain maintenance required on the

mortgaged property, the mortgagee and loan servicer shall have the right to directly or through

third parties enter onto the property to perform maintenance.

B. If any abandoned residential property, as deﬁned by R.S. 33:5066, aected by a mortgage is

unoccupied or abandoned, the mortgagee and loan servicer shall each have the legal right,

directly or through third parties, to enter onto the property and to perform maintenance to

protect and preserve the property until it can be sold at private sale or sheri’s sale.

C. The mortgagee, loan servicer, and any third parties hired by them to perform maintenance on

the property, as deﬁned by R.S. 33:5066, shall not be liable to the mortgagor or the owner of

the seized property or any other person for any ﬁnancial or pecuniary loss or damage claimed

to have been suered by the mortgagor or owner of the property or any other person by

reason of the maintenance of the property.

D. Any costs and expenses incurred by the mortgagee or loan servicer for maintaining the

property may be added to any loan balance secured by the mortgage and recoverable from

proceeds received from a sale of the property.

In this context, “abandoned” property is deﬁned by Louisiana Revised Statutes Title 33 as follows:

1. “Abandoned residential property” shall mean one-to-four-family residential property that is

vacant as the result of the relinquishment of physical possession or control by a homeowner

or any other person or entity. Property may be deemed abandoned when there is evidence of

conditions, taken separately or as a whole, that would lead a reasonable person to conclude

that the property was unoccupied, including but not limited to evidence of vacancy.

2. “Evidence of vacancy” shall mean a condition that on its own, or combined with other

conditions present, would lead a reasonable person to believe that the property is vacant.

Such conditions include but are not limited to overgrown or dead vegetation, accumulation

of newspapers, circulars, ﬂyers, or mail, past due utility notices or disconnected utilities,

accumulation of trash, junk or debris, the absence of window coverings such as curtains, blinds

or shutters, the absence of furnishings or personal items consistent with residential habitation,

and statements by neighbors, passersby, delivery agents, or government employees that the

property is unoccupied.

Further, the landlord-tenant statute (La. Code Civ. Proc. Ann. art. 4731) and Mobile Home Repossession

Law (La. Stat. Ann. § 9:5363.1) provide similar deﬁnition of abandonment. Local ordinances in Louisiana can

also provide guidance with respect to identifying abandoned property.

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(20) Maine

Maine has statutory law that speciﬁcally guides plaintis in foreclosure matters with regard to presenting

evidence of “abandonment.”

Chapter 713 of the Maine Revised Statutes provides that the determining factors for whether a property

is “abandoned” are whether (1) more than 50% of the mortgaged property is for residential purposes

and (2) the property is subject of an uncontested foreclosure or uncontested foreclosure judgment with

pending foreclosure sale. The evidence of abandonment to be presented includes, but is not limited

to: broken or boarded windows; trash; removed furniture; deterioration; mortgagee-secured property

with no subsequent owner inquiry, code violations; borrower(s)/owner(s) deceased as well as any other

determinative facts. The Plainti may seek an order determining the mortgaged premises have been

“abandoned” after the foreclosure has commenced. The case would receive priority over other cases,

redemption is shortened, and if the property is occupied, the plainti assumes landlord duties the later of

judgment entry or abandonment order.

(21) Maryland

Under Maryland law, foreclosure is a non-judicial process and the state does have a special expedited

procedure for vacant and abandoned properties.

According to the 2017 Maryland Code, Real Property, at Title 7 - Mortgages, Deeds of Trust, and Vendor’s

Liens, § 7-105.14 there is a procedure for the expedited foreclosure:

Expedited foreclosure for vacant and abandoned property.

MD Real Prop Code § 7-105.14 (2017)

(a) “Residential property” deﬁned. — In this section, “residential property” has the meaning stated in

§ 7-105.1 of this subtitle.

(b) In general.

(1) A secured party may petition the circuit court for leave to immediately commence an action

to foreclose a mortgage or deed of trust on residential property on the basis that the property is

vacant and abandoned as provided in this section.

(2) On ﬁling a petition under this section, the secured party shall send a copy of the petition

to the mortgagor’s or grantor’s last known address and the record owner of the property by

certiﬁed mail, return receipt requested, and ﬁrst-class mail.

(3) The circuit court shall rule on the petition promptly after the petition is ﬁled.

abandoned under this section if all of the following criteria apply to the property:

(1) The court ﬁnds that the mortgage or deed of trust on the residential property has been in

default for 120 days or more in a condition on which the mortgage or deed of trust provides

that a sale may be made;

(2) The court ﬁnds that at least three of the circumstances listed in subsection (d) of this section

are true as to the property;

(3) No mortgagor or grantor has ﬁled with the court an answer or objection setting forth a

defense or objection that, if proven, would preclude the entry of a ﬁnal judgment and a decree

of foreclosure; and

(4) No mortgagor or grantor has ﬁled with the court a written statement that the property is not

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vacant and abandoned.

(d) Circumstances constituting vacant and abandoned property. — The circumstances of a

residential property that a court may ﬁnd are true under subsection (c)(2) of this section are:

(1) Gas, electric, sewer, or water utility services to the property have been disconnected;

(2) Windows or entrances to the structure on the property are boarded up or closed o, or

multiple window panes are broken and unrepaired;

(3) Doors to the structure on the property are smashed through, broken o, unhinged, or

continuously unlocked;

(4) Junk, litter, trash, debris, or hazardous, noxious, or unhealthy substances or materials have

accumulated on the property;

(5) Furnishings, window treatments, or personal items are absent from the structure on the

property;

(6) The property is the object of vandalism, loitering, or criminal conduct, or there has been

physical destruction or deterioration of the property;

(7) A mortgagor or grantor has made a written statement expressing the intention of all

mortgagors or grantors to abandon the property;

(8) There is a determination that no owner or tenant appears to be residing on the property at

the time of an inspection of the property by the secured party;

(9) Two or more citations have been issued by a county or municipal corporation against the

property for failure to maintain the property and a health and safety issue exists that has not

been rectiﬁed;

(10) The property has been condemned by a county or municipal corporation; or

(11) Other reasonable indicia of abandonment exist.

(e) Eect of grant of petition. —

(1) If the court ﬁnds that a residential property is vacant and abandoned and the secured party

ﬁling a petition for leave to ﬁle an action for immediate foreclosure is entitled to judgment, the

court shall grant the petition.

(2) Except as provided under subsection (f) of this section, if the court grants the petition

under paragraph (1) of this subsection, § 7-105.1 of this subtitle does not apply to an action to

foreclose a mortgage or deed of trust on the residential property that is found to be vacant and

abandoned.

(f) Service of foreclosure documents; challenge.

(1) A secured party ﬁling an order to docket or complaint to foreclose based on a petition

granted by a court under subsection (e)(1) of this section shall serve the foreclosure documents,

accompanied by the document required under paragraph (4) of this subsection, by:

(i) Personal delivery of the papers to the mortgagor or grantor; or

(ii) Leaving the papers with a resident of suitable age and discretion at the mortgagor’s or

grantor’s dwelling house or usual place of abode.

(2) If at least two good faith eorts on dierent days to serve the mortgagor or grantor under

paragraph (1) of this subsection have not succeeded, the secured party may eect service by:

(i) Filing an adavit with the court describing the good faith eorts to serve the mortgagor

or grantor; and

(ii)

1. Mailing a copy of all the documents required to be served under paragraph (1) of

this subsection by certiﬁed mail, return receipt requested, and ﬁrst-class mail to the

mortgagor’s or grantor’s last known address and, if dierent, to the address of the

residential property subject to the mortgage or deed of trust; and

2. Posting a copy of all the documents required to be served under paragraph (1) of this

subsection in a conspicuous place on the residential property subject to the mortgage

or deed of trust.

(3) The individual making service of documents under this subsection shall ﬁle proof of

service with the court in accordance with the Maryland Rules.

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(4) The service of documents under paragraph (1) of this subsection shall be

accompanied by a separate, clearly marked notice, in the form prescribed by regulations

adopted by the Commissioner of Financial Regulation, that states:

(i) The signiﬁcance of the order to docket or complaint to foreclose; and

(ii) The right of a record owner or occupant of the property to challenge the ﬁnding

that the residential property is vacant and abandoned.

(5)

(i) A challenge to the ﬁnding that the residential property is vacant and abandoned

shall be ﬁled with the court in the foreclosure proceeding not later than 20 days

after service is made under this subsection.

(ii) If a timely ﬁled challenge under this subsection is upheld, the secured party shall

comply with the requirements of § 7-105.1 of this subtitle.

(22) Massachusetts

Massachusetts does not have statutory authority relating to “abandoned” real property for purposes of

foreclosure, but local ordinances pertaining to same may provide local counsel with some guidance.

A receivership order could deem a property abandoned and/or uninhabitable. Legal Deﬁnition of

Abandonment: Property over which the owner has voluntarily given up dominion and control with no

intention of recovering it.

“Abandonment” based on its legal deﬁnition can be determined by a property inspection to see if there are

signs of usage. Those signs are occupancy, appearance or lack thereof of personal items, existing utilities,

and landscaping appearance.

Title insurers in the jurisdictions request property inspection reports to prove abandonment (as well as

vacancy).

(23) Michigan

There is not a speciﬁc “abandoned” property foreclosure procedure in Michigan. However, Michigan does

have an Adavit of Abandonment statute that allows for the redemption period to be shortened in a non-

judicial foreclosure.

Section 3241(a) of the Michigan Revised Judicature Act of 1961 states that:

For purposes of this chapter, if foreclosure proceedings have been commenced under this chapter

against residential property not exceeding 4 units, there is a conclusive presumption that the

premises have been abandoned if all of the following requirements are satisﬁed before the end of

the redemption period:

a. The mortgagee has made a personal inspection of the mortgaged premises and the inspection

does not reveal that the mortgagor or persons claiming under the mortgagor are presently

occupying or will occupy the premises.

b. The mortgagee has posted a notice at the time of making the personal inspection and has

mailed by certiﬁed mail, return receipt requested, a notice to the mortgagor at the mortgagor’s

last known address, which notices state that the mortgagee considers the premises abandoned

and that the mortgagor will lose all rights of ownership 30 days after the foreclosure sale or

when the time to provide the notice required by subdivision (c) expires, whichever is later,

unless the mortgagor; the mortgagor’s heirs or personal representative; or a person lawfully

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claiming from or under 1 of them provides the notice required by subdivision (c)

c. With 15 days after the notice required by subdivision (b) was posted and mailed, the mortgagor;

the mortgagor’s heirs or personal representative; or a person lawfully claiming from or under

1 of them has not given written notice by ﬁrst-class mail to the mortgagee at an address

provided by the mortgagee in the notices required by subdivision (b) stating that the premises

are not abandoned.

(24) Minnesota

Minnesota does not have a statute that deﬁnes vacant or abandoned property.

(25) Mississippi

Mississippi’s Uniform Disposition of Unclaimed Property Act (2010 MS Code Chapter 12) does not address

real property, despite Chapter 12 falling under Title 89, which is entitled “Real and Personal Property.”

However, there is case law that may be instructive to local counsel when advising service providers.

Case law indicates the analysis of “abandonment” is a question of fact. Intent to abandon along with an

external act or omission to act manifesting such intent are the crucial factors in determining whether

one has abandoned property. Columbus & Greenville Ry. Co. v. Dunn, 185 So. 583, 586 (1939); 1 C.J.S.

Abandonment § 4 (1985); 1 Am.Jur.2d Abandoned, Lost, Etc. Property, § 15 (1962); see also Yellow Cab Co.

of Biloxi v. Checker Taxi Cab Owners Association, 103 So.2d 350, 352 (1958).

(26) Missouri

Missouri does not have statutory authority with respect to “abandoned” property for purposes of

foreclosure. However, the deﬁnition of an “abandoned” property in another context may provide some

assistance.

The Abandoned Housing Act provides a mechanism for declaring a property “abandoned” for purposes of

reclaiming and rehabilitation by a neighborhood organization. Chapter 447, Section 622, provides that:

447.622. Petition, requirements. —Any organization may petition to have property declared abandoned

pursuant to the provisions of sections 447.620 to 447.640 and for temporary possession of such property, if:

1. The property has been continuously unoccupied by persons legally entitled to possession for at

least six months prior to the ﬁling of the petition;

2. The taxes are delinquent on the property;

3. The property is a nuisance; and

4. The organization intends to rehabilitate the property.

Vacancy is an element of abandonment which can be conﬁrmed by property inspection. Also see local

ordinances available through Muni-code.

(27) Montana

Montana does not have a statute that deﬁnes vacant or abandoned property.

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(28) Nebraska

Neither the Nebraska legislature nor local ordinances speciﬁcally deﬁne or address “abandoned” real

property. The best way for local counsel to analyze and render an opinion as to whether property is

“abandoned” is to look to local ordinances. For instance, most local ordinances specify that it shall be the

responsibility of the owner to perform the responsibilities of the occupant when premises are vacant. More

speciﬁcally, Sec. 48-146 of the Omaha, Nebraska Code of Ordinances states:

(a) Abandoned real property means any structure that is vacant and exhibits evidence of vacancy;

and

1. Is a property that is the subject of a notice of sale by a lender or mortgage pursuant to either a

mortgage or deed of trust; or

2. Is a property that is the subject of a tax lien certiﬁcate; or

3. Is a property that is the subject of an active or ongoing action in foreclosure; or

4. Is a property that has been the subject of a sheri’s or trustee’s sale in foreclosure, in which the

highest or successful bidder was the beneﬁciary of a mortgage or deed of trust involved in the

foreclosure; or

5. Is a property that is the subject of a deed in lieu of foreclosure in favor of the beneﬁciary of a

mortgage or deed of trust.

(29) Nevada

Unfortunately, Nevada’s statute regarding abandoned property for purposes of foreclosure, Nevada

Revised Statute 107.0795, expired on June 30, 2021. While the statute is no longer in eect, it would still

likely provide persuasive guidance to a court over whether the property is abandoned.

The text of the former statute outlining the conditions for “abandonment” under the Nevada Revised

Statutes reads:

1. Abandoned residential property means residential real property:

(a) Consisting of not more than four family dwelling units or a single-family residential unit,

including, without limitation, a condominium, townhouse or home within a subdivision, if the

unit is sold, leased or otherwise conveyed unit by unit, regardless of whether the unit is part of

a larger building or parcel that consists of more than four units; and

(b) That the grantor or the successor in interest of the grantor has surrendered as evidenced by

a document signed by the grantor or successor conﬁrming the surrender or by the delivery of

the keys to the property to the beneﬁciary or that satisﬁes the following conditions:

(1) The residential real property is not currently occupied as a principal residence by the

grantor of the deed of trust, the person who holds title of record or any lawful occupant;

(2) The obligation secured by the deed of trust is in default and the deﬁciency in

performance or payment has not been cured;

(3) The gas, electric and water utility services to the residential real property have been

terminated;

(4) It appears, after reasonable inquiry, that there are no children enrolled in school residing

at the address of the residential real property;

(5) Payments pursuant to the federal Social Security Act, including, without limitation,

retirement and survivors’ beneﬁts, supplemental security income beneﬁts and disability

insurance beneﬁts, payments for unemployment compensation or payments for public

assistance, as deﬁned in NRS 422A.065, are not currently being delivered, electronically or

otherwise, to a person who has registered the address of the residential real property as his

or her residence with the agency making the payment;

(6) An owner of the residential real property is not presently serving in the Armed Forces of

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the United States, a reserve component thereof or the National Guard; and

(7) Two or more of the following conditions exist:

(I) Construction was initiated on the residential real property and was discontinued

before completion, leaving a building unsuitable for occupancy, and no construction

has taken place for at least 6 months;

(II) Multiple windows on the residential real property are boarded up or closed o or

are smashed through, broken o or unhinged, or multiple window panes are broken

and unrepaired;

(III) Doors on the residential real property are smashed through, broken o, unhinged

or continuously unlocked;

(IV) The residential real property has been stripped of copper or other materials, or

interior ﬁxtures to the property have been removed;

(V) Law enforcement ocials have received at least one report of trespassing or

vandalism or other illegal acts being committed at the residential real property within

the immediately preceding 6 months;

(VI) The residential real property has been declared unﬁt for occupancy and ordered

to remain vacant and unoccupied under an order issued by a municipal or county

authority or a court of competent jurisdiction;

(VII) The local police, ﬁre or code enforcement authority has requested that the

owner or any other interested or authorized party secure the residential real property

because the local authority has declared the property to be an imminent danger to the

health, safety and welfare of the public; or

(VIII) The residential real property is open and unprotected and in reasonable danger

of signiﬁcant damage resulting from exposure to the elements or vandalism.

2. The term does not include residential real property if:

(a) There is construction, renovation or rehabilitation on the residential real property that

is proceeding diligently to completion, and any building being constructed, renovated or

rehabilitated on the property is in substantial compliance with all applicable ordinances, codes,

regulations and laws;

(b) The residential real property is occupied on a seasonal basis, but is otherwise secure;

listed on a Multiple Listing Service, and the property is secure; or

(d) The residential real property is secure but is the subject of a probate action, action to quiet

title or any other ownership dispute.

(30) New Hampshire

New Hampshire statutory authority regarding “abandonment” relates only to intangible, personal

property and not real property. However, a receivership order could deem a property abandoned and/or

uninhabitable. Legal Deﬁnition of Abandonment: Property over which the owner has voluntarily given up

dominion and control with no intention of recovering it.

“Abandonment,” based on its legal deﬁnition, can be determined by a property inspection to see if there

are signs of usage. Those signs are occupancy, appearance or lack thereof of personal items, existing

utilities, and landscaping appearance.

Title insurers in the jurisdictions request property inspection reports to prove abandonment (as well as

vacancy).

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(31) New Jersey

New Jersey has a statute providing for an expedited process for foreclosures of vacant or abandoned

properties.

New Jersey enacted a statute that went into eect in 2014 regarding a “summary action” for foreclosing

mortgages on certain vacant and abandoned properties. This procedure enabled lenders to use summary

actions to foreclose mortgages on abandoned and vacant residential property. Similar to other states’

classiﬁcations, properties can be deﬁned as vacant and abandoned if the properties meet any two of the

following conditions:

• Accumulation of junk, litter, debris, or trash

• Neglected or overgrown vegetation

• The accumulation of mail or newspapers on the property

• Disconnected utility services

• The accumulation of unhealthy or hazardous substances on the property

• It’s a risk to the welfare and safety of the public

• Doors have been smashed, unhinged, or broken o

• Statements from people in the area indicate that the property is vacant and abandoned

• Absence of personal items and furnishings

• Absence of window treatments

• Written statements from the mortgager expressing the clear intent from all the people on the

mortgage to abandon the property

• Winterizing the property

• Uncorrected violations of housing or building codes

According to the Order from the New Jersey Supreme Court on April 29, 2013:

“In addition to the content required by Rule 4:64-1(a) and (b), a complaint for foreclosure of vacant and

abandoned residential property as established by N.J.S.A. 2A:50-73 shall set out facts that the plainti

alleges demonstrate that the property is vacant and abandoned. The complaint shall incorporate the Rule

4:64-2(b) adavit or certiﬁcation of amount due that the plainti will rely upon to establish the judgment

amount. Notwithstanding the procedure for judgment set forth in Rule 4:64-1(d)(1)(A), where residential

property is vacant and abandoned as established by N.J.S.A. 2A:50- 73, a notice of motion for entry of

judgment and the notice of tenants’ rights during foreclosure in the form prescribed by Appendix XII-J of

the Rules of Court are not required to be served. A copy of the Rule 4:64-2(b) adavit or certiﬁcation of

amount due shall be served with the Rule 4:67-1 order to show cause or the Rule 4:67-2 notice of motion

to proceed summarily.”

(32) New Mexico

The New Mexico legislature proposed a vacant and abandoned property foreclosure mechanism in 2015. It

was not enacted but it contained similar deﬁnitions as other states.

On a local level, cities in New Mexico have adopted abandoned property registration requirements, land

banks, and other means to deal with vacant and abandoned properties.

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(33) New York

New York State does not appear to have statutory deﬁnitions for “abandoned” real property. However, New

York’s Department of Financial Services (DFS) does address vacant and abandoned properties, which they

refer to as “zombie properties.”

The DFS website deﬁnes “zombie properties” as homes that the homeowner has abandoned, typically in

the face of a foreclosure action. The determination of the zombie status is through monthly occupancy

inspections after the loan has been delinquent more than 90 days. The property may be deemed “vacant

and abandoned” following three consecutive inspections whereby there is no evidence of occupancy

and basic maintenance work is not being performed. Following that, a mortgagee needs to secure and

maintain the property.

The above process and determination would only apply to one- to four-family residential properties

subject to a mortgage in default.

Additionally, a court order could determine a property is vacant.

(34) North Carolina

North Carolina does not have a statute that deﬁnes vacant or abandoned property.

(35) North Dakota

In 2019, North Dakota enacted a statute that amended the notice of default requirements under the state’s

judicial foreclosure process. Under the new law, a lender or servicer is not required to provide a formal

“notice of default” prior to ﬁling a judicial foreclosure action if the property is “abandoned,” or if service by

mail has been attempted three times and the attempted service is returned as refused or unclaimed.

The new law permits a foreclosing lender or servicer to allege abandonment in the foreclosure complaint,

or in a petition to the court for a determination of abandonment, which may occur any time prior to the

foreclosure sale.

If “abandonment” is alleged by the lender, or a determination of abandonment is petitioned for, an adavit

is prima facie evidence of abandonment if the adavit is executed by: the foreclosing lender or servicer,

the sheri, or deputy sheri of the county where the property is located. An adavit can also be executed

by a building inspector, zoning administrator, housing ocial, or other municipal or county ocial having

jurisdiction over the property. The law lists the criteria that must be included in the adavit.

The law also clariﬁes that a court may consider remedies to prevent waste in a foreclosure action or upon

a petition for abandonment. With regard to service, the law provides that actual service of notice before a

foreclosure is not required if the property is abandoned.

Finally, the law also permits a court to eliminate the redemption period following a foreclosure sale if the

property is abandoned.

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Abandoned Property Law

(36) Ohio

Ohio has statutory authority that provides guidance as to whether a property that is “abandoned” for

foreclosure purposes.

Ohio Revised Code 2308.02(C)(3) states that the court may deem a foreclosed property to be vacant and

abandoned if at least three of the following factors are true:

a. (a) Gas, electric, sewer, or water utility services to the property have been disconnected.

b. (b) Windows or entrances to the property are boarded up or closed o, or multiple window

panes are broken and unrepaired.

c. (c) Doors on the property are smashed through, broken o, unhinged, or continuously

unlocked.

d. (d) Junk, litter, trash, debris, or hazardous, noxious, or unhealthy substances or materials have

accumulated on the property.

e. (e) Furnishings, window treatments, or personal items are absent from the structure on the land.

f. (f) The property is the object of vandalism, loitering, or criminal conduct, or there has been

physical destruction or deterioration of the property.

g. (g) A mortgagor has made a written statement expressing the intention of all mortgagors to

abandon the property.

h. (h) Neither an owner nor a tenant appears to be residing in the property at the time of an

inspection of the property by the appropriate ocial of a county, municipal corporation, or

township in which the property is located or by the mortgagee.

i. (i) The appropriate ocial of a county, municipal corporation, or township in which the property

is located provides a written statement or statements indicating that the structure on the land is

vacant and abandoned.

j. (j) The property is sealed because, immediately prior to being sealed, it was considered by the

appropriate ocial of a county, municipal corporation, or township in which the property is

located to be open, vacant, or vandalized.

k. (k) Other reasonable indicia of abandonment exist.

(37) Oklahoma

According to Oklahoma’s statutes, the laws provide for certain relief where properties are vacant

A. Upon commencement of a suit, action or proceeding to foreclose or otherwise enforce

the remedies in any mortgage, contract for deed or deed of trust in a court of competent

jurisdiction, if the plainti/mortgagee believes, knows, or has reason to know, that the subject

property is abandoned or vacated and, as a result of such abandonment:

1. Physical deterioration and devaluation of the property is occurring or has occurred;

2. There exists a risk to the health, safety or welfare of the public, or any adjoining or

adjacent property owners, due to potential or actual acts of vandalism, loitering,

criminal conduct or the physical destruction or deterioration of the property; or

3. There exists a risk of additional legal process for violation of law, ordinance, unpaid

taxes or accrual of liens, the plainti/mortgagee may seek a court order to protect

and preserve the property pending the disposition of the suit, action or proceeding

before the court.

B. A motion to protect and preserve an abandoned or vacated property subject to a suit, action

or proceeding to foreclose or otherwise enforce the remedies in the mortgage, contract for

deed or deed of trust shall be ﬁled and heard in accordance with court rules and statutory civil

procedures for motions.

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C. The plainti/mortgagee, after ﬁling a motion to protect and preserve property in the pending

litigation before the court, and having received from the court a date, time and location to

hear the motion, shall present a certiﬁed copy of the motion and hearing notice to the sheri

in the county in which the property is located. The sheri, upon receiving a written request to

post a motion and hearing notice on a property within his or her jurisdiction, shall within three

(3) days of the receipt of such request, physically inspect the subject property and determine

whether or not the property is abandoned or occupied. At the time of the physical inspection

of the property, the sheri shall either post a copy of the motion and hearing notice in a

conspicuous place on the property or shall physically serve an occupant of the property as

required by the provisions of this section. The sheri shall receive from the plainti/mortgagee

a sheri’s service fee not to exceed One Hundred Fifty Dollars ($150.00) for the inspection of

each property and may designate a deputy or reserve deputy to perform the inspection and

posting or service speciﬁed in this section.

D. Upon physical inspection, if the sheri determines the property to be abandoned or vacated,

the sheri shall post the required motion and hearing notice on the property and make a return

of inspection and posting to the plainti/mortgagee at the address provided by the plainti/

mortgagee. In the event, the property is occupied or appears to be occupied in the judgment

of the sheri, the sheri shall attempt actual service of the motion and hearing notice on an

occupant of the property as provided for service of summons, and if a person is not available

to accept service or cannot be found, the sheri shall post the motion and hearing notice in a

conspicuous place on the property and make a written return of inspection and service to the

plainti/mortgagee at the address provided by the plainti/mortgagee.

E. The sheri’s written return of inspection and posting or return of inspection and service shall

be made within three (3) days of the date of actual inspection. The return shall be deposited

into the regular U.S. mail, postage prepaid, and the return document shall certify that:

1. The motion and hearing notice was either served in person upon an occupant of the

property orwas physically posted on the property and the exact date of service or

posting;

2. A physical inspection and observation of the property was conducted; and

3. In the best judgment and belief of the sheri, or designee, the property was

abandoned and vacated or occupied by the defendant/mortgagor or a lawful tenant

or other person, and any reason or belief for that determination.

F. The posting of the motion and hearing notice shall be deemed proper service and sucient

notice to the defendant/mortgagor and all occupants of the property for purposes of holding

the hearing and authorizing the court to issue an order to protect and preserve the property

pending disposition of the litigation before the court. The court shall not require any additional

or alternative notiﬁcation to the defendant/mortgagor or any occupant. Nothing shall prohibit

the plainti/mortgagee from notifying, or attempting to notify, the defendant/mortgagor or

any potential occupant of the subject property in another manner. If the plainti/mortgagee

elects notiﬁcation by publication in addition to the posting required by this section, he or

she shall publish a copy of the motion and hearing notice at least twice in the ﬁfteen-day

period immediately preceding the hearing date in a publication of general circulation in the

jurisdiction in which the property is located. A copy of the motion and hearing notice shall

be sent or delivered to the defendant’s legal counsel of record as required by court rule and

statutory civil procedure for notifying opposing counsel of motions and hearings.

G. The motion posted or served shall be in the form and style recognized for pleadings ﬁled in

the ocial court case, and shall contain the name of the parties, court case number, the date,

time and place of the hearing, and a statement directing the defendant/mortgagor or any

occupant of the property to appear in person, or through legal counsel, or be deemed to have

abandoned and vacated the property.

H. No hearing shall be held on a motion to protect and preserve the property subject to a suit,

action or proceeding to foreclose or enforce remedies in the mortgage, contract for deed or

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deed of trust, unless at least ﬁfteen (15) days has passed from the date of posting or service

of the motion and hearing notice. At the hearing, the court shall hear testimony of the parties

present, including any person who claims to be an occupant or tenant of the property and who

is not a named litigant in the pending litigation before the court. The testimony shall include

inquiry into the property’s previous and current condition and the reasons or beliefs supporting

or objecting to a determination that the property is abandoned or vacated. The court shall

review the sheri’s written return of inspection and posting or the return of inspection and

service. The court shall not require the presence of the defendant/mortgagor or defendant’s

legal counsel to grant an order authorizing the plainti/mortgagee to take action to protect

and preserve the subject property pending the disposition of the litigation before the court.

1. If the defendant/mortgagor, or an occupant or tenant, appears in person or through

legal counsel, and the court is satisﬁed that the defendant, or person, is physically

residing in the property, or if not occupying the property is willing and able to

properly protect and preserve the property pending the litigation before the court,

the motion shall be denied. However, the court shall enter an order requiring the

person to protect and preserve the property under such conditions as the court

may determine. Failure of the person to comply with the court order to protect and

preserve the property shall be contempt of court.

2. If the defendant/mortgagor, or an occupant or tenant, fails to appear in person,

and there exists no compelling reason why the defendant/mortgagor, or person,

could not appear in person, and the property appears to be deteriorating or at risk of

deteriorating as a result of abandonment, vandalism or any unlawful or intentionally

malicious act, the court shall enter an order directing the plainti/mortgagee to

take action to protect and preserve the property pending and in anticipation of

foreclosure or other enforcement of remedies in the mortgage, contract for deed or

deed of trust.

3. Upon issuance of an order to protect and preserve property, the court shall direct the

plainti/mortgagee to inventory, or cause to be an inventoried by an independent

person, any personal property remaining on or about the subject property and to ﬁle

such inventory in the court case ﬁle.

I. When a court order is issued to protect and preserve property, the plainti/mortgagee shall

be authorized to take, and shall take, possession and secure the property pending and in

anticipation of foreclosure or other enforcement of remedies in the mortgage, contract for

deed or deed of trust.

J. An order issued to protect and preserve property pursuant to the provisions of this section may

be vacated and set aside at any time by the court upon motion by the defendant/mortgagor,

or occupant or tenant, and satisfactory proof that the property is not or was not abandoned or

vacated, or was leased or rented and lawfully occupied by a person other than the defendant/

mortgagor at the time of issuance of the order, provided, the property was not subjected

to intentional malicious acts by the defendant, or person, to deface, destroy or devalue the

property.

K. A motion ﬁled, or court order issued, to protect and preserve the property as provided in this

section shall not alter, modify, relinquish or release any right, title or interests of any party in

or to any property, or alter, modify, relinquish or release any party’s position, standing, claims,

defenses or objections in the suit, action or proceeding pending before the court to foreclose

or enforce any remedy in the mortgage, contract for deed or deed of trust. 46 OK Stat § 46-302

(2014).

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(38) Oregon

Oregon does not have a statewide deﬁnition of “vacant” or “abandoned” real property for foreclosure

purposes. Servicers will need to look to the case law and determine if the facts of the particular case

warrant a reasonable belief the property is abandoned. Also, many counties have issued local statutes

regarding registration of vacant or abandoned property, but the speciﬁc deﬁnition can vary. Servicers

should look to local counsel to review the local ordinances for where the property is located.

(39) Pennsylvania

Pennsylvania adopted a Vacant and Abandoned Property Foreclosure Act, in an attempt to streamline the

process for foreclosing vacant and abandoned properties. The key in Pennsylvania is that the property

must be both “vacant” and “abandoned” in order to fall within the act.

The Act provides a list of characteristics of vacant and abandoned properties, and the statute provides that

the property must contain at least three of the characteristics in order to meet the criteria of being vacant

and abandoned. Per the statute, those criteria are:

• Multiple windows, doors or entrances on the property are boarded up, unhinged, closed o,

smashed in or are continuously unlocked.

• The Property has been stripped of copper or other metals.

• Interior furnishings, personal items, appliances or ﬁxtures have been removed from the

Property.

• Window treatments, such as blinds, curtains or shutters removed from the Property.

• Gas service terminated.

• Electric service terminated.

• Water or sewer utility services terminated.

• Newspapers, circulars, ﬂyers or mail accumulated on the Property.

• United States Postal Service has discontinued delivery to the Property.

• Rubbish, trash and/or debris on the Property.

• Vegetation or natural overgrowth has accumulated on the Property.

• There are open municipal building or housing code violations for the Property and the

violations have been documented as being uncorrected during the preceding year.

• Obtaining a written and signed statement(s) by the Property’s adjoining neighbors, adjacent

neighbors or delivery persons as to the property being abandoned.

• The local municipal code enforcement ocer who indicates that the municipality has deemed

the Property vacant and abandoned.

• Hazardous, noxious or unhealthy substances or materials have accumulated on the Property.

• Written communication from the owner stating that he/she/they have vacated or abandoned

the Property or intend to do so.

(40) Puerto Rico

Puerto Rico does not have a statute that deﬁnes vacant or abandoned property. Puerto Rico is a judicial

foreclosure jurisdiction. It typically takes approximately 60-90 days to eectuate an uncontested

foreclosure.

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(41) Rhode Island

Rhode Island has statutory law that determines the legal deﬁnition of an “abandoned” property.

Pursuant to Rhode Island General Laws section 34:

1. (1) “Abandon” or “abandonment” means a situation where the owner of a building has intended

to abandon the building and has manifested the intent with some act or failure to act. In

determining whether an owner has abandoned his or her building, a court shall infer the intent

of the owner from the existence of serious code violations that pose a health and/or safety

hazard to the community and that have gone unrepaired for an unreasonable amount of time

and from any of the surrounding facts and circumstances including, but not limited to the

following:

(i) Whether or not the building is vacant;

(ii) Whether or not the grounds are maintained;

(iii) Whether or not the building’s interior is sound;

(iv) Whether or not any vandalism on the building has gone unrepaired;

(v) Whether or not rents have been collected from the building’s tenants by the owner;

(vi) The length of time any of the above conditions have existed; vacancy/abandonment

for purposes of how to contact the borrowers and how to protect/preserve the property

are determined through a property inspection, considering the factors listed above.

Additionally, a court order that declares the property abandoned can be used.

(42) South Carolina

South Carolina statutorily deﬁnes “abandonment” when making a determination as to whether real

property has been abandoned.

Under Section 29 of the South Carolina Code:

A. For the purposes of this section, “abandoned property” means real property subject to a mortgage

where either:

(1) the mortgaged property is not occupied and at least two of the following conditions exist:

a. windows or entrances to the property are boarded up or closed o or multiple window panes

are damaged, broken, or unrepaired;

b. doors to the property are smashed through, broken o, unhinged, or continuously unlocked;

c. hazardous, noxious, or unhealthy substances or materials have accumulated on the property;

d. gas, electric, or water utility services have been terminated by the utility for at least thirty

days due to failure to pay by the property owner;

e. a risk to the health, safety, or welfare of the public exists due to acts of vandalism, loitering,

criminal conduct, or the physical destruction or deterioration of the property;

f. an uncorrected violation of a building, housing, or similar code during the preceding year

that the property owner has received notice to correct and has failed to do so;

g. an order by governmental authorities declaring the property to be unﬁt for occupancy and to

remain vacant and unoccupied;

h. a written statement issued by any mortgagor expressing the clear intent of all mortgagors to

abandon the property;

i. written statements of neighbors, delivery persons, or governmental employees indicating

that the property is abandoned; or

j. any other indicia of abandonment; or

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(2) the mortgaged property is vacant, unimproved land and is in need of maintenance, repair, or

securing;

(3) a showing under items (1) or (2) of this section must be proven by clear and convincing

evidence.

(B) For the purposes of this section, real property must not be considered “abandoned” if, on the property,

there is:

(1) an unoccupied building which is undergoing construction, renovation, or rehabilitation that

is proceeding diligently to completion, and the building is in compliance with all applicable

ordinances, codes, regulations, and statutes;

(2) a building occupied on a seasonal basis, but otherwise secure;

(3) a building that is secure, but is the subject of a probate action, action to quiet title, or other

ownership dispute; or

(4) a building owned by a property owner who is deceased and the heirs can be identiﬁed. The

mortgage holder must submit proof that eorts were made to identify and contact heirs.

(43) South Dakota

South Dakota is a non-judicial state, and it does not have an express statute regarding foreclosure of

vacant or abandoned properties. Various locations do have registration requirements for foreclosures.

(44) Tennessee

Tennessee does not have a statutory deﬁnition for “abandoned” property for foreclosure purposes.

However, there are statutes determining whether a property is “vacant” that can be instructive, as well as

local ordinances and case law that can be useful in determining “abandonment.”

Under Section 13 of the Tennessee Code, some statutory factors considered for acquisition of vacant

properties and redevelopment are as follows: ﬁtness for human habitation, ﬁre hazard, disconnection

of utilities, trash and debris, and delinquent property taxes of at least three years. TN Code § 13-21-202

(2016).

Vacancy is an indication of abandonment. According to Chapter 9 of the Memphis, Tennessee Code

(a local ordinance), abandonedreal propertymeans any real property that is vacant, is subject to

unauthorized occupancy, and has been determined by evidence of an adavit by an agent or ocer

of the City of Memphis Housing Code Enforcement. Under the Code, evidence of vacancymeans any

condition that on its own, or combined with other conditions present, would lead a reasonable person to

believe that the property is vacant. Such conditions may include, but are not limited to: overgrown and/or

dead vegetation; electricity, water or other utilities turned o; stagnant swimming pool; or statement by

neighbors, passers-by, delivery agents or government agents.

Local practitioners have also used the language in Chapter 28 of the Tennessee Code (the Landlord and

Tenant Act) as guidance:

(a) The tenant’s unexplained or extended absence from the

premises for thirty (30) days or more without payment of rent as

due shall be prima facie evidence of abandonment. The landlord

is then expressly authorized to reenter and take possession of the

premises.

(b)

(1) The tenant’s nonpayment of rent for ﬁfteen (15) days past

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the rental due date, together with other reasonable factual

circumstances indicating the tenant has permanently vacated

the premises, including, but not limited to, the removal by

the tenant of substantially all of the tenant’s possessions and

personal eects from the premises, or the tenant’s voluntary

termination of utility service to the premises, shall also be prima

facie evidence of abandonment.

(2) In cases described in subdivision (b)(1), the landlord shall

post notice at the rental premises and shall also send the notice

to the tenant by regular mail, postage prepaid, at the rental

premises address.

With respect to the perceived “abandonment” of real property, Tennessee courts have set a precedent of

requiring a great deal of evidence of abandonment. In those cases in which the courts have entertained

a possible ﬁnding of abandonment of an interest in real property, the standard was that “clear and

unmistakable armative act [had been made] indicating a purpose to repudiate ownership.” Phy v. Hatﬁeld,

126 S.W. at 105 (Tenn. 1909). The Tennessee Supreme Court concluded that “[d]ivestiture of a vested

legal title by ‘abandonment’ is unknown at common law, unless it results from some estoppel or adverse

possession.” Southern Coal & Iron Co. v. Schwoon, 239 S.W. 398, 409 (Tenn. 1921). Morgan v. Champion

Rooﬁng & Remodeling, No. W2002-01941-COA-R3CV, 2003 WL 21756699, at *8 (Tenn. Ct. App. July 29,

2003).

(45) Texas

The Texas legislature nor the local ordinances do not speciﬁcally deﬁne or address “abandoned” real

property. The best way to analyze and render an opinion as to whether property is “abandoned” in Texas is

to look to local ordinances, if any, that address vacancy or abandonment.

By way of example, in Harris County there is an ocial form titled Report of Abandoned Property. The

crux of the form seems to focus on whether or not the taxes are delinquent. In addition, common sense

evidence of abandonment should come into play (i.e. utilities o, code violations, etc.)

(46) Utah

The only statute that may provide guidance with respect to real property abandonment addresses

abandoned mobile homes and discusses tenant being out of mobile home for 45 days along with non-

payment of rent. See, generally, Title 57, Real Estate.

(47) Vermont

27 V.S.A. §1461 addresses when “property” is presumed abandoned citing the number of years but does not

address mortgaged real estate being abandoned as homestead. The intended property does not include

real estate for purposes of taking further legal action against it based on those ground.

A party may be able to look to local ordinances on vacant and abandoned property for guidance to

determine property status.

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Abandoned Property Law

(48) Virginia

Virginia legislature has not deﬁned “abandoned” real property for purposes of foreclosure.



(49) Washington

Washington does not have vacant or abandoned foreclosure statute; however, under the Washington

Revised Code, if a court ﬁnds that a property is abandoned for six or more months, then the purchaser at

sale takes title without any right of redemption. Speciﬁcally, RCW 61.12.093 states:

In actions to foreclose mortgages on real property improved by

structure or structures, if the court ﬁnds that the mortgagor or his

or her successor in interest has abandoned said property for six

months or more, the purchaser at the sheri’s sale shall take title in

an to such property free from all redemption rights as provided for

in RCW 6.23.010 et seq. upon conﬁrmation of the sheri’s sale by

the court. Lack of occupancy by, or by authority of, the mortgagor

or his or her successor in interest for continuous period of six

months or more prior to the date of the decree of foreclosure,

coupled with failure to make payment upon the mortgage

obligation within the said six-month period, will be prima facie

evidence of abandonment.

The above statute can be information for local counsel attempting to advise a service provider.

(50)West Virginia

A bill was introduced in West Virginia on February 10, 2021, that would create an expedited foreclosure.

The bill is pending as of this date but states the following:

§8-12-22. Foreclosure actions involving abandoned properties.

(a) This section shall be known and may be cited as the “Zombie

Property Remediation Act of 2021”.

(b) If a property has been determined to be unsafe, unsanitary,

dangerous, or detrimental to the public safety or welfare pursuant

to an ordinance adopted pursuant to§8-12-16of this code, or

determined vacant and abandoned pursuant to§8-12-22(b) of

this code, the municipality in which the property is located may

commence a proceeding in a court of competent jurisdiction in

the county in which the property is located to compel any or all

mortgagees to:

(1) If the note is in default, the trustee or mortgagee shall

commence a foreclosure procedure within three months and

shall meet all deadlines to ensure the case is ready to be moved

to judgment within a reasonable time period but not to exceed

one year;

(2) If a foreclosure has already been commenced, ﬁle the

necessary motions and within three months paperwork to move

the case to judgment foreclosure within three months; or

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Abandoned Property Law

(3) Issue a certiﬁcate of discharge of the trust deed lien or

mortgage within three months and ﬁle a satisfaction of the lien

or mortgage with the appropriate local oce.

property means residential real property with respect to which the

plainti has proven, by preponderance of the evidence, that it has

conducted at least three consecutive inspections of the property,

with each inspection conducted 25 to 35 days apart and at dierent

times of the day, and at each inspection:

(A) No occupant was present and there was no evidence of

occupancy on the property to indicate that any persons are

residing there; and

(B) The residential real property was not being maintained in

a manner that it is in violation of any speciﬁc requirement or

prohibition applicable to any dwelling, building, or structure

provided by the approved building or ﬁre code of the

jurisdiction;

(2) Residential real property shall also be considered vacant and

abandoned if:

(A) A court or other appropriate state or local governmental

entity has formally determined, following due notice to

the borrower at the property address and any other known

addresses, that the residential real property is vacant and

abandoned; or

(B) Each borrower and owner has separately issued a sworn

written statement, expressing his or her intent to vacate and

abandon the property and an inspection of the property shows

no evidence of occupancy to indicate that any persons are

residing there.

(3) Evidence of lack of occupancy shall include, but not be limited

to, the following conditions:

(A) Overgrown or dead vegetation;

(B) Accumulation of newspapers, circulars, ﬂyers or mail;

in use;

(D) Accumulation of trash, refuse, or other debris;

(E) Absence of window coverings such as curtains, blinds, or

shutters;

(F) One or more boarded, missing, or broken windows;

(G) The property is open to casual entry or trespass; or

(H) The property has a building or structure that is or appears

structurally unsound or has any other condition that presents a

potential hazard or danger to the safety of persons.

(4) Residential real property may not be considered vacant and

abandoned if there is on the property:

(A) An unoccupied building that is undergoing construction,

renovation, or rehabilitation that is proceeding diligently to

completion;

(B) A building occupied on a seasonal basis, but otherwise

secure;

action, action to quiet title, or other ownership dispute of which

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Abandoned Property Law

the servicer has actual notice;

(D) A building damaged by a natural disaster and one or more

owner intends to repair and reoccupy the property; or

(E) A building occupied by the mortgagor, a relative of the

mortgagor or a tenant lawfully in possession.

(d) For any foreclosure resulting under this section or otherwise

pursuant to any trust deed of record, if the successful bidder is

the mortgagee, the trustee shall transfer by recorded deed, the

property to the mortgagee within 30 days of the foreclosure sale.

Any municipality wherein the property is located may, by injunction

proceeding, require the trustee, acting on behalf of the mortgagee,

to convey the property to the mortgagee by recorded deed of

record. Any municipality ﬁling such an action and obtaining relief

by injunction may recover attorney fees and costs related to the

action.

(51) Wisconsin

Wisconsin state law directly addresses what constitutes an “abandoned” property for purposes of

foreclosure.

According to Chapter 846 of the Washington Statutes Annotated:

1. In an action for enforcement of a mortgage lien, and upon motion

of the plainti or the city, town, village, or county where the

mortgaged premises are located, if the court makes an armative

ﬁnding upon proper evidence being submitted that the mortgaged

premises have been abandoned by the mortgagor and the

mortgagor’s assigns, judgment shall be entered as provided in

sub. (3). In this section, “abandoned” means the relinquishment of

possession or control of the mortgaged premises whether or not

the mortgagor or the mortgagor’s assigns have relinquished equity

and title.

2. In addition to the parties to the action to enforce a mortgage lien,

a representative of the city, town, village, or county where the

mortgaged premises are located may provide testimony or evidence

to the court under sub. (1) relating to whether the premises have

been abandoned by the mortgagor. In determining whether the

mortgaged premises have been abandoned, the court shall consider

the totality of the circumstances, including the following:

a. Boarded, closed, or damaged windows or doors to the

premises.

b. Missing, unhinged, or continuously unlocked doors to the

premises.

c. Terminated utility accounts for the premises.

d. Accumulation of trash or debris on the premises.

e. At least 2 reports to law enforcement ocials of trespassing,

vandalism, or other illegal acts being committed on the

premises.

f. Conditions that make the premises unsafe or unsanitary or that

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Abandoned Property Law

make the premises in imminent danger of becoming unsafe or

unsanitary

(3)(a) If the court ﬁnds that the mortgaged premises have been

abandoned under sub. (1), judgment shall be entered as provided in s.

846.10, except that the plainti shall, no later than 12 months from the

date when the judgment is entered, do one of the following:

1. Hold a sale of the mortgaged premises and have the sale

conﬁrmed under s. 846.16(2m). Any sale of the mortgaged premises

may be held at any time after the expiration of 5 weeks from the

date when the judgment is entered. Notice of the time and place of

sale shall be given under s. 846.16(1) and may be given at any time

within the 12-month period.

2. Release or satisfy the mortgage lien and vacate the judgment

of foreclosure. If the plainti presents evidence that the mortgage

lien has been released or satisﬁed and requests that the judgment

of foreclosure be vacated, the court shall vacate the judgment of

foreclosure with prejudice.

(b) If, 12 months after the date when the judgment is entered,

the plainti has not completed an action under par. (a)1. or

2., any party to the action or the city, town, village, or county

where the mortgaged premises are located may petition the

court for an order compelling a sale of the mortgaged premises.

(52) Wyoming

Wyoming does not have a statewide deﬁnition of vacant or abandoned property for foreclosure purposes.

Servicers will need to look to the case law and determine if the facts of the particular case warrant a

reasonable belief the property is abandoned. Also, many counties have issued local statutes regarding

registration of vacant or abandoned property, but the speciﬁc deﬁnition can vary. Servicers should look to

local counsel to review the local ordinances for where the property is located.