What Is an Affidavit of Abandonment?

By Tom Streissguth

If a homeowner has left his residence and no longer is making payments on the mortgage, he has legally abandoned the property. If the loan is in default, the lender has the right to repossess the property, but state laws require that this party file an affidavit of abandonment before doing so. Affidavits of abandonment are also useful in situations where other types of property have been given up or not reclaimed by previous owners.

Format

The Affidavit of abandonment is a simple, one-page legal document that must be signed and either witnessed or notarized. The document must describe the property, state the approximate date it was abandoned, and carry the name of the property owner, as well as the property address. If you intend to file an affidavit of abandonment, you may use an affidavit form supplied by the court clerk, download a form from one of the many websites that offer legal forms, or draw one up on your own. You file the affidavit in the local civil court having jurisdiction over the property address and submit copies to any other parties with an interest in your claim.

Rentals and Mobile Homes

The affidavit is also used in landlord/tenant law. A landlord may file an affidavit of abandonment if a tenant has left the property without paying rent due. State law allows the landlord to take possession of the house or apartment, as well as any of its contents, after this affidavit is filed. Some states impose a waiting period after the tenant has left before the affidavit can be filed -- for example, 15 days in South Carolina -- and for the seizure, which is done in place of a more costly and difficult eviction process. Abandonment affidavits are also commonly used in mobile home leasing, when the structure has been abandoned by someone renting the property on which the home rests.

Divorce is never easy, but we can help. Learn More

Notice

In addition to the affidavit of abandonment, some states require a notice be posted on the abandoned property before a foreclosure sale can take place. If there are any other lienholders, such as a bank that has made a home-equity loan on the property, they must also be notified of any sale of the property that takes place, usually by certified mail.

Other Property

An affidavit of abandonment can also be used when a car, boat or motorcycle has been left unattended for a period of time. It can then legally be claimed or disposed of by the owner of the property where the item was left. This document is used by parking garages or auto-repair facilities, for example, when an owner is unable or unwilling to pay an invoice and fails to recover a car. State laws allow the facility to claim title to the vehicle and sell the vehicle after filing the necessary affidavit of abandonment.

Divorce is never easy, but we can help. Learn More
Can a Debtor Request Abandonment in a Chapter 7 Bankruptcy Case?
 

References

Related articles

New Hampshire's Marriage & Eviction Laws

Marriage and eviction laws in New Hampshire collide when a wife or husband wants to evict the other spouse, either during a marriage or when the couple is in divorce proceedings. In general, states, including New Hampshire, do not require one spouse to leave if the other files for divorce. However, abuse by a spouse can result in eviction in the form of restraining orders from the court that can be temporary or permanent.

Illinois Small Estate Affidavit and the Law

When a person dies, his estate must go through the probate process. However, Illinois allows small estates, estates worth less than $100,000 and containing no real estate, to avoid the probate process if the executor files a small estate affidavit. The law governing small estates differs somewhat depending on whether the decedent left a will or died intestate, meaning without a will.

Will the Trustee Come to My Home & Inventory My Possessions If I File Chapter 7 Bankruptcy?

After you file your petition for Chapter 7 bankruptcy, a court-appointed trustee begins evaluating your assets to determine whether they are subject to being sold to repay your creditors. Although the trustee has authority to come to your home to physically inspect your property, this is not common because in most Chapter 7 bankruptcies, there are very little or no assets to liquidate. However, if the trustee determines you have property that can be sold, you are likely to be visited by an appraiser or real estate agent.

Get Divorced Online

Related articles

Can a Chapter 7 Be Filed if a Debt Has Placed a Lien Against You?

You can file for Chapter 7 bankruptcy after a creditor has placed a lien against your property, but bankruptcy can ...

Chapter 7 and Abandoned Collateral

Filing for bankruptcy is often the first step in achieving a fresh financial start. But when you file for Chapter 7 ...

What Happens When You Reaffirm a Vehicle After Bankruptcy?

Bankruptcy allows you to get a fresh start financially, clearing up debts by paying some and dismissing others. Filing ...

What Are Excused Exemptions for a Bankruptcy in Wisconsin?

Before you file for bankruptcy in Wisconsin, you should be aware of the state's laws regarding exempt property — ...

Browse by category
Ready to Begin? GET STARTED