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.

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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.

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Can a Debtor Request Abandonment in a Chapter 7 Bankruptcy Case?

References

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