What is a Notice of Abandonment Form?
A Notice of Abandonment form is a written declaration by a landlord or property owner that an unoccupied property has been abandoned. The notice may or may not prescribe a particular remedy, but in Texas, when tenants do not pay amounts that are due and a foreclosed property has been unoccupied for more than five days, a property owner may choose either to take immediate possession of the property or issue a notice of eviction for abandonment (pursuant to Tex. Property Code § 24.0051).
Texas’ notice of abandonment must be in writing, personally delivered to the tenant or mailed to the tenant’s last known address, or if applicable, the address shown on a rental application signed by the tenant. If mailed, the notice must be sent via registered or certified mail .
The statute also requires that the notice be sent in the following form:
TO: ___________ (Tenant’s remaining mailing address) [TENANT’S NAME] has abandoned the premises located at _____________________. You have until the _____________ day of ___________, 20______, to remove all property belonging to you from the premises. You are given 10 days to contact the landlord to make arrangements to remove your property. Your failure to contact the landlord within 10 days will result in your property being disposed of in accordance with the law by the ____________ local law enforcement authority.
Whether the property owner considers the remaining tenant’s rental payments for the terminating month as sufficient rent, or considers them as merely "rent-like" payments, the landlord can serve a notice of abandonment. This causes the landlord no harm, yet offers the tenant the opportunity to re-establish possession of his/her property if he/she so chooses.
When to Use a Notice of Abandonment Form
Not all actions following a rental agreement require a notice of abandonment form, but most do. It’s a good idea to use one any time you are terminating a rental agreement or lease. That said, some situations do not require a notice of abandonment, and others can be resolved without the need for a notice of abandonment. This section will cover both of these topics. To reiterate, the circumstances where using a notice of abandonment can be helpful, in addition to the previous list, include the following:
There are also circumstances in which no notice of abandonment form is required, including when:
The use of a Notice of Abandonment does not impact the eviction process in any way. The eviction court is still legally required to determine whether the tenant has a right to possession before entering a judgment.
Essential Components of a Notice of Abandonment Form
A notice of abandonment conditionally terminates a lease agreement. It’s a document used to inform the tenant (or other parties who may have a security interest in the tenant’s personal property) that if the tenant does not take possession of the property within a certain period of time, it will be considered abandoned and disposed of. You just need a notice of abandonment form that satisfies the lease requirements to do so.
The following information should be contained within a notice of abandonment form:
- A provision that states the tenant abandoned the property. Abandonment is just a lease term that terminates a lease for an event of default. For example: "Tenant has abandoned the Premises in accordance with California Code of Civil Procedure Section 1951.5."
- A statement that identifies the tenant’s lease, including the date of the lease and the address of the premises covered by the lease.
- The date the notice is issued.
- The date the tenant (or any third-party who could have a security interest in the tenant’s personal property) should vacate the premises by. Failure to inform the tenant or third-party of this deadline means you have not properly abandoned the tenant’s personal property and are subject to paying them damages.
- A list of items that you consider abandoned, which should include some, if not all, of the following categories:
• furniture
• storage boxes
• clothing
• dirty laundry
• food items
• small appliances
• junk and trash
• discarded items
• motorcycles
• bicycles
• drawers containing any of the above
• lockers containing any of the above
A list is helpful because the tenant would be able to have the chance to recover any of those items, even if he left them behind.
- If the tenant is not in possession of his property, he could have a third-party who would have an interest in the property besides the tenant. Give the tenant a list of third-parties who may also have an interest in their items and are invited to pick them up.
- Identify how the property will be disposed of, such as storing it on-site, storing it in a warehouse, selling it in a public sale, etc.
- Describe a potential alternative method to retrieve the property.
- Let them know you may sell the property at a public auction to compensate yourself for costs you incur in connection with the property, such as storage costs and costs associated with a public sale.
- A warning that the tenant will not be compensated for any lost or damage items, in addition to the fact that a legal action could be pursued against him for a lost lease/rent payment (the unpaid rent).
- Finally, the notice of abandonment must be signed by you.
The Correct Way to File a Notice of Abandonment Form
When contemplating the filing of a Notice of Abandonment Form, it is very important that it be properly formatted in order to secure a ceasing of damages from the date it is filed. If pre-approved prior to filing, the correct formatting will disclose that the application is an application for the approval of filing a Notice of Abandonment Form.
Remember the information below is only sample formats. Read the PTO rules for more details.
If you are seeking abandonment without permission, file an application for the abandonment of the trademark application. Form PTO/SB/68 is used for this purpose.
Not to be confused with the pre-approved template is a form that is approved prior to filing. The correct format is the following: ______________________________________________________
______________________________________________________
________________ ______________________________________________________
Owner Signature/Printed Name/Title/Date ______________________________________________________
Authorized Signatory/Printed Name/Title _____________________
Attorney Signature/Printed Name/Title _____________________
The steps to properly filing a notice of abandonment form are as follows:
1 . Fill out the form of choice in Word or .pdf format.
- Print the form on plain white paper.
- Sign the form.
- Upload to the PTO web site.
- Confirm receipt by the PTO via your implicit or explicit actions.
- If necessary, confirm receipt from the individual(s) filing the Notice of Abandonment Form.
- If able, wait for 30 days for damages to cease, at which time a 8(b) Notice will be sent.
- Make sure to file for the correction of the registration.
- Whenever the registration is referenced, state that it is a Notice of Abandonment Form and not a registration.
- Do not state that you hold title to the trade name rights of the previous filed trademark registration. (This may cause confusion.)
Legal Implications of Abandonment
Filing—or not filing—a notice of abandonment form can have serious legal consequences to a trademark owner. If a user does not file a notice of abandonment form, it would be presumed that the user is still actively using the mark commercially.
A legal dispute may arise if a user who has not filed a notice of abandonment form is sued for trademark infringement and defends the case arguing that it is a good faith concurrent user of the mark. In such a dispute, it is up to the plaintiff to prove the absence of good faith basis for bona fide intention to continue use, for example, by disclosing evidence showing sales and advertising after the "abandonment" date or in any other way showing continuing commercial use.
On the other hand, a user who has not filed a notice of abandonment form might be able to establish good faith basis for bona fide intention to continue use. A famous case in this regard is the case of Allied Mills, Inc. v. Kellogg Co., 224 F.Supp. 953 (N.D. Illinois 1963). There, the court found that a trademark owner’s actions were excused by its good faith strategy of not sufficiently advertising its breakfast cereals in order to maintain lower unit costs, especially because the defendant’s cereal in the form of granola bars was unlikely to compete.
In another example, there are exceptions when the trademark owner and a subsequent user with senior rights come to an agreement recognizing the subsequent user as the owner of the trademark and allowing the questionably-abandoned mark to be revived.
If there is no continuing goodwill associated with the questioned abandonment, the presumption that the mark is still in use may not hold. For example, the Court in Miss Universe, L.P., LLLP v. Penthouse Global Broadcasting, Inc., No. 10 CIV. 4423 (LBS), 2012 WL 3893567, at *9 (S.D.N.Y. Sept. 7, 2012) did not find the presumption to hold and agreed with the plaintiff’s arguments that the abandonment form should be void, relying on the statutory construction to conclude that a notice of abandonment may not be revoked "to the detriment of another existing ‘right [which] may be injuriously affected by the allowance of this application.’"
Simply put, the bottom line is that if it is in doubt whether the questioned trademark is or was used, then it would be safe to assume that the filing of a notice of abandonment would have persuasive effect.
It is a common misconception that ‘intent not to resume use’ means actual cessation of use, whereas it is not. Instead, ‘intent not to resume use’ is intended to mean that the user has a subjective intent not to resume use and it is not likely to get back into business.
Commonly Asked Questions about Abandonment Forms
As is common with rare forms, there is a certain level of misunderstanding about some of the finer points that are relevant. The following are answers to some of the most frequent questions.
Do I Have to Pay Use & Occupancy While a Tenant Holds Over?
This refers to the period of time while you are seeking to remove the tenant in a holdover situation. You will not be forced to pay use and occupancy while a tenant remains in your property.
What About Any Penalty for Filing the Notice of Abandonment Form?
It should be noted that the cover sheet of the form has a notice that erroneously states that you will be charged a $30 fee for filing the notice of abandonment form. In fact, there is no fee at all for filing such forms and you will not be charged .
Will I Receive a Joint Certification?
One issue that has resulted in confusion in the past is that when a landlord in the past would serve a notice of abandonment form on the tenant, the tenant would likewise file an identical joint certification with the court. This is no longer required because once the original notice of abandonment is filed, the court will give you the removal hearing date and the Writ of Possession is issued after the hearing. The court will not require a signed certificate from the tenant unless the landlord and tenant file a joint certificate.
How Will the Court Confirm the Abandonment of the Property?
There is a requirement to post a notice on the door and also to mail a notice to the tenant’s last known address. If the tenant responds in a timely fashion and denies that the property has been abandoned, the landlord can then apply for a Judgment of Possession and Writ of Possession.