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23-CV-02816 Execusuite, LLC v. Mitchel Cable et al
Each of plaintiff’s contentions rests upon whether it is accurate that Mr. McFadden abandoned
the apartment on June 7, 2020.
Pursuant to Vermont law:
(a) A tenant has abandoned a dwelling unit if:
(1) there are circumstances that would lead a reasonable person to
believe that the dwelling unit is no longer occupied as a full-time
residence;
(2) rent is not current; and
(3) the landlord has made reasonable efforts to ascertain the
tenant's intentions.
9 V.S.A. § 4462.
As a general matter, § 4462(a) is an abandonment statute, and it is one of three ways in which
the right of possession can be transferred between landlords and tenants. The most common method
occurs when landlords and tenants simply agree upon the day on which the tenant will turn over the
keys to the landlord. The second method occurs when a landlord files a complaint for ejectment and
obtains a writ of possession—i.e., a court order that demarcates the date on which the tenant is evicted
from the premises and the landlord is restored to possession, regardless of whether the tenant agrees to
that date. The third method is abandonment, and it occurs when the tenant leaves the premises, and has
stopped paying rent, and has not responded to the landlord’s reasonable efforts to ascertain the tenant’s
intentions. The idea of the abandonment statute is that, in the absence of any communications from a
tenant who has left and stopped paying rent, the landlord may retake possession when the available
evidence supports an inference that the tenant has agreed to leave.
Another way of expressing the same idea is that the right of possession can be transferred from
the tenant to the landlord when: (1) the tenant agrees that the landlord may retake possession, (2) the
tenant disagrees, but a court has restored the landlord to possession through a writ of possession, or (3)
the tenant neither expressly agrees nor disagrees, but the circumstances show that the tenant has
abandoned the premises. There is not a variation in which the tenant disagrees that a landlord may
retake possession, but the circumstances show that the tenant has abandoned the premises.
This explication is consistent with the general rules regarding abandonment of property. An
abandonment is a “voluntary relinquishment of a known right,” and a critical element of abandonment
is that the person intends to abandon their property. Prue v. Royer, 2013 VT 12, ¶¶ 44–45, 193 Vt. 267
(internal quotations omitted). In other words, abandonment of a rental property is a form of
constructive agreement: the tenant expresses through their actions, rather than their words, that the
landlord may recover possession of the premises. 49 Am. Jur. 2d Landlord & Tenant § 215.
It is fundamentally inconsistent to say that a tenant has “voluntarily relinquish[ed]” a rental
property if the tenant expressly asserts a desire to continue possessing the property. It is also
fundamentally inconsistent to say that a tenant has constructively agreed that a landlord may recover a
rental property if the tenant expressly disagrees with that notion. The applicable rule is simple: if a
tenant asserts a continued right of possession, and there is no writ, a landlord is not entitled to retake
possession under an inference of abandonment, nor engage in any other form of self-help. Instead, the
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23-CV-02816 Execusuite, LLC v. Mitchel Cable et al
landlord must either negotiate with the tenant for move-out date, or seek a writ of possession from
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