What Should The Landlord Do With Tenant Property Left Behind?
Tenant Property Left Behind
In a previous article we discussed some of the issues related to moving tenants out. We stated in that article that moving tenants out can potentially be more complicated and troublesome than moving them in because of the fact the tenants have possession of the property at the end of tenancy and more rights than when they were the selected applicants but had not yet been given possession of the rental unit or the rights that go with being a tenant.
One of the issues is that when tenants depart they may not always take all of their personal possessions, leaving some items on the premises. Failure to deal with those items in the proper manner can result in claims against the landlord by the departed tenant. Care should be taken to protect against tenant claims of destruction or theft, including photos and using a third party to document items and the condition of those items that were left behind.
When a landlord can reclaim possession and remove personal property left by the tenant and what a landlord can or must do with property that appears to have been abandoned by the tenant depends on the intent of the tenant, clauses in the lease agreement, and the specific laws of a particular state.
Obvious trash or garbage that no one could possibly want to reclaim can certainly be disposed of without causing any problems. However when certain personal effects or items of even small value are left behind, the landlord faces a dilemma. The tenant may or may not have deliberately left those items for discard. Perhaps the tenant ran out of time to pack all personal belongings or did not have enough packing materials or room in the trailer or truck to take care of every item but intends to come back for the remaining property. The landlord must be cautious regarding the disposal of tenant personal property.
It is not highly unusual for a tenant who appeared to have moved out to claim that his personal property left on the property had not been abandoned. As might be expected, the value of what disappeared is usually claimed to be quite high. That is, pieces of junk become valuable antiques.
In many states, the landlord should not be in a hurry to donate, sell or otherwise dispose of any items because the states have certain requirements regarding the handling of abandoned property.
At one extreme, a state does not have a specific law regarding abandoned property. At the other extreme, a state has a statute spelling out detailed procedures for dealing with abandoned property that must be followed even when the lease has expired, all personal property except for a few items has been removed, and the tenant is almost certainly no longer occupying the premises. These procedures often include the requirement of putting the belongings in secure storage, providing notices to the tenant in accordance with that state’s law, holding a public sale of the abandoned property, and providing an accounting of the sale proceeds to the tenant, along with giving the tenant any funds in excess of what the tenant owed the landlord for rent and damages.
State law may stipulate procedures on how to notify the tenant and how much time the tenant may have to reclaim the property. Items may need to be stored until requirements have been met. The law may also have different rules for different situations based on the reason for the tenant’s departure. For example, did the tenant plan a voluntary move-out, were there eviction proceedings, or did the tenant abandon the rental unit with no notice leaving everything behind?
If a tenant leaves and also owes the landlord money, the landlord may think that he is entitled to take or sell whatever property of value that was left on the premises and not worry about finding the tenant. Even with a court order for judgment for money damages, this action might put the landlord at risk.
Some states do allow a landlord to keep or sell abandoned property if the tenant owes the landlord money. This is known as an automatic lien on the tenant’s possessions. The landlord should keep in mind that he may be seizing possessions that may not be paid for and the merchant for those items has a superior lien ahead of any lien interest the landlord may have.
There may be state requirements that the landlord post legal notices (publish) in local newspapers stating his intentions to sell or dispose of items abandoned by the tenant. Typically, the notice must include:
- detailed descriptions of the properties left behind,
- estimated value of the abandoned property,
- where the property may be claimed,
- deadline to reclaim the property, and
- final disposition of unclaimed property.
Also, certain items necessary for basic living or employment may be exempt from automatic liens. In addition to state statutes, there may be case law that requires certain other procedures. The landlord should not rely solely on lien statutes for information on how to handle abandoned property.
There are exceptions to state law on abandoned property. One exception to the rules on abandoned property is a motor vehicle, usually left behind as inoperable or as junk. In most states the landlord should notify the local law enforcement entity of the abandoned vehicle. The police department or sheriff’s department will then investigate, tag the vehicle, and arrange to have the vehicle towed away.
Another exception is fixtures installed by the tenant and attached to the structure. Such modifications to the property are usually considered a permanent part of the structure and are considered as the property of the landlord rather than as abandoned by the tenant. An exception to the exception would be that the landlord agreed to allow removal upon vacating. Such an agreement by the landlord should have been in writing and provide for the cost of adequate repair of damages caused by installation/removal.
In order to reduce the uncertainly regarding items left on the premises in spite of the above discussion, it is of benefit to include a lease clause stating that any items left on the premises beyond the date of termination of tenancy shall be considered abandoned and may be disposed of as the landlord sees fit without contact with the tenant. Abandoned property laws of many states might have priority over such lease clauses, but such clauses can still have value before some judges. Even if that isn’t certain, the clauses will likely discourage tenants from pursuing the matter to begin with.
Due to the differences regarding abandoned property laws among states it is very important that landlords understand and follow the specific laws of their particular states. In most cases, a landlord can reasonably decide that the tenant intended to relinquish possession and, if knowledgeable about the abandoned property law of his/her state, can dispose of the abandoned property as he/she deems fit. However, under certain circumstances the landlord should consider consulting with a competent attorney who is knowledgeable and experienced in the particular subjects of possession and/or abandoned property laws before attempting any removal of the tenant’s personal property.