Disposition of Personal Property In Vacated Units

Making Sure They Take It With Them

By Darrell Putnam, Grokenberger, Smith & Courtney

Scenario

Your tenant and others finally move out of your property.  You reenter the premises and discover a closet full of personal property.  What should you do?  You remember that whatever the renters leave behind may be removed by the landlord and disposed of but only by strict statutory methods.  What does that mean?  How should you proceed?

This article does not fully address the myriad questions and concerns surrounding this problem.  It merely indicates how complex the landlord's responsibilities are dealing with personal property.  Hopefully this will serve to alert the landlord just how cumbersome the process can become.

First, the landlord should not resort to "self-help."  Such a remedy exposes you to significant damages liability for conversion.  If there is a "bad faith" retention or disposition of the property by the landlord, a court can award the tenant, in addition to actual damages, $250 for each "bad faith" violation, along with attorney fees and costs.

Before removing the items, you should make a written inventory of the property left behind, in the presence of at least one disinterested witness who can attest to the accuracy of the inventory.

Landlord's Difficult Options

The three, nonexclusive, options available for the landlord for disposition of the personal property differ if the property 1) is "apparently lost"; 2) is "apparently abandoned"; or 3) has been requested to be returned by the tenant.

Apparently Lost Property

Civil Code Section 2080

To be protected from liability to the renter for damages, a landlord who "reasonably believes" that the items left behind are lost (legal owner unknown) shall, if the property has a value of $100 or more, turn the property over to the police or sheriff's department refuses to accept the "apparently lost" property, it is deemed to be "apparently abandoned".

If the reported value of the property is $250 or more and no owner claims the property within 90 days, the police or sheriff's department publishes notice of the property, and if, after 7 days the owner does not claim the property, the landlord pays the cost of the publication and gains title to the property.  If the reported value of the property is less than $250 no notice is published.

Apparently Abandoned Property

Civil Code Section 1983

Former tenant(s) and others believed to be owners of apparently abandoned property must be personally served (or served by mail-see the Code for the process) with proper written notice of the right to reclaim, with the following exceptions: a) Tenants who vacated under writ of possession: b) Tenants terminated by a "Notice of Belief of Abandonment"; or c) Tenant timely requests the property's return following Civil Code Section 1965.

Notice of Right to Reclaim

The written notice must describe the abandoned property in sufficient detail to permit the owner to identify it.  A complete itemized description of everything is not necessary and you are not required to open all containers.  If a sealed container is fastened in such a way as to "deter immediate access," simply describe the container.

The notice also must advise the owners where the property may be reclaimed, the deadline for the property to be reclaimed under risk of sale or other disposition, and that return of the property may be conditioned upon payment of storage costs. 

If the tenant did not vacate under writ of possession or if the tenancy was not terminated by a "Notice of Belief of Abandonment," then the required statutory form of notice is either the "Statutory Notice to Former Tenant or Right to Reclaim Abandoned Personal Property" or the "Statutory Notice to Person Other than Former Tenant of Right to Reclaim Abandoned Personal Property."

Storage Pending Disposition

Before the deadline for reclaiming the property, the landlord must either leave the abandoned property on the vacated premises under lock and key or store it in a safe place, again under lock and key.  Reasonable care (treat it like it belongs to you), and common sense should dictate if the property should be moved to a safer place.

Release to Timely Claimant

The former tenant's deadline where notice was given by writ of possession i 15 days after actual tenant vacancy or eviction.  The abandoned property deadline is 15 days after personal service or 18 days after mailing.

Release to Claimant After Deadline

After the deadline the landlord may keep the property if it has less than $300 "resale value".  If the property is worth $300 or more "resale value", and is not claimed by the noticed deadline, the landlord must put the property up for public sale, governed by Civil Code Section 1988.  Anyone may bid at the sale, including the landlord.  Before the sale, the former tenant has a grace period to claim possession, provided he or she pays the costs incurred (storage, advertising and sale).  There is no grace period for other nontenant owners.

After the sale, the landlord recoups his or her costs of storage, advertising and sale.  The balance must be paid to the county treasury no later than the thirthtieth day after the sale, unless the former tenant or other owner claims the balance before then.

Surrender Upon Timely Requested Return by Tenant

Civil Code Section 1965

If the vacating tenant requests return of the property within 18 days of vacating, describing the property in your control, specifying the tenant's mailing address, and paying the associated removal and storage costs incurred, the landlord is required to surrender such property.  Once this method of disposition is initiated, the landlord is excused from proceeding with the previous options, unless notice for reclaiming abandoned property has already been initiated.

To make a proper exchange of the personal property the landlord must make a written demand itemizing the incurred costs, either directly to the tenant or mailed to the tenant's specified address, within 5 days after receipt of the tenant's request.  After paying the landlord, the tenant must then agree to reclaim his property, within 72 hours, at a mutually-agreed-upon "reasonable time".  If the property is not claimed then, if the property is worth $300 or more, the landlord must take the time to sell the items, as indicated by the above procedure.

Conclusion

Some landlords routinely deal with items left on the premises after the tenant vacates and have not experienced any difficulties.  But my advice would be:  Make sure they take it with them.

Reprinted Courtesy of The Apartment Owner.