ARTICLES

LANDLORD LIABILITY FOR UNCLAIMED TENANT PROPERTY

By: S. Scott Perkins, Esq.

With a significant number of summary eviction proceedings commenced annually in Saratoga County (there were 375 warrants of eviction effected by the Sheriff in 2006 alone), it is perhaps inevitable that disputes will arise over the legal status of so-called “abandoned” tenant property. Not surprisingly, many landlords are unaware of their legal obligation regarding personal property left at the premises by an evicted tenant. This article will briefly examine the legal status of unclaimed, post-eviction tenant property, a landlord’s duty of care for those belongings, and recommended action to dispose of the property.

When a summary eviction proceeding results in the issuance of a warrant of eviction, the Saratoga County Sheriff is typically directed to remove the tenant and his belongings from the premises. It is not the Sheriff’s policy, however, to either transport from the premises or store the tenant’s personal property. Rather, it is the landlord who bears the responsibility for the collection and storage of unclaimed tenant belongings on the theory that the landlord is an involuntary constructive bailee of such property. Accordingly, the law imposes upon the landlord as a gratuitous bailee a duty of care for the proper treatment of tenant property. Because the landlord has no bailment contract with the tenant and the bailment is clearly not for the benefit of the landlord, the landlord only owes the tenant a minimal or slight duty of care for the tenant’s personal property until the property is returned to the tenant or the tenant relinquishes title.

Contrary to popular belief, the property of an evicted tenant is not considered “abandoned” simply because the property is left at the premises at the time the warrant is effected. Whether property is abandoned depends upon the intent of the owner. Unless there is a clear manifestation of intent by the tenant to discard or abandon the property (ie. placing the property in a trash receptacle, indicating to the property manager that the property is being thrown out, etc.), title to the property remains vested with the tenant. Since the landlord involuntarily comes into possession of post-eviction property owned by the tenant, the property may not be retained by the landlord, discarded, or neglected. The landlord under those circumstances has a duty of care to the tenant, albeit slight, for the proper collection, transportation, storage, and eventual disposition of the tenant’s property. The landlord will be liable if there is gross negligence resulting in the damage or destruction of the property in his possession. Gross negligence could include leaving tenant property outside and exposed to the elements, recklessly handling the property during transportation, or discarding the property altogether. Therefore, a landlord risks liability and a potential claim for damages if a minimal degree of care is not provided while the property is in the landlord’s possession.

To avoid post-eviction property claims, landlords would be well advised to plan for the possibility of unclaimed tenant property at the conclusion of a tenancy. For instance, the landlord may wish to state in any written lease or other document the specific procedure to be utilized in the event there is unclaimed personal property, either following eviction or after a voluntary surrender of the premises. The writing should include a procedure for an inventory of the property, notice to the tenant as to how the property may be claimed, the time period within which the property may be claimed, and notice that the property shall be deemed abandoned should the tenant fail to take possession of the property within a specified period of time. The writing should also state that abandoned property shall be disposed of through private sale if the tenant fails to arrange for the timely removal of the property after the tenant vacates the premises.

Without a specific lease provision, reasonable notice to the tenant should be provided prior to any disposition of the property. It is advisable that the landlord give at least 30 days’ written notice to the tenant of the tenant’s right to claim and remove any personal property in the landlord’s possession or the property will be deemed abandoned. If the tenant fails to remove the property within the specified time period, the landlord may consider the property abandoned and discard same; however, it is highly recommended that the landlord dispose of the property by means of a private sale by published notice, especially where the property has substantial value. In such case, a final written notice to the tenant should be provided, indicating the date and time when the property will be offered for sale. The landlord should then publish a legal notice of the sale of abandoned tenant property, identifying the property to be sold, the place and time of sale, and terms of sale. Once the sale is conducted, proceeds from the sale may be applied against any judgment the landlord may have previously obtained against the tenant. Additionally, costs of the sale may be deducted from sale proceeds, with the balance, if any, to be paid to the tenant.

An alternative to the landlord’s storage of unclaimed tenant belongings is the rental of a commercial self-storage unit for a fixed term which should be, at a minimum, 30 days, with notice to the tenant that the property may be claimed at the facility. Should the tenant fail to claim the property, the storage facility has the right to assert a storage lien pursuant to Lien Law Section 182, and to dispose of the property in accordance with that statute.

When a landlord involuntarily comes into possession of the personal property of an evicted or vacated tenant, ownership of the property nevertheless remains with the tenant unless there is clear evidence of the tenant’s intent to abandon the property. The landlord has a duty, although slight, to care for the property until claimed and will be liable to the tenant if the property is converted by the landlord, summarily discarded, or if there is gross negligence in failing to protect the property. If, after reasonable notice, the tenant fails to claim and take possession of the property, the landlord may deem the property abandoned and discard the belongings or, preferably, dispose of them by a duly noticed private sale. Instituting reasonable procedures for the care, storage, and disposition of tenant property will greatly reduce the likelihood of a post-eviction tenant claim.

This article appeared in the June 2007 issue of the Saratoga County Bar Association’s Law Notes