What’s to Be Done With Property When the Tenant Abandons Unit

QUESTION: We have some rentals and want to know about our legal responsibilities for a tenant’s personal property.

Since March 1995, our renter has been out of the country on a “business trip.” The rent went unpaid for eight months when we finally heard from him last August. He sent a few checks, but his funds were always insufficient to cover them.

His brother authorized us to store his belongings in the apartment basement and rent out the unit so we could make our mortgage payment.

Now it’s over a year and we still have this tenant’s personal property stored in our basement. What can we do now?

ANSWER: Your question involves the issues of both abandoned real and personal property. As for the real property, the rental unit itself, there are two elements you must prove to establish what is known as common-law abandonment. They are the renter’s 1) vacating the premises, 2) without an intent to return.

Both elements appear to be present in your case, meaning it probably was legal for you to take possession of the rental unit and re-rent it.

A safer way to establish abandonment of real and personal property is to use the statutory abandonment procedure.

Here’s how it works. For the real property, if rent is due and unpaid for more than 14 days, on the 15th day (long past in your case) you may serve the renter with a “Notice of Belief of Abandonment” form.

You may serve it in person (not practical in this situation), or by the “nail and mail” method. That means posting (nailing or taping) a copy on the premises and mailing another copy to the premises and any other known addresses where the tenant may be reached (including the brother and any foreign addresses you may have).

The notice gives the renter 18 days to notify you, in writing, of a place where he or she may be served with legal papers by certified mail. This seldom happens.

After the termination date of the notice (15 days if served in person and 19 if served by nailing and mailing), you may take possession of the unit.

Next, for the personal property serve a “Notice of Right to Reclaim Personal Abandoned Property.” Serve it in the same manner as described above.

If the property is not claimed within the 15 or 18 days described in the notice, you may remove it and store it elsewhere during this period while getting the rental unit ready for re-rental.

You also must carefully inventory each item of abandoned personal property regardless of its worth when removing it from the unit. Make sure to note all the damage and defects to the property. Otherwise, you may wind up paying for them.

If the property is claimed within the time frame of the notice, you may collect the reasonable cost of its removal and storage, but you may not hold the property hostage for unpaid rent.

If not claimed, you may dispose of the property after this time, but its value will determine the method by which you may dispose of it.

If a reasonable estimate of the property’s value is under $300, it may be kept, sold or destroyed at your discretion. You may use the property for your own purposes or keep any money from the proceeds of its sale.

If the personal property is worth more than $300, your task is far more difficult. You must advertise a public sale of the property for two consecutive weeks in a newspaper. Newspaper personnel can tell you what you need to place in the ad.

Then, you must hold the sale, at which the former tenant is also allowed to bid. After the sale, you may keep from the sale proceeds the reasonable costs of storage, advertising and conducting the sale. Any remaining money is paid over to the county government.

The law does not give you an “out” when, as you have done, you take possession of personal property without using the statutory method outlined above. That means that you could be liable for the former renter’s missing, priceless, family heirlooms or diamonds for up to three years.

The brother’s consent to remove the property from the premises and place it into storage does not help if the former tenant returns and sues you, unless, of course, he has the money to cover any damages and has agreed to do so in writing.

Also, remember, when you remove a tenant’s personal property in this kind of a situation, you become its trustee. That means that you are responsible for its care and protection and liable for any damage to or theft of it.

Postema is the editor of Apartment Age magazine, a publication of AAGLA, an apartment owners’ service group. Mail your questions on any aspect of apartment living to AAGLA, 12012 Wilshire Blvd., Los Angeles, CA 90025.