It is common for a tenant to leave personal property in the premises after vacating. Depending on the facts of the situation, the landlord must follow one of three procedures in order to avoid potential liability to the former tenant or owner of the property. This article will provide a brief overview of California law governing disposition of such property.
In all situations, the landlord must act reasonably. This means that the landlord should store the property safely until its final disposition. At all times, the landlord must also act based on his or her “reasonable belief”. “Reasonable belief” is as the actual knowledge or belief that a prudent person would have, given the facts then known by that person. Generally, the landlord need not make an investigation to determine the owner of abandoned property unless he or she has specific information indicating that such investigation would “more probably than not reveal pertinent information” and the cost of the investigation is reasonable in light of the value of the property. Also, “self-help” should be avoided, meaning that the landlord should not take or convert the property without following the applicable procedure.
LOST PROPERTY Where the owner of the property is unknown to the landlord, the property is deemed “lost”. If the value of lost property is $10 or more, the it must be turned over to the police or sheriff’s department for the city or county in which the premises are located, under affidavit describing the property and stating where it was found. The law enforcement agency is then obligated to use reasonable efforts to find the owner. If not claimed with in the specified time period, it is sold at auction for the benefit of the city or county.
If the law enforcement agency refuses to accept the property, it is deemed not “lost” and the landlord may follow the procedures for disposition of abandoned property. (see below).
ABANDONED PROPERTY If the landlord reasonably believes that the property is not “lost” (see above), he or she must follow the procedures for disposing of abandoned property. Different procedures apply depending on whether the lease is for commercial or residential property. The following procedures relate to commercial tenancies and are more fully described in California Civil Code Section 1993 et seq.
First, the landlord must provide a notice to the former tenant and others “reasonably believed” to be owners of the apparent abandoned property. A new notice is not required where the tenant vacated under a writ of possession served after an unlawful detainer judgment because the tenant already received the notice of he, she or its right to claim property in the “Notice to Person Served” section of the writ. A separate notice also need not be given when the tenancy is terminated by a “Notice of Belief of Abandonment”, or where the tenant has already initiated the process for requesting a return of the property. (see below)
Contents of Notice. The notice must include:
- Description “reasonably adequate” to permit the owner to identify the property.
- If applicable, a statement that the return of the property may be conditioned upon payment of a reasonable storage charge.
- The place where the property may be reclaimed.
- The deadline by which the property must be reclaimed prior to sale or other disposition.
Service of Notice. The notice must be served either by personal delivery to the former tenant or nontenant owner or by first class postage prepaid mail to the former tenants’ and/or other supposed owners’ last known address AND to an alternate address known to the landlord (such as an attorney) IF there is a reasonable belief that the first notice will not be received AND to the address of the premises.
Deadline For Claiming Property. The landlord must release the property to the former tenant or, at the landlord’s option, to any person “reasonably believed” to own the property, if such person pays the reasonable storage costs and takes possession no later than the deadline stated in the notice for taking possession. For commercial tenancies, the deadline is 15 days after personal delivery of the notice, or 18 days after the notice was deposited in the mail. If the claim for return of the property is made after the deadline but before the property is sold, the landlord must still return the property if the claimant pays the reasonable storage costs, plus the reasonable costs of advertising and sale incurred before the property was withdrawn from sale.
Disposition Of Property If Not Claimed The landlord of a commercial property may keep any abandoned property with a resale value of less than the lesser of $750 or $1 per square foot of the premises. Any property worth more than this amount must be sold at public auction. The basic procedures for the sale are:
- Published Notice of Sale. The time and date of the public sale must be published once a week for two successive weeks, with at least 5 days between publications in a newspaper in the county of the sale. The notice must include a description of the property.
- Publication Date. The notice cannot be published until the expiration of the period for claiming the property and not later than 5 days before the sale date.
3. Bidders. A former tenant may stop the sale by paying the storage, advertising and sale costs, but other owners who are not a former tenant cannot stop the sale, and must bid at the sale to recover the property.
4. Sale Proceeds. The landlord may recover its costs of storage, publication and sale from the sale, but the balance of the sale proceeds must be paid to the treasury of the county where the sale took place no later than 30 days after the sale, unless the former tenant claims the balance before that time.
TIMELY REQUEST TO RETURN PROPERTY The third procedure for disposing of the property is triggered when the former tenant requests return of the property left in the premises. A landlord is required to surrender the property of a vacating tenant when all of the following occur:
- The tenant makes a written request for return of the property within 18 days of vacating.
- The property is in the landlord’s possession or control.
- The tenant offers payment of all reasonable costs associated with the landlord’s removal and storage of the property.
- The tenant agrees to remove the property within a reasonable timeframe, no later than 72 hours after the tenant tenders payment of costs to the landlord.
This is not an exhaustive list of all of the remedies available to judgment creditors under the Enforcement of Judgments Law. There may be other legal tools available to recover on a judgment. You may want to consult with legal counsel to develop a strategy that best suits your situation and budget.
Craig Sunada is an AV rated attorney with over 20 years of experience. Mr. Sunada specializes in real estate and business litigation, including landlord/tenant, partnership disputes, breach of contract, breach of lease and lease guarantees, directors’ and officers’ liability, unfair competition claims, intellectual property litigation, and toxic mold litigation. His practice is in the South Bay and he also serves as Of Counsel to McBirney & Chuck, a Professional Corporation, a boutique downtown law firm specializing in complex real estate and business matters. He may be reached at (310) 544-7161 or firstname.lastname@example.org.
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