December 22, 2012 (Original publish date) • By Dennis Beaver
Eric and Cindy have never met, but they both have an identical legal problem and contacted You and the Law the same day. Just how do you legally deal with property that has been left behind when a tenant — or even former spouse — moves out and refuses to take the stuff away?
“My roommate — who was my subtenant — moved out months ago and left his enormous speakers and turntable. He hasn’t come back to either pay what he owes or remove these things,” Eric wrote.
“I don’t know where he lives, but believe he is working at the same place,” he added.
While Eric is only concerned with his former roommate’s stereo, Cindy has much larger mess on her hands:
“Our garage is filled with my former husband’s rusty shop tools, bins filled with junk, boxes of books, you name it, the pack-rat collected it and now refuses to remove this worthless stuff from my property, even though our divorce settlement required him to!
“He hasn’t come by in over a year, even though I have repeatedly begged him to take all his stuff away. It is clear that he has no intention of doing so. My lawyer wants $3,500 to go back to court, but I do not have that money, and I do not see the point as there is already a court order in effect. What can I do?”
We ran these facts by attorney Heidi Palutke of the California Apartment Association, who gave us a basic outline of what a landlord can do when faced with property left behind, and possibly under the right fact situation, someone in Cindy’s situation as well.
Due to space limitations, we can only provide this general description of the procedures required to follow, and therefore online research or consultation with an attorney is absolutely necessary.
Notice of abandoned personal property
“There is a fairly simple procedure for dealing with these common situations when tenants move out leaving behind personal property, but it is important it is to follow the law precisely and take steps to prevent the tenant from claiming that the landlord committed theft.
“The first step is to send a Notice of Abandoned Personal Property to the tenant and anyone else who you believe owns the property and list everything that you find.
“The more detailed you are, the greater your protection from being sued by the tenant. It is a very good idea to video this process, showing the condition of the rental unit and items which you have found. You may remove the items from the premises and store them elsewhere,” Palutke notes.
“The notice must advise: 1) Where the property may be claimed; 2) The date, allowing at least 18 days after delivery or mailing, and; 3) That storage costs must be paid before the property is returned, unless claimed within two days of vacating the dwelling.
“The notice must be sent to any address where the tenant would be expected to receive it, including a work address, and you must include one of these statements:
A) If you fail to reclaim the property, it will be sold at a public sale, as provided by California Civil Code Section 1988.
B) Because the property is believed to be worth less than $700, it may be kept, sold or destroyed if you fail to reclaim it within the time indicated.
No holding hostage for payment
“Even if you have a judgment for rent against the tenant, an owner cannot demand payment in exchange for return of their possessions. So, while you can’t hold their property hostage, if they do not make a timely claim of property worth less than $700, then they lose it and it is yours to keep, or to dispose of in any manner,” Palutke added.
“It is important to establish the value of what was left behind and where property exceeds $700 in value, public sales are typically handled by an auction company. Expenses incurred would be reimbursed out of the sale proceeds and the balance is paid to the county, Palutke concluded.
In our legal opinion, as between Eric and Cindy, it is clear that she has a far more complicated problem. Abandonment clearly applies to Eric, but not directly to Cindy. To succeed, she would need to establish a reasonable belief that her ex has no intention at all in recovering his property — and if law enforcement will not take possession of the items — she has no other option.
We suggest that a demand Letter from an attorney first be sent to Cindy’s former husband or lawyer, advising that steps will taken to declare the property abandoned.
That might be enough to get her creep of an ex-husband to get moving.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.