A.D. Cantelmo Property Management
Our Business is Property Management in Orange County California
Dealing with a Tenants possessions left behind
When a Tenant moves out, whether it be due to a voluntary move,
or an eviction, they are supposed to take their possessions with them, but
often they leave things behind and it is up to the Landlord to deal with
what is left.
It may seem simple. You would think that if a Tenant leaves
things behind, the Landlord can do with it what they please, but not so. There
are set rules how a Landlord must deal with possessions left behind by Tenants.
Every state has different rules and in California the rules are specific.
First let’s start with three situations when it comes to
Procedures with regard to possessions left behind.
1. The tenant has requested that the property be returned.
2. It appears that the property has been abandoned.
3. It appears that the property has been lost. (The owner is
unknown.
Before we get into the 3 senerio’s, there are general rules
that need to be followed in any situation.
This information comes from the
Department of Consumer Affairs (DCM)
General Guidelines
For All Situations.
Store property safely . . .
When a tenant has left personal property in a rental unit,
the landlord should safely store the property. A landlord may choose to leave the property in the rental unit. But if the unit may be rented soon, the
landlord should store the property elsewhere. Wherever the landlord chooses to store the property, it must be kept in
a safe place, where the property will not be damaged or stolen. In storing the property, the landlord must
use reasonable care to keep it safe. If
property is lost or damaged, and if the landlord did not act in a deliberate or
negligent manner in storing and caring for the property, the landlord will not
be liable for any storage related loss.
Act Reasonabley
in deciding whether
the property left behind is abandoned or lost, the landlord must keep in mind
all of the facts that the landlord knows or ought to know about the
situation. And in deciding who the
property owner or owners might be, the landlord also must keep in mind all of
the facts that the landlord knows or ought to know. For example, if the landlord knows that a
telephone call or two, or a search of public records, would give the landlord
more information about who the property owner is, and if the value of the
property is significantly more than the cost of the phone calls and public
records search, the landlord should make the calls and do the search. If the property left behind are records, you
must presume that the tenant is the owner unless you are given proof otherwise.
This information comes from the
Department of Consumer Affairs (DCM) Situation No. 1
HOW
TO GET BACK POSSESSIONS
YOU HAVE LEFT IN A RENTAL UNIT
When tenants move out of a rental
unit, they are also required to remove their possessions. However, tenants may
mistakenly leave some behind or not have time to remove all of them. During
this time, the landlord has a responsibility to store property with reasonable
care.
1 California law has specific steps
that you may take to have your possessions returned by the landlord.
2 When you have followed these steps, the
landlord is required by law to return your possessions. If the landlord does
not, he or she is liable for damages and a penalty not exceeding $250.00 for
each violation.
Please note, however, that leaving
behind an animal in or around vacated property is a misdemeanor.
3 In that situation, the landlord has a
responsibility to call animal control immediately.
4 What steps should a tenant take to get possessions returned?
Within 18 days after moving out, write the landlord a letter.
Ask for the return your possessions.
Describe them.
State your current mailing address.
You should sign and date the letter.
Make a copy of the letter for yourself. It is best if you either send the letter certified mail, or ask for a receipt if you deliver it in person.
If requested, pay the landlord for his or her reasonable costs of removing and storing your possessions.
Agree to a time when you will claim and pick up your possessions. The time must be no more than 72 hours (three days) after the time when you paid the landlord's costs. If no costs were paid, you should agree to pick up the possessions within a reasonable time after the landlord received your letter. The law assumes that three days is a reasonable time.
Pick up the possessions at the agreed place and time.
5 Please note: If your landlord, or the landlord's agent or manager,
doesn't have your possessions or doesn't have control over them, you cannot use
this procedure.
6 What if the tenant is unable to take those steps?
If you have moved out of town, are
ill or are otherwise unable to take these steps, you can ask a friend or
relative to do them for you. This person will be acting as your authorized
representative.
7 Although not required, it is a good idea
to write a note to the landlord telling him or her that your friend or relative
is going to act on your behalf. Sign and date the note, and have your friend or
relative sign it, too. Make two copies of the note – one for your friend and
one for yourself.
How must a landlord demand payment for the costs of removing
and storing a tenant's possessions?
In order to require the tenant to
pay these costs, the landlord must:
Request in writing (within five (5) days after
receiving the tenant's letter requesting return of the possessions) that
the tenant pay the reasonable costs of removing and storing the tenant's
possessions.
List and describe each item of cost for which the
tenant is being asked to pay.
Mail the letter to the address given in the tenant's
letter or give the letter to the tenant personally.
8 What costs can a landlord charge?
The costs must be reasonable. They
must relate to the moving and storing of the tenant's possessions, and may
include:
9 The landlord's actual expenses for:
Removing the tenant's possessions from the original location to the place of storage.
Taking apart the tenant's possessions, if needed, to move them.
OR
The reasonable value of the labor actually provided to remove the tenant's possessions, to take them apart, and/or to transport them.
10 The landlord's actual expenses for storing the tenant's possessions, provided they are reasonable.
The storage costs cannot be more
than the fair rental value of the space reasonably required to store the
tenant's possessions.
11 That is, if all the tenant's possessions
would fit in a mini-storage unit of 10 cubic feet, the landlord is not entitled
to receive payment for the cost of renting 15 cubic feet.
What if the landlord fails to return the tenant's
possessions?
If you have properly followed all of
the steps mentioned above, but the landlord has failed to return your
possessions at the agreed time or within a reasonable time after you have asked
for them, whichever is later, the landlord is liable to you for damages. The
law assumes that three days is reasonable amount of time, unless the landlord
demands reimbursement for removal and storage of expenses. In that case, the
three days begin to run upon your payment of the landlord's storage costs.
12 The landlord may be required to pay
damages equal to the value of your possessions, and up to $250 for each
violation as a penalty.
13 If you win in court, the landlord also
may be ordered to pay your attorney's fees and court costs. However, if the
landlord wins in court, you may be ordered to pay his or her attorney's fees
and court costs.
14 Can
a tenant sue a landlord who, without the tenant's permission, gave the
possessions to someone else?
No. If the landlord has followed the
law, but has ended up giving your possessions to the wrong person, the landlord
cannot be sued.
15 For example, Terry Tenant asks the
landlord that her possessions be returned. The landlord, following the proper
steps, gives Terry the possessions she claimed. Later, Oscar Owner, who also
left possessions at the rental unit, writes the landlord asking for his
property to be returned. However, Oscar's possessions were claimed and picked
up by Terry. Oscar can't sue the landlord. Oscar should ask Terry to return his
possessions, and may sue her if she doesn't return them.
What
happens if a landlord receives conflicting demands for the same possessions?
If a landlord receives letters from
two tenants both asking for the same possessions, the landlord must give them
to the person who first requested their return. The landlord cannot be held
liable for releasing the possessions.
16 He is not required to guess who is the
true owner. In the case of documents/records, however, the landlord must
presume that the tenant is the owner unless the landlord is given proof
otherwise
Situation No. 2
Where The Property Is Apparently Abandoned
To dispose of apparently abandoned property without risking
liability for damages to the landlord, a landlord must follow the steps
below. If the tenant left the unit
because of a court-ordered eviction, the timing of the steps is slightly
different. This difference is discussed
below in the bold bracketed [ ] sections.
Steps to follow with abandoned property.
To dispose of personal possessions which apparently have
been abandoned, the landlord should take the following steps:
1. a. Write a notice to the former tenant or tenants.
[No notice is required for former tenants who were evicted
under a writ of possession. A notice
already is contained in the writ of possession form which the sheriff is
required to serve upon the evicted tenant or tenants.]
b. Write a notice to any other person whom the landlord
believes may be the owner of some or all of the abandoned property.
The notice must:
(1) Give enough information about the property so that the
possible owner can identify it.
(2) Tell the tenant or other possible owner receiving the
notice the place where the property may be claimed.
(3) Give the tenant or other possible owner a deadline after
which time the property cannot be claimed.
[A tenant who is evicted under a writ of possession has 15
days after the landlord takes possession of the rental unit to pay reasonable
costs of storage and to take possession of items left in the rental unit.
(4) Tell the tenant or other possible owner what the
landlord intends to do with any of the property which is not claimed by the
deadline.
(5) Tell the tenant or other possible owner whether reasonable
costs of storage will be charged before the property is returned.
2. Deliver the notices to the tenants and other possible
owners of the property.
3. Meet with the tenant and other possible owners when they
come to claim the property.
4. If by the deadline, the tenant or other person pays the
landlord any properly demanded storage costs, the landlord must release the
property to the tenant or to any other person who the landlord reasonably
believes to be its owner.
5. If the property is not released and if the landlord
stated in his or her notice that he or she intended to sell the property at a
public sale, the landlord must release the property to the former tenant if,
before the actual sale, the tenant claims it and pays the reasonable costs of
storage and of advertising the sale.
6. If, after the deadline, there is any property which was
not claimed by the tenants or any other people notified, depending on the
circumstances, the landlord must do one of two things with the remaining
property:
a. If the landlord reasonably believes that the property is
worth less than $300, he or she may keep it, give it away, sell it or destroy
it.
b. If the property is reasonably believed to be worth $300
or more, the landlord should arrange to have it sold at a public bidding sale
after giving notice of the sale through publication. Both the landlord and the tenant have a right
to bid on the property at the sale. After the property is sold, the landlord may deduct the costs of
storage, advertising the sale, and conducting the sale. The remaining money must then be paid over to
the county. The county can then give the
money to the property owner if the owner claims the money at any time within
one year after the date when the county received the money.
What should the notice say?
Under California law, the notice must contain certain
information. Sample notices (one to a
former tenant and one to a person other than a former tenant) are
attached. A landlord may use this sample
notice, but will have to fill in additional information, such as the
description of the property, the place where the property may be claimed, and a
date by which the property must be claimed. These are the legal requirements:
1. A description of the property.
The property should be described both in sufficient detail,
and in a way which gives all possible owners enough information for them to
determine whether or not the property might be theirs. The legal limitations of liability provided
to a landlord do not apply to property which is not described in the
notice. However, if
the property includes a container (for example a trunk, or box) which is
secured (that is locked, fastened or tied, in a way which would keep anyone
from easily getting into it), then the contents of the container need not be
described in the notice.
2. A deadline for claiming property.
A date must be specified by which the potential owner must
claim the property. The date given must
be at least 15 days after the notice was personally delivered or, if the notice
was mailed, a date not less than 18 days after the notice was mailed.
3. Charge for storage.
The property owner may be charged for the reasonable cost of
storage of the property, and that the charges must be paid before the property
is released to the owner.
4. Where the property is located.
This should include both the address where the property was
left and, if different, when the property may be claimed by the owner.
How should the notice be delivered?
The notice may be delivered to the tenant or other possible
owner by either:
1. handing the notice to tenant or other possible owner --
that is, personally delivering the notice; or
2. mailing the notice by first class mail with postage
prepaid to the tenant or other possible owner at her or his last known address.
In addition, if the landlord has reason to believe that the
notice sent to the person's last known address will not be received by the
person, the landlord also must send the notice to any other address, if known,
where it would be reasonable to expect the person to receive the notice.
And, if the notice is sent by mail to the former tenant, one
copy of the notice also must be mailed to the tenant at the address of the
rental unit that the tenant vacated.
How should storage costs be charged?
If a former tenant claims the property, the landlord may
charge the tenant the reasonable costs of storage for all personal property
left at the rental unit, but only to the extent that the tenant has not paid
those costs to the landlord previously.
But, if an owner other than the former tenant claims a
portion of the property, the landlord may only require that person to pay the
reasonable costs of storage for the property that person claims.
In any event, the landlord cannot charge more than one
person for the same costs.
If the landlord has stored the personal property at the
rental unit, the cost of the storage must be the fair rental value of the space
reasonably required for such storage for the term of storage.
What is the landlord's liability?
Once the landlord has given the proper notices, whether a
landlord is liable to anyone for the property depends upon whether the property
was released to someone or whether the property was disposed of in another way.
Property was released:
If the property is released to the former tenant, then the
landlord is not liable to any person for that property.
If the property is released to someone other than a former
tenant, and if the landlord reasonably believed that person to be the owner of
the property, the landlord is not liable for that property to:
a. any person to whom notice was given; or
b. any person to whom notice was not given unless such
person proves that: (1) prior to releasing the property, the landlord believed
or reasonably should have believed that such person had an interest in the
property; and, (2) that the landlord knew or should have known, upon reasonable
investigation, the address of such person.
Property disposed of in another manner (not released):
If the landlord reasonably believes that the total resale
value of all the property is less than $300, the landlord may dispose of the
property in any manner. However, if
the landlord reasonably believes that the total resale value of all of the
property is $300 or more, the property must be sold at a public sale by
competitive bidding.
If the property is disposed of in either of those ways, the
landlord is not liable for the property to:
a. any person to whom notice was given; or
b. any person to whom notice was not given unless such
person proves that: (1) prior to disposing of the property, the landlord
believed or reasonably should have believed that such person had an interest in
the property; and, (2) that the landlord knew or should have known, upon
reasonable investigation, the address of such person.
Situation NO. 3
Where The Property Apparently Is Lost
To dispose of apparently lost property (legal owner is
unknown) without risking liability to the owner, a landlord must follow these
steps:
If the value of the property is reasonably believed to be
$100 or more, the landlord must:
1. Turn the property over to the police department of the
city where the property was found. If
the property was found outside of the city limits, then the property should be
turned over to the sheriff's department of the county were the property was
found.
2. Fill out a written statement describing the property,
explaining when and where the property was found, whether he or she knows who
owns the property, and that he or she has not withheld or disposed of any part
of the property. The statement, which is
known as an "affidavit" or "declaration," must be signed
under penalty of perjury. A blank form
for the statement should be available at the police or sheriff's office.
The law enforcement agency is then obligated to make
reasonable attempts to find the property owner. If the property is not claimed by the owner within 90 days, the property
belongs to the landlord if its reported value is less than $250. However, if the reported value of the
property is $250 or more, the police or sheriff's department must publish a
notice of the property once in a newspaper of general circulation. If no one claims, and proves ownership of,
the property within seven days after the published notice, and if the landlord
pays the cost of publishing the notice, the property belongs to the landlord.31
3. If the law enforcement agency refuses to accept the
property, then to avoid being held liable for damages to the property, the
landlord should handle the property according to the same abandoned property
procedure above which the police or sheriff would apply.
NOTICE: We attempt to make our legal guides accurate as of
the date of publication, but they are only guidelines and not definitive
statements of the law. Questions about
the law's application to particular cases should be directed to a specialist.
Prepared by: Marla L. Scharf, Staff Counsel, Legal Services
Unit. 2012 revision by Claire Yazigi.
A.D. Cantelmo Property
Management Specializes in Property Management in Orange County
Ca.