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Upon the termination of a lease, tenant’s occasionally leave personal items at the rental property. Landlords are put in the difficult situation of determining whether the tenant intended to leave the property or intends to return to retrieve the property. Landlords should be careful when confronted with this situation, as one man’s junk may be another’s treasure. The safest route for a landlord to take is to commence an eviction action, which will allow the landlord to obtain a court order allowing him or her to place the tenant’s property outside of the premises on a specified date.
When confronted with limited amounts of property left in the residence, a landlord may decide to forego the eviction action to save costs and simply dispose of the property on his own. A landlord engaging in this action should be aware that a tenant has the right to file an action against the landlord for conversion of the tenant’s property, violation of the Landlord-Tenant Act, and may seek damages, attorney’s fees and even punitive damages. A conversion action arises when another party exercises control over the property of another, usually by destruction. A landlord can defend against a conversion action by establishing the tenant abandoned the property. When a party abandons property, all ownership interests in the property are relinquished. Therefore, the landlord’s removal and destruction of abandoned property does not constitute conversion.
The problem with the abandonment defense is that you are required to establish that the tenant intended to abandon the property. As a result asserting the defense can be difficult when the tenant claims that they fully intended to remove the property at a later date. Landlords can bolster the abandonment defense by: posting a three day notice to vacate the premises on the front door, documenting all attempted contacts with the tenant, defining abandonment in the lease, leaving multiple notes for the tenant at the premises or at the tenant’s last known address, determining whether utilities have been shutoff, contacting neighbors and family members to see if the tenant intends to claim the property, bringing a third party to assist in the removal of property, taking pictures of the property removed, and storing the personal items for a period of time. If at any time the tenant advises the landlord that they do not intend to abandon the property then the landlord cannot treat the property as abandoned.
Due to the amount of time it takes to establish a good case of abandonment, landlords will often find it quicker and cheaper to proceed with the eviction action. Additionally, the best way to avoid a lawsuit for conversion and violations of the Landlord-Tenant Act is to file an eviction action and obtain a court order to set out the property.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.