Abandonment of Real & Personal Property i

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1 Abandonment of Real & Personal Property i California state law outlines specific notice requirements and waiting periods that owners of rental property must follow if they believe that the rental unit has been abandoned and/or personal property has been left behind by the resident. This is an out-of-court procedure that will give landlords protection from liability when they take possession of the property without going through the eviction process. This procedure is available under the law to create liability protection if the landlord follows the procedure properly. In any event, however, it does not ensure that the landlord will not be challenged in court. One of the conditions is the landlord s reasonable belief" that the unit has been vacated by the tenant without an intent to return. What is "reasonable" is open to opinion and argument. The process takes a minimum of 18 days to complete. This information is intended as a general overview. There are many technical requirements and legal provisions that apply. When proceeding for the first time or especially when moving forward with the sale of a former tenant s personal property, you should consult legal counsel. CAA provides forms that meet the specific requirements of this law. Abandonment of Real Property The Rental Unit If the rent has been unpaid for at least 14 consecutive days and the landlord reasonably believes that the tenant has abandoned the property, the landlord may serve a Notice of Belief of Abandonment on the tenant. ii The date of termination of the lease must be specified in the landlord s Notice of Abandonment and cannot be less than 15 days after the landlord serves the notice on the tenant personally or, if mailed, not less than 18 days after the landlord deposits the notice in the mail. Service of the Notice The landlord s Notice of Belief of Abandonment must be personally delivered to the tenant or sent by first-class mail, postage prepaid, to the tenant at the tenant s last known address. If there is reason to believe that the notice sent to the last known address will not be received by the tenant, the landlord must also send the notice to any other address, if known by the landlord, where the tenant may reasonably be expected to receive the notice (e.g., tenant s work address). Page 1

2 When the Real Property is Not Considered Abandoned The real property would not be deemed abandoned if the tenant proves any of the following: At the time the Notice of Belief of Abandonment was given by the landlord, the rent was not due and unpaid for 14 consecutive days. At the time the Notice of Belief of Abandonment was given by the landlord, it was not reasonable for the landlord to believe that the tenant had abandoned the real property. It is not unreasonable for the landlord to make an assumption that the unit has been abandoned even if personal property is still in the unit. Prior to the date listed in the landlord s Notice of Abandonment, the tenant gave written notice to the landlord stating his or her intent not to abandon the real property and stating an address at which he or she may be served by certified mail with eviction papers. The resident paid all or a portion of the rent due. Note: The landlord can simply take possession of the premises without following the process outlined above. This is risky, however. If the landlord acts reasonably, he/she should not be found liable by a court of law for improper possession of the unit. In order for a landlord to be liable, he/she must have failed to act as a reasonable and prudent landlord would act in the same or similar circumstances. If it is reasonable to take possession in this instance, the landlord should first post a 24-hour written notice of intent to enter the premises. Then, the landlord should enter the unit with a witness, and if the landlord decides to take possession based upon the condition of the premises, he/she should document the condition of the premises by video camera. This way, if the landlord is challenged, he/she has a witness and evidence of the condition of the property. The landlord should also send a letter to the residents last known address(s), letting them know that unless the landlord hears from them otherwise, he/she will take possession of the premises by a date certain. If a tenant is wrongfully subject to an illegal lock-out, the landlord could be liable for actual damages and a penalty of up to $100 per day in addition to the attorney's fees incurred by the tenant. Keys and the Rental Unit Although keys are probably the most significant symbol of giving back possession of a rental unit, a landlord s receipt of the keys is not a necessary act in order for the landlord to take possession of the unit. Once it is clear from all of the circumstances that the tenant has vacated, the landlord can take possession, even without keys. The 21 days to account for the use of the deposit begins at the time the landlord takes possession. A judge could also rule that the 21 days began when the landlord should have known that he/she could have taken possession. Likewise, if the tenant's notice of termination has not expired or if the tenant has paid rent that extends beyond the date the tenant vacated, it does not, in and of itself, preclude a landlord from taking possession of the unit if other factors make it clear that the tenant has vacated, such as a written statement from the tenant to the landlord that the tenant has moved out. If it is unclear whether or not the tenant vacated the unit, the landlord may charge rent up to the time that it was deemed reasonable to believe that the tenant vacated the premises. Page 2

3 Other Notices Given Simultaneously by the Landlord The landlord may serve on the tenant a Three-Day Notice to Pay or Quit at the same time and proceed with the abandonment proceedings. If the tenant fails to respond within the time outlined in the Notice of Abandonment, then at the completion of the time period, the landlord may enter the unit and take action necessary to re-rent the property. If there is personal property left by the former tenant, the landlord must inventory the property and provide the tenant with the appropriate notice as outlined below. Mandatory Disclosures in Termination Notices and Other Notices A property owner s notice to terminate a tenancy given under California Civil Code Sections 1946 and (e.g., 30, 60, and 90 day notices) as well as the Notices of Belief of Abandonment, Notice to Enter Dwelling Unit, and Notice of Right to Walk Through Process, must include the following language: State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contract your former landlord after being notified that property belonging to you was left behind after you moved out. This language is also included in CAA s Notice of Non-Renewal of Lease. Abandonment by Tenant of Personal Property Where personal property remains at the rental property after a tenancy has terminated and the rental property has been vacated by the tenant, the landlord must give written a Notice of the Abandoned Personal Property to the tenant and to any other person the landlord reasonably believes to be the owner of the property. If the property consists of records/papers, the tenant shall be presumed to be the owner of the records/papers. The Notice of Abandoned Personal Property The landlord s Notice of Abandoned Personal Property provided to the tenant must describe the property in a manner reasonably adequate to permit the tenant or owner of the property to identify it. The notice may describe all or a portion of the property, but the limitation of liability provided by the law iii does not protect the landlord from any liability arising from the disposition of property not described in the notice. A trunk, valise, box, or other container that is locked, fastened, or tied in a manner which deters immediate access to its contents can be described as such without describing its contents. The notice must advise the tenant, That reasonable costs of storage may be charged before the property is returned, Where the property may be claimed, and The date before which the claim must be made. The date specified in the notice must be a date not less than 15 days after the notice is personally delivered or, if mailed, not less than 18 days after the notice is deposited in the mail. iv Page 3

4 Service of the Notice of Abandoned Personal Property The landlord must serve the tenant with the Notice of Abandoned Personal Property by personally delivering it to the tenant or to the known owner of the personal property, or the landlord must serve the tenant by first-class mail, postage prepaid, at the tenant s last known address. If there is reason to believe that the notice sent to that tenant s address will not be received by the tenant, the notice must also be sent to any other address known to the landlord where the tenant may reasonably be expected to receive the notice (e.g., the tenant s work address). If the landlord sends the notice by mail to the former tenant, the landlord must send one copy to the premises vacated by the tenant. If the tenant provided the landlord with his/her address, the landlord may also send the notice by . Aside from other legal requirements necessary in the notice, the Notice of Abandonment must also contain one of the following statements: 1. "If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the cost of storage, advertising, and sale is deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within one year after the county receives the money." or 2. "Because this property is believed to be worth less than $700, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above." Release of Personal Property Tenant Payment of Costs The personal property described in the notice must be released by the landlord to the former tenant or, at the landlord's option, to any person reasonably believed by the landlord to be its owner, if that tenant or other person pays the reasonable cost of storage and takes possession of the property not later than the date specified in the notice. The landlord must release the personal property and cannot require the payment of storage costs if the property remained in the dwelling and the property is reclaimed within two days of the tenant vacating the dwelling. Where personal property is not released and the notice stated that the personal property would be sold at a public sale, the landlord must release the personal property to the former tenant if the tenant claims it prior to the time it is sold and pays the reasonable cost of storage, advertising, and sale incurred prior to the time the property is withdrawn from sale. A landlord cannot refuse to surrender to a tenant, or to a tenant's duly authorized representative, any personal property not owned by the landlord that has been left on the premises after the tenant has vacated the residential premises and the return of which has been requested by the tenant or by the authorized representative of the tenant if all of the following occur: The tenant requests, in writing, within 18 days of vacating the premises, the surrender of the personal property and the request includes a description of the personal property held by the landlord and specifies the mailing address of the tenant. The landlord or the landlord's agent has control or possession of the tenant's personal property at the time the request is received. Page 4

5 The tenant, prior to the surrender of the personal property by the landlord and upon written demand by the landlord, tenders payment of all reasonable costs associated with the landlord's removal and storage of the personal property. The landlord's demand for payment of reasonable costs associated with the removal and storage of personal property must be in writing and must either be mailed to the tenant at the address provided by the tenant or must be personally presented to the tenant or to the tenant's authorized representative, within five days after the actual receipt of the tenant's request for release of the personal property, unless the property is returned first. The demand shall itemize all charges, specifying the nature and amount of each item of cost. The tenant agrees to claim and remove the personal property at a reasonable time mutually agreed upon by the landlord and tenant but not later than 72 hours after the tender provided for above. What Owners Cannot Do Even if the owner has obtained a judgment for rent against the resident, the owner cannot demand payment of rent in exchange for return of the resident s possessions. The owner cannot keep for his/her own personal use or disposal the personal property belonging to a former resident when the total resale value is reasonably believed to be more than $700. Personal Property Valued Less than $700 If the landlord reasonably believes that the total resale value of the tenant s personal property not claimed or released is less than seven hundred dollars ($700), the landlord may retain the property for his or her own use or dispose of it in any manner. Reasonable Costs of Storage "Reasonable costs associated with the landlord's removal and storage of the personal property" shall include, but is not limited to, each of the following: Reasonable costs actually incurred, or the reasonable value of labor actually provided, or both, in removing the personal property from its original location to the place of storage, including disassembly and transportation. Reasonable storage costs actually incurred, which shall not exceed the fair rental value of the space reasonably required for the storage of the personal property. Costs of storage must be determined and assessed in the following manner: Where a former tenant claims property, the landlord can require the tenant to pay the reasonable costs of storage for all of the personal property that remains on the premises at the termination of the tenancy. Where an owner of the personal property, other than the former tenant, claims the personal property, the landlord can require the owner of the personal property to pay the reasonable costs of storage for only the property in which he or she claims an interest. In determining the costs to be assessed, the landlord cannot charge more than one person for the same costs. Page 5

6 If the landlord stores the personal property on the premises, the cost of storage shall be the fair rental value of the space reasonably required for that storage for the term of the storage. Costs shall not be assessed if the former tenant reclaims property stored on the premises within two days of having vacated the premises. Personal Property Sold at Public Sale Optional Proceeding If the personal property described in the Notice of Abandonment is not released by the landlord, the personal property can be sold at public sale by a competitive bidding process. Nothing in the law precludes the landlord or the tenant from bidding on the property at the public sale. If the landlord elects to proceed with sale of the property, the landlord must give notice of the time and place of the public sale by publication pursuant to Section 6066 of the Government Code in a newspaper of general circulation published in the county where the sale is to be held. After the Public Sale After deduction of the costs of storage, advertising, and sale, any balance of the proceeds of the sale that is not claimed by the former tenant or an owner other than the tenant shall be paid into the treasury of the county in which the sale took place not later than 30 days after the date of sale. The former tenant or other owner may claim the balance within one year from the date of payment to the county by making application to the county treasurer or other official designated by the county. Landlord Liability Protection When the landlord releases to the former tenant any personal property that remains on the premises after a tenancy is terminated, the landlord is not liable with respect to that property to any person. When the landlord releases property to a person (other than the former tenant) who is reasonably believed by the landlord to be the owner of the property, the landlord is not liable with respect to that property to: Any person to whom notice was given; or Any person to whom notice was not given unless the person proves that, prior to releasing the property, the landlord believed or reasonably should have believed that such person had an interest in the property and also that the landlord knew or should have known upon reasonable investigation the address of such person. Landlord Liability for Penalties & Damages Any landlord who retains personal property in violation of this chapter shall be liable to the tenant in a civil action for all the following: Actual damages not to exceed the value of the personal property, if the personal property is not surrendered by the later of either of the following: Within a reasonable time after the tenant's request for surrender of the personal property, or Page 6

7 If the landlord has demanded payment of reasonable costs associated with removal and storage and the tenant has complied with the law, whichever is later. Three days is presumed to be a reasonable time in the absence of evidence to the contrary. An amount not to exceed two hundred fifty dollars ($250) for each bad faith violation of this section. The court may award reasonable attorney's fees and cost to the prevailing party. References Notice of Belief of Abandonment (Real Property) CAA Form 8.0 Notice of Right to Reclaim Abandoned Personal Property (Value Less than $700) CAA Form 9.0 Notice of Right to Reclaim Abandoned Personal Property (Value More than $700) CAA Form 10.0 Three-Day Pay Rent or Quit CAA Form 4.0 Thirty-Day Notice of Termination of Tenancy CAA Form 7.0 Sixty-Day Notice of termination of Tenancy CAA Form 7.1 Notice of Resident Option to Request and Initial Inspection CAA Form 7.5 Ninety-Day Notices of Termination of Tenancy CAA Form 7.6 and CAA Form 7.7 Notice to Enter Dwelling Unit CAA Form 19.0 Notice of Non-Renewal of Lease CAA Form 45.0 CAA Publication Managing Rental Housing Civil Code Section 1946, , 1965 Civil Code Section 1983, 1987, 1988, 1990, 1991 Government Code Section 6066 i This Insight does not cover the requirements for the disposition of an animal that may have been abandoned by a former resident. Consult Section of the Food and Agricultural Code or consult legal counsel for details. ii The has pre-printed forms available that meet the requirements under this law. iii Civil Code Section 1989 iv The has pre-printed forms available that meet the requirements under this law. Page 7