It’s one of the most common questions we get: If the tenant has moved out, can the landlord do what it wants with any remaining personal property? The answer to this simple question is quite complex and impacts a number of landlord’s rights, such as the ability to collect ongoing rent. Three primary factors must be considered when evaluating whether a landlord may dispose of, or take possession of, remaining property without proceeding with a formal eviction.
1. The Lease
First and foremost, what does the lease say? Some leases clearly state that a landlord may dispose of a tenant’s remaining property upon abandonment. Such a clause was deemed enforceable in the 2003 Georgia case International Biochemical Ind., Inc. v. Jamestown Mgmt. Corp.[1] There, the lease specifically stated any property left after abandonment entitles the landlord “to remove and destroy, store, sell or otherwise dispose of, such property” without any liability to tenant.[2] Solid lease language addressing abandoned property is certainly helpful in determining a landlord’s rights.
2. Notices to Tenant
A landlord cannot rely solely on a lease provision. The landlord must also provide notice to the tenant of landlord’s intention to exercise its rights under the lease.
The importance of providing notice was highlighted in the recent case Marvin Hewatt Enterprises, Inc. v. Butler Capital Corp.[3] In that case, the tenant vacated the leased premises prior to the end of the lease term with the landlord’s knowledge, and the landlord secured a replacement tenant. A dispute then arose as to whether the original tenant’s lease was, in fact, terminated. The landlord argued the lease was not terminated and that the landlord merely accepted back possession of the premises following tenant’s default. The Court of Appeals noted the landlord never provided the tenant with notice of any lease default, and therefore denied summary judgment to the landlord.
In order to ensure the applicability of favorable lease terms, a landlord should clearly and timely notify the tenant of landlord’s intentions to rely on those terms.
3. The Remaining Property
The risk with discarding a tenant’s left behind property is that it can subject the landlord to liability for conversion (wrongfully exercising ownership of another’s property). And while a departing tenant will most often take its valued property, the tenant is more likely to leave behind personal property belonging to third parties, such as creditors. This was the case in International Biochemical, where the property removed belonged to a third-party. Additional complications can arise over whether the abandoned property is considered a “fixture.” Property managers should always be mindful that “one man’s trash is another’s treasure.”
Photographs should always be taken whenever personal property is left behind (even if just trash bags). This will allow an attorney or owner to assess the value of the remaining property and who might have a claim to the property. Photographs will also protect against any future disputes as to exactly what was discarded.
In sum, an owner or manager should always be careful when a tenant moves out but leaves property behind. Downs Law is highly experienced in evaluating all the factors involved in these situations. Please give us a call and we will be glad to walk you through your rights!
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[1] 262 Ga. App. 770 (2003).
[2] Id. at 775. The full clause stated: “Upon the expiration of this Lease, or if the Premises should be abandoned by Lessee, or if this Lease should terminate for any cause, or if Lessee should be dispossessed after default, if at the time of any such expiration, abandonment, termination or dispossession, Lessee . . . should leave any property of any kind or character in or on the Premises, such property shall be the property of Lessor and the fact of such leaving of property in or upon the Premises shall be conclusive evidence of the intent by Lessee . . . to abandon such property so left . . . and such leaving shall constitute abandonment of the property. . . . Lessor, its agents or attorneys, shall have the right and authority without notice to Lessee . . . to remove and destroy, store, sell or otherwise dispose of, such property, or any part thereof, without being in any way liable to Lessee.”
[3] 328 Ga. App. 317 (2014).