10. ABANDONMENT: Lessons from Florida and California

Here is the question:  

Does a landlord in Georgia have a right to secure and protect his property in the event he reasonably believes it to be abandoned and left in an unsafe condition so as to be a public nuisance?

Georgia law makes NO provision for seizure of a rental property through any process than termination of the lease or with a WRIT OF POSSESSION issued by the Court. However, it does specifically prohibit changing the locks or doing anything to make the premises unlivable (like removing the front door or disabling the plumbing). That is called a “self-help” eviction. 

As a result, following any other path is risky at best, and may be disastrous. In my experience, Georgia attorneys are typically unwilling to discuss the possibility of anything other than seeking a writ of possession, but that costs money, and perhaps more importantly, burns precious time while your property is sitting empty.

It may take several weeks between the time that a dispossessory affidavit is filed and the time that service occurs. Then 7 business days must pass.  If there is no answer, you can seek a writ of possession, but then you have to schedule the sheriff or marshal to be there to oversee the set-out, which may take a week or two. And you have to pay the locksmith to come change the locks and pay a team to remove the possessions before you can legally take possession.

Instead, I propose that we see what other states have done, and that we chart a course that meets with our needs and could conceivably be defended in court.

Please know that I am NOT an attorney and I am certainly NOT an expert on California law or Florida law (or any other state law, for that matter), but I found the following discussions in various locations, and they impressed me as knowledgeable.

Whether they are or are not is immaterial. What matters is that these two states have already wrestled with the problem of abandonment, and have come up with solutions which appear reasonable to me.

Special thanks to Mr. Michael G. F. Davis, Esq. of Florida for educating us on the Florida solution to this problem. By the way, I have attempted repeatedly to contact Mr. Davis (via his last known firm) to seek his (or their) permission to use his analysis in this article, and so far I have received no response. I will continue trying. In the meantime, I hereby give him full credit for the following analysis. 

Please read and consider the following:

10.1. Abandonment of the Premises in FLORIDA

By Michael G. F. Davis, Attorney at Law

There are three ways a landlord obtains possession of a rental unit: surrender, abandonment, or eviction. 

Surrender and eviction with a writ of possession are covered in other articles. This article deals with some aspects of abandonment.

The landlord often finds himself confronted by an empty unit with all, some or none of the resident’s personal property remaining. The landlord may have had varying degrees of contact with the resident about his vacating. We will assume that the landlord cannot validly claim that the resident has surrendered the property. The choice left is to file for eviction in order to obtain a writ of possession and move the resident’s remaining belongings to the property line OR to consider the rental unit abandoned and dispose of the remaining personal property as the landlord sees fit.

The conclusion

As you read this article, bear in mind the following conclusion. The most important consideration in the landlord’s decision to rely on abandonment or file an eviction will usually be the value of the resident’s remaining property. The value of the property should be examined at the outset. A good rule of thumb is this: if the total value of the property is $500.00 or more in the landlord’s good faith estimation, then the landlord is advised to file eviction and obtain a writ of possession. If the total value of the property is worth less than $500.00, the landlord can continue with his examination of the facts to ascertain whether the rental unit has been abandoned.

Special circumstances

Special circumstances may arise where the lease in question does not have a proper abandoned property clause or there is no lease. If the total value of the property is $500.00 or more in the landlord’s good faith estimation, then obtaining a writ of possession becomes an imperative. In these special circumstances, if the total value of the property is less than $500.00 and the landlord strongly believes abandonment of the rental unit has occurred, the landlord will need to follow abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.

The statute

Florida Statute 83.59(3)(c) sets forth how abandonment of the rental unit is determined: (c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; 

Under Florida law, there are two ways abandonment can be established: (1) the landlord has actual knowledge of abandonment, or (2) the landlord can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the landlord of an intended absence, and (c) the resident is absent from the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we shall speak of 15 days as the “period of time equal to one-half the time for periodic rental payments”. The same is true for month-to-month tenancies.)

The problem with the first standard, actual knowledge of abandonment, is that the law does not define this phrase. There at least two major problems with the second standard, presumption of abandonment. First, it can be very difficult to establish 15 straight days of no activity in the absence of around the clock camera surveillance. Second, even if you can prove all three elements of the test, the presumption can be overcome in court.

Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the landlord has the writ of possession as the available statutory remedy to remove the resident’s personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases.

The penalty

The penalty for prematurely locking a resident out is the resident’s actual damages with the minimum damages being an amount equal to three months’ rent. An additional three-month rent penalty applies if the landlord prematurely disposes of the resident’s personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, whichever is greater, the resident is entitled to his court costs and attorney’s fees. Finally, the landlord may face a claim for civil theft and possibly criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the landlord is ever in doubt about whether abandonment of the rental unit has occurred.

The practical guide “the value of the property”

Since this area is so bereft of any firm statutory guidance, the landlord must turn to some practical standards to operate in the real world. The best practical guide is the value of the property left behind. Start with the assumption that most people don’t abandon valuable items. This is just as obvious and logical to the courts as it is to the person on the street.

If the total value of the property is $500.00 or more, then characterizing the rental unit as abandoned is risky. We often advise to forego the abandonment analysis and do the eviction. It’s not that there is never a case of abandonment with property valued over $500.00, only that it is rare and grows rarer as the value of the property increases. If a landlord feels that he has such a rare case, he is advised to consult with his eviction attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the landlord ever finds a rental full of furniture, his attorney’s advice is absolutely necessary.

If the total value of the property is less than $500.00, the landlord cannot assume that there has been abandonment. The landlord must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the landlord must file eviction and obtain the writ of possession, even if the value of the property is minimal. That being the case, we turn to a discussion of the statute.

The statute  “actual knowledge”

As previously indicated there is no statutory definition of “actual knowledge” of abandonment. Neither the attorney nor anyone else can tell the landlord if he has actual knowledge. Either he can claim it or he can’t. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the landlord can claim actual knowledge. The landlord may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the landlord enters his reasons in the resident’s file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the landlord’s actual knowledge.

The easiest case may be when the resident tells or writes the landlord that he intends to break the lease and leave. The landlord checks the property and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the landlord has actual knowledge. True trash should not be a concern.

It is common for a landlord to talk to the neighbors who will often tell the landlord that they “know” the resident left for good. This is not the landlord’s actual knowledge. It is a factor that the landlord can take into consideration.

The statute: “the presumption“

If the landlord doesn’t have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. As mentioned above, conclusively establishing 15 days of no activity can be almost impossible. Although some landlords have been known to put tape at rental entries to show the requisite lack of activity, for most landlords it’s a conclusion drawn as their best guess. It’s based on more or less frequent checks of the rental, talking to neighbors and any other information that the landlord can gather indicating that no one has been around. The landlord should enter the facts supporting his presumption in the resident’s file.

Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Landlords who find any usable decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the most prudent route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the tenant can still tie up the unit by storing personal property within the unit, again making eviction the best option.

The landlord must remember that even if the presumption is established by the landlord, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The landlord must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the landlord must accept in relying on the presumption.

Considerations in abandonment

In addition to value of personal property remaining on the premises, the following are some other factors to consider that may indicate the resident has abandoned. They may assist the landlord in having actual knowledge of abandonment or support the presumption of abandonment. 

– Resident statements or writings;

– Neighbor statements;

– Responses from emergency contacts; the landlord can only leave a request with the contact for the resident to get in touch with the landlord. He cannot disclose any information to the contact, as such disclosure is likely a breach of the resident’s privacy;

– The type and quantity of personal items left behind;

– Utilities cancelled, shut-off or rolled over to the landlord; 

– Lack of sleeping arrangements (bed, mattress, sleeping bag);

– No edible food, canned or otherwise;

– Rotting food in the refrigerator or kitchen in general;

– No pet food or water, if the resident had a pet;

– Single family homes: lawn, shrubbery or pool not maintained, when these are the resident’s obligations under the lease.

All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance; for instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession.

Pictures

A final word on proof: in establishing the condition and value of remaining items or the condition of a rental that gave rise to the landlord’s findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items are not taken and included in the resident’s file.

END OF FLORIDA ABANDONMENT ARTICLE

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Likewise, a listener to my radio show emailed me the following without attribution, although it appears that it was prepared by: Marla L. Scharf, Staff Counsel, Legal Services Unit. 2012 revision by Claire Yazigi. I have been unable to locate them to ask their permission, but if they are the authors, I hereby give them attribution and credit in full:

10.2. ABANDONMENT OF PREMISES IN CALIFORNIA:

Options for a Landlord – When a Tenant’s Personal Property has Been Left in the Rental Unit: 

When tenants move out of a rental unit, they are required to also move their personal property. (Personal property is everything which a person can own except for land. Personal property is also referred to as personal possessions or personal belongings.) California law has three different procedures which a landlord may follow to remove and dispose of personal property left in a rental unit after a tenant has vacated. A landlord who has properly followed one of the procedures cannot be held liable for any damages related to the property.

The three procedures apply to the following three situations:

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.)

Which procedure a landlord should follow in any particular case depends upon the situation.

Some 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.¹

Act reasonably . . .

In deciding whether or not a particular case fits into the lost property situation or the abandoned property situation, a landlord is held by the law to a certain standard. And in deciding who the property owners are or might be, the landlord is held to that same standard. The standard is: A landlord must act reasonably, and the landlord’s actions must be based on a reasonable belief.

California law defines a “reasonable belief” as the actual knowledge or belief that a prudent person would have, given the facts then known by that person. Generally a landlord is not required to conduct an investigation to obtain more facts. But, if a landlord has information which indicates that an investigation would provide more facts about the identity of the property owner, and if the cost of the investigation would be reasonable in view of the probable value of the property, then the landlord should make the investigation. If an investigation should have been made but wasn’t, then the landlord is held to a higher standard – the reasonableness of the landlord’s actions would be judged as if the landlord had conducted an investigation and had known the facts which the investigation would have revealed.²

What all this means is that 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.³

Avoid unlawful self-help …

When a landlord disposes of personal property by properly following one of the three legal procedures, the landlord can avoid the possibility of being held liable for unlawfully taking or converting the property.⁴

If a landlord goes about disposing of the property in some other way, resorting to self-help methods, the landlord could be liable for money damages.⁵

Animals . . .

If a tenant leaves an animal in or around a rental property without proper care and attention, you must take charge of the animal and immediately notify animal control officials.⁶ In the meantime, you are responsible for following any ordinances or laws that deal with animals.⁷  If the tenant has left livestock, consult Sections 17001 and following of the California Food and Agriculture Code.

Please remember . . .

The steps outlined in this legal guide are only for situations where personal property has been left in a rental unit which has been vacated by the tenant. If the tenant has not vacated the unit, a landlord has no legal right to dispose of personal property in the unit. If a landlord believes that a unit has been abandoned by the tenant, the landlord must follow certain legal steps to declare the rental unit abandoned. Only after the rental unit is legally considered abandoned can the landlord dispose of personal belongings left in it on that basis.

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.  Write a notice to the former tenant or tenants.
2. [No notice is required for former tenants who were evicted under a writ of possession.¹⁰ A notice already is contained in the writ of possession from which the sheriff is required to serve upon the evicted tenant or tenants.]
3. Write a notice to any other person whom the landlord believes may be the owner of some or all of the abandoned property.
4. The notice¹² 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 in California 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.

Deliver the notices to the tenants and other possible owners of the property.

Meet with the tenant and other possible owners when they come to claim the property.

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.¹⁴

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.

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:¹⁶

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.¹⁷ 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.¹⁸

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.¹⁹

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.²⁰

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.²¹

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.²²

In any event, the landlord cannot charge more than one person for the same costs.²³

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.²⁴

What is the landlord’s liability in CALIFORNIA?

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.²⁵

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.²⁶

Property disposed of in another manner (not released):

If the California 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.²⁷ 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 of property in California 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 where 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.

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.

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