Wednesday, August 10, 2011

Abandoned Property

I recently addressed a question on the Mass. Law Forum site from a landlord who was asking what options were available to deal with property left behind by a former tenant.  At issue was a large trailer left behind.  It was unclear from the posting whether the tenant had been evicted or left voluntarily.  My analysis involved two parts, one focusing on the cost burdens associated with the unwanted property, the other with how best to legally dispose of it.  The full discussion (which is not substantially different from the below) can be found here.

It would make difference whether the tenant in such a case had been evicted as the result of summary process since in that case the constable charged with executing the eviction would have been authorized (and obligated) to arrange for the removal of all the tenants belongs as well. Unfortunately, even in this situation, it seems that MA law requires the LANDLORD to bear the expense of removing any stuff left behind in the event the tenant is unwilling or unable to pay, which is usually the case in an eviction. This appears to be intention of Mass. Gen. Laws, Ch. 239, s. 4(c):

"(c) The plaintiff [i.e. the landlord] in the summary process action shall pay the costs of removing the property to the place of storage. The plaintiff shall be entitled to reimbursement by the defendant for any costs and fees so advanced."

Given the landlord is responsible for removal and storage of tenant's belongings even during eviction, it would seem that in the absence of eviction, they would similarly be obligated to bear that expense. Of course, it is possible whether in the context of summary process or not to seek reimbursement from the (former) tenant in small claims or district court. But before one could seek reimbursement in the form of damages for removal/storage costs incurred, those damages have to be actual. In other words, a person would already have to lost money on the removal costs. If property is, for examples, still located w/ the landlord, they have not yet technically suffered any monetary damage and therefore don't have a cause of action to bring to small claims or other court.

There seem to be two other aspects to property a tenant leaves behind. It ought in theory to be possible to seek a temporary restraining order (TRO) requiring a former tenant to remove their property. Technically they would be involved in a trespassing of sorts. It's unclear how any law enforcement officials would enforce this TRO, however, since it would start to look a lot like the eviction proceedings described above.

More likely than that is that property left behind by a tenant who was not the subject of an eviction proceedings is simply considered "abandoned". Abandoned property becomes the legal property of the first person to find or lay claim to it by taking possession. Since the property is then legally the finders, they can sell or destroy that property as they see fit, to the extent the law allows. However, there are certain procedures that must be followed to establish that property is abandoned. They can be found at the state treasurer's website (not to be confused with the provisions for abandoned property in the course of a probate or estate, as contemplated by M.G.L. ch. 200A):

Really it seems the best advice here is also the most unuseful and preventative in nature: to make doubly sure any future tenants are as reliable and trustworthy as possible. That said, the fees for the TRO are not very prohibitive and it might be worth pursuing as a way to get some extra leverage w/ local law enforcement. The lengthier process of declaring the property abandoned in order to acquire rightful ownership to sell or destroy the property can be started commensurate to the TRO and serve as a "plan B" should, as seems likely, little or nothing come of the TRO. In county that has a special housing court division one could avail themselves of that to acquire the TRO, otherwise any district court can issue them.

No comments:

Post a Comment