What can I legally do with the things a tenant left in the apartment when he moved owing us rent?
Full Question:
Answer:
In Ohio, the disposition of abandoned property of a tenant will be governed by local ordinances. I suggest calling the local police department for applicable rules. Typically, they require a notice to be sent to the tenant's last known address, with a deadline for retrieval before the items may be sold.
Please see the following Ohio case for further discussion:
KAYANDA v. KAMENIR, 16 Ohio Misc.2d 1 (1984)
475 N.E.2d 519
KAYANDA v. KAMENIR ET AL.[fn*]
No. 83 CVF 11576
Municipal Court, Akron.
Decided June 4, 1984.
[fn*] Reporter's Note: No appeal has been taken from the decision of the
court.
Bailments — May be created when landlord assumes custody of
tenant's personal property — Prima facie case established
against bailee, when — Once established, burden of going
forward with evidence shifts to bailor.
O.Jur 3d Bailments §§ 6, 45, 56.
O.Jur 2d Landlord and Tenant § 558.
1. A bailment can be any delivery of personal property in trust
for a lawful purpose, and it can be created without the
assent of both parties when the landlord assumes custody of
personal property left by a tenant.
2. In order to establish a prima facie case against a bailee, a
bailor need prove (1) the contract of bailment; (2) the
delivery of the bailed property; and (3) the failure of the
bailee to redeliver the property upon demand. (David v.
Lose, 7 Ohio St.2d 97 [36 O.O.2d 81].)
3. Once the bailor has established his prima facie case against
a bailee, the burden of going forward with the evidence
shifts to the bailee to explain his failure to redeliver the
bailed property. (Agricultural Ins. Co. v. Constantine,
144 Ohio St. 275 [29 O.O. 426]; David v. Lose, 7 Ohio St.2d 97
[36 O.O.2d 81].)
Mr. Douglas B. Maher, for plaintiff.
Mr. Irving A. Portman, for defendant.
SCHNEIDERMAN, J.
The plaintiff, Peter Kayanda, filed a complaint against Bernard
Kamenir, Nahmi Realty Company and Charles D. Bowman, claiming
$6,500 for loss of personal property. At the trial, Kayanda
orally amended his claim by reducing his prayer to $3,500, and on
that date voluntarily dismissed Bowman.
Defendants, Kamenir and Nahmi Realty, denied any amount was
due, and Kamenir filed a counterclaim, claiming unpaid rent in
the sum of $3,110.
At all times pertinent herein Kamenir was the owner, or a
co-owner with full authority to act for the other owner, of the
apartment building located at 509-511 Crosby Street and known as
Rosaline Apts. In July 1973, Kayanda rented Apartment 208 from
Kamenir and continued in possession until December 5, 1981.
On November 20, 1981, the basement at Rosaline Apts. flooded,
and the heating boiler quit functioning. The next
Page 2
day it was found that heat could not be restored, pipes were
freezing and bursting, and some ceilings had fallen. Kamenir
decided that all the tenants would have to vacate and the
building be closed, and he orally notified Kayanda that there
were "emergency problems in the building and he would have to
find another place to live." An attempt was made to similarly
notify all of the tenants.
Kamenir closed the building on December 5, 1981. Plywood was
placed over all of the lower windows and balconies, the back door
was locked and nailed shut, and the front door closed with a
chain and a lock. The same day, a sign was posted in front of the
building stating in part that "all personal items remaining in
this building after December 31, 1981 will be considered
abandoned * * *." The sign had a telephone number for inquiries.
No other written notice was made, and the only attempt to contact
Kayanda was the conversation on November 21.
Each tenant had normal access until December 5, 1981. When the
building was closed, Kayanda had furniture, clothing and other
personal property in his apartment. Kayanda went to Legal Aid for
assistance in recovering his property, and an arrangement was
made for Kayanda to remove his property, but Kamenir's agent
failed to keep that appointment. In February 1982, a second
appointment was made, the building was opened for Kayanda, he
found the apartment unlocked, the interior a mess, and many items
missing, Kayanda removed the property that was in the apartment.
Kayanda claims that the missing property was worth $3,349;
however, the fair market value of that property was $2,100.
Kayanda failed to pay rent as agreed, and the total rent
arrearage is $3,110, less a credit of $45 on November rent when
the premises were not habitable.
There was no evidence to support Kayanda's claim against Nahmi
Realty Co., and therefore the complaint as against that defendant
should be dismissed with prejudice.
As between Kayanda and Kamenir, the initial inquiry must be to
determine the legal rules which govern the respective rights,
duties and liabilities. The parties had a landlord-tenant
relationship, but after Kamenir closed the building with
Kayanda's personal property inside, the relationship as to that
property was that of a bailee-bailor.
A bailment can be any delivery of personal property in trust
for a lawful purpose, and it can be created without the assent of
both parties, when as here, the custody is taken of property
which is left by the bailor. 8 Ohio Jurisprudence 3d (1978)
401-402, Bailments, Section 2. The taking of possession by
Kamenir satisfies all of the essential elements:
(1) delivery of
personal property to bailee;
(2) acceptance by bailee; and
(3)
intended return to bailor.
It is fundamental that the bailee is bound to the carrying out
of the purpose of the bailment and is liable to the bailor for
loss of the bailed property. This is one of the most important
rights of the bailor, and the duty to redeliver is not based on
negligence and is excused only if there has been a loss without
fault or want of care on the bailee's part. 8 Ohio Jurisprudence
3d, supra, at 438-440, Section 45.
Kayanda's right of recovery is in contract, and the failure to
redeliver all the bailed property is a breach of the bailment
contract. The burden of proof is upon Kayanda, the bailor, to
prove that Kamenir, the bailee, was guilty of negligence or want
of due care. However, once a prima facie case of liability has
been established, the burden of proceeding with the evidence
shifts to the bailee to explain his failure to deliver.
Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275
[29 O.O. 407];
Page 3
David v. Lose (1966), 7 Ohio St.2d 97 [36 O.O.2d 81]; Aetna Cas.
& Sur. Co. v. Woody Sander Ford (1969), 21 Ohio App.2d 62;
8 Ohio Jurisprudence 3d, supra, 450-452, Section 56. See, also,
58 A.L.R. 2d (1958) 1289, at 1301. One of the reasons for this rule
is that the bailee's failure to return the property constitutes
some evidence of negligence, and the burden should be on the
bailee to explain the nonreturn of the property. Agricultural
Ins. Co. v. Constantine, supra.
The rule in Ohio for establishing a prima facie case for the
nonreturn of bailed property is set forth in the first paragraph
of the syllabus in David v. Lose, supra:
"In order to establish a prima facie case against a bailee in
an action sounding in contract, a bailor need prove only (1) the
contract of bailment, (2) delivery of the bailed property to the
bailee and (3) failure of the bailee to redeliver the bailed
property undamaged at the termination of the bailment."
This proposition was approved and followed in Loewenstine v.
Delta Airlines, Inc. (1982), 7 Ohio App.3d 185; Maloney v.
General Tire Sales, Inc. (1973), 34 Ohio App.2d 177
[63 O.O.2d 289]; Edwards v. Crestmont Cadillac (1979), 64 Ohio Misc. 1
[18 O.O.3d 63].
None of the above-cited decisions evolved from a
landlord-tenant relationship, nor has this court found an Ohio
case; however, these rights, duties and obligations equally apply
when a landlord takes possession of a tenant's personal property.
Kayanda proved all three requirements for a prima facie case
and thus the burden shifted to Kamenir. The evidence demonstrated
that Kamenir had taken reasonable precautions to secure the
building when it was closed but offered no explanation as to the
loss. In fact, there was no evidence to how or when the loss
occurred, and this court is left to speculate on that matter. The
loss could have occurred for a reason entirely unrelated to the
steps taken by Kamenir in closing the building. Kamenir failed to
explain the loss and his inability to redeliver the property, and
the inference of negligence and lack of due care created by
Kayanda's showing a prima facie case was not overcome by Kamenir.
Kamenir should find no protection from the posted sign saying
that "* * * goods left * * * after December 31, 1981, will be
considered abandoned. * * *" There is no evidence that Kayanda
read the sign, or if he did, assented to it. Notwithstanding
these facts, the general rule is that a bailee cannot, by
contract, exempt himself from liability for his own negligence or
that of his agents or servants. Agricultural Ins. Co. v.
Constantine, supra.
As to the amount of the loss, it was clear from the evidence
that the total value claimed by Kayanda was overstated and that
amounts attributed to many items did not reflect their fair
market value. The general rule which measures the market value of
property which is lost, destroyed or stolen applies in this case.
The measure is the fair market value at the time of such loss,
destruction or theft.
Kayanda has proved his case by a preponderance of the evidence,
and he is entitled to judgment, and the fair market value of the
property not returned to Kayanda is $2,200.
As to the counterclaim, Kamenir did prove by a preponderance of
the evidence that Kayanda was indebted to him for rent in the sum
of $3,055 and that he is entitled to judgment against Kayanda for
his amount.
In conclusion, Kayanda is entitled to a judgment against
Kamenir in the sum of $2,200, and Kamenir is entitled to a
judgment against Kayanda in the sum of $3,055.