If an at will tenant moves and leaves behind possessions, legally what can I do with them?
01/22/2009 - Landlord Tenant - State: MA #15042
I live in the state of Massachusetts. A person who rented a room from me left a large majority of his possessions behind when he moved out Dec 1st. What are my obligations to his possessions? He was also a tenant at will, he was not under a lease. Do not know if that makes a difference.
Abandonment is typically defined as the absence of the tenant from the premises for a period of time when rent has not been paid. Abandoned personal property and the laws governing how to properly dispose of the same or how to make a bona fide attempt to locate the owner before disposal vary by state. Abandoned personal property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and without the intention of reclaiming any future rights therein, such as reclaiming future possession or resuming ownership, possession, or enjoyment of the property. Provided the statutory definition of abandonment is met, a landlord is typically allowed to repossess the premises and the store tenant's belongings. A tenant may recover the same before the expiration of a certain time period, but must typically reimburse the landlord for the cost of storage.
Massachusetts law provides specific provisions relating to post-eviction abandoned property procedures. Unless a tenant agrees to have his or her belongings disposed of on the street, the eviction process in Massachusetts involves a constable providing the tenant 48 hours notice before placing the possessions in a storage facility, at the landlord’s expense (which the landlord may sue to recover). Because the warehouse has a lien on the property for its unpaid fees, if the tenant does not retrieve the property within six months, the warehouse may sell it. The mover of the goods should make a descriptive list of all of the stored items. A tenant is not required to pay back rent to get his or her belongings out of storage, but he or she will still owe the amount the court finds due.
The following are Massachusetts statutes:G.L.c. 239, § 3. Judgment and execution; costs; appeal.
Section 3. Except as hereinafter provided, if the court finds that the plaintiff is entitled to possession, he shall have judgment and execution for possession and costs, and, if rent is claimed as provided in section two and found due, the judgment and execution shall include the amount of the award. If the plaintiff becomes nonsuit or fails to prove his right to possession, the defendant shall have judgment and execution for costs.
At least forty-eight hours prior to serving or levying upon an execution issued on a judgment for the plaintiff for possession of land or tenements rented or leased for dwelling purposes, the officer serving or levying upon the execution shall give the defendant written notice that at a specified date and time he will serve or levy upon the execution and that at that time he will physically remove the defendant and his personal possessions from the premises if the defendant has not prior to that time vacated the premises voluntarily.
The notice shall contain
(1) the signature, full name, full business address and business telephone number of the officer;
(2) the name of the court and the docket number of the action;
(3) a statement that the officer will place any personal property remaining on the premises at the time the execution is levied in storage at a licensed public warehouse, and the full name, full business address, and business telephone number of the warehouse to be used;
(4) a statement that the warehouser's storage rates may be ascertained by contacting the commissioner of public safety and the address and telephone number of such agency;
(5) a statement that the warehouser may sell at auction any property that is unclaimed after 6 months and may retain that portion of the proceeds necessary to compensate him for any unpaid storage fees accrued as of the date of the auction, except as provided in section 4; and
(6) a statement that the defendant should notify the warehouser in writing at the business address listed in the notice of any change in the defendant's mailing address.
The notice referred to in this section shall be served in the same manner as the summary process summons and complaint and shall be filed in the court that issued the execution.
The officer shall select the public warehouser identified in the notice described in the preceding paragraph in a manner calculated to ensure that the defendant's personal property will be stored within a reasonable distance of the premises at issue in the summary process action. The officer shall not select pursuant to this section a warehouser whom the officer knows or reasonably believes to be in violation of any provision of section 4.
No execution for possession of premises rented or leased for dwelling purposes shall be served or levied upon after five o'clock p.m. or before nine o'clock a.m., nor on a Saturday, Sunday, or legal holiday.
If the underlying money judgment in any summary process action for non-payment of rent in premises rented or leased for dwelling purposes has been fully satisfied, together with any use and occupancy accruing since the date of judgment, the plaintiff shall be barred from levying on any execution for possession that has issued and shall return the execution to the court fully satisfied. If no execution has issued, the plaintiff shall notify the court of the satisfaction of judgment and no execution shall issue thereafter. If the underlying money judgment has been fully satisfied and use and occupancy fully paid, the defendant shall be considered a lawful tenant and may enforce this right through judicial process, including injunctions barring the issuance of or levying upon the execution and motions to supersede or recall the execution. Notwithstanding this paragraph, the plaintiff shall not be required to accept full satisfaction of the money judgment. Any refusal by the plaintiff to accept full satisfaction of the money judgment under this paragraph shall not be a bar to the enforcement of said judgment in any lawful manner.
G.L.c. 239, § 4. Storage of property removed; liens and enforcement; penalties.
(a) If an officer, serving an execution issued on a judgment for the plaintiff for possession of land or tenements, removes personal property, belonging to a person other than the plaintiff, from the land or tenements, he shall forthwith cause it to be stored for the benefit of the owners thereof. Such property shall be stored with the licensed public warehouser identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a warehouser or other storage facility of the defendant's choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property. The officer shall file with the court that issued the summary process judgment and provide to the defendant in hand, or if the defendant is not present at the time of execution by receipted mail to the defendant's last and best known address, a receipt containing a description of the goods removed or of the packages containing them, as well as name and signature of the officer.
(b) Any public warehouser who accepts property for storage pursuant to this section:
(1) shall be licensed and bonded pursuant to section 1 of chapter 105;
(2) shall file its current storage rates with the commissioner of public safety and shall not change such rates more than once annually, unless the commissioner of public safety or his designee gives prior written approval upon a showing of extraordinary circumstances;
(3) shall not impose charges for storage under this section in excess of the rates filed with and not rejected by the commissioner of public safety at the time of service of the notice provided for in section 3;
(4) shall not impose charges for storage under this section in excess of the fair market rates for storage facilities of similar quality in the warehouse's general locale;
(5) shall not impose charges other than those for the actual storage of goods pursuant to this section, including, but not limited to, docking fees, warehouse labor fees, administrative fees, or other similar fees imposed in addition to the storage rates listed with the commissioner of public safety;
(6) shall not impose minimum fees or otherwise charge storage fees for any period other than the period of actual storage;
(7) shall credit toward the defendant's costs of storage any amount paid by the plaintiff or other third party in connection with the storage of the property in question;
(8) shall send by first class mail to the defendant's last and best known address monthly statements of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien or security interest pursuant to this section; and
(9) shall insure the defendant's property against fire and theft in the amount of no less than $10,000.
A warehouser who accepts goods under this section is liable for any loss or injury to the goods caused by his or her failure to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances but unless otherwise agreed or provided in this section, the warehouser is not liable for damages which could not have been avoided by the exercise of such care. No person shall be required to release a warehouser from liability as a condition of release of any stored property.
(c) The plaintiff 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.
(d) Upon receipt of personal property under this section, a public warehouser shall forthwith, but no later than 7 days after the removal of the property from the land or tenements at issue in the summary process action, issue a warehouse receipt that complies with the requirements of section 7-202 of chapter 106. Such receipt shall contain as additional terms:
(1) a statement that the warehouser may sell any property unclaimed after six months and retain that portion of the proceeds necessary to compensate the warehouser for lawful storage fees actually accrued as of the date of the auction, except as provided in this section;
(2) a list of the warehouser's storage rates and a statement that such rates may be verified by contacting the commissioner of public safety, as well as the address and telephone number of such agency;
(3) a conspicuous statement that the defendant should notify the warehouser in writing at the business address listed in the notice of any change in the defendant's mailing address;
(4) a description of the applicable procedures for reclaiming the stored property, including, but not limited to, a statement that the defendant is entitled to reclaim items of personal or sentimental value but limited auction value once during the period of storage without payment of any fee and that the defendant shall be entitled to purchase individual items at any auction held to enforce the warehouser's lien created under this section and an identification of the publication in which any such auction will be advertised pursuant to subsection (f) of section 7-210 of said chapter 106. A duplicate copy of the warehouse receipt shall be kept on file at the place of storage and the original shall be served by receipted mail or hand delivery to the defendant at his last and best known address. The warehouser shall keep separate the goods covered by each receipt so as to permit at all times identification and delivery of those goods. A warehouser who fails to comply with the requirements of this subsection shall be liable for damages caused by the omission to a person injured thereby.
(e) Any warehouser who accepts personal property pursuant to this section shall have a lien thereon for charges for storage, insofar as such charges are imposed in accordance with this section. The lien shall not be enforced by sale or disposal of the property until it has been kept in storage for at least 6 months. Thereafter, the warehouser may enforce the lien in the manner provided for in subsection (2) of section 7-210 of chapter 106, except as otherwise provided in this section. The defendant shall be entitled to postpone the sale or disposal of his property for 3 months upon payment of one half of all storage fees incurred plus costs reasonably incurred in preparation for their sale pursuant to law. The warehouser may satisfy his lien from the proceeds of any sale or disposition under this section but must hold the balance for delivery on the demand of any person to whom he would have been bound to deliver the goods. A warehouser's failure to comply with any of the requirements of this section shall result in the forfeiture of his lien.
(f) The defendant may access his stored property once, without charge or payment of storage fees, either to inspect the property or to remove items having primarily personal or sentimental value, or both. Items having primarily personal or sentimental value, shall include but not be limited to photographs, passports, documents, funeral urns, and the like. All personal property stored under this section may be reclaimed at any time upon payment of all storage fees lawfully owed by the defendant. If the property is sold at auction, the defendant shall be entitled to purchase the property in bloc or in parcels, regardless of the terms of the public sale. The failure of any third party to pay monies owed by him to the warehouser shall not affect the rights of the property owner to reclaim property under this subsection.
(g) A warehouser who violates this section shall pay a civil penalty of not more than $5,000, in an amount to be determined by the commissioner of public safety after notice and an opportunity for an adjudicatory hearing under chapter 30A. The commissioner or his or her designee may at any time conduct an inspection of a public warehouse storing goods under this section for the purpose of assessing compliance with applicable health and safety codes and the requirements of this section. The commissioner may reject the rates filed by a warehouser for storage pursuant to this section if the commissioner determines that such rates are not commercially reasonable or otherwise violate this section. The failure of the commissioner to reject a warehouser's rates shall not create a presumption that such rates are commercially reasonable for purposes of liability under chapter 93A or this section.
(h) Notwithstanding any civil penalty imposed pursuant to subsection (g), the defendant may petition the court in which the summary process action was heard for damages or injunctive relief in connection with any violation of this section. A violation of this section shall also be a violation of section 2 of chapter 93A.
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01/22/2009 - Category: Landlord Tenant - State: MA #15042
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