If an at will tenant moves and leaves behind possessions, legally what can I do with them?
Full Question:
Answer:
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.
Section 4.
(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.