Is the Landlord Liable for Property Left Behind After a Tenant's Lease Expires?
Full Question:
Answer:
Generally, abandoned property is property that has been left behind and the owner has no intent to return to claim it. Whether the property was abandoned will be a matter of subjective determination for the court, based on all the facts and circumstances involved. Some of the factors, among others, that may be considered by the court include the length of time the property was left, whether the tenant communicated an intent to return for the property, whether the tenant was advised that the property would be considered abandoned if not claimed within a certain time, the value of the property, the nature of the other property in the heap, and the condition of the property. Washington law only requires the landlord to store property of an evicted tenant when the tenant has requested the landlord do so. It is possible the court may find that the tenant was a bailee of the boyfriend's property and failed to exercise proper care of the property by leaving it in the drveway. If the landlord is found to be a bailee of the property, it would likely be a gratuitous bailment, since the lease was expired, and a lower standard of care would apply. In finding a gratuitous bailment was created, the court would assess whether slight care was used, based upon how a reasonable person would act in a similar set of circumstances.
When a person who is not a landlord agrees to hold property for another, a bailment is created.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
If a bailee fails to use proper care, it may be liable to the bailor for resulting damages. If a new item is returned used, the damages are typically the difference in value between the item when new and the item when used. The court often uses locally advertised rates for a similar product to establish values.
Please see the following portion of a WA statute:
Sec. 1 RCW 59.18.312 and 1992 c 38 s 8 are each amended to read as
follows:
(1) A landlord shall, upon the execution of a writ of restitution
by the sheriff, enter and take possession of any property of the tenant
found on the premises.
The landlord may store the property in any reasonably secure
place, including the premises, and sell or dispose of the property as
provided under subsection (3) of this section. The landlord must store the
property if the tenant serves a written request to do so on the landlord
or the landlord's representative by any of the methods described in RCW
59.18.365 no later than three days after service of the writ. A landlord
may elect to store the property without such a request unless the tenant
or the tenant's representative objects to the storage of the property.
If, the tenant or the tenant's representative objects to the
storage of the property or the landlord elects not to store the property
because the tenant has not served a written request on the landlord to do
so, the property shall be deposited upon the nearest public property and
may not be stored by the landlord.
If the landlord knows that the tenant is a person with a
disability as defined in RCW 49.60.040 (as amended by chapter 317, Laws
of 2007) and the disability impairs or prevents the tenant or the
tenant's representative from making a written request for storage, it
must be presumed that the tenant has requested the storage of the
property as provided in this section unless the tenant objects in
writing.
(2) Property stored under this section shall be returned to
the tenant after the tenant has paid the actual or reasonable drayage and
storage costs, whichever is less, or until it is sold or disposed of by
the landlord in accordance with subsection (3) of this section.
(3) Prior to the sale of property stored pursuant to this
section with a cumulative value of over one hundred dollars, the
landlord shall notify the tenant of the pending sale. After
thirty days from the date the notice of the sale
is mailed or personally delivered to the tenant 's last known address,
the landlord may sell the property, including personal
papers, family pictures, and keepsakes, and dispose of any property not
sold.
If the property that is being stored has a cumulative value of
one hundred dollars or less, then the landlord may sell or dispose of the
property in the manner provided in this section, except for personal
papers, family pictures, and keepsakes. Prior to the sale or disposal of
property stored pursuant to this section with a cumulative value of
one hundred dollars or less, the landlord shall notify the tenant of the
pending sale or disposal. The notice shall either be mailed to the
tenant's last known address or personally delivered to the tenant. After
seven days from the date the notice is mailed or delivered to the
tenant, the landlord may sell or dispose of the property.
The landlord may apply any income derived from the sale of the tenant's
property against moneys due the landlord for drayage and storage of the
property. The amount of sale proceeds that the landlord may apply towards
such costs may not exceed the actual or reasonable costs for drayage and
storage of the property, whichever is less. Any excess income derived
from the sale of such property shall be held by the landlord for the
benefit of the tenant for a period of one year from the date of the
sale. If no claim is made or action commenced by the tenant for the
recovery of the excess income prior to the expiration of that period of
time, then the balance shall be treated as abandoned property and
deposited by the landlord with the department of revenue pursuant to
chapter 63.29 RCW.
(4) Nothing in this section shall be construed as creating a right of
distress for rent.
(5) When serving a tenant with a writ of restitution pursuant to RCW
59.12.100 and 59.18.410, the sheriff shall provide written notice to the
tenant that: (a) Upon execution of the writ, the landlord must store
the tenant's property only if the tenant serves a written request on the
landlord to do so no later than three days after service of the writ; (b)
the notice to the landlord requesting storage may be served by personally
delivering or mailing a copy of the request to the landlord at the
address identified in, or by facsimile to the facsimile number listed
on, the form described under subsection (6) of this section; (c) if the
tenant has not made such a written request to the landlord, the landlord
may elect to either store the tenant's property or place the tenant's
property on the nearest public property unless the tenant objects; (b)
(d) if the property is stored, it may not be returned to the tenant
unless the tenant pays the actual or reasonable costs of drayage and
storage, whichever is less, within thirty days; (e) if the tenant or
the tenant's representative objects to storage of the property, it will
not be stored but will be placed on the nearest public property; and
(f) the landlord may sell or otherwise dispose of the property as
provided in subsection (3) of this section if the landlord provides
written notice to the tenant first.
