What are My Rights In Georgia to Sell Abandoned Property?
Full Question:
Answer:
The answer will depend on all the facts and contracts involved. Generally, property held in the course of business is deemed abandoned after 5 years. However, it is possible to have a lien on the property and sell it to foreclose the lien. A former bailor should be contacted by written notice before transferring, selling, or destroying the property by a new owner. You may also check the local police department for ordinances governing abandoned property, as laws vary by area.
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.
Please see the following GA statutes to determine applicability:
§ 44-12-193. When property held, issued, or owing in ordinary course of holder's business presumed abandoned
Except as provided in Article 17B of Title 10, all tangible and intangible property, including any income or increment thereon, less any lawful charges, that is held, issued, or owing in the ordinary course of the holder's business and has remained unclaimed by the owner for more than five years after it became payable or distributable is presumed abandoned, except as otherwise provided by this article. Property is payable or distributable for the purpose of this article notwithstanding the owner's failure to make demand or to present any instrument or document required to receive payment.
44-14-363. (a) All mechanics of every sort shall have a special lien on
personal. . . .
(a) All mechanics of every sort shall have a special lien on personal
property for work done and material furnished in manufacturing or
repairing the personal property and for storage of the personal property
after its manufacture or repair, which storage begins accruing after 30
days' written notice to the owner of the fact that storage is accruing
and of the daily dollar amount thereof; and said notice shall be mailed
to the owner by certified mail or statutory overnight delivery addressed
to the owner at his last known address. Such special liens may be
asserted by the retention of the personal property or the mechanic may
surrender the personal property and give credit when the lien is enforced
in accordance with Code Section 44-14-550; and if such special liens are
asserted by retention of the personal property, the mechanic shall not be
required to surrender the property to the holder of a subordinate
security interest or lien. Such liens shall be superior to all liens
except liens for taxes and, except as provided in subsection (2) of Code
Section 11-9-310, such other liens as the mechanic may have had actual
notice of before the work was done or material furnished.
(b) The maximum amount of storage that may be charged shall be $1.00
per day. Nothing contained in this Code section shall allow a fee for
storage to be charged on any item with a fair market value in excess of
$200.00. Storage charges pursuant to this Code section shall not apply to
motor vehicles now or hereafter covered by Chapter 3 of Title 40 nor
shall the storage fee be charged if there is a bona fide dispute between
the customer and the mechanic as to the manner of repair or the charges
for repair.
(c)(1) When possession of the property is surrendered to the debtor,
the mechanic shall record his claim of lien within 90 days after the
work is done and the material is furnished or, in the case of repairs
made on or to aircraft or farm machinery, within 180 days after the
work is done and the material is furnished. The claim of lien shall be
recorded in the office of the clerk of the superior court of the
county where the owner of the property resides. The claim shall be in
substance as follows:
"A.B., mechanic, claims a lien on _______ (here describe the property)
of C.B., for work done, material furnished, and storage accruing (as
the case may be) in manufacturing, repairing, and storing (as the case
may be) the same."
(2) If possession of the personal property subject to a special lien as
provided in this Code section is surrendered to the debtor and if such
special lien is not preserved by recording the claim of lien as provided
in paragraph (1) of this subsection, the mechanic acquires a special lien
on other personal property belonging to the debtor which comes into the
possession of the mechanic, except that this sentence shall not apply to
consumer goods which are being used by a consumer for personal, family,
or household purposes or which have been bought by a consumer for use for
personal, family, or household purposes. The special lien created by this
paragraph shall be subject to the provisions of this Code section as to
foreclosure and recording.
44-14-550. Liens on personal property, other than mortgages, when not
otherwise. . . .
Liens on personal property, other than mortgages, when not otherwise
provided for, shall be foreclosed in accordance with the following
provisions:
(1) There shall be a demand on the owner, agent, or lessee of the
property for payment and a refusal to pay; and such demand and refusal
shall be averred. If, however, no such demand can be made on account of
the absence from the county of his residence of the party creating the
lien on personal property, by reason of his moving or absconding from the
county of his residence, or other acts which show an intention to be
absent from the county so as to defeat the demand, the party holding the
lien shall not be obliged to make a demand but may foreclose without such
demand; provided, however, that, if possession is retained or the lien
recorded, the owner-debtor may contest the validity of the amount claimed
to be due by making written demand upon the lienholder. If, upon receipt
of the demand, the lienholder fails to institute foreclosure proceedings
within ten days, where possession has been retained, or within 30 days,
where possession has been surrendered, the lien is forfeited;
(2) A person asserting the lien, either for himself or as a guardian,
administrator, executor, or trustee, may move to foreclose the lien by
making an affidavit to a court of competent jurisdiction showing all
the facts necessary to constitute a lien and the amount claimed to be
due. The plaintiff shall verify the statement by oath or affirmation
and shall affix his signature thereto;
(3) Upon the affidavit being filed, the clerk or a judge of the court
shall serve notice upon the owner, the recorded lienholders, and the
lessee of the property of a right to a hearing to determine if reasonable
cause exists to believe that a valid debt exists. The hearing must be
petitioned for within five days after the receipt of the notice; and, if
no petition for the hearing is filed within the time allowed, the lien
will conclusively be deemed a valid one and foreclosure thereof allowed;
(4) If a petition for a hearing is filed within the time allowed, the
court shall set the hearing within ten days of the filing of the
petition. If at the probable cause hearing the court determines that
reasonable cause exists to believe that a valid debt exists, the
person asserting the lien shall be given possession of the property or
the court shall obtain possession of the property as ordered by the
court. The defendant may retain possession of the property by giving
bond and security for the amount determined to be due and for costs of
the action;
(5) Within five days of the probable cause hearing, the defendant must
petition the court for a full hearing on the validity of the debt if a
further determination of the validity of the debt is desired. If no
such petition is filed, the lien on the amount determined reasonably
due shall conclusively be deemed a valid one and foreclosure thereof
allowed. If such a petition is filed, the court shall set a full
hearing thereon within 30 days of the filing of the petition. Upon the
filing of the petition by the defendant, neither the prosecuting
lienholder nor the court may sell the property, although possession of
the property may be retained;
(6) If after a full hearing the court finds that a valid debt exists,
the court shall authorize the foreclosure upon and the sale of the
property subject to the lien to satisfy the debt if the debt is not
otherwise immediately paid;
(7) If the court finds the actions of the person asserting the lien in
retaining or seeking possession of the property were not taken in good
faith, the court in its discretion may award damages to the owner,
agent, or lessee due to the deprivation of the use of the property;
and
(8) Any proceeding to foreclose a lien on personal property must be
instituted within one year from the time the lien is recorded or is
asserted by retention.
44-14-551. In all foreclosure of liens on personalty in which the property
levied. . . .
In all foreclosure of liens on personalty in which the property levied
on is replevied and in which verdicts are found for the plaintiffs,
the plaintiffs shall be granted judgments against the defendants and
their securities in the same manner and with the same effect as in
cases of appeal.
10-4-191. (a) As used in this article, the term:
(a) As used in this article, the term:
(1) "Convenience warehouse" means a series of storage spaces contained
in one building or in a series of buildings which are designed and used
for the purpose of renting or leasing individual storage spaces to
persons in order that any person renting or leasing one or more of such
individual storage spaces shall have access for the purpose of storing
property therein.
(2) "Person" means an individual, corporation, association,
partnership, or other organization.
(b) Nothing in this article shall be construed to apply to a public
warehouse licensed pursuant to Article 1 of this chapter, as now or
hereafter amended, nor to any person engaged in business as a bonded
public warehouseman pursuant to law providing for such bonded public
warehouseman.
10-4-192. (a) Any person engaged in the business of operating a
convenience. . . .
(a) Any person engaged in the business of operating a convenience
warehouse shall obtain from each person renting or leasing a storage
space the following information:
(1) His name, age, home address, and home telephone number, if any;
(2) His social security number, if any;
(3) His driver's license number, if any; and
(4) The name and address of his employer.
(b) In addition to the requirements of subsection (a) of this Code
section, any person renting or leasing a storage space from a convenience
warehouse shall sign a written document, under oath, that he is the owner
of or has legal possession of any property which he intends to store in
the storage space rented or leased by him. A copy of the signed document
shall be given to the person executing it, and the original thereof shall
be retained in the records of the person engaged in the business of
operating the convenience warehouse.
(c) The information required by subsections (a) and (b) of this Code
section shall be retained by the person engaged in the business of
operating the convenience warehouse for a period of at least one year
following the last date on which the storage space was rented or leased
to the person covered by such information.
44-14-343. A landlord's special lien for rent shall be enforced by a
distress. . . .
A landlord's special lien for rent shall be enforced by a distress
warrant in the same manner as general liens for rent are enforced; and no
further allegations in the affidavit to procure a distress warrant to
enforce a special lien for rent shall be necessary than are necessary to
enforce the landlord's general lien for rent.
44-7-71. When rent is due or the tenant is seeking to remove his property,
the. . . .
When rent is due or the tenant is seeking to remove his property, the
landlord, his agent, his attorney in fact, or his attorney at law
may, upon a statement of the facts under oath, apply for a distress
warrant before the judge of the superior court, the state court, the
civil court, or the magistrate court within the county where the
tenant may reside or where his property may be found.
44-7-72. When the affidavit provided for in Code Section 44-7-71 is made,
the. . . .
When the affidavit provided for in Code Section 44-7-71 is made, the
judge of the superior court, the state court, the civil court, or the
magistrate court before whom it was made shall grant and issue a
summons to the marshal or the sheriff or his deputy of the county
where the tenant resides or where his property may be found. A copy
of the summons and the affidavit shall be personally served upon the
defendant. If an officer is unable to serve the defendant personally,
service may be given by delivering the summons and affidavit to any
person who is sui juris residing on the premises. The summons served
on the defendant pursuant to this Code section shall command and
require the tenant to appear at a hearing on a day certain not less
than five nor more than seven days from the date of actual service.
44-7-81. A third person may make a claim to the distrained property by
giving. . . .
A third person may make a claim to the distrained property by giving
the oath and the bond as is required in cases of other claims. Such a
claim shall be returned and tried as is provided by law for the trial
of the right of property levied upon by execution.
44-7-80. The landlord's lien for his rent shall attach from the time that
the. . . .
The landlord's lien for his rent shall attach from the time that the
affidavit is made pursuant to Code Section 44-7-71; but it shall take
precedence over no lien of older date except as to the crop raised on
the premises
44-7-1. (a) The relationship of landlord and tenant is created when the
owner. . . .
(a) The relationship of landlord and tenant is created when the owner
of real estate grants to another person, who accepts such grant, the
right simply to possess and enjoy the use of such real estate either
for a fixed time or at the will of the grantor. In such a case, no
estate passes out of the landlord and the tenant has only a usufruct
which may not be conveyed except by the landlord's consent and which
is not subject to levy and sale.
(b) All renting or leasing of real estate for a period of time less
than five years shall be held to convey only the right to possess and
enjoy such real estate, to pass no estate out of the landlord, and to
give only the usufruct unless the contrary is agreed upon by the
parties to the contract and is so stated in the contract.