May I keep a propane tank that came with property bought when lease on tank had ended?

Full Question:

I just purchased a home that was foreclosed on. The home was last occupied in July of 2008. There was a propane tank on the property when purchased the house. I am being told by the company that leased the tank to the previous owner that they are owner of the tank. The previous owner notified them that he was terminating his contract in 2008. My position is that the tank was abandoned by the company who left it in place 3 years ago and that it is now mine. Am I correct about this, my understanding is that property left more than 90 days is considered abandoned?
04/28/2011   |   Category: Abandoned Property   |   State: California   |   #24744

Answer:

If the propane tank was being leased and the lease terminated, the owner of the tank may try to claim it. If however, you notified them that you were the new owner of the real property upon which the tank sat and requested them to remove it and they didn't, you may have a claim to it.

It may be up to a court to decide if it is abandoned, meaning you would be free to do whatever you wanted with it. Proof of communication with the tank company would be helpful in the claim to keep the tank.

The following is an excerpt from the California statutes:

California Civil Code, Section 2080.1
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2080.1. (a) If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police department of the city or city and county, if found therein, or to the sheriff's department of the county if found outside of city limits, and shall make an affidavit, stating when and where he or she found or saved the property, particularly describing it. If the property was saved, the affidavit shall state:

(1) From what and how it was saved.

(2) Whether the owner of the property is known to the affiant.

(3) That the affiant has not secreted, withheld, or disposed of any part of the property.

(b) The police department or the sheriff's department shall notify the owner, if his or her identity is reasonably ascertainable, that it possesses the property and where it may be claimed. The police department or sheriff's department may require payment by the owner of a reasonable charge to defray costs of storage and care of the property.

Abandoned property is primarily governed by local ordinances, so we suggest calling the local police department to inquire about applicable procedures for abandoned property. Typically, such laws require notice to be sent to the last known address, giving a certain length of notice for the property to be retrieved or otherwise deemed abandoned and subject to sale.

When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.

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.