Can a landlord sell his tenant’s abandoned mobile home and other personal properties in Alabama?
Full Question:
My tenant left his mobile home before 1 month. He has also not removed his bicycle, personal computer, tables, chairs, and some other items from the property. Can I sell those?
04/12/2017 |
Category: Abandoned Property |
State: Alabama |
#35554
Answer:
You can have a look at the relevant law in this regard below.
Code of Ala. § 35-12A-1.
Definitions.
As used in this chapter, the following terms shall have the following meanings:
(1) Abandoned manufactured dwelling. -- A manufactured dwelling that satisfies either of the following circumstances:
a. A tenant is absent from the premises of the manufactured dwelling following expiration of 30 days after default, termination, or expiration of the lease agreement.
b. A tenant is absent from the premises of the manufactured dwelling continuously for 30 days after service of a court order requiring the tenant to vacate the premises due to failure of the tenant to perform obligations of the lease.
(2) Manufactured dwelling community owner. -- Any individual or business entity that, for consideration, allows another individual to place a residential trailer, mobile home, or manufactured dwelling on land owned or leased by that individual or business entity.
(3) Manufactured dwelling. -- A residential trailer, mobile home, or manufactured home.
(4) Rental fee. -- The actual rent charged to the tenant including utilities, maintenance charges, and any other fee charged incidental to the rent as provided for by the agreement between the manufactured dwelling community owner and tenant.
(5) Tenant. -- An individual or business entity that enters into a rental agreement with a manufactured dwelling community owner for placement of a manufactured home on the property of the manufactured dwelling community owner and that leases or owns the manufactured home.
Code of Ala. § 35-12A-3.
Notice to tenant.
Prior to selling the tenant's manufactured dwelling pursuant to this chapter, the manufactured dwelling community owner shall provide a written notice to the tenant by one of the following methods:
(1) Personal delivery to the tenant of the manufactured dwelling.
(2) Certified mail addressed and mailed to the tenant at the last known mailing address known to the manufactured dwelling community owner.
(3) Affixing a notice on the doors of the dwelling.
Code of Ala. § 35-12A-6.
Storage of manufactured dwelling and tenant's personal property; costs.
(a) After notifying the tenant and lienholder as required by Sections 35-12A-3 and 35-12A-4, the manufactured dwelling community owner shall do all of the following:
(1) Store any abandoned manufactured dwelling on the rented space.
(2) Store all other abandoned personal property of the tenant, including goods left inside a manufactured dwelling or left upon the rented space outside a manufactured dwelling, in a place of safekeeping and exercise reasonable care for the personal property. For purposes of this chapter, "personal property" does not include a manufactured dwelling.
(b) The manufactured dwelling community owner shall be entitled to reasonable or actual storage charges and costs incidental to storage or disposal, including any cost of removal to a place of storage occurring after the expiration of the date by which a tenant, lienholder, or owner is to contact the manufactured dwelling community owner as set forth in Section 35-12A-5.
Code of Ala. § 35-12A-7.
Opportunity to remove manufactured dwelling.
If a tenant, responds by written notice to the manufactured dwelling community owner on or before the specified date in the manufactured dwelling community owner's notice that the tenant intends to remove the manufactured dwelling from the premises, the manufactured dwelling community owner must make the manufactured dwelling available for removal by appointment at reasonable times during the next 45 days, provided that the tenant has paid all applicable charges and costs as provided herein. If the manufactured dwelling is not removed, the manufactured community dwelling owner may proceed with the sale of the manufactured dwelling pursuant to Section 35-12A-8.
Code of Ala. § 35-12A-8.
Presumption of abandonment.
(a) If the tenant does not respond within the time provided by the manufactured dwelling community owner's notice, or the tenant does not remove the manufactured dwelling or personal property within 45 days after responding to the manufactured dwelling community owner or by any other date agreed to with the manufactured dwelling community owner, whichever is later, the manufactured dwelling community owner may sell the abandoned manufactured dwelling and personal property as provided in this section.
(b) With regard to the manufactured dwelling, prior to sale, the manufactured dwelling community owner shall do all of the following:
(1) Place a notice to be run once per week for two consecutive weeks in a newspaper of general circulation in the county in which the manufactured dwelling is located. The notice shall state all of the following:
a. That the manufactured dwelling is abandoned and will be sold in the manner provided in the notice. The manufactured dwelling shall be described with reasonable certainty.
b. The tenant's and owner's name if of record or actually known to the manufactured dwelling community owner.
c. The address and any space number where the manufactured dwelling is located, and if actually known to the manufactured dwelling community owner, the plate, registration, or other identification number as noted on the certificate of title.
d. Whether the sale is by private bidding or public auction and that the manufactured dwelling community owner is authorized to purchase the manufactured dwelling pursuant to the method of sale described in the notice. In the case of a public auction, the date, place, and time of the auction shall be included in the notice.
e. Whether the manufactured dwelling community owner is accepting sealed bids and, if so, the last date on which bids will be accepted. The date, time, and place where the winning bid will be awarded shall also be included in the notice.
f. The name and telephone number of the person to contact to inspect the manufactured dwelling.
(2) No later than 30 days prior to the sale date, provide a copy of the notice required by subdivision (1) to any lienholder by certified or registered mail, verified by return receipt.
(c) With regard to personal property, including the contents of the manufactured dwelling and any personal property left on the rented space outside a manufactured dwelling, the manufactured dwelling community owner shall store the abandoned personal property as provided for in Section 35-12A-6. Prior to selling the personal property, the manufactured dwelling community owner must hold the personal property for 45 days after mailing notice to the tenant or the tenant's designated agent at the last known address of the tenant or the tenant's agent or by delivering a copy of the notice to the last known address of the tenant or the tenant's agent. The manufactured dwelling community owner is entitled to reasonable storage charges as provided in Section 35-12A-6 prior to surrendering the property to the tenant or the tenant's agent.
Code of Ala. § 35-12A-10.
Sale requirements.
A public or private sale authorized by this chapter shall be conducted consistent with the terms listed in Section 35-12A-8 and every aspect of the sale including the method, manner, time, place, and terms must be commercially reasonable.
Code of Ala. § 35-12A-11.
Disposition of sale proceeds.
(a) The manufactured dwelling community owner may deduct from the proceeds of the sale any of the following:
(1) The reasonable or actual cost of notice, storage, and sale as provided in this chapter.
(2) Unpaid rental fees, but only to the extent that the manufactured dwelling community owner's lien has priority over the lien of any applicable lienholder.
(3) Reasonable attorneys' fees and costs.
(b) After deducting the amounts listed in subsection (a), the manufactured dwelling community owner shall remit to the county tax collecting official any property taxes and/or other fees due and shall then remit the remaining proceeds, if any, to the lienholders, if any, to the extent of any unpaid balance owed on any liens on the manufactured dwelling.
(c) After deducting the amounts listed in subsections (a) and (b), as applicable, the manufactured dwelling community owner shall remit to the tenant or owner the remaining proceeds, if any, together with an itemized accounting. If the tenant or owner cannot be found, after due diligence, the remaining proceeds may be interpleaded in any court with jurisdiction or be held and deposited in accordance with Article 2A of Chapter 12.
Code of Ala. § 35-12A-14.
Abandonment as a result of tenant's death.
If the manufactured dwelling or personal property is considered abandoned as a result of the death of the only tenant, Sections 35-12A-1 to 35-12A-13, inclusive, and this section shall apply, except as follows:
(1) The provisions of this chapter regarding the rights and responsibilities of a tenant to the abandoned manufactured dwelling and personal property shall apply to any personal representative named in a will or appointed by a court to act for the deceased tenant or any person designated in writing by the tenant to be contacted by the manufactured dwelling community owner in the event of the tenant's death.
(2) The notice required by Section 35-12A-3 shall be personally delivered or sent by first class mail to any personal representative named in a will or appointed by a court to act for the deceased tenant.
(3) The notice described in Section 35-12A-5 shall refer to any personal representative or designated person, instead of the deceased tenant, and shall incorporate the provisions of this section.
(4) If a personal representative, designated person, or other person entitled to possession of the property, such as an heir or devisee, responds by actual notice to a manufactured dwelling community owner within the 30-day period provided by Section 35-12A-5, and so requests, the manufactured dwelling community owner shall enter into a written agreement with the representative or person providing that the manufactured dwelling shall not be sold or disposed of by the manufactured dwelling community owner until conclusion of any probate proceedings, so long as the representative or person makes timely periodic payment of all storage charges and maintains the property and the rented space on which it is stored. During the agreement, the representative or person shall have the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir or devisee where the purchaser, heir, or devisee wishes to leave the property on the rented space and become a tenant. The manufactured dwelling community owner also may condition approval for occupancy of any purchaser, heir, or devisee of the property upon payment of all storage charges and maintenance costs. If the representative or person violates the agreement, the manufactured dwelling community owner may terminate it upon 30 days' written notice stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement shall terminate as provided and the manufactured dwelling community owner may sell the property as provided for in this chapter.
Code of Ala. § 35-12-76.
Report of abandoned property.
(a) A holder of property presumed abandoned shall make a report to the Treasurer concerning the property. The report shall be filed electronically and the monies remitted electronically. The Treasurer may grant an exception upon written request as established by rule. A report should contain only tangible property or intangible property. If a holder possesses both property types, two reports shall be filed.
(b) The report must be verified, balanced, and must contain, at a minimum, all of the following:
(1) A description of the property.
(2) The date, if any, on which the property became payable, demandable, or returnable, and the date of the last transaction with the apparent owner with respect to the property.
(3) Other information that the Treasurer by rule prescribes as necessary for the administration of this article.
(4) Except with respect to a traveler's check, money order, or State of Alabama issued payment instruments, the name, if known, the last known address, if any, and the Social Security number or taxpayer identification number, if readily ascertainable, of the apparent owner of property in an amount greater than the aggregate amount established by rule.
(5) In the case of property held or owing under an annuity or a life or endowment insurance policy, the policy number, the full name, Social Security number, if known, date of birth, if known, and last known address, of the annuitant or insured and of the beneficiary.
(6) In the case of expired State of Alabama issued warrants or other payment instruments, the full name of the owner/payee, warrant or account number, date of issuance, owner address, and Social Security number, if known.
(7) In the case of property held in a safe deposit box or other safekeeping depository, an indication of the place where it was held, the full name and last known address of the apparent owner, and any amounts owing to the holder.
(8) In the case of individual items valued under fifty dollars ($ 50), or a greater amount if established by rule, an aggregated amount.
(c) The report shall be filed before November 1 of each year and cover the 12 months next preceding July 1 of that year.
(d) The holder shall send written notice to the apparent owner, not less than 60 days before filing the report, stating that the holder is in possession of property subject to this article, if all of the following requirements are met:
(1) The holder has in its records an address for the apparent owner which the holder's records do not disclose to be inaccurate.
(2) The claim of the apparent owner is not barred by a statute of limitations.
(3) The value of the property is fifty dollars ($ 50) or a greater amount as established by rule.
(e) State of Alabama issued warrants or other payment instruments outstanding and unpaid are void and transferred to the Unclaimed Property Reserve Fund pursuant to Section 41-4-60. Therefore, subsection (d) does not apply.
(f) Before the date for filing the report, the holder may request the Treasurer to extend the time for filing the report. The Treasurer may grant the extension for good cause. The holder, upon receipt of the extension, may make an interim payment on the amount the holder estimates will ultimately be due, which terminates the accrual of penalties, if any, on the amount paid.
Code of Ala. § 35-12-77
Payment or delivery of abandoned property.
(a) Except for property held in a safe deposit box or other safekeeping depository, upon filing the report required in Section 35-12-76, the holder of property presumed abandoned shall pay, deliver, or cause to be paid or delivered to the Treasurer the property described in the report as unclaimed, but if the property is an automatically renewable deposit, and a penalty or forfeiture in the payment of interest would result, the time for compliance is extended until a penalty or forfeiture would no longer result.
(b) Tangible property held in a safe deposit box or other safekeeping depository shall be delivered to the Treasurer within 120 days after filing the report required in Section 35-12-76.
(c) If the property reported to the Treasurer is a security or security entitlement under Article 8 of Title 7, the Uniform Commercial Code, the Treasurer is an appropriate person to make an indorsement, instruction, or entitlement order on behalf of the apparent owner to invoke the duty of the issuer or its transfer agent or the securities intermediary to transfer or dispose of the security or the security entitlement in accordance with Article 8 of Title 7, the Uniform Commercial Code.
(d) If the holder of property reported to the Treasurer is the issuer of a certificated security, the Treasurer has the right to obtain a replacement certificate pursuant to Section 7-8-405 of the Uniform Commercial Code, but an indemnity bond is not required.
(e) Remittance to the state shall occur annually on or before November 1 of each year and shall accompany the report provided for in subsection (c) of Section 35-12-76 and shall cover the same time period as the report.
Code of Ala. § 35-12-79.
Custody by state; recovery by holder; defense of holder.
(a) In this article, "good faith" means honesty in fact in the conduct or transaction concerned.
(b) Upon payment or delivery of property to the Treasurer, the state assumes custody and responsibility for the safekeeping of the property. A holder who pays or delivers property to the Treasurer in good faith is relieved of all liability arising thereafter with respect to the property. The payment or delivery of property to the Treasurer shall operate as a full, absolute and unconditional release and discharge of the holder from any and all claims or demands of or liability to any person entitled thereto, or to any other claimant or state, and the payment or delivery may be pleaded as an absolute bar to any action brought against the holder by any other person entitled thereto, or by any other claimant or state. Once properly pleaded, the holder shall immediately and thereafter be relieved of and held harmless from any and all liabilities for any claim or claims which exist at the time with reference to the property or which may thereafter be made or may come into existence on account of or in respect to any such property. This section does not relieve the holder from any fine or civil penalty imposed pursuant to Section 35-12-92.
(c) A holder who has paid money to the Treasurer pursuant to this article may subsequently reestablish an account or make payment to a person reasonably appearing to the holder to be entitled to payment. Upon a filing by the holder that the property was remitted in error or upon proof of payment and proof that the payee was entitled to the payment, the Treasurer shall promptly reimburse the holder, unless the Treasurer already has paid a claim for the property, for the payment without imposing a fee or other charge. If reimbursement is sought for a payment made on a negotiable instrument, including a traveler's check or money order, the holder shall be reimbursed upon filing proof that the instrument was duly presented and that payment was made to a person who reasonably appeared to be entitled to payment. The holder must be reimbursed for payment made even if the payment was made to a person whose claim was barred under Section 35-12-88.
(d) A holder who has delivered property other than money to the Treasurer pursuant to this article may reclaim the property if it is still in the possession of the Treasurer, without paying any fee or other charge, upon filing proof that the apparent owner has claimed the property from the holder.
(e) The Treasurer may accept a holder's affidavit as sufficient proof of the holder's right to recover money and property under this section.
(f) If a holder pays or delivers property to the Treasurer in good faith and thereafter another person claims the property from the holder or another state claims the property under its laws relating to escheat or abandoned or unclaimed property, the payment or delivery may be pleaded as an absolute bar to any action brought against the holder by any other person entitled thereto or by any other claimant or state. Once properly pleaded, the holder is relieved of and held harmless against any and all liabilities on the claim resulting from payment or delivery of the property to the Treasurer.
(g) Property removed from a safe deposit box or other safekeeping depository is received by the Treasurer subject to the holder's right to be reimbursed for the cost of the opening if the holder includes the amount in its report of abandoned property. The Treasurer shall reimburse the holder out of the proceeds remaining after deducting the expense incurred by the Treasurer in selling the property.
(h) A record of the issuance of a check, draft, or similar negotiable instrument is prima facie evidence of an obligation. In claiming property from a holder who is also the issuer, the Treasurer's burden of proof as to the existence and amount of the property and its abandonment is satisfied by showing issuance of the instrument and passage of the requisite period of abandonment. Defenses of payment, satisfaction, discharge, want of consideration, statute of limitations, and other similar defenses are affirmative defenses that must be established by the holder.
(i) When property or funds are delivered to the Treasurer pursuant to this article, the Treasurer shall not be civilly or criminally liable for the receiving, holding, or returning of the property.
Code of Ala. § 35-12-80.
Public sale of abandoned property.
(a) Except as otherwise provided in this section, the Treasurer, within three years after the receipt of abandoned property, shall sell it to the highest bidder at public sale. The Treasurer may decline the highest bid and reoffer the property for sale if the Treasurer considers the bid to be insufficient. The Treasurer need not offer the property for sale, if the Treasurer considers that the probable cost of sale will exceed the proceeds of the sale. A sale held under this section shall be preceded by a single publication of notice, at least three weeks before sale, in a newspaper of general circulation in the county in which the property is to be sold.
(b) Securities listed on an established stock exchange must be sold at prices prevailing on the exchange at the time of sale. Other securities may be sold over the counter at prices prevailing at the time of sale or by any reasonable method selected by the Treasurer. All securities delivered to the Treasurer may be sold upon receipt.
(c) Any person making a claim pursuant to this section is entitled to receive either the property delivered by the holder, if it still remains in custody of the Treasurer, or the proceeds received from sale, less any fees and expenses incurred from the sale if deducted. No person has any claim under this article against the state, the Treasurer, the holder, any transfer agent, any auctioneer, or any person acting for or on behalf of the holder or Treasurer for any appreciation or depreciation in the value of property occurring after delivery by the holder to the Treasurer.
(d) A purchaser of property at a sale conducted by the Treasurer pursuant to this article takes the property free of all claims of the owner or previous holder and of all persons claiming through or under them. The Treasurer shall execute all documents necessary to complete the transfer of ownership.