Disposition of Tenant’s Abandoned Personal Property under Residential Leases
A New Law – 58 P.S. Section 250.505a, et seq.
In the fall of 2012, the Pennsylvania Legislature finally adopted a law which sets down the rules to be followed in dealing with Landlord’s duties with respect to personal property the Tenant under a residential lease has abandoned after the Tenant has moved out. The new law can be found In Title 68, section 250.505a, et seq., and is entitled “Dispositions of Abandoned Personal Property."
It should be noted that the new law does not apply to commercial leases.
The Old Case Law.
Before this law was passed, there was no statutory law on how a Landlord should deal with personal property of the Tenant left at the leased premises after the Tenant has moved out, and the case law created a muddled minefield for the Landlord. One of the major problems with the case law is the difficulty in determining whether a Tenant in a given situation had actually abandoned the leased premises or any personal property left at the leased premises. Cases hold that the Tenant does not necessarily lose title to its personal property left behind even if the Tenant has clearly moved out. This is true even if a reasonably long period of time has passed since the Tenant moved out. So, if the Landlord guesses wrongly on Tenant’s intent with respect to personal property left at the leased premises, not only will the Landlord be facing charges of conversion, but could also be charged with punitive damages. The fact that the Tenant has obviously and actually moved out of the leased premises does not mean that personal property left behind is “abandoned" – the courts require “something more."
Overview of the New Law.
The new law creates procedures for dealing with property left behind by the Tenant. If Tenant leaves property at the leased premises, it must provide notice to Landlord within 10 days of its intention to retrieve or abandon the property. If the Tenant intends to retrieve its property, Landlord is required to retain or store the property for 30 days. If Tenant does not send the 10-day notice, or notifies Landlord that it will not retrieve the property, the new law provides procedures for the sale of the property, the disposition of the net proceeds of the sale, and which party pays the costs of removal and storage.
When is possession of the Leased Premises Deemed "Relinquidhsed" by the Tenant?
In order for the rules of the new law to apply, Tenant must first have “relinquished" possession of the leased premises, and left personal property behind.
The Tenant is deemed to have “relinquished" possession of the leased premises upon either of the following:
There is nothing specified in the new law about how this notice is to be sent to Landlord.
Contents of the Writ of Possession.
The writ or order of possession must contain notice (“Section (b) Notices") to Tenant that:
(a) Tenant has 10 days to contact the Landlord regarding the Tenant’s intent to remove any personal property remaining at the leased premises, and
(b) Tenant shall be required to pay the costs related to the removal or storage of the personal property retrieved by the Tenant between the expiration of 10 days but before the expiration of 30 days.
If the writ of order of possession contains the above notices the Landlord has no obligation to send any further notice to Tenant.
If, within 10 days following the execution of the order of possession, the Tenant sends notice to the Landlord that it intends to remove the personal property, then the Landlord is required to retain the Tenant’s property for 30 days (the 30-day Period") at a site chosen by the Landlord.
If, by the end of 10 days following the execution of the order of possession, the Tenant does not communicate with the Landlord, Landlord may dispose of the Tenant’s personal property at Landlord’s discretion.
If the Lease contains the Required Notice of Rights.
Under Subsection c(2) of the new law, if the Lease contains the Section (b) Notices, the Landlord is required to provide written notice (the “Subsection (c)2 Notices") to the Tenant:
(a) That some of Tenant’s personal property remains at the leased premises,
(b) That the personal property must be retrieved by the Tenant,
(c) That the Tenant has 10 days (the “10-day Period") from the date of the postmark on the notice to notify Landlord that the Tenant will be retrieving its personal property,
(d) Of the telephone number and address where the Landlord can be contacted,
(e) Of the location where the personal property can be retrieved, and
(f) The circumstances under which the new law provides that the Tenant is liable to pay the costs of the removal or storage of the personal property.
If the Lease does not contain the Required Subsection(c)2 Notices.
If the Lease or addendum to the Lease does not contain the Subsection (c)2 notices, Landlord is required to send them to any emergency contact that may have been provided by the Tenant in the Lease.
Landlord’s Obligation to Retain Tenant’s Abandoned Property for 30 days.
If Tenant notifies Landlord before the expiration of the 10-day Period that it intends to retrieve the personal property, Landlord is required to retain the personal property at a site of Landlord’s choosing during the 30-day Period (30 days from the date of the post mark on Tenant’s notice).
Storage of Tenant’s Abandoned Property.
If the Landlord chooses to store Tenant’s abandoned property (either during the 10-day or 30-day Period) at another location, such other location must be within “reasonable proximity" (not defined) to the leased premises. In such case, the Landlord may remove Tenant’s abandoned property from the leased premises by “any means reasonably calculated to safeguard" the property for the time period required (either during the 10-day or 30-day Period).
Landlord is not permitted to remove Tenant’s property from the leased premises and store it unless the Landlord has sent Tenant the notice of Tenant’s rights under Subsection (c)2 of the new law.
Payment of Storage Costs.
If the Tenant retrieves its abandoned personal property within the 10-day Period, the Tenant does not have to pay the cost of the removal or storage.
If the Tenant retrieves its property after 10-day Period, but before the expiration of the 30-day Period, then the Tenant is required to pay any reasonable and actual costs related to the removal or storage of the property during that time period.
The new law does not address who pays for the cost of removal or storage if Tenant does not retrieve its abandoned personal property during the applicable time-frame. This means that the Landlord is responsible for paying such costs, which it may be able to recoup, at least in part, by the sale of Tenant’s abandoned personal property.
Sale of the Tenant’s Abandoned Personal Property.
After the 10-day or 30-day Period has expired,
· (a) the Landlord has no further responsibility to the former Tenant with regard to Tenant’s abandoned personal property, and
· (b) the Landlord may, at its discretion, dispose of Tenant’s abandoned personal property, including by sale.
If the sales proceeds exceed any outstanding obligations owed to the Landlord (including the costs of storage that Tenant is required to pay), Landlord must forward the net sales proceeds to Tenant by certified mail to the forwarding address the Tenant gave the Landlord. If the former Tenant has not provided the Landlord with a forwarding address, the Landlord must hold onto the net sales proceeds for 30 days. If Tenant does not claim the net sales proceeds by the expiration of such 30-day period, the Landlord may retain them.
The new law does not contain any detail about the sale of the Tenant’s abandoned personal property – neither how, when, or where it is to be conducted. The new law simply says that the disposition of the former Tenant’s abandoned personal property shall be “at Landlord’s discretion."
The Importance of Landlord's "Acceptance" of Possession.
The provisions of the new law do not apply unless the Landlord takes possession of the leased premises (at the end of the term of the lease, or in enforcing the lease after a tenant default). If the Landlord decides not to terminate the lease in the case of a breach by Tenant, in dealing with any personal property of Tenant at the leased premises, it must rely on the muddled case law, not the relative certainty of new law.
Note that the new law does not define what constitutes Landlord’s “accepting possession" of the leased premises.
All Residential Leases Should Include the Provisions of the New Law.
It is worth noting that if a Landlord does not follow the new law, it will be stuck with having to deal with the old case law. Landlords need to add the notice and other provisions of Section 250.505a in any new lease and, if possible, amend existing leases to include such notices and provisions.