Kerri Sigler | Former Partner at Wait Law, P.L.L.C.
BEFORE YOU READ: Many landlord/tenant issues can be resolved through a properly drafted lease agreement. Call today for a quote, and let me know if the information below is useful to you.
WHAT TO DO – AND NOT DO – WITH TENANT PERSONAL PROPERTY
Nothing gets landlords in more trouble than the stuff a tenant leaves behind. Your tenant bails on you, owing several hundred dollars in rent. You have no idea where they went. They leave scattered items of junk – clearly discarded stuff – strewn on the floor of an otherwise abandoned rental house. You file for summary ejectment, and while waiting for the hearing, you go in and clean up. You toss those 8-track tapes lying on the floor, or maybe the cushion-less sofa that just got rained on out in the front yard. Suddenly, the tenant appears at the hearing and announces they were still living there (as ghosts, apparently) and you stole their stuff. Lots of it. Several thousands of dollars worth of stuff, in fact. Now not only do they want the amazingly inflated value of that stuff, but they also want triple damages and attorney’s fees for your unfair and deceptive trade practices as a landlord.
Sound too awful to be true? Not so much. It happens all the time. As discussed in the previous post, before a landlord can re-enter the leased property, they need legal possession. Once they have that (and not one second before), there are still rules for disposing of a tenant’s stuff. It doesn’t matter if it’s trash to you. It doesn’t matter if it’s in the yard, in the rain, in the mud, or in the dog doo. It doesn’t matter if its retail value is zero. If it’s not yours and the tenant left it, refer back to the rules for security deposits: DON’T TOUCH IT.
Or, more precisely, touch it only according to the law.
THE “STUFF.” You can bet that what the tenant did and did not actually leave behind will become an issue at trial. Talk to an attorney about what steps you can take to protect yourself later regarding what was – and was not – left behind in the premises, like taking pictures or making detailed lists.
WAIT 10 DAYS. The general rule is that 10 days after the landlord receives legal possession (i.e., a writ of possession) from the court, the landlord can do anything he wants with the property the tenant left behind. Sell it, toss it, keep it, anything. However, if the tenant requests return of the items before the 10 days run, then the landlord must release those items to the tenant during regular business hours or at a mutually convenient time.
However, if the total value of the items left behind is less than $500.00, then the waiting period is reduced to 5 days after receiving legal possession (Use the Salvation Army Valuation Guide to determine the amount). But you know that the minute you toss those 8-track tapes worth $0.30 on the sixth day, the tenant will reappear on the seventh day claiming they were invaluable antiques worth $10,000.00. This is where steps you take regarding “the stuff” on the front end will save you later, and the money you spent consulting an attorney about how to protect yourself will prove extra valuable.
OR DON’T WAIT 10 DAYS. For the less patient among us, if you just can’t wait 10 days after receiving legal possession before removing all the former tenant’s stuff, then you are allowed to move that stuff in order to store it. However, that’s all you’re allowed to do with it: store it. You cannot throw it away within that 10-day period. And you will eat the storage cost. This cost is generally recoverable from the tenant as a cost of the court proceedings; however, chances are if they didn’t pay the rent, they’re not going to pay this, either. Ergo, it’s usually cheaper to wait the 10 days.
As above, if the tenant requests the items’ return within the 10-day window, the landlord must release them back to the tenant during regular business hours or at a mutually agreed upon time.
IF YOU SELL IT. If you opt to sell a tenant’s stuff either privately or publicly, you must give 7 days’ written notice by first-class mail to the tenant at their last known address (even if it’s the same address they just got kicked out of).
The written notice of sale to the tenant MUST include the following information:
1. Date, time, and place of sale;
2. Notice that proceeds may be applied to back rent, storage fees, and sale costs; and
3. Notice that any proceeds still remaining will be returned to the tenant within 10 days of the tenant requesting its return but will thereafter be given to the clerk of court (government) of the county where the rental property is located.
NOTE: After deducting what a tenant owes in unpaid rent and costs, if there is still money left over and the tenant does not request its return, the landlord does not get to keep it. It gets turned over (escheats) to the State. If the tenant requests return of the property prior to the day of the sale, then the landlord, as before, must make the items available during normal business hours or at a mutually agreed on time.
GOODWILL. POPPIN’ TAGS. YEAH. Giving a tenant’s abandoned stuff to places like Goodwill is also an option, although by far the most demanding of the landlord. Landlords must jump through several hoops before giving a tenant’s stuff to charity.
HOOP ONE: VALUE. Before you give it to charity, the value of the tenant’s stuff must be less than $750.00. See above for links to help you value the property. And be prepared for the tenant to argue their stuff was worth MUCH more than $750.00.
HOOP TWO: ABANDONMENT. In order to give the stuff away, the tenant must either fail to take it with them after a writ of execution is issued from the sheriff, or they must abandon it. To prove abandonment, you need: (a) clear evidence the tenant left after the lease term expired; (b) a notice of suspected abandonment posted outside the property for 10 days; (c) a notice of suspected abandonment posted inside the property for 10 days; and (d) no response from the tenant to the notices.
HOOP THREE: GOODWILL MUST AGREE to hold the property separately for 30 days and release them back to the tenant any time within that 30 days.
HOOP FOUR: MORE NOTICES. If you get that far, now you have to post a notice with the name and location of the charity at the rental property for 30 days, AND a notice at the place where rent is collected for 30 days, AND you have to mail it to them via first-class mail to their last known address.
These rules are found in NC General Statute section 42-25.9 (d) through (h).
OR PAY THE SHERIFF TO DO IT. You can also have the sheriff remove the property pursuant to the rules in NC General Statute section 42-36.2. However, if the sheriff removes the property pursuant to a writ of possession and the tenant either refuses to retake possession of the personal property, or can’t be found, the sheriff can make the landlord pay a month’s storage costs for the items, even though the landlord can still throw them away after 10 days’ silence from the tenant.
THE EASIEST OPTION BY FAR is simply to get a writ of possession then wait 10 days. After that, if you hear nothing from the tenant, you do whatever you like with the stuff. When you’re itching to re-rent the space, 10 days can seem like a long time. However, not waiting the 10 days can land you in much more trouble than it will be worth.