Disposition of Abandoned Personal Property Law Amended

Signed in October, new amendments to the Landlord and Tenant Act aim to provide greater clarity to landlords when dealing with personal property left behind by tenants.

These amendments, which substantially amend the Abandoned Personal Property Law enacted in 2012,  provide that, upon termination of a lease or relinquishment of possession by the tenant, a tenant must remove all personal property from the leased premises. Personal property left behind may be deemed abandoned if:

1. The tenant has vacated the property following termination of the lease.
2. A judgment for possession in favor of the landlord has been entered and the tenant has vacated the property and removed substantially all personal property.
3. An order for possession has been executed.
4. The tenant has vacated the property, removed substantially all personal property, and provided a written notice of a forwarding address to the landlord.
5. The tenant has vacated the property without communicating an intention to return, the rent is more than 15 days past due and the landlord has then posted a notice of the tenant’s rights regarding the property.

Should any of the above five events occur, a landlord may remove or dispose of abandoned property after the landlord provides written notice of the tenant’s rights regarding the property in the following form:

“Personal property remaining at (address) is now considered to have been abandoned. Within ten days of the postmark date of this notice, you must retrieve any items you wish to keep or contact your Landlord at (insert telephone number and address) to request that the property be retained or stored. If requested, storage will be provided for up to thirty days from the postmark date of this notice at a place of your Landlord’s choosing, and you will be responsible for costs of storage.”

This notice must be sent by first-class mail to the tenant at the address of the leased premises and to any forwarding address provided by the tenant, including any address provided for emergency purposes.

The tenant has ten days from the postmark date of the notice to retrieve the property or to request the property be stored for an additional period not exceeding thirty days from the date of the notice. If the tenant requests storage, the landlord must retain or store the property for thirty days from the date of the notice.

Storage may be at any place of the landlord’s choosing and the tenant is responsible for the cost. The landlord must exercise ordinary care in handling and securing the tenant’s property and make the property reasonably available for purposes of retrieval.

However, the amendments does provide protection for a tenant who has received a protection from abuse order (PFA) for the safety of the tenant or a member of the tenant’s family. If a landlord has knowledge of a PFA, the landlord must refrain from disposing of the personal property for thirty days from the date of the notice of the PFA. If requested, storage must be provided for up to thirty days from the date of the request.

The amendments do not apply when the tenant dies and leaves personal property in the premises. In such cases, the personal property remaining in the premises is governed by the laws pertaining to estates and decedents. A landlord should consult with counsel on how to proceed on handling property belonging to the estate of the deceased tenant.

With the exception of the provisions relating to PFAs, the amendments provide that if there is a conflict between the provisions of the Act and the terms of the written lease, the terms of the lease control. This provision seems to allow a landlord and tenant to provide for alternative provisions in the lease.

A landlord may not dispose of the personal property remaining upon inhabited property without the express permission of the tenant. Further, if any of the conditions upon which the personal property may be deemed abandoned no longer exists, the landlord may not dispose of the property. The amendments provide for potential serious penalties for a Landlord who violates its provisions including treble damages, reasonable attorney’s fees and court costs. Thus, landlords and property managers are advised to exercise caution in assuring compliance with the law when disposing of a tenant’s personal property.