Disposition of Tenant’s Abandoned Personal Property under Residential Leases

By Nellie T. Schulz, Esquire 

 May 1, 2013

A New Law – 58 P.S. Section 250.505a, et seq.

In the fall of 2012, the Pennsylvania Legislature adopted a law which sets down the rules to be followed in dealing with personal property abandoned by a Tenant under a residential lease 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: Issues with “Abandonment” and “Relinquishing Possession”

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.  The Tenant’s personal property remained the Tenant’s personal property unless and until it was “abandoned” by the Tenant.  Since “abandonment” is a matter of Tenant’s intention with regard to the property, it had to be gleaned from the circumstances.  The courts consistently found that a specific length of time the personal property had been left at the formerly leased premises did not determine abandonment and that “something more” was needed.  For instance, if the personal property was furniture some of which was broken, 30 days might be enough to infer abandonment, but if the personal property is the Tenant’s mother’s cremation ashes, then a year may not be enough.  If the Landlord misinterprets the circumstances and believes that the Tenant had abandoned its personal property, but in actuality had not, the Landlord would be liable in conversion for the value of the property – one Pennsylvania case alluded to the fact that punitive damages may be awarded to a Tenant where the Landlord’s misinterpretation appeared egregious. 

The existing case law does not provide bright lines as to when a Tenant has actually relinquished possession of the leased premises or when a Tenant has actually abandoned any personal property left at the leased premises.  

Also, the case law did not provide a uniform “standard of care” for the Landlord to follow in dealing with the Tenant’s abandoned property.   

The new law now is clear on when a Tenant has “relinquished possession” of the leased premises, how to determine “abandonment”, and the standard of care to be used with respect to the Tenant’s property.     

Overview of the New Law.

The new law creates rather complex (but clear) procedures for dealing with property left behind by a residential Tenant who has moved out of the leased premises.  It also defines with certainty the circumstances under which a Tenant is deemed to have relinquished possession of the leased premises.

Landlords are now required to notify its Tenants of their rights under the new law.  Notice of the Tenant’s rights may be drafted into the Lease itself or in an addendum to an existing lease, or, if not contained in the Lease or an addendum, must be given in the writ or order of possession or to the Tenant’s emergency address. 

If the Tenant has relinquished possession of the leased premises and leaves personal property there, the new law requires that the Tenant provide notice to Landlord, within 10 days after moving out (the “10-day Period”), of its intention to retrieve or to abandon the personal property.

If the Tenant notifies the Landlord that it intends to retrieve its property, Landlord is required to retain or store the property for 30 days (The “30-day Retention Period”) 

If the Tenant does not retrieve its property during the 30-day Retention Period, the property may be disposed of at the Landlord’s discretion.

If Tenant does not send the 10-day notice, or if the Tenant notifies the Landlord that it will not retrieve the property, the property may be disposed of at the Landlord’s discretion at the end of the 10-day period.

The Landlord is not permitted to remove Tenant’s property from the leased premises or store it unless the Landlord has given Tenant the “Subsection (c)2 Notice” (hereinafter defined), informing the Tenant of its rights.   

The new law requires that a Tenant remove all of its personal property from the leased premises when it relinquishes possession of the leased premises.  The new law contains no provisions, however, for enforcement of this requirement or any penalties if a Tenant does not remove all its personal property.   

When is Possession of the Leased Premises Deemed “Relinquished” by the Tenant?

In order for the new rules to apply, Tenant must first have “relinquished” possession of the leased premises.  What constitutes “relinquishment” is defined in the new law as being the occurrence of either of the following:

1. The execution of an order of possession in favor of the Landlord (which contains the “Section (b) Notice”, hereinafter discussed); or 
2. The Tenant has physically vacated the leased premises, removed substantially all personal property, and provided Landlord with either (a) a forwarding address or (b) written notice that Tenant has vacated the leased premises.

(The new law does not specify how this notice from Tenant is to be sent to Landlord, so presumably it does not need to be sent by registered mail.)

Notice to Tenant To Be Included in Writ or Order of Possession.

If the Landlord obtains possession of the leased premises by a writ or order of possession, the writ or order must contain notice (“Section (b) Notice”) 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 the 10 day Period but before the expiration of the 30-day Retention Period”.

If the writ or order of possession contains the above notices the Landlord has no obligation to send any further notice to Tenant.

If, within the 10 days following the execution of the order of possession (containing the Section (b) Notice),  

(a)    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 the 30-day Retention Period at a site chosen by the Landlord; or

(b)   the Tenant does not communicate with the Landlord, the Landlord may dispose of the Tenant’s personal property at Landlord’s discretion.

If the Lease contains the Required Notice of Rights. 

If the Lease (or an addendum thereto) contains the Section (b) Notice, the Landlord is required to provide written notice (the “Subsection (c)2 Notice”) 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 until the end of the 10-day Period from the date of the postmark on the Subsection (c)2 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 identity of the location where the personal property can be retrieved; and

(f) That the Tenant is liable for the costs of removing and storing the property for the time period beginning with the expiration of the 10-day Period and ending 20 days thereafter (or until Tenant retrieves the property, whichever is sooner).

The Subsection (c)2 Notice must either be:

·    Sent by regular mail to the Tenant’s forwarding address, if provided by Tenant, or, if no forwarding address is provided, to the formerly leased premises; or

·    Delivered to Tenant personally.

Note: The Landlord is not permitted to remove Tenant’s property from the leased premises or store it unless the Landlord has sent Tenant the Subsection (c)2 Notice.    

If the Lease does not contain the Subsection(c)2 Notice.

If the Lease does not contain the Subsection (c)2 Notice, Landlord is required to send the Subsection (c)2 Notice to any emergency contact that may have been provided by the Tenant in the Lease. 

Landlord’s Obligation to Retain Tenant’s Property for 30 days; Landlord’s Standard of Care. 

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 Retention Period (beginning on the date of the post mark on Tenant’s notice).  

The Landlord is required to exercise “ordinary care” with regard to any personal property of Tenant left at the leased premises.  “Ordinary care” is not defined in the new law.  Presumably it means that there are no special efforts required to ensure that the property is safeguarded at a higher level than a reasonable person might use with its own property.

Storage: Location; Payment of Costs.

If the Landlord chooses to store Tenant’s abandoned personal property (either during the 10-day Period or 30-day Retention Period) at another location, such other location must be within “reasonable proximity” (not defined) to the leased premises.  In such case, (and only if the Landlord has sent the Tenant the Subsection (c)2 Notice) 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 Period or 30-day Retention Period).   

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 the 10-day Period, but before the expiration of the 30-day Retention 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; Sale Proceeds.

After the 10-day Period or 30-day Retention Period has expired,

·    the Landlord has no further responsibility to the former Tenant with regard to Tenant’s abandoned personal property,  and

·    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 manner of 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 has taken 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, Landlord must rely on the less certain provisions of case law in dealing with any personal property of Tenant at the leased premises.

Note that the new law does not define what constitutes Landlord’s “accepting possession” of the leased premises.

Conclusion.

To obtain the full benefits of the Abandoned Personal Property law, Landlords across the commonwealth should amend their form of residential lease to include the notice of rights required by the new law (the Section (b) Notice) and should attempt to obtain an addendum containing the same from existing tenants.