Proper Disposal of Resident’s Remaining Personal Property
by Michael Geo. F. Davis, Attorney at Law
Introduction
The issue of a resident’s remaining personal property will present itself when a resident surrenders, abandons, or is evicted from the rental premises.
The Disposition of Personal Property Landlord and Tenant Act
Florida statutes provide a procedure for the disposition of the resident’s personal property when the resident has surrendered or abandoned the premises. It is the Disposition of Personal Property Landlord and Tenant Act (FS 715.10-715.111). Rather than using the Disposition Act, the vast majority of Florida landlords use another and more convenient statutory safe harbor to dispose of any remaining resident personal property. This is the abandoned property legend of FS 83.67(5).
Required Wording - Abandoned Property Legend
If the lease contains the legend required by FS 83.67(5) (the "abandoned property legend") the landlord may dispose of the resident’s personal property without liability when the landlord regains possession of the premises after surrender or abandonment. Note that it applies to cases of surrender or abandonment, but not to evictions. An eviction action has its own statutory safe harbor in the writ of possession. The abandoned property legend language required in leases is:
BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY. (Emphasis added.)
Surrender of the Premises
Unfortunately, even if all the residents have surrendered the premises, it does not follow that the landlord can dispose of the remaining personal property as the landlord chooses. The lease must contain the required abandoned property legend. Even with the required legend in the lease, some residents may later deny that they surrendered the rental premises or that they intended to give up their ownership rights in the personal property left behind. A signed confirmation from all residents that they have surrendered the premises and its contents and have relinquished any interest in the personal property remaining on the premises or its disposition is the landlord’s best protection from any future resident claims.
Abandonment of the Premises
Disposal of the personal property in the rental premises is a separate issue from abandonment of the rental premises itself. The fact that a landlord has declared a rental premises abandoned does not necessarily mean that he is free to dispose of the resident’s personal property as he sees fit. The lease must contain the appropriate abandoned property legend.
Taking Property
Even with the required abandoned property legend, it is unwise for the landlord or his staff to take any of the resident’s property for their own personal use. It calls into question the objectivity of the landlord’s determination that the premises were surrendered or abandoned.
Premises Full of Furniture
Every landlord at some time or another eventually encounters the case of a rental premises filled with furniture and a resident who seems to have disappeared. The landlord’s only prudent path is to consult with his attorney in such situations.
Eviction from the Premises
If an eviction is filed against the resident, the resident may vacate at some point in the eviction process. The landlord will be tempted to cut his losses and avoid the time and expense of obtaining a writ of possession. This is shortsighted, if anything other than trash is left on the premises. A resident will often take his own sweet time in vacating when he is under eviction. The resident may be in a lengthy vacating process, even if it appears that no one is living in the premises and is almost completely empty. Some residents, who are familiar with the landlord/tenant statute, have been known to lay a trap for the unwary landlord by leaving behind a small amount of furniture, clothing or other personal items in order to generate a claim of improper disposition to support a claim for statutory damages. A writ of possession and the prompt moving of the resident’s possessions to the property line provide the landlord with immunity from liability for the resident’s loss of his possessions.
Carports, Garages and Storage Units
The resident may have left behind personal property in a carport, garage or storage unit. In situations where the carport, garage or storage unit is proximate to the rental premises or otherwise on-site, and the rental of the carport, garage or storage is included in the lease or an addendum, the surrender, abandonment or writ of possession will include these areas also. The landlord should be very careful when relying on the abandonment of the premises as the basis for disposing of a resident’s personal property in a carport, garage or storage unit. It may not be as reasonable to believe the resident has abandoned items he is "storing" as to believe he has abandoned the living space.
Boats, Trailers, Cars, and Other Vehicles
Residents are unlikely to abandon a functioning boat, trailer, car, or other vehicle. A landlord who finds that a boat, trailer, car, or other vehicle remains after the resident has vacated, should contact the local police to confirm that the property is not stolen or otherwise subject to the police claiming and removing it. A police removal will solve the landlord’s problem. If the property is not sought by the police, the landlord should consult his attorney as to the best course of action based on the facts of the particular case.
No Abandoned Property Clause or No Lease
If the lease in question does not have a proper abandoned property clause, as required by the statute, or there is no lease, then the landlord’s choices are: 1) follow the requirements of the Disposition of Personal Property Landlord and Tenant Act (FS 715.10-715.11), 2) file eviction and obtain a writ of possession, or 3) dispose of the personal property at his own risk. Disposing of the personal property at his risk is ill advised. If the landlord estimates that the total value of the property is $500.00 or more, then obtaining a writ of possession is essential. If the total value of the property is less than $500.00 and the landlord strongly believes abandonment of the rental unit has occurred and does not wish to file eviction, the landlord will need to follow the abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.
Penalties
The penalty for improperly disposing of the resident’s personal property is an amount equal to three months’ rent or the actual value of the property and consequential losses, whichever amount is greater. The landlord should note that it doesn’t appear to make any difference if the property has little value: the three months’ rent minimum statutory penalty would still apply. The landlord is also liable for the resident’s court costs and attorney fees. The attorney’s fees in such litigation could easily match or substantially exceed any other damage amounts. The landlord may face a claim for civil theft and possible criminal charges. Most county court judges are familiar with landlord/tenant law and know that the writ of possession provides the landlord with protection. That the landlord chose to forego this protection often results in the benefit of the doubt going to the resident in any lawsuit by the resident for the improper disposition of his personal property. The resident’s testimony is often supported by the testimony of his relatives or friends as to the personal property remaining and its value. The landlord is placed in the position of proving the negative – that the property wasn’t there or wasn’t that valuable. Every case depends on its facts, what facts can be proved in court, and how the judge views the proof. There are large subjective factors in these types of cases that make predicting court outcomes difficult. Landlords are usually better off simply reaching a settlement with the resident.