Request By:
Honorable H. Collis Reid, Jr.
Judge, Jefferson District Court
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Kevin M. Noland, Assistant Attorney General
You have requested an Attorney General Opinion regarding the following matter: In your landlord-tenant court, when the landlord recovers possession of the property, the tenant moves out, frequently leaving behind personal property such as furniture. The landlord is anxious to go into the property and prepare it for re-rental, but he/she hesitates because the personal property of the former tenant remains on the premises. Your inquiry appears to be concerned with the rights and obligations involved as to the personal property which remains.
In Kentucky, there is little statutory or common law guidance on this matter. However, case precedent from other jurisdictions provides:
The tenant, on being ejected from the premises in summary proceedings, has a reasonable time thereafter within which to move away his personal property before he can be held to have voluntarily abandoned it [
Smusch v. Konn, 49 N.Y.S. 176, 22 Misc. 344]. The landlord is without right to retain or use chattels left on the premises by the tenant. [
Reich v. Cochran, 99 N.Y.S. 755, 114 App. Div. 141]. His duty is to notify the tenant to remove them [
Reich v. Cochran, supra.], and, in the case of the latter's failure to do so, the landlord may cause their removal in a reasonable manner [
Gargano v. Venezio, 118 A.2d 78, 38 N.J. Super. 127]; and he may, on the theory of an implied contract, recover from the tenant the reasonable cost of removing and storing the latter's property left on the premises [
Ide v. Finn, 187 N.Y.S. 202, 196 App. Div. 304]; but he has no lien on the property for such charges [ Roberts v. Kain, 29 N.Y. Super. 354].
52A C.J.S. § 790 Landlord and Tenant.
As stated above, the landlord must give notice to the tenant to remove the personal property and a reasonable time in which to so remove the goods. It is suggested that the landlord act cautiously so as to avoid potential liability for conversion. One such cautious measure would be to provide notice which is reasonably calculated to inform the tenant, which under the circumstances may be by certified mail, return receipt requested.
The particular circumstances may indicate that the tenant has abandoned the property, if the tenant both has the intention to abandon the personal property and commits a clear act of abandonment. 1 Am. Jur. 2d § 16 Abandoned, Lost, and Unclaimed Property. If the property has been abandoned (in the legal sense), then it is subject to appropriation by the first finder who requces it to possession. 1 Am. Jur. 2d § 18 Abandoned, Lost, and Unclaimed Property. Typically, in the present situation the finder would be the landlord, who could then appropriate the abandoned property for his/her own use or disposition.
If the tenant fails after notice to remove the personal property, the landlord may cause its removal in a reasonable manner. See,
Gargano v. Venezio, supra. The personal property may be stored, such as in a storage area on the landlord's premises or in a warehouse, until it is claimed by the tenant or until the property is abandoned.
Upon storage of the personal property, the landlord is in the position of an involuntary bailee. See,
Christensen v. Hoover, Colo., 608 P.2d 372 (1979); Note, The Rights of Landlords in Tenants' Personal Property, 57 Den. L.J. 685 (1980). Here, the bailment is for the sole benefit of the tenant, who is the bailor. As to whether the landlord, as bailee, is entitled to compensation from the tenant for storage costs:
Where the bailment is for the sole benefit of the bailor, or for the sole benefit of the bailee, the latter is not entitled to any recompense for a duty involved by the bailment; and a bailee not willing to act gratuitously longer must, if he intends to make a charge thereafter, notify the bailor to that effect before he can make a claim for charges and sell the property therefor; but he is entitled to compensation for storage after the lapse of a reasonable time after such notice. On this point, Kentucky has held a bailee who has the custody of property, upon notifying the owners to remove the same, and they fail to do so, is entitled to compensation and storage.
Richardson, Ky. Prac., 2nd Ed., Bailments § 506.20 (1968).
Additionally, as to whether the landlord or tenant should bear the cost of storage, one should consult KRS 306.040, which states:
Any person who without an agreement for compensation entertains another in his house or furnishes him with meals or storage for his goods shall be considered as doing it as a courtesy and shall not recover anything therefor, unless the person so entertaining or furnishing is a hotel proprietor or one who makes a practice of furnishing lodging or meals to others for compensation. [Emphasis added.]
Pursuant to KRS 306.040, the tenant is not liable to the landlord for storage costs unless there is a compensation agreement to the contrary. This appears consistent with Richardson's Kentucky Practice statement above. Likewise, if the landlord has given notice to the tenant to remove the personal property or else storage costs will be assessed, and the tenant fails to remove the property after the lapse of a reasonable time after such notice, then an agreement may be implied for compensation for storage of the goods. See,
Ide v. Finn, 187 N.Y.S. 202, 196 App. Div. 141.
To summarize, when through the judicial process the landlord recovers possession of the rental property, and the tenant moves out, leaving behind personal property such as furniture, the rights and obligations with regard to the personal property are as follows: the landlord must give notice, preferably certified mail, return receipt requested, to the tenant to remove the goods and a reasonable time in which to so remove them; if the legal elements of abandonment are present, the landlord as finder may appropriate the goods for his/her own use or disposition; if the tenant fails after notice to remove the personal property, the landlord may cause its removal in a reasonable manner, and the goods may be stored until they are claimed by the tenant or until the property is abandoned; the tenant is not liable to the landlord for storage costs for the goods unless there is a compensation agreement to the contrary; finally, if the landlord has given notice to the tenant to remove the personal property or else storage costs will be assessed, and the tenant fails to remove the property after the lapse of a reasonable time after such notice, then an agreement may be implied for compensation for storage of the goods. We hope that this adequately responds to your inquiry.