We are often asked what happens when a tenant leaves a property, but fails to remove all of their possessions. Who now owns them and what can be done with them?
The Legal Position
Unless there is an agreement between the parties, possessions left behind at the end of a tenancy continue to belong to the tenant. A landlord should take great care in making any assumption that the tenant has abandoned the goods. They should also be alive to the risk that the fact that goods remain in the property may be evidence of an intention to return and therefore the property has not in point of fact been officially abandoned.
If the tenant has given up possession, the landlord remains liable to take reasonable care of items left behind, as an “involuntary bailee”. Provided the landlord follows a set procedure, they can usually sell or dispose of the goods. However, except in certain circumstances, landlords must take care to not simply discard the tenant’s possessions.
Naturally, where there can be little doubt that the possessions left in the property are rubbish, there is a lower risk to the landlord in disposing of these items. However, the risk is greater where there are more valuable items left in the property, such as furniture, electrical items or ornaments, and landlords should accordingly exercise greater care.
The tenancy agreement may provide for what happens in this situation, but if not, the items can still be removed and put into storage, and in theory the costs of storage recovered from the tenant. In order to minimise the risk of subsequent accusations relating to missing items, it is advisable that the landlord takes photographs and makes an inventory.
Importantly, particularly in the case of residential tenancies, landlords should exercise extrem caution when permitting a tenant to re-enter the property to pick up items. If the tenant refuses to leave, they could be deemed to have taken possession, requiring legal action to evict them! At the very least the landlord or agent should accompany the tenant, but better still, the items should be gathered up and collected by the tenant at an agreed time without the tenant being allowed to set foot in the property again.
Although more likely to apply in commercial cases, the presence of items left behind can mean the tenant has not given ‘vacant possession’, meaning the tenant remains liable to pay a sum equivalent to the current rent until they are removed. This would likely be the case if very large or bulky items such as machinery are left behind, substantially depriving the landlord of use of the property. If the tenant exercised a break clause, this could result in the tenancy continuing and the break clause failing, resulting in the tenant remaining bound for the remainder of the fixed term.
Landlords should make sure any other person proposing to collect items on behalf of the tenant has the appropriate authority from the tenant to do so.
Generally, if the tenant does not respond to reasonable attempts to make contact, the landlord is entitled to do whatever is ‘reasonable’ to rid themselves of the items. What is considered ‘reasonable’ will depend on the circumstances in each case. For example, it may be reasonable for landlords to discard items which are clearly of low value or, if they have a value, to sell them. For the avoidance of doubt, a prudent landlord should seek legal advice on the nature of the goods and what a court may regard as reasonable.
The significance of serving notices under the Torts (Interference with Goods) Act 1977
It is possible to serve a notice on the tenant (if a landlord is able to locate the tenant), which in effect, imposes a time limit on the tenant to collect the goods and if they are not collected, then the landlord has the right to sell them. There is some doubt as to the effectiveness of such notice in involuntary bailee scenarios, but they remain widely used for two main reasons:
- If the tenant fails to respond to the notice it could be argued that this is evidence that they have abandoned the goods, justifying their disposal;
- If the tenant later claims that they hadn’t abandoned the goods, the landlord could use the service of the notice as evidence that it has acted reasonably and in accordance with its duties.
What amounts to reasonable time to collect the goods is dependent on the landlord; however 21 days or more is usually sufficient. If all reasonable steps have been taken to contact the former tenant and the notice has expired, landlords can dispose of the goods. The landlord is entitled to sell the goods, deduct from the proceeds any reasonable costs that incurred through storage, removal and sale, before accounting to the tenant for the balance.
If the steps outlined above are not taken, landlords may find themselves open to a claim from the former tenant. This can be very costly and time consuming so it is important to ensure compliance with this procedure and that evidence of doing so is carefully recorded.