By Nate Bernstein, Esq.- Managing Counsel, LA Real Estate Law Group
If a tenant has been evicted by the landlord, and the landlord does a sheriff’s lockout, and the tenant does not remove their personal property (such as clothes, appliances, furniture), it is a big problem and headache for the landlord or manager. The personal property could be heavy furniture or a big screen television or any other personal property such as pictures, clothing, or toiletries. You can’t rent out the property until the personal property has been removed and the premises has been professionally cleaned, painted, and repaired. You thought you were in the real estate business, but now you are in the furniture storage business!! Your inclination from your feeling of dire frustration is to have the personal property thrown out into the street or into the neighborhood dumpster. However, dumping the property in the trash bin is unlawful under California law, and the former tenant can sue you for the value of the property and any other charges incurred. You don’t want to be in small claims court or any other court over this issue.
Here is what you do to solve the problem:
Immediately after the lockout date, serve the tenant by personal service or email a “Notice of Right to Reclaim Abandoned Property” that complies with California law. This can be served personally or by email. You want to serve this notice as soon as possible because the former tenant may stall and delay to pick up the personal property- so you want to start the clock ticking on the notice!! This starts the clock of 18 days for the tenant to pick up personal property. You should give the former tenant post lock out access to the property only if he or she shows you a bona fide contract from a moving company with a move out date, and you are present to supervise the process. Don’t give the locked out tenant any other form of access, and don’t provide a key!!
The Notice of Right to Reclaim Abandoned Property should describe in detail what items/categories were left in the property by the former tenant, all of the names of the former tenants, the property address, and should state, “If you fail to claim this property by (state date and time), and unless you pay the landlord’s reasonable cost of storage for all the above property, and take possession of the property which you claim, not later than 18 days after notice is deposited in email, this property may be disposed of pursuant to California Civil Code Section 1988. Pursuant to Cal. Civil Code Section 1984(b)(1): If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the cost of storage, advertising, and sale is deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within one year after the county receives the money.”
The Notice of Right to Reclaim Abandoned Property must notify the former tenant that he or she is being charged daily storage costs for the time that the personal property is being stored after the judgment for possession was entered by the Court. The amount of storage costs should arguably be “reasonable,” and probably should not exceed the amount of the monthly rent. The amount of monthly rent should be the maximum ceiling amount you should charge, but you need to use reasonable business judgment on this issue. If you want to be fair to the prior tenant, you can call some storage companies in your neighborhood to obtain an estimated a price point, and charge a similar daily rate for the comparable amount of personal property. You should be flexible with this requirement because your goal is to persuade the tenant to move his personal property, not profit from the tenant’s holdover. If a tenant is in financial dire straits, perhaps all he or she can afford is the cost of the moving company. If the former tenant is willing to hire movers to move out his or her items and actually pay for professional movers, you should let the tenant do so, and do so immediately. The storage cost factor is secondary. You want the personal property removed as soon as possible so you can clean the property, complete maintenance and repairs to prepare the property for re-rental.
If the stubborn former tenant does not pick up the personal property within 18 days of serving the notice, then you need to publish a notice of public auction sale twice in a local newspaper for the next two weeks. I would give the tenant copies of the notice of these publication. By the end of publication they will have been noticed three times in writing to pick up their property – the former tenant cannot claim with a straight fact he or she did not receive notice of a future auction. If after the two weeks of publication the tenant still does not pick up the property, then you can discard, sell, donate, or use the property, or gift it.
The author of this article, Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy/creditor’s rights matters. The contact number is (818) 383-5759, and email is firstname.lastname@example.org. Nate Bernstein is a 25 year veteran Los Angeles real estate and business attorney and trial lawyer. Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights and debtor’s bankruptcy options. He previously served as Vice President and In House trial counsel at Fidelity Title Insurance Company, a Fortune 500 company, and in house counsel at Denley Investment Management Company. Nate Bernstein created www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation. Nate Bernstein is a local expert on real estate law and economic trends in the real estate and leasing market, business law, and bankruptcy law. Nate has personally litigated more than 40 major real estate trials, and has settled more than 200 complex real estate and business cases.