Dealing with Utah abandoned personal property

Even though many landlords in Utah have learned to pay attention to the legal requirements needed to remove a tenant who is unlawfully detaining a property, there are often more questions about what to do after the eviction than during the eviction. One particular concern that landlords must be aware of is dealing with Utah abandoned personal property.

A property manager will be confronted with this problem more often that one might expect. Specifically, there are two instances when this will likely occur: end of the term of the lease and after execution of the Order of Restitution issued as part of an eviction. Most of the time items left behind in a rental unit are items that the tenant deemed undesirable and are therefore truly abandoned. Occasionally, especially when it occurs during an eviction, the items were left behind because the tenant was unable to remove all of their belongings.

Under Utah law, there is a very specific process for disposing of abandoned property. The law does not make a distinction between worthless property that most landlords would consider garbage and the type of property which would be considered abandoned under the statute, so property managers should exercise reasonable judgment when dealing with cleaning up the premises.

Since many property managers will hire a maintenance crew to clean up apartments after a tenant has vacated, property managers should makes sure that this crew is supervised by someone familiar with the laws regarding abandoned property and should also provide training to the entire crew to make sure they document their work. This will help you avoid costly litigation initiated by a disgruntled tenant claiming that precious property was not handled in accordance with the law.

• First, an inventory should be taken of all items abandoned by the tenant. This would include a written inventory but most importantly a photographic inventory. Take pictures of every room and its contents. This will also help you document any damages. If there are items of particular value, take individual pictures of those items to document their condition. With digital cameras available in virtually every cell phone this should be fairly easy to accomplish.
• Second, make a determination of what you want to do with the items. Some things will clearly be garbage and may be thrown away. A property manager should be prudent and exercise reasonable judgment when determining what is garbage and what needs to be kept. Look to see if the item is broken, if it is piled with other waste or refuse. In the end it is a judgment call that landlords must make.
• Finally, after distinguishing the garbage and disposing of it, you must store the rest in accordance with the law. Utah Code Ann. 78B-6-816 contains the requirements for dealing with property after the premises have been abandoned. A landlord is entitled to remove the property from the premises so that the property may be quickly re-rented, but the landlord must store the property and make reasonable efforts to notify the tenant of the location of the property. The property manager may recover actual moving and storage costs from the tenant for this effort.

After storing the property for 30 days, the landlord may dispose of the property in two ways: conduct a sale or donate the items to charity. A sale may be conducted if the tenant has made no reasonable effort to recover the property, including paying the storage and moving costs. Token efforts will not be enough, neither will showing up to the property and taking a few items every so often. The sale should be done in a commercially reasonable matter with efforts to make the public as well as the tenant aware of the sale. It is recommended that a landlord publish or post public notices as well as directly notifying the tenant at any email address, phone number, or the last known address. Sale proceeds may be applied to the moving and storage costs, but any excess beyond that may not be automatically applied to any other balance owing to the landlord. A property manager must comply with Utah Code Ann. 67-4a-2 with regard to this money or may seek to attach these funds through a landlord’s lien or judgment. An attorney should be consulted for further discussion on this point.

Utah Code Ann. 78B-6-812 governs how a sale of abandoned property is conducted after forceful removal in an eviction. The process is similar to that described above, but there are some particular differences to provide additional safeguards to the tenant. The landlord must do an inventory and that inventory must be delivered to the tenant immediately after the property has been removed from the premises.

The property must still be held for 30 days and if a sale is to occur a public sale is required by the statute. The landlord may sell the property if the tenant has failed to request a hearing, or failed to remove the items and pay the storage and moving costs. Prior to the sale, the landlord must mail the tenant written notice of the time and place of the sale. This notice must be mailed to the tenant’s last known address, but the landlord should use reasonable efforts to notify the tenant in addition to this.

If the tenant is present at the sale, then it is the tenant that determines the items that will be sold to satisfy the costs of moving and storing the property. Once that amount has been paid, the landlord must release the remainder of the property to the tenant if that is the tenant’s request. The landlord may only apply proceeds of the sale in excess of the moving and storage costs to a judgment if the tenant is not present at the sale and the landlord has obtained a judgment. Any surplus beyond the judgment must be handed over to the tenant. If the tenant cannot be located then the proceeds exceeding any judgment must be handled in accordance with Utah Code Ann. 67-4a-2. Of course, if the landlord has not obtained a judgment, then the landlord may not keep any money beyond the storage and moving costs. Please consult with an attorney for further discussion on this point.

A property manager or owner may donate items to charity as an alternative to conducting a sale, but only if the tenant has not requested a hearing, or has not paid the moving and storage costs, and the donation is commercially reasonable.

A landlord is not entitled to hold or sell property belonging to a person other than the tenant. Often times, tenants will rent their furniture or appliances from third party vendors. Once a third party has established its ownership of an item, a property manager must release the item immediately without demand for storage and moving costs. The key is to review the agreement between the tenant and the third party vendor to determine whether it is a rental agreement or a rent to own agreement. Sometimes it is worth a bit of a fight to get storage costs. It is also recommended that landlords do not fall for the trap of non-vendor third parties claiming property on behalf of the tenant. They must demonstrate ownership and you should question the validity of their claim.

On a final note, as discussed earlier there is no guidance in the statute for determining what is garbage and what must be kept. Many landlords will simply throw everything that they do not want away. This may not result in frequent problems or be a convenient alternative to compliance with the law since most tenants will not protest for one reason or another, but the one time it does not work will be very costly for you. This is especially true if you did not take an inventory or photographs. So at a minimum, photograph everything so that if a tenant claims you threw away priceless heirlooms you can show a judge the exact nature of these alleged valuables.

 

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