Kramer, Elkins & Watt

Can I sell property my tenant left behind?

Can I sell property my tenant left behind?

Your tenant is long gone and he’s left a bunch of his stuff behind in the apartment.  Can you sell the property he leaves behind? In true lawyer fashion, the answer depends on the answer to another question (or, set of questions): Was your lease written after 2013?  Did you get the lease online?  Do you know if it was written to comply with current Wisconsin law?  The questions are endless.  Here is an overview of what needs to be considered when a tenant moves out (or is evicted) and leaves a bunch of stuff behind.

 

2012 and 2013 Landlord-Tenant law changes

Even though the most recent substantial changes to this specific aspect of landlord-tenant law were in 2012 and 2013, we are still seeing lease upon lease that does not encompass the important changes from that legislation, leaving landlords with fewer options when it comes to property left behind by departed tenants than they would have if they had a current lease.

If your lease was (a) written before 2013 and has not been revised since that time, or (b) came from an online template (or you don’t even know where it came from), or (c)  you aren’t sure if 2013 Wisconsin Act 76 was taken into account in the drafting of your lease, then any language in your lease allowing you to dispose of tenant’s property as you wish is most likely not enforceable as written.  If your lease does not contain the specific language and reference to the 2013 version of the statute that would allow you to do as you wish with the tenant’s property without notice, you must follow certain procedures, which include storing the property and giving the tenant 30 days’ written notice to retrieve the property before you sell or dispose of it.

 

Written Notice

The written notice must specify that you are storing the property, that you intend to dispose of it by sale or other means if the tenant does not retrieve it by a certain deadline that is more than 30 days from the date of the notice, and the daily charge for the storage.  The notice must be provided within 10 days of the date any charges for storage of the property begin.  The charges can be for the reasonable value of storage. The charges cannot be for rent or other damages.

 

If the tenant has abandoned the personal property, with or without an eviction proceeding having been filed, no writ of eviction/restitution is required to go the written notice route.  If you do, on the other hand, reach the point in the process of obtaining a writ of restitution, through legal eviction proceedings, and having the sheriff execute it to force the person out, you then would have to either: (1) hire a bonded mover in advance, (2) have the sheriff use one of its movers, or (3) have a bond to be able to move and store the property yourself.  All options come at a cost.  If you have a bond and move and store the property yourself, you must provide the written notice as specified above.  If the sheriff handles the moving and storage, the sheriff will send the notice.

 

What do I do after the 30 days has passed?

If a former tenant does come to retrieve his property after you’ve given written notice and before the 30 days has expired, you can require him to pay the cost of removal and storage before releasing his property to him.  In this way, you have a lien on the property.  If he does not get his property within 30 days of the notice and you sell it, you can only keep from the proceeds an amount sufficient to offset to the cost of the removal and storage of the property, as well as for any cost incurred in selling the property, but not for any unpaid rent or other damage to the apartment.

If you sell his property after 30 days, and if there is any money left after you deduct your cost of removal, storage, and the sale, you must then hold the remaining funds for 60 days and turn it over to him upon request.  (Yes, even if he owes you a ton for back rent!  If this sounds ridiculous, this is one reason the law was changed in 2013 to not require this anymore; however, without a lease that complies with that 2013 law, a landlord cannot avail itself of this benefit.)  After 60 days, you must then send the remaining funds to the State of Wisconsin Department of Administration as unclaimed property.

 

Medicine and Medical Equipment/Devices

If any medicine or medical equipment/devices are found in the property, you cannot hold those hostage for any payment, and must return those upon request.

 

What if it’s all junk?

In whose eyes? If you involve the sheriff, it is the sheriff’s burden to determine whether property is junk (or deputies’ burden that are overseeing out the removal).  Under this procedure, if the sheriff determines the property is of no monetary value, the sheriff may cause the disposal of the property. In this case, there would be no liability on the part of the landlord or the sheriff for such disposal.

If you are tasked with the removal yourself, either because the tenant has abandoned the property or a writ has been executed but you are proceeding with a bond, keep in mind that a tenant may still file a claim against you stating that you threw out something of value. In the event that you would have to defend such a claim, the court would allow you to introduce as evidence documentation of what was tossed and why, with photos.

 

What if I didn’t/don’t follow this procedure?

So, your lease says you can do whatever you want with abandoned property.  So, you did.  Without providing notice.  If it turns out that provision in your lease was not compliant with the law, then, in short, you may be liable to the tenant for twice the value of the property plus the tenant’s attorney fees if he has to hire an attorney to pursue the issue. If you find yourself in this situation, then it is important that you (1) take any contact by former tenants about their property seriously, and consult an attorney to determine your obligations and whether any potential impact can be minimized, and (2) get your lease into compliance ASAP to prevent future problems.

 

And if I do have a lease with the updated language?

Provided the language follows what is required under the current version of the applicable statutes (and this should not be assumed other than through a review by a competent attorney), you should be able to trash the property after it has been abandoned or the tenant has been lawfully evicted by the sheriff’s deputies.  Be mindful that what constitutes abandonment may vary depending on the language of your lease and the location of the rental premises.

At the end of the day, a well-written, legally compliant, updated lease is an essential part of every landlord’s operation, whether you have 1 tenant or 1,000 tenants.  And, nearly 10 times out of 10, that lease you got off the internet is not going to do the trick.

 

Contact Kramer, Elkins & Watt, LLC

If you want to be sure your lease is in good shape or are a landlord with other landlord-tenant law questions, contact Attorney Jessica M. Kramer at Kramer, Elkins & Watt, LLC.