On occasion, a church tenant will vacate the property, (Real Property), either at the end of the rental term or otherwise and leave some of their personal property behind. In most instances, those items are simply forgotten and later collected after being noticed. However, a tenant will often leave behind their personal property simply because they no longer want it. The question then becomes, what to do with the personal property of a commercial type tenant.
The California Civil Code simply defines personal property as “every kind of property that is not real is personal.” Which begs the question, what then is real property?
Real Property, as defines by California Civil Code §658 includes: 1) land; 2) that which is affixed to land; 3) that which is incidental or appurtenant to land; and 4) that which is immovable by law; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.
In other words, personal property includes movable tangible objects that are not affixed to the land. Something is considered affixed to the land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.
Abandoned Personal Property:
Once the tenant has vacated the Real Property, one should always attempt to contact the tenant to inform them that they have left behind their personal property. At which point, they may inform you that they no longer desire the property and that the church may retain it or dispose of it. This should always be received from the former tenant in writing. However, what if the tenant cannot be reached.
Once a rental agreement has been terminated, and the tenant has actually vacated the property, that which is left behind is generally considered to be abandoned based on a reasonable believe. By statute, California defined a reasonable belief of abandonment as “the actual knowledge or belief a prudent person would have without making an investigation, including any investigation of public records, except that, if the landlord has specific information indicating that an investigation would more probably than not reveal pertinent information and the cost of an investigation would be reasonable in relation to the probable value of the property involved, “reasonable belief” includes the actual knowledge or belief a prudent person would have if an investigation were made.
Once it has been determined that the tenant abandoned their personal property, it must be inventoried and safely stored in a reasonable location that is secure. At some point, proper notice must be given to the tenant in regard to the abandoned property in strict conformance with the related statute.
If the tenant does not claim their personal property, you must inform the tenant of your intent to dispose of it so as to avoid being accused of theft or conversion. If you have reason to believe that the tenant is not the owner of the property and you know who the owner is, then you must also send a notice to the actual owner of the property, in addition to the tenant.
Notice to the tenant is strictly governed by California Civil Code §1993 et. seq. which states in part that the notice shall be personally delivered to the former tenant by first-class mail, postage prepaid, at their last known address. If there is reason to believe that the notice sent to that address will not be received by that person, also to any other address known to the landlord where the person may reasonably be expected to receive the notice. If the notice is sent by mail to the former tenant, one copy shall be sent to the premises vacated by the tenant.
That notice shall describe the property in a manner reasonably adequate to permit the owner of the property to identify it and shall advise the person to be notified that reasonable costs of storage may be charged before the property is returned, where the property may be claimed, and the date before which the claim must be made.
Additionally, the law requires that specific deadlines be adhered to and language be used in the notice so as to prevent the previous tenant from claiming that the personal property was improperly disposed of.
At any point if time prior to the expiration of the deadlines prescribed by law, the property owner may release the personal property to the former tenant or their agent and is not obligated to determine who the lawful owner.
Where the property is not released to a former tenant and the total resale value of the property is less than the lesser of either $750 or $1 per square foot of the premises occupied by the former tenant, the landlord may retain the property for his or her own use or dispose of it in any manner. Otherwise, the property shall be sold at public sale by competitive bidding.
California law sets forth the requirements for the disposal of abandoned personal property after notice of the sale has been given by publication wherein the church has the right to both bid on the items and deduct the cost of storage, advertising, and sale. After the deduction of those cost, any balance of the proceeds of the sale that is not claimed by the former tenant be paid into the treasury of the county in which the sale took.
To avoid being accused of theft or destruction of such personal property, properly store it and contact an attorney for legal advice, including its legal storage. Don’t just throw it away. To avoid potential liability, it is important for the landlord to properly assess the value. When the value is not known, a landlord can request an estimate of value from a knowledgeable person.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.