"This is a very common problem for landlords and one that can be misunderstood and mishandled. Often the answer is not straightforward and the solution can sometimes involve the landlord incurring unwanted expenses."
George Pearce, Advocate
Landlords often ask us what they can do with items left behind by tenants on moving out of residential premises. This is a very common problem for landlords and one that can be misunderstood and mishandled. Often the answer is not straightforward and the solution can sometimes involve the landlord incurring unwanted expenses. Landlords must take particular care in cases where tenants have left items of potential financial and/or sentimental value.
The terms of the lease
The first step in each individual case is to consult the terms of the lease. This is the primary document governing the rights and obligations of both the landlord and the tenant.
Schedule 1 of the Residential Tenancy (Jersey) Law 2011 requires a residential tenancy agreement to provide an inventory of the items of movable property which are to remain the property of the landlord. This will usually include the landlord’s fixtures and fittings, and any white goods which the landlord will permit the tenant to use during the course of their tenancy. Unless an agreement is reached between the landlord and tenant to the contrary, a tenant is not permitted to take these items with them at the end of the tenancy.
Aside from those items listed on the inventory, any remaining movable property located in the property is likely to belong to the tenant. The terms of a residential tenancy agreement will usually provide that the tenant is required to remove all of their personal possessions from the property and to leave the property clean and in a good state of repair (reasonable wear and tear excepted) at the conclusion of their tenancy.
A sensible residential tenancy agreement will make provision for what should happen in the event that a tenant leaves possessions behind at the conclusion of the tenancy. Ideally, this should set out a procedure for identifying the possessions left, communication between the landlord and tenant concerning their collection, and a back-stop date by which if the possessions are not collected the landlord shall be entitled to treat them as abandoned and shall be free to dispose of them as they see fit.
The residential tenancy agreement can also make provision for a reasonable charge to cover the expense to the landlord in storing the possessions until they are either collected or deemed abandoned.
What can a landlord do if possessions are left behind?
If the residential tenancy agreement makes a specific provision for a procedure to be followed then that procedure should be followed. If there is no such provision then matters are a little more uncertain. Much will depend upon whether or not the tenant owes the landlord any money at the end of their tenancy. In any event, the landlord will be entitled to remove the possessions from the demised premises and store them elsewhere (provided that the storage is appropriate given the nature of the possessions).
What happens if the tenant owes money?
In Jersey, a landlord has a customary law right to a lien (or charge) overall moveable property in the leased property as security for any claim for up to one year’s unpaid rent. This is known as the droit de gage. The landlord’s droit de gage is limited to claims for rent and cannot be exercised in respect of any other payments which might be due to the landlord under the terms of the lease (e.g. service charges or unpaid insurance premiums).
Whilst a landlord has a right to exercise the droit de gage the landlord cannot sell or dispose of the tenant’s property without an order of the Court. In cases where a tenant owes a landlord money, it is often the case that the landlord will have already sought and obtained an order for the tenant’s eviction on the grounds of the unpaid rent. Where the Court grants an eviction order it will usually include an order which allows the Viscount (the Court’s executive officer) to remove the tenant’s possessions from the property and, after a specified period of time, either sell them in satisfaction of the rent arrears or otherwise dispose of them if they are of no commercial value.
When the Viscount sells a tenant’s possessions, the proceeds of the sale will be applied in the following order of priority:
Settlement of the costs incurred by the Viscount in connection with the removal, storage and sale of the items;
Settlement of the landlord’s claim for arrears; and
Any remaining balance will be paid to the tenant.
Cases where the tenant does not owe money
In these circumstances, the landlord has no claim against the value of the items left behind and may, in selling or otherwise disposing of the items, commit the tort of interference with goods (potentially rendering the landlord liable to pay the tenant damages in the amount of the value of the possessions). Care must therefore be taken.
In the UK, the Torts (Interference with Goods) Act 1977 provides a specific procedure that a landlord must follow before disposing of a tenant’s property. There is no Jersey equivalent law. The 2011 Law gives the Minister for Housing and Communities the power to make orders as to the status of, rights relating to, and removal and disposal of, possessions left behind by a tenant. The Minister has so far declined to use these powers.
What follows is a suggested ‘common sense’ approach to matters. In the first instance, the landlord should write to the tenant at their new address placing the tenant on notice of the fact that the landlord will take steps to dispose of any possessions left in the property if they are not removed within a reasonable period (this will depend on the particular circumstances of the tenant, but at least one month ought to be allowed). If the tenant responds to the notice, the landlord should seek to reach an agreement as to how and when the items are to be removed and/or disposed of and by whom. It is important to ensure that any agreement is clearly recorded in writing and signed by both the landlord and the tenant.
If the tenant does not respond to the notice (or it is otherwise not possible to reach an agreement with the tenant) the landlord has little alternative really but to either: (1) take a commercial decision to dispose of the possessions and risk an action by the tenant; or (2) to seek orders from the Court as to the manner in which the items might be disposed of (and by whom).
Practical Tips for Landlords
There are a number of practical steps that can be taken to mitigate the impact and risks to landlords.
The best protection is a well-drafted residential tenancy agreement (see your friendly local lawyer!). This should set out a procedure for dealing with possessions left by the tenant at the conclusion of the tenancy. It should also make provision for the reasonable costs of disposing of any such possessions to be met by the tenant.
Always arrange for the check-out inspection to take place on the day that the tenant intends to move out making sure that the tenant is present. Make sure that any of the tenant’s possessions are identified and seek the tenant’s written agreement there and then that any of those possessions which are left behind can be considered abandoned and disposed of.
Always ensure that the tenant provides their new address or an address at which they can be contacted. This should be recorded in writing. This will enable the landlord to show that they have taken reasonable steps to communicate with the tenant in relation to possessions left at the premises.