Often, landlords find themselves in a difficult position when a former tenant has vacated but their possessions remain at its property. A landlord may have a dilapidations claim against its tenant for repair works, but this does not extend to an absolute right to dispose of the tenant’s property. Landlords should consider their options carefully to ensure they do not suffer any consequences for incorrectly disposing of a former tenant’s possessions.
Firstly, the landlord should review the lease or tenancy agreement under which the tenant occupied the property. The lease may state that the tenant must remove its possessions from the property on or before the end of the contractual term of the lease, and the tenant appoints the landlord to be its agent to store or dispose of any possessions left at the property. This would be the ideal situation for the landlord as they have the ability to dispose of the tenant’s possessions (albeit having the inconvenience of doing so).
If the lease is silent on the tenant’s possessions being left at the property following expiry of the contractual term, and the former tenant has vacated the property, it may be treated as having abandoned its possessions, which would mean the landlord is usually free to deal with those possessions as they see fit. If the goods are not abandoned, then the tenant may have a claim against the landlord for conversion (interference with the personal property of another). However, it may be a difficult test to prove whether the possessions have in fact been abandoned.
What does this mean for a landlord?
The landlord may hold its former tenant’s possessions in one of the following ways:
- As a bailee voluntarily and knowingly in possession having consented to being in possession. A bailee owes a duty to take reasonable care of the goods (Mitchell v Ealing LBC  QB 1); or
- Simply in possession of the goods without consent (known as involuntary bailee). This does impose certain responsibilities on the landlord who must not deliberately or recklessly damage or destroy the goods, and to take care, when it returns the goods through a third party, to ensure the third party have authority to accept such goods. The landlord must therefore do what is “right and reasonable” in the circumstances (Da Rocha-Afodu v Mortgage Express Ltd  EWCA Civ 454).
Torts (Interference with Goods) Act 1977 (TIGA 1977)
It is unclear whether the TIGA 1977 applies to involuntary bailments. This article considers the TIGA 1977 in circumstances where the bailee has consented to being in possession of the goods. The landlord has the following options in this scenario:
- It can impose an obligation on the former tenant to collect the goods by giving notice. This is only possible where the landlord accepted the goods for repair or another similar treatment; to value the goods; or to store the goods; or
- The right to sell the goods if they are not collected, provided the landlord has given notice to the former tenant of its intention or has failed to trace or communicate with the former tenant after taking reasonable steps; or the landlord is reasonably satisfied that the former tenant owns the goods.
Where a landlord chooses to rely on the TIGA 1977, its right to do so may be open to challenge. A sale by the landlord may also be authorised by the Court.
The former tenant must be given a reasonable opportunity to collect the goods, before a sale. This period must be at least three months if the former tenant is required to pay to the landlord any amount in respect of the goods, and the amount became due before the notice of intention to sell (for example, repair, valuation or storage costs).
If the landlord decides to sell, it should adopt the best method of sale reasonably available and pay the balance of the sale proceeds (less costs incurred) to the former tenant. The landlord is not strictly entitled to deduct any other sums from the proceeds of sale under the TIGA 1977.
Where the former tenant has simply left its possessions behind without any prior agreement (i.e. the landlord is an involuntary bailee), serving a notice under the TIGA 1977 may assist the landlord in proving abandonment and compliance with its duties before disposing of the goods.
The landlord should consider checking the possessions to see whether they may be owned by a third party, and if they are, the landlord should contact the relevant third party and serve notice on them to collect the possessions. It is good practice for the landlord to obtain written confirmation from the person collecting the possessions that they are the owner of the goods or that they are authorised by the true owner, to avoid any unnecessary claims in the future.
Where the landlord cannot trace the former tenant or assumes that the tenant has abandoned the goods, it should aim to retain the proceeds of sale for a period of time in case the former tenant comes forward.
Where the former tenant is subject to an insolvency process, its possessions will vest in the trustee, administrator, liquidator or such other insolvency practitioner. Any notice to collect goods under the TIGA 1977 should therefore be served on the relevant person.
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