Evictions Are Unpleasant; What Happens After Can Be Worse
By Charles Isaacs, Esq.
Imagine this as a Landlord; you are successful at trial in an eviction action, and a tenant is ordered by the court to vacate the premises. You leave the courthouse with your Judgment of Possession in hand, file your appropriate certifications to obtain a Warrant of Removal, and about 10 days later you and a Court Officer appear at the property to change the locks. However, upon entering the unit, you discover that all of the tenant’s property or commercial inventory is still there! What do you do now? Should you throw everything in the dumpster? Hold a yard sale? What you have entered is a legal minefield, and if you are not careful, you could suffer serious consequences down the road.
Luckily, the New Jersey Abandoned Property Act, N.J.S.A. 2A:18-72 et seq., establishes the circumstance under which a landlord may dispose of personal property left behind by a tenant, whether commercial or residential, and what is required of the landlord prior to doing so. After a tenant has vacated a unit, if personal property is left behind, the law imposes specific obligations on a landlord before you may clear and turn over a unit. Under the Act, a landlord must care for a tenant’s property left behind in the unit, and facilitate the tenant’s access to the unit to remove their property, for a period of 30 days after service of a required notice following the termination of a tenancy, or 33 days from the date of mailing. The only exception to this is if the premises are rented solely for commercial use AND there is a lease provision that provides what happens with the tenant’s property. While you may be tempted to begin counting this 30 day time period based on when a tenant physically moved out, or when the lockout occurred; this time period does not begin to run until proper service of notice has been effected.
A tenancy is considered “terminated” after the voluntary surrender of the premises (including handing over the keys), by judgment from the court, or by other specific mechanism of law. Under New Jersey law, after obtaining a judgment of possession, the landlord must safeguard a tenant’s property during the 30 day period. The law does allow the landlord to remove the property in order to turn over the unit and mitigate their damages, but (if before the allotted timeframe) that property must be stored and reasonably safeguarded during the required time period. While the law also allows landlords to pass along the reasonable cost of the moving and the storage unit to the former tenant, the landlord may not use the tenant’s property as a bargaining chip to force the former tenant to pay off their balance. In other words, the tenant’s property cannot be held hostage in exchange for payment.
There are a number of other problems created when a tenant leaves property behind in the unit. Beyond the clutter and abandoned perishables, there may be pieces of furniture that are heavy, and cannot be moved without professional movers, or there may be delicate or expensive pieces that may not be able to be moved safely. The legal requirement to safeguard a tenant’s property creates a duty to do just that, and potential civil liability if a Landlord fails to do so with care. Landlords should use their best judgment; while turning over the unit is important to minimize lost revenue; a landlord does not want to end up on the hook for (inevitably) damaging a tenant’s priceless family heirloom in the process.
Failure to remove the remaining property can create a delay in turning over (and therefore re-renting) the unit, which is why many landlords prefer to move the property into storage. While the effort and cost of this process may be easily handled by large management companies with a large staff, for small landlords with limited staff this can be quite a hurdle. As a legal and practical matter, you cannot re-rent the property until all personal property of the former tenant has been removed. While there may be an inclination to simply remove the property and leave the tenant a voicemail to retrieve their property, under New Jersey law you would very likely be creating potential liability for the value of the property, and the last thing you want is to end up paying for your haste in civil court over this issue.
The best defense in these situations is active prudence. Immediately after the premises has been lawfully secured, serve the tenant, by regular and certified mail, with an Abandoned Property Notice that complies with New Jersey law. This can be served personally, but a certified mailing is easier to substantiate should the matter ultimately end up in court. If the notice is mailed, then you would simply give 33 days from the mailing date for the former tenant to notify you that they wish to retrieve their belongings. Given that you also have 30 days to return or apply the tenant’s security deposit, some landlords prepare notices which include both a disposition of the deposit, and a notice regarding remaining property. You want to serve this notice as soon as possible, as the clock does not begin until the notice is sent. The notice itself should be clear to list the items left behind and where they are, and provide the specific time-frame for the tenant to reclaim their property. You should also include a willingness to provide post lock-out access to the tenant for the purposes of removing their property from the premises within some limited time period only, and it can be helpful to clearly spell out that this process requires a request in advance, and that access will be given in the presence of the owner or a staff person. This can help cut down on tenants randomly showing up in an attempt to pressure staff into letting them back into their units. You are not required to give them any additional access, nor a key to the new locks.
The Abandoned Property Notice does not need to describe what items were left in the property by the former tenant but should indicate clearly that if the property that has any apparent value is not removed it will be disposed of as required by law. Keep in mind that this usually means throwing away the items that have no apparent market value. If the property left behind has any value that would “exceed the costs of sale,” the statute obligates the landlord to sell them and apply the proceeds to the tenant’s account. This is an analysis that the Landlord must make using a “reasonable persons” standard to evaluate the value of the property left behind. If the Landlord deems the property left behind to have little value, the notice should contain a statement such as “If you fail to claim this property within 30 days (or 33 days if the notice is mailed), this property may be disposed of pursuant to the New Jersey Abandoned Property Act at the Landlord’s discretion.”
In the event the property has been moved into storage, or the Landlord intends to do so, language addressing this should also be included in the notice. The language should notify the former tenant that he or she may be obligated to pay storage costs for the time that the personal property is stored. Once again, this is only the moving and storage costs; back rent and damages cannot be included for these purposes. If the Landlord knows what the costs will be, they would be well served by including them in the letter (e.g. $5.00 per day, $50.00 per 30 days, etc.). If challenged, the amount of moving and storage costs should be justifiable as “reasonable”, and clear records and receipts should be kept as a precaution. Always keep in mind that the goal is to get the tenant’s property out of the unit, so it can be turned over and re-rented; while legal, prudent Landlords may not want to let a few dozen dollars delay the hundreds or thousands gained by turning the unit over a few weeks sooner.
If the former tenant ultimately does not remove their personal property within 33 days of mailing the notice, you have the right to remove and dispose of any remaining property as required by law. As previously stated, if you need to hire professional movers, those costs can potentially be considered contract damages should you ultimately take the tenant to court. In the end the goal should be to act in demonstrably good faith as a defense to liability: therefore, once a written notice is sent, if you have the phone number or email of the former tenant, the 2 minutes it takes to send an email and leave a voicemail can be worth the time, should you need to defend your actions.
Certain items can, and should, be dealt with immediately without waiting the statutory period. The statute, N.J.S.A. 2A:18-75 provides:
“The landlord must then store all goods, chattels . . . and other personal property of the tenant in a place of safekeeping and shall exercise reasonable care for the property, except that the landlord may promptly dispose of perishable food and shall allow an animal control agency or humane society to remove any abandoned pets or livestock. A landlord may store a tenant’s manufactured dwelling or residential vehicle on the space previously rented, elsewhere on the premises, or in a safe location off the premises.“
A common exception to these rules are court Orders for Orderly Removal. Orders for Orderly Removal are post-judgment court orders allowing a tenant up to seven additional days to remove their property, but in exchange most judges require the tenant to waive their property rights from the Abandoned Property Act; any items left behind following a post-judgment final lockout are legally deemed abandoned in that circumstance, and may be disposed of immediately upon the tenant vacating. As always, we advise Landlords to only dispose of a tenant’s personal property after careful consideration and attempts to arrange pick-up with the tenant.
All landlord tenant relationships begin with the best intentions. Parties meet, terms are agreed to, documents are signed, and usually everyone involved genuinely believes it will work out for the best. Frequently tenancies end when things go wrong; that is when it is important to put personal feelings aside, and ensure you comply with the law in order to protect yourself and/or your company from liability.
Charles R. Isaacs is an associate attorney of the firm Ehrlich, Petriello, Gudin & Plaza, P.C. headquartered in Newark, New Jersey who practices in the area of civil litigation with an emphasis on Landlord/Tenant, insurance and commercial litigation matters. He is admitted to practice before the courts of New Jersey, and appears in courts throughout the state on a regular basis. Mr. Isaacs uses his litigation experience to zealously advocate for the legal rights of his clients, which include large corporations, closely held businesses, and individuals.
It is not, nor is it intended to be, legal advice. You should consult an attorney or other qualified professional to discuss your particular matter. The firm can be reached at (973) 643-0040 or on the web at wwwepgprlaw.com.