In my experience as counsel for landlords in eviction situations, I’ve found that no single set of issues is as vexing to me and to my clients as those which arise when a tenant leaves behind personal property following their departure. Minnesota law is notoriously pro-tenant in this area, requiring the landlord to follow a Byzantine set of rules, with numerous traps for the unwary that can result in even the most careful landlord getting into hot water. This article will summarize a landlord’s duties in this situation, and offer general advice on how to avoid the most common mistakes.
Abandonment or Eviction?
The first key distinction in this area of law involves the manner in which the tenant vacated the leased premises. If a tenant “abandons” the rented premises and leaves behind personal property (i.e., anything beyond items that are clearly trash), Minnesota Statutes Section 504B.271 governs a landlord’s duties with regard to the personal property. By contrast, if a tenant is evicted from the premises and leaves behind personal property, a landlord will be required to follow the rules contained in Minnesota Statutes Section 504B.365. In this context, “abandonment” essentially means that the tenant has left the property without the intent to return. This is most often proven by the tenant turning in his or her keys, though other forms of evidence of abandonment can be used.
The issue that can arise in these circumstances is which statute applies when a tenant voluntarily vacates the premises at some point after the eviction proceedings have been initiated, but before the sheriff actually arrives to forcibly remove them. The vast majority of tenants facing eviction do, in fact, vacate before they are forcibly removed, making this a common problem. Unfortunately, the applicable statutes give no real guidance on this issue. Therefore, the best advice is for a landlord facing such a situation to follow the rules set forth in Section 504B.365, which applies in eviction cases.
A Landlord’s Duties When the Tenant Abandons the Premises
As noted above, if the tenant voluntarily abandons the rented premises prior to an eviction being initiated, the landlord’s duties are governed by Section 504B.271. Upon retaking possession of the premises, the landlord must first “take possession” of any remaining personal property and “store and care” for that property for a period of 28 days following the tenant’s abandonment. The landlord may either store the personal property on the premises, or may move it into storage. At the end of the 28-day period, the landlord may “sell or otherwise dispose of the property,” and apply the proceeds of any sale to pay for the expenses of moving, storing, and selling the personal property. Any remaining proceeds must be returned to the former tenant upon written demand. If a sale is going to be held, the landlord must make “reasonable efforts” to notify the tenant of the sale at least 14 days before the sale is scheduled to occur.
Within the 28-day holding period, a landlord in possession of a former tenant’s personal property must allow the tenant to retake possession of the personal property within 24 hours of a tenant’s written demand if: the property has been stored on the premises, or within 48 hours of written demand if the property is being stored elsewhere. The landlord may not withhold access to the personal property from the tenant because the tenant has not paid the costs of moving and/or storing the property.
If a landlord violates any of these provisions, they may be liable for “punitive damages” under the statute in an amount up to twice the amount of the ex-tenant’s actual damages, or $1,000, whichever is greater. In addition, the landlord will be required to reimburse the ex-tenant for their reasonable attorney’s fees.
A Landlord’s Duties When a Tenant is Evicted
When a tenant is evicted, Section 504B.365 imposes a completely different set of rules upon a landlord with regard to any personal property left behind. Under those circumstances, the landlord must make an initial decision, when the sheriff is still present, whether to store the personal property on the premises or to immediately move it into an offsite storage facility. If the landlord chooses to store the property offsite at a “suitable” storage location, the statute requires that “the officer shall remove all personal property of the [ex-tenant] at the expense of the [landlord].” In practice, this means that the officer observes while the landlord arranges for the property to be moved.
The landlord must then store the personal property for 60 days, and has a lien on that property until all the expenses of removal and storage are repaid to the landlord by the ex-tenant. In other words, a landlord can actually refuse to return a tenant’s personal property until those expenses are paid by the ex-tenant. If the tenant does not pay the expenses within 60 days of the execution of the order for the ex-tenant to vacate, the landlord may sell the personal property at a public sale under the rules set forth in Minnesota Statutes Sections 514.18 to 514.22.
If a landlord chooses instead, at least initially, to store the personal property left behind at the premises, an entirely different procedure applies. In that case, the landlord must, in the presence of the sheriff, prepare an inventory of the property, mail a copy to the ex-tenant’s last known address, and leave a copy with the sheriff. That inventory must include:
1. A list of the items of personal property and a description of their condition;
2. The date, the signature of the landlord or the landlord’s agent, and the name and telephone number of a person authorized to release the personal property; and
3. The name and badge number of the officer.
Though the statute is not entirely clear on this, a landlord must then hold the property being stored on the premises for 60 days, at which point it can be sold under the same circumstances as if the property had been initially moved offsite.
If, after creating an inventory and initially storing it onsite as described above, the landlord decides at some later point to remove and store the personal property offsite, a different procedure applies. Under such circumstances, Section 504B.365 states that such property is to be treated as if it were “abandoned,” requiring the landlord to follow the procedures set forth in Section 504B.271 - with its attendant 28-day waiting period, as described above. This situation is not unusual since landlords are often unprepared to immediately move a substantial amount of personal property in the sheriff’s presence, but may soon hire a moving company and arrange for its removal so the premises can be leased to a new tenant.
When storing property onsite or offsite under Section 504B.365, a landlord has a duty to care for an ex-tenant’s personal property in the same manner as a reasonably careful person would exercise under similar circumstances. If a landlord violates any landlord duties under this statute, he or she may be subjected to statutory penalties up to three times the ex-tenant’s actual damages, plus reimbursement of the ex-tenant’s attorney’s fees. In the event of a particularly egregious violation, there may even be criminal sanctions imposed.
Some Practical Advice
When I lay this out while speaking to groups of landlords, nearly every hand shoots up with questions about the process. My general advice in response to those questions is as follows:
1. The statute (particularly Section 504B.365) is poorly written and organized, and contains numerous ambiguities which could mean trouble for even the most wary landlord. The best general strategies for avoiding such a problem are: a) give the tenant a reasonable amount of time prior to eviction to move out all their personal property voluntarily; and b) if you do end up storing an ex-tenant’s personal property, give them every reasonable opportunity to retrieve it, even if you do not think the law requires it. Following these two strategies will reduce the chances of a costly lawsuit to nearly zero.
2. Don’t necessarily trust the sheriff to know what to do. Though sheriffs are trained on the correct procedures in this area, I have personally run into situations where they have failed to direct a landlord to prepare the required inventory when personal property was being stored on the premises. Landlords and their agents should be trained on the procedure to follow, and should follow the rules even in the absence of direction from the sheriff on the scene.
3. Very few tenants leave behind personal property worth reselling at a public sale. In this case, a landlord should not count on being reimbursed from the personal property for their costs, and should instead make every reasonable effort to simply arrange for the tenant to retrieve their property, even if not strictly required by the law to do so.
4. Whatever the circumstance, a landlord should always take pictures and/or video of personal property left behind by a tenant, as this will be valuable evidence if the tenant ultimately raises any legal issue relating to his or her personal property.
By making every effort to follow the statutory scheme and by heeding this practical advice, a landlord should be able to make this difficult process go smoothly and reduce the chances of costly litigation. However, if you find yourself in such a situation or need up-front advice about the correct procedure to follow, please contact our office or any other experienced landlord’s counsel.