Landlords are often eager to remove abandoned property of a tenant who appears to have abandoned a leased premises. Missouri law provides a procedure for removing a tenant’s abandoned property without liability. Landlords who remove abandoned property without following the law can end up with a judgment against them for the value of the removed property.
ABANDONED PROPERTY STATUTE
Missouri’s statute on the abandonment of a leased premises, §441.065 RSMo., allows a landlord to remove the abandoned property of a tenant without liability to the tenant. However, the landlord must strictly follow the procedure of the statute.
The statute first requires the landlord to have a reasonable belief that the tenant has abandoned the leased premises and does not intend to return. Second, rent must be unpaid for at least thirty days. Third, the landlord must post written notice on the premises and mail notice, both first class and certified, return receipt requested, to the last known address of the tenant. The notice must include the specific language provided in the statute.
In summary, that language tells the tenant of the landlord’s belief that the tenant has abandoned the leased premises, that rent is unpaid for at least 30 days, and that the landlord will remove the personal property of the tenant if the tenant does not respond within ten days. If the tenant fails to respond to the notice or to pay the past due rent, then the landlord may remove the tenant’s property without liability to the tenant.
IN RE FERRO
§441.065 is the subject of only two Missouri appeals court cases. In the first case, In re Ferro, 228 B.R. 700 (Bankr. Mo. W.D. 1999), the tenant leased a building for use as a commercial photography studio. The tenant fell behind on rent. The landlord provided a notice to the tenant stating that the tenant’s business equipment is “consider as abandoned”; that the landlord had taken possession of the tenant’s equipment at the studio; and that the tenant could cure the default by paying all past due rent within 10 days.
The tenant filed an emergency petition with the bankruptcy court seeking rehabilitation under Chapter 13 of the bankruptcy code. The landlord plead that he reasonably believed that the tenant had abandoned the premises when the tenant left town and that the landlord complied with the requirements of §441.065. The bankruptcy court disagreed, finding that the tenant had notified the landlord by phone that he was going out of town to work so that he could pay his debts and that the tenant’s two employees would continue to run the studio in his absence.
The court said that abandonment has two elements: (i) an intent to abandon, and (ii) external acts demonstrating abandonment. Abandonment may be inferred from “strong and convincing evidence”, the court said. Accordingly, the court held that the tenant clearly did not abandon the studio and ordered the landlord to return the tenant’s property to the tenant.
RIGGS V. CITY OF OWENSVILLE
In the second case, Riggs v. City of Owensville (E.D. Mo. May 4, 2011), the tenant leased a shop owned by a corporation. The owner of the corporation, Lang, told the tenant that the lease would terminate in 30 days because of the tenant’s failure to pay rent and that the tenant had 30 days to remove his property from the shop. Lang then posted a notice on the door of the shop, citing §441.065 and telling the tenant that he had ten days to remove his personal property from the shop or they would be considered abandoned. The tenant then told Lang that he would remove his belongings by July 2nd, to which Lang responded “ok”.
However, prior to July 2nd, Lang, with the assistance of the local police, removed the tenant’s property from the shop, including several vehicles, and sold them for $12,000. Interestingly, the tenant filed a federal §1983 action against Lang and the city/police department, alleging that they deprived him of his constitutional rights by removing and selling his personal property. The tenant additionally sought punitive damages. The court found sufficient evidence existed to show a “meeting of the minds” between Lang and the police and that the police aided Lang’s seizure of the property and vehicles. The court additionally found sufficient evidence to support punitive damages, in part by Lang’s failure to properly follow the requirements of §441.065.
Riggs v. Lang demonstrates the importance of strictly following the law, especially §441.065, when removing the abandoned property of a tenant. It is also a warning to police who are asked to assist a landlord in the removal of a tenant’s abandoned property from leased premises.
The statute addresses the situation where the tenant has a right to occupy the premises but appears to have abandoned that right. Missouri law does not provide clear guidance for the situation where a tenant leaves personal property behind after the lease has ended or following eviction. Instead, how a tenant’s personal property must be handled following the lease term or eviction is often governed by local ordinances. However, even if not required by law, a landlord should attempt to notify a tenant that valuable personal property may be disposed of if the tenant does not contact the landlord within a certain period of time. Valuable property should be kept in a safe place during such period of time.
Also, whether the premises is abandoned or the tenant leaves behind personal property following a lease term or eviction, landlords should check the UCC filings with the Missouri Secretary of State before disposing of valuable property, such as TVs, furniture, and appliances. UCC filings identify parties with a security interest in certain personal property, typically as a lender. Landlords should notify such interested parties of their right to repossess the property within a reasonable amount of time. Again, the valuable personal property should be kept in a safe place during this period. Taking such steps, and keeping copies of all related documents, will further limit the potential liability of the landlord for disposing of a tenant’s valuable personal property.