Whether it is a flat full of a recently departed tenant’s detritus or the bike or baby buggy left in a communal hallway, this is an issue frequently seen and often dealt with badly. It is a mistaken belief, for instance, that any belongings left behind become the property of the party who owns the land where the items are left, and that they are free to dispose of those items as they see fit.

Generally speaking, the owner of the land where those items are left becomes an involuntary ‘bailee’ under common law, with a duty to safeguard and look after those items for the owner. That is the case whether items have been left behind following an eviction or surrender of the tenancy, or even if the items are left during the currency of the lease or tenancy (a common problem being items such as bikes and pushchairs left in communal areas such as corridors).

Where items are destroyed or disposed of ‘wrongfully’ (e.g. without the consent of the owner of those goods), the owner of the goods may have a claim in damages (compensation) for the value of the goods. Caution should therefore always be taken when faced with such a situation, and competent legal advice taken, before a decision is made to destroy or dispose of any items that do not belong to you or your client.

What to do with items left on your property?  

Check the agreement

The lease or tenancy agreement may make provision for what will happen with any goods left behind by the tenant, usually at the end of the tenancy. These will often say that the items will be treated as abandoned and will be destroyed, if they have not been collected within a set period of time following the end of the tenancy.

But, irrespective of any such provision made in the lease or tenancy agreement, case law has established that a ‘bailee’ must act in a reasonable and responsible manner when it comes to items it has a common law duty to safeguard. For that reason, even if there is a purported contractual exclusion or no requirement for prior notice, it may nonetheless be advisable to show that reasonable steps were taken to avoid the items being disposed of or destroyed.

The Torts (Interference with Goods) Act 1977

This Act applies in the absence of any procedure set out in the lease or tenancy agreement. It sets out a statutory procedure by which the owner of the goods can be required to collect their belongings, and also gives rise to a statutory right for those items to be sold under Section 12(3).

For the right of sale under Section 12(3) to arise, notice must be served on the owner of the goods which sets out various information including :-

• the name and address of the bailee (e.g. the landlord or management company who owns the land where the goods are left);

• full particulars of the goods - we recommend a full inventory or in cases where there are too many items such that it would be impractical to identify them separately, a full photographic inventory (although beware that valuable items could be left in cupboards/drawers so everywhere must be searched when completing an inventory);

• the place where they are held and that the goods are ready for the owner to take delivery;

• the date on or after which the goods will be sold - this must be a reasonable period of time which will vary from case to case depending on all the circumstances including the volume and value of items left behind. This will usually be somewhere between 14-28 days. Rarely will  shorter time period be considered reasonable.

The Act requires the notice to be sent by registered or recorded delivery.

If the owner of the goods does not collect them within the time specified in the notice, the items can be sold, however the bailee is accountable to the owner for any proceeds of sale (after deducting sale costs).

Practical Considerations

The procedure under the Torts (Interference with Goods) Act 1977 is often seen as having little practical benefit. In cases of items left behind following eviction or surrender of a tenancy, locating the former tenant can often prove difficult, and, in any case, time consuming such that it could take far too long to serve the notice and arrange clearance of the property. In some cases, for example when items are left in common areas, the bailee may simply be unable to identify the owner of the items. Although the right to sell under the Act can still arise where the owner cannot be traced, reasonable steps still need to be made to trace or communicate with the owner before the goods can be sold.

In any event, selling the goods is often not cost effective. Often items left behind have insufficient commercial value to justify the time and cost for sale. However, the Act does not give a right to destroy or otherwise dispose of any items left behind, only a right to sell them.

Despite the limitations of the procedure set out in the Act, it is good evidence to show that reasonable attempts have been made to arrange for the owner to collect the items. It may be that, having followed the procedure, the landlord or management company takes a view based on the perceived value of the items and weighs up the benefits of selling the items as against the risks associated with destroying them (e.g. a later claim for the value of the goods). Where the benefits do not outweigh the risks, it may be that the landlord or management company elects to take the risk and to dispose of the items some other way, taking the view that the owner has abandoned them and has no intention of collecting them.

In those cases where items are left in communal areas and the owner cannot be identified, a sensible approach would be to leave the relevant notice affixed to the item and, where reasonably practicable, copies of the notices posted to all flats. Such an approach may be more suitable in the case of smaller blocks. It may also be sensible to introduce a policy for dealing with items left in communal areas (in line with the procedure set out in the Torts (Interference with Goods) Act 1977), which can be posted to communal notice boards etc around the block, to give prior notice of what might happen with any items left behind. Given the fire and safety risk that such items can pose, a shorter notice period may be justified before the items are removed. Where possible, the items can be stored elsewhere for a longer period of time, although the notice will need to state where the items are being stored.

Where some form of contact can be made with the owner of the goods, then that should be pursued as they may be able to confirm that they have abandoned those items and have no intention of collecting them. Wherever possible, that confirmation should be documented in writing and signed by the owner of the goods, to avoid the risk of any later claim once the items have been destroyed. Any contact should be verified to ensure that the person is the true owner of the goods, before arranging collection or disposal of the items.

It is always essential in any such case for a full inventory to be prepared. Even where a tenant confirms they do not intend to collect the items, there is always a risk without a full inventory that they could later claim a valuable item had been destroyed that they did not give permission to be disposed of.

Each case will have to be assessed on its own merits and the perceived value of the items will always be a key consideration, bearing in mind that something with little commercial value may hold tremendous sentimental value to the owner. Irrespective of the financial value of such a claim in terms of damages, the claim could be costly in terms of legal expenses and certainly time consuming for the landlord or management company facing such a claim, so caution should always be exercised.

The procedure set out above is separate to any claim that a landlord or management company may have against a leaseholder or tenant for breach of the lease or tenancy agreement, for which separate remedies might be available.

If you have any queries whatsoever, please get in touch with a member of the team on 01435 897297 or info@kdllaw.com.

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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