What are a landlord’s responsibilities and rights when a tenant leaves personal property behind?

Your tenant has moved out. The lease may have expired and the tenancy ended amicably, or you may have served a notice of termination or even had to undertake an eviction procedure. Whatever the reason for your tenant’s departure, you find abandoned personal property left behind after they’re gone. What do you do?

The temptation may be (depending on the nature and the quality of the items) either to put it all on the street for the waste pickers or appropriate it for your own use. Don’t do that…at least not until you have ascertained the status of the belongings and followed certain procedures. You could put yourself at risk for an accusation of theft (at worst) or a demand for compensation (at best).

Although you didn’t ask your tenants to leave things behind, it is still your problem, like it or not. Follow these steps to avoid any unpleasant consequences.

What constitutes tenant property?

Tenant property is defined as any personal possessions, owned by your tenants or their guests, that they have moved into or onto the property. The property includes any outbuildings, such as a garage, and even the garden area. The tenant should restore the property to its original condition at the conclusion of the lease, and the lease agreement should specifically require this. This includes removing personal property. However, tenants do sometimes leave unwanted items behind, and unfortunately your final joint inspection won’t reveal these, as the walk-through is usually done before the tenant moves out, to identify any repairs that may need to come off the security deposit.

A word about fixtures

There is an exception to the definition above. If a tenant has attached something to a wall or ceiling, it is called a “fixture.” Examples of fixtures are built-in bookshelves, curtain rails or lighting units. Unless there is a clause in the lease making provision for fixtures to be removed, or a separate contract to that effect, once a fixture is installed it becomes part of the premises and therefore belongs to the landlord. If the tenant wishes to remove it, they must not only restore the wall or ceiling to its original condition, they must secure the landlord’s consent to do so (because the fixture is now the property of the landlord, not the tenant).

Are you sure the tenant has gone for good?

In most cases, this will be obvious. Your tenant has given notice to leave because they have bought a house or are relocating to another city, etc. There is no ambiguity. But what happens if the situation is not as clear-cut or as congenial? Perhaps you have served a notice of termination on the tenant, for example for non-payment of rent. Or you have commenced eviction proceedings. Then the occupant disappears. You assume they have absconded. Most of their belongings have gone, but not all. Has the tenant moved out and abandoned the remaining items, or are they coming back for them? You can’t be sure.

You have a duty to try to track down the tenant. With cell phones it is not that difficult. But if that fails, dig out the references provided when the lease was signed. Contact the employer or previous landlord (who may be a friend or family member). Use any contact details you hold for the occupant and exhaust all possibilities. You must be able to demonstrate that you tried in good faith to find the owner of the personal property.

Safely stored

You’ve done all you can. No one knows the whereabouts of your erstwhile tenant, or you have contacted them but they have not returned to claim their goods. You need to empty the unit to prepare for an incoming tenant. Now can you put the items on the street or adopt them as your own? No!

Although not a legal requirement in South Africa, you would be wise to store the belongings for a reasonable amount of time, safely and securely, and allow the tenant to reclaim the items within that reasonable time frame. While the personal property is in your hands you are liable for it and you don’t want to risk a damages claim. What looks like junk to you could be a treasured item to your tenant.

By law, if “movables” have been left behind and you have taken reasonable steps to be sure the tenant has permanently left the property and abandoned the movables, you are within your rights to sell or dispose of the items as you see fit. In South African law, unowned things are considered “fair game”. This means they can become owned by someone else. But it is the determination of “abandonment” that is problematic. So until you are absolutely certain the tenant is not coming back for their things, or sufficient time has passed to render it unlikely, keep the goods safe and sound.

Vehicles

It is extremely unlikely a tenant will leave an abandoned vehicle behind. But it happens occasionally. In this case, report it to the police. Giving them the licence number, and make and model of the car, along with the address where it is parked. The police will determine if it is abandoned and arrange to have it towed if the owner cannot be traced.

Prevention is better than cure

You can avoid all the hassle described in this article. Write an abandoned personal property clause into the lease. The rental agreement should already require the occupant to return the unit to the moving-in condition (validated by an joint inspection and inventory on entry). This is where you can  specify your preferences around fixtures – should they be removed before moving out or do you claim them as your property? You can also set out the conditions for abandoned personal property, for example:

• What constitutes abandoned property?

• How long will any abandoned property be stored?

• What will be the fee for storage and removal? Specify that the tenant will be billed for it.

• How will the payment for storage and removal be made? If this will be via the security deposit be clear that the deposit will not be returned until the unit is fully cleared.

• What will happen to unclaimed property (after the time determined above has elapsed)?

Make it easy for everyone

If a tenancy is about to come to an end, and presuming relations between landlord and tenant are hospitable, you could issue the occupants with a moving-out checklist. This is based on the terms of the lease and provides them with reminders of what they need to do, especially if they want to ensure the return of the deposit. Moving house is a stressful time and it’s easy to overlook things. A checklist could include:

• Cleaning requirements

• Repainting walls to the same colour as they were on entry

• Removal of all personal possessions

• Disposal of all rubbish, including recycling

• Leaving behind appliances and other fixtures of the property (don’t forget to include curtain rails and light bulbs – these are frequently removed as consumables!)

• Removing self-installed fixtures (depending on what your lease says about these)

• Notifying the landlord of any damage or issues in the property

• Settling all utility bills and taking final meter readings

Contact us today

SD Law is a Cape Town law firm of eviction attorneys, now operating in Johannesburg and Durban, with deep expertise in rental property. We can help you draw up your lease agreement and manage the end of the rental period. We can ensure you don’t wind up in hot water by helping you screen tenants. But if any disputes do arise during or at the end of the tenancy, we can help you resolve them. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your property-related matters today.