In New Jersey, a landlord of commercial or residential property may dispose of any tangible goods, manufactured or mobile homes or other personal property left by a tenant that vacated the leased premises, under certain circumstances. If a landlord does not comply with the provisions of N.J.S.A. 2A:18-72 through 2A:18-84, then not only will the tenant be relieved of any liability for reimbursement to the landlord for storage and removal costs, the tenant can also recover up to twice the actual damages sustained by the tenant. Therefore, it is important for landlords to know, and follow, the required steps before disposing of a tenantís personal property.
In order to dispose of a tenantís property, possession of the premises must be given back to the landlord. It is important to realize that the mere fact that the tenant appears to have moved out does not give the landlord the right to reclaim possession of the premises. Before a landlord can remove a tenantís personal property, the landlord must legally regain possession of the premises. A landlord can regain possession of the premises in one of two ways: (a) if the tenant provides the landlord with written notice that he, she or it is voluntarily surrendering possession of the premises to the landlord; or (b) if the landlord files an eviction action, obtains a judgment for possession, a warrant for removal is issued and executed, and the court officer restores possession of the premises to the landlord. If the tenant does not voluntarily surrender possession of the premises or the landlord does not evict the tenant, then the tenant (even if in breach of the lease) still has the right of possession and the landlord cannot reclaim possession of the premises and dispose of the tenantís property.
Once a landlord of commercial property regains possession of the leased premises, the landlord may dispose of the remaining property if there is a written lease, signed by the landlord and tenant, and the lease contains specific terms and conditions for the disposal of the tenantís personal property. In that case, the landlord may dispose of the property as provided for in the lease. However, if the lease does not contain specific provisions with respect to abandoned property, or if it is a residential lease, the landlord cannot simply dispose of the tenantís personal property once it regains possession of the leased premises. Before disposing of a tenantís property, the landlord must reasonably believe, under all the circumstances, that the tenant did not intend to reclaim the property.
If a landlord reasonably believes that the tenant abandoned his, her or its personal property, then, in order to dispose of it, the landlord must give written notice to the tenant, sent by certified mail, return receipt requested or by receipted first class mail addressed to the tenant, at the tenantís last known address, in an envelope marked ďPLEASE FORWARD.Ē The notice address may be the address of the premises. The landlord must also send the notice to any alternate address of the tenant, if known to the landlord. If the property is a manufactured or mobile home, then the landlord must also send a copy of the notice to the Director of the Division of Motor Vehicles as well as to any lienholders whose security interests are of record with Division of Motor Vehicles.
The notice must state that the property is considered abandoned and must be removed from the premises or from the place of safekeeping (if the landlord moved the property to a storage facility), not less than 30 days from the date of delivery of the notice or 33 days from the date of mailing (whichever comes first), for all property other than manufactured or mobile homes. If the abandoned property consists solely of manufactured or mobile homes, then the property must be removed not less than 75 days after the delivery of the notice, or not less than 78 days after the date of mailing, whichever comes first. The notice must also state that if the abandoned property is not removed by the deadline, the landlord may either: (a) sell the property at a public or private sale; or (b) destroy it or throw it out if the landlord reasonably determines that the amount realized from the sale would exceed the storage costs and the costs of conducting a public sale; or (c) sell items of value and dispose of the remaining property. Finally, the notice must advise residential tenants that if the tenant claims the property within the time provided in the notice, the landlord must make the property available for removal by the tenant without payment by the tenant of any unpaid rent. No such requirement is applicable with respect to commercial tenants.
Once a landlord notifies the tenant that it intends to dispose of the property, the landlord is obligated to store the property in a place of safekeeping and exercise reasonable care. If there is any perishable food remaining, the landlord can throw it out. If any pets were abandoned, the landlord must contact an animal control agency or humane society to remove any abandoned pets. Any other types of property may be stored by the landlord elsewhere on the premises or in a safe location off premises, and the landlord is entitled to reasonable storage charges and incidental costs. If the landlord elects to store the property in a commercial storage facility, the tenant will be responsible for the actual storage charge as well as the reasonable cost of moving the property to the storage facility.
If the tenant (or the lienholder, if the property is a manufactured or mobile home) does not respond within the time period provided in the notice, the property is conclusively presumed to be abandoned. However, if the tenant or lienholder responds to the landlord, then the tenant or lienholder, as the case may be, has additional time to remove the property before it is deemed abandoned. If a tenant advises the landlord, either orally or in writing, on or before the day specified in the notice, that the tenant intends to remove the property from the premises (or from the storage facility) then, the tenant must remove the property: (a) by the time specified in the notice; or (b) within 15 days after the written response, whichever is later. If the tenant does not remove the property by that date, the property is conclusively presumed abandoned, and the landlord may sell the property and destroy any property of no value. If the property is a manufactured or mobile home, not only the tenant, but any lienholders, may respond. If a lienholder on any manufactured or mobile home responds and advises the landlord that it intends to remove the property from the premises or from the storage facility, or to pay rent as a condition of leaving the property on the premises, then the lienholder has 15 days from the date specified in the notice or within 15 days after the written response, whichever is later, to either remove the property or make the required rental payments. If the lienholder does not remove the property or pay the rent, then the landlord may proceed as if the lienholder had not responded.
A tenant that removes his, her or its property from the premises must reimburse the landlord for the reasonable storage costs incurred by the landlord, including the reasonable cost of moving the property to a storage facility. However, the storage costs may not be greater than the fair market value of such costs in the area where the leased property is located. If a landlord complies with the act, the landlord is not responsible for any loss to a tenant resulting from storage of property, unless the loss was caused by the landlordís deliberate or negligent act or omission.
If the property is deemed abandoned, then the landlord may either: (a) sell the property at a public or private sale; or (b) destroy it or throw it out if the landlord reasonably determines that the amount realized from the sale would exceed the storage costs and the costs of conducting a public sale; or (c) sell items of value and dispose of the remaining property. A public or private sale must be conducted in accordance with the provisions of N.J.S.A. 12A:9-601. After a landlord sells the abandoned property, the landlord may deduct from the proceeds of any sale, the reasonable costs of notice, storage, and sale, and any unpaid rent and charges not covered by the tenantís security deposit. The landlord must give the balance of the proceeds, if any, to the tenant, and must also provide the tenant with an itemized accounting detailing the sale proceeds and the deductions. The landlord must use diligent efforts to contact the tenant. If the tenant still cannot be located, then the landlord is not permitted to retain the excess funds. The landlord is required to deposit those proceeds with the Superior Court, and, if the tenant does not claim the funds within 10 years, the proceeds will belong to the State of New Jersey.
If a landlord complies, in good faith, with all of the requirements of the statute, the landlord has a complete defense from liability in any lawsuit brought by a tenant with respect to damage to, or loss of, tenantís personal property disposed of by landlord. If the landlord does not comply with the statute, not only will the tenant be absolved of liability for the landlordís removal and storage costs, the tenant can also recover up to twice the actual damages sustained by the tenant. Therefore, it is extremely important for landlords to be follow these requirements when disposing of a tenantís personal property.
This Article is reprinted with permission from the January 12, 2009 issue of the New Jersey Law Journal. © 2009 ALM Properties Inc. Further duplication without permission is prohibited.
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