What Does California Law Say About Property Abandonment?
A common factor in many California landlord-tenant disputes is the landlord’s attempt to retake possession of a rental unit when the tenant moves out. In such instances, the landlord may allege that the tenant has abandoned their property, thereby entitling the landlord to dispose of it. While the concepts of abandonment and dispossession are not unique to California, the statutory and common law dealing with commercial and residential leases are unique and obscure. This blog entry analyzes the statutory, common and case law dealing with property abandonment under California law.
Under California law, abandonment by a lessee is defined as "a voluntary relinquishment of possession with a purpose of terminating the relation of landlord and tenant, accompanied by a definite and distinct intent to prevent the reoccupation by the tenant …." (Black’s 2nd (v10) 2000). The Code provides that a landlord may elect to terminate a lease where "the lessee has been absent from the premises continuously for five days … and during his absence…(1) [t]he rent is not paid … or (2) the tenant attempts to remove property from the premises without paying rent … and there is no reasonable probability of payment .." (Civil Code 1951.3). Accordingly, the landlord may retake possession of the property by giving a written notice to the lessee. (Civil Code 1951.3). Further, a tenant "fails to occupy the property … if the tenant has removed all personal property … from the property … and has indicated by statements or conduct that he or she does not intend to occupy the property . " (Civil Code 1940.5)
California Courts have held that abandonment not only requires the failure to occupy the property but also evidence of an intent to relinquish possession. (Oregon v. City of Arcadia (1976) 243 CA2d 457). In Oregon, the City of Arcadia brought a suit against certain property owners to abate a public nuisance that had allegedly developed on their property after tenants allegedly abandoned and vacated the premises. (Oregon v. City of Arcadia, supra, at 457-458).
In holding that there was no showing that abandonment had occurred at the property, the Court noted that the mere act of vacatur, i.e. the tenant moving-out of the property, standing alone does not constitute a relinquishment of possession. While the lessees had vacated the property, intention to relinquish possession could not be inferred from the vacatur, there was no other evidence that the lessees had intended to relinquish possession of the property and the public had not been made aware of any such intent from the leasing parties. (Oregon v. City of Arcadia, supra, at 458-459)
Equally important to the above definition of abandonment is that the landlord is not entitled to simply discard the property once the tenant abandons it. California law provides that a lessor is "bound" to "keep the property until the lease is terminated or for 31 days after the rent is due, whichever occurs first. (Civil Code 1951.7). Moreover, this disposition "may only be done through a judicial procedure which may be combined with a claim for possession." (Oregon v. City of Arcadia, supra, at 461).
California Law for Abandonment of Property Requirements
Abandonment of property in California is strictly controlled by statute. Property is deemed to be abandoned when it is left, forsaken, or deserted by the owner, when the owner can no longer be found. In California, unless there is a provision to the contrary in a rental agreement, a "landlord or landlord’s agent shall presume property left behind in an abandoned or foreclosed-on rental unit … is abandoned." The rental agreement governs the disposition of abandoned property if a residential rental unit is not also a mobile home, sale or other disposition by the owner after 60 days when the rent is no longer paid renders the unit abandoned and all items and effects are presumed abandoned.
A storage facility owner or manager is entitled to presume that goods have been abandoned if they are left in or on the property. California Civil Code § 21707(a). It is presumed that real property has been abandoned if the renter is gone for a period of 18 months and fails to make payments pursuant to the rental agreement. California Civil Code § 21700(c).
When a tenant leaves behind personal property, it does not place it necessarily in the possession of the landlord: the tenant’s ownership remains and the landlord has merely acquired a prima facie power of disposal until the tenant reclaims it or the tenant’s time period of claiming the property has elapsed such that the landlord can dispose of it under California law. This period may be as short as 15 days under California Civil Code § 1980(b) or, as noted above, as long as 60 days under Civil Code § 1980(a)(1) or weeks if the property is a business or professional item or a commercial food-processing item. Failure to obtain from the tenant a written waiver of the 45-day statutory delay renders the landlord vulnerable to the possibility of a residential tenant suing for estoppel, negligence, a quiet title action, and conversion (the wrongful exercise of dominion when the landlord acts as an owner rather than agent having exclusive possession of the property). Conversion is proved by showing: the plaintiff’s ownership of property and legal right to possess it, the defendant’s conversion by wrongful act inconsistent with the plaintiff’s rights of ownership, the plaintiff’s absence of consent to the defendant’s act, and damages.
Some statutes that specifically address situations in which property is deemed abandoned, when a landlord or other private citizen may be able to dispose of abandoned property without fear of criminal prosecution or civil liability, include:
Under California Commercial Code § 9619, a lessor may sell leased goods if the rental payments have not been made and both of the following apply:
While businesses may take possession of property that has been abandoned or forgotten in a rented space after the tenant has given up possession, they are required to attempt due diligence to notify the former tenant before disposing of the property, except where a written rental agreement gives them the right to dispose of but not take possession of the property upon nonpayment of rent.
Claiming Abandoned Property, How Does It Work?
California law regarding the claims on personal property that has been abandoned requires a specific process for the abandonment. It is not sufficient for a vehicle or a personal effect to be left on another person’s property and have time pass. The possessor must have intended to relinquish his rights to the item.
A California government code section (§ 50280) specifies the procedure necessary to make a claim of abandonment of real property. Real estate can be either lent to another party or rented. However, in both cases, if the item is intended to continue on the property owner’s property, it remains that owner’s property. A clear example of this would be a movable structure, like a mobile home, which is rented by a tenant.
The processes set in motion with the tenant or tenant’s landlord include giving notice of the abandonment (Note: If you are a landlord with tenants, tenants may not be considered to have abandoned any property unless you send them a letter giving them notice that their property is abandoned and they have 18 days to retrieve it.) Once these processes have been initiated, there are specific rules the landlord/tress must follow to get rid of the property that is alleged to be abandoned.
The various processes are specified under California Civil Code § 1951.9 (Property Abandonment – Real Property.), which outlines the procedures independent landlords must follow to deal with an unwanted item on their property. The order of process followed by an independent landlord is different than a government-owned place of business (who must follow government procedures when collecting or disposing of lost or abandoned property).
Property Owners’ Rights and Responsibilities
The law recognizes the rights attached to the ownership of property, commonly known as a "bundle of sticks" attached to a "tree." The most fundamental of these is the right to possession of the land itself. A property owner can generally do as he or she wishes with the land, provided care is taken not to infringe on the rights of others or act in a manner that is abusive to the property. Owners (and other lawful possessors) of real estate have full responsibility to ensure that the land is not wastefully used, and to maintain the property in good condition.
Although owners are typically afforded the latitude to use land in any legal manner, it is a general principle of law that an owner cannot abandon his or her property to the detriment of others. In addition to a duty to maintain the property, owners may have a duty to reassert their claim and take possession of the property, especially if the act of abandonment has rendered the property a nuisance.
A property owner may sue for the cost of destroying a building or other improvements built without his or her consent. If it is more profitable, the owner can elect to sue for the value that the thing has diminished the value of the property.
If a building or other improvement is abandoned and is creating a nuisance, an owner may seek injunctive relief against the offending structure. Civil Code section 841.2(2) defines further the cause of action that an owner can bring against another party for nuisances relating to abandoned structures on the property. Additionally, an owner may seek damages against an abandoning party for trespass. Although the abandonment of property is not, standing alone, a form of trespass, it could lead to a trespass issue if the property is in such a state of disrepair that it constitutes a nuisance.
Common Concerns and Uncommon Scenarios
California property abandonment law is complex, and many issues and challenges can arise. For example, disputes can occur between the debtor and creditor regarding abandonment of property after a debtor defaults on a debt. Also, the practical application can sometimes be challenged. In one case, a California appeals court upheld the forfeiture of an entire loan for failing to comply with the statute’s notice provisions. Landlords may challenge whether a tenant has abandoned the property by questioning the intent of the tenant, condition of the property, and amount of time that has elapsed since the last rental payment . Failure to comply with specific notice requirements for landlords before disposing of abandoned personal property can result in a complete loss of the property, and costs associated with that property. Lenders may face similar issues when attempting to dispose of abandoned property. With General Abandonment actions, under California Code of Civil Procedure Section 761.060, strict compliance is required. The Court may invalidate a foreclosure if the lender fails to meet procedural requirements.
Case Examples and Legal Interpretations
A review of recent case law can add context to the theoretical framework of California property abandonment law. One instructive example is Vacco v. McCaleb (2009) 173 Cal.App.4th 905, where "the Court of Appeal concluded that a unit owner’s conviction had made him "unfit" within the meaning of the Davis-Stirling Act, which was held to grant the homeowner association standing to file a nuisance action to terminate the owner’s interest in the common interest development." The court noted that, "[B]y his conduct, the owner made an affirmatively dangerous use of his unit, his continued occupancy of which may pose a menace to the well-being of other residents." In this case, the owner was convicted following an incident of gunfire at the common area pool on twenty-four separate occasions, which was the vaporizing of potassium nitrate between the pool and a court unit. Thereafter, a "fire department hazardous materials team tested the air, located the powder and asked the owner to clean up the powder to avoid potential health risks for people who used the pool." Despite numerous requests to do so, the owner refused and eventually "was also cited for illegal air pollution. He accepted a plea deal."
The court ordered that the owner’s interest in the common interest development be sold to pay the outstanding expenses and that the association notify the owner when the sale will occur. Although the owner did not comply with an order to remove himself from the unit, the issue on appeal was whether the trial court erred in concluding that the Davis-Stirling Act gave it authority to order the sale of a unit when a homeowner had been convicted of committing criminal acts on the property. The owner lost and the judgment was affirmed.
The court noted that Davis-Stirling Section 7050 clearly states "no person shall use his or her separate interest for unlawful purposes," which wells fits with the owner. In addition, pursuant to section 6972(b), an association may file a nuisance action as to an owner’s separate interest "if . . . criminal activity is taking place in the separate interest that could create a danger to other owners." The key issue is that the owner actively willfully allowed the criminal act to occur within the owners unit rather than describing a unit where the owner purportedly abandoned the unit.
Avoiding Property Abandonment
Abandoned properties are more than a nuisance: they can also be a financial burden. A number of legal problems arise when an owner abandons a property, but there are remedies to resolve them. To the extent possible, it is best to avoid property abandonment in the first place. Property owners can take the following simple steps to keep their properties from being abandoned: By taking these steps , owners can identify and remedy owner-occupied issues before abandonment is necessary. If, however, abandonment is the only remedy available, the owner may be able to take advantage of an expedited judicial process, but the remedies for the owner once an abandonment is established are mostly by claims for damages and injunctive relief as discussed above.