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Bailment: landlords and leftover property Bailment: landlords and leftover property

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Aug 21

Bailment: landlords and leftover property

Written by Adam Colville-Robins
Solicitor

DDI: 01423 726616
E: adam.colville-robins@raworths.co.uk

Outgoing tenants often leave property behind at the end of their tenancy and this can create several considerations for landlords:

  • do they have to store these items, and if so who is responsible for the storage costs?
  • are they entitled to dispose of or sell the items?
  • does it change things if the tenant was in rent arrears at the end of the tenancy and has left items behind?

In the vast majority of cases where items of low value or obvious rubbish have been left, the risk to landlords may be minimal if they were to unlawfully dispose of or sell these items. However, it is not uncommon for situations to arise where more valuable items, or a larger volume of items, are left behind. For example, evicting a tenant or forfeiting a lease could result in there being a large number of items left in the property which belong to the tenant. Landlords can incur a significant liability if these situations are not dealt with correctly.

Although most leases will have clauses that are intended to deal with this situation, if items are still left in the property at the end of a tenancy then generally these items will remain the former tenant’s property.

A landlord who, on taking back possession of their property, finds that the tenant has left a significant number of items in the property (even if in breach of the lease), is likely to become an involuntary bailee in respect of these items. Involuntary bailment is different to a true bailee/bailor relationship in that the bailee has not consented to possessing the bailor’s goods. Despite this, an involuntary bailee will still owe the bailor some duties in relation to the goods.

The duties which an involuntary bailee owes to the bailor will vary in each case and it is therefore important that landlords seek bespoke advice before any action is taken. Generally, the court has considered that the bailee must not deliberately or recklessly damage or destroy the goods and is under a duty to do what is “right and reasonable” in relation to them. In some situations that can include landlords being able to dispose of goods, but it seems that the court will firstly expect a landlord to make some effort to contact their former tenant.

The Torts (Interference with Goods) Act 1977 provides a mechanism for bailees to give notice to bailors to collect goods, and of the bailee’s intention to sell goods. This statutory mechanism is regularly used by landlords in these circumstances and although it is not clear whether it was intended to be relied upon by involuntary bailees, if followed correctly this procedure can be an effective way for landlords to demonstrate that they have complied with their duties as bailee.

In circumstances where an outgoing tenant is in rent arrears, landlords who become involuntary bailees may be keen to claim a lien over the tenant’s goods and retain possession of these until any arrears have been satisfied. Whether a landlord is entitled to do this will depend upon various factors including the terms of the lease and how the goods came to be left. It is unlikely, however, where an involuntary bailment arises as a result of a tenant’s goods having been left at the property for no specific purpose, that a landlord will be entitled to claim a lien over such goods.

Landlords who become involuntary bailees risk liability for claims under the Torts (Interference with Goods) Act 1977 if they act unlawfully in respect of goods belonging to their former tenants. The value of such claims can be significant, and obtaining tailored advice can therefore be crucial for landlords faced with these circumstances.

To discuss any of the issues raised in this article, please contact Adam Colville-Robins in our Dispute Resolution team.

Published on 23 August 2021

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