We are aware of increasing instances where tenants, in particular student tenants, are giving Notice to Leave and returning home. On occasion, these tenants are leaving and have abandoned belongings in the property.
While the tenancy agreement will usually oblige tenants to remove their belongings on departure, difficulties arise where the tenancy agreement omits to contract for what will happen with belongings once the tenancy has come to an end.
What is a landlord to do where there is no contractual provision for abandoned belongings in this situation?
The case of Harris v Abbey National plc is useful guidance. This case concerned a claim raised against the building society for payment in respect of loss of property. The pursuer, Mr Harris, lived with his partner in rented accommodation. The building society repossessed the property and were granted eviction orders against the pursuer and his partner. The pursuer left before the eviction took place leaving his belongings. The building society was aware there were belongings in the property. Estate agents were instructed to market the property and warned that ‘no personal items should be removed’. However, the pursuer’s belongings were sent to a tip.
The court took the view that the situation is “typified by the concept of a gratuitous deposit” by the pursuer and “an assumption of the responsibilities of a depository by the defenders”. Bell’s Principles summarise the obligation of a depository as follows:
’To keep the thing with reasonable care, and not to use it unless with permission express or implied… . Reasonable care in a gratuitous depositary is such care as a man of common prudence generally exercises about his own property of like description.’
Accordingly, the building society was required to take reasonable care of the property deposited with them.
Ultimately, the court found the pursuer contributorily negligent for his loss having left his possession without being entitled to do so and having “done nothing constructive” until it was too late. The court reduced the payment award by 60% in recognition of the pursuer’s failure.
It would, therefore, appear that where notice has been given by the tenant and belongings left, the landlord is under an obligation to take reasonable care of the belongings unless there is a contractual provision that provides otherwise.
Risk based approach
This requirement is particularly burdensome for landlords especially with an empty property and/or storage costs. Landlords may be willing to take the risk that a tenant will not pursue damages against them and dispose of the property. Such an approach ought to be exercised with caution and specific advice taken.
While each case will turn on its own individual facts and circumstances the following guidance can be taken from the above case with a view to preserving the landlord’s position:
- Photographs and a detailed inventory of the belongings should be taken;
- Contact should be made with the tenant to establish what the tenant wants done with the items; and
- Clear written communications setting out intentions for retention/disposal of the belongings and a proposed timeframe. The opportunity for collection should be provided to the tenant and a reasonable timeframe set for doing so.
Landlords who wish to avoid this problem should ensure there is a provision in the tenancy agreement providing for abandoned belongings.
For more information or advice, please contact our private rented sector team.
