This article deals with technicalities, and is rather dry in tone. The point is, there are no shortcuts to getting your property back – you must understand the applicable factors, and follow the steps that are identified.
There are only two instances when a landlord must hold your personal property left behind after you vacate. One circumstance follows lock-out after the tenant has been evicted, with a 21-day hold period. The other is for a period of 10 days subsequent to a landlord’s declaration of abandonment.
The statutes applicable to these events are: as to eviction, A.R.S. § 33-1368; and as to abandonment, A.R.S. § 33-1370. Whereas, if you vacate at lease expiration and return possession (keys), just leaving your belongings behind, the landlord is not obliged to hold your property.
Hopefully you are reading this before the lock-out occurrences (known as “execution of a writ of restitution” or “retaking”), so you can remove your personal property prior to being excluded. Because, regardless of the legalities, once you are separated from your property, getting it back is likely to be an uphill battle. It is much better to take your personal belongings and place them in storage, rather than ending up with nothing. Even if homelessness befalls you, at least you will have the option of meanwhile accessing your property and later using it once you have secured new lodgings.
I will later detail the landlord’s obligations relative to the care and record-keeping of the property. The most important thing to know is what you must do to reclaim the property.
On an interim basis, you are entitled to right of access of:
. . . clothing and the tools, apparatus and books of a trade or profession and [any] identification or financial documents[,] including all those related to the tenant's immigration status, employment status, public assistance or medical care.
Reference A.R.S. §§ 33-1368(E) and 33-1370(E)
In my 24 years of landlord-tenant experience I have seen landlords routinely flout provision of such access to tenants. Or, by the time the tenants gain such access, the items have disappeared.
Moreover, as to abandonment (only), some property may be non-recoverable. So long as he includes such notification in the rental agreement, a landlord may destroy or dispose of property if he:
. . . reasonably determines that the value of the property is so low that the cost of moving, storage and conducting a public sale exceeds the amount that would be realized from the sale.
Reference A.R.S. § 33-1370(E)
It is a fallacy that you must pay off rent due, or any judgment amount, in order to reclaim your personal property. Similarly, under A.R.S. § 33-1372 distraint for rent is abolished, and any lien or security interest on the landlord’s behalf as to your household goods is not enforceable. It was, is, and remains your personal property. The question is the degree of the landlord’s responsibility relative to that property, which is, as previously mentioned, detailed at the conclusion of this article.
To recover your belongings, the only payment required is for the costs of removal and storage. The process begins with your written offer to the landlord, after which there are five days for it to be reclaimed. How this works differs slightly, as to eviction versus abandonment, so pay careful attention.
Reference A.R.S. § 33-1368(E)
A landlord must, within 5 days after your written offer to pay the removal and storage charges, surrender possession of your personal property when the payment is tendered. Here’s where it gets tricky. Technically, because the landlord is only required to hold your personal property for 21 days after execution of a writ of restitution (lock-out by a constable), despite your payment offer within that time frame he could argue that he can dispose of it once those days have elapsed. For example, if you were to tender the offer on Day 19, then the landlord would have to surrender possession by Day 24. But because he is only required to hold the property for 21 days, the surrender would be moot if he no longer holds the property on Day 24. If the matter proceeded to litigation, how would a justice of the peace rule under this scenario?
Well, for clarification one must look to other language of this same statutory subsection. Namely, that the landlord’s destruction or disposal of your belongings after your offer to pay entitles you to seek recovery of monetary damages in an amount determined by the court. This would reinforce the argument that the act of offering to pay extends the obligation to return your possessions, which I think most courts would embrace. However, it would not be surprising for a JP to issue a ruling that the landlord is relieved of responsibility after the 21 days, regardless of the earlier offer. To be on the safe side, you should make the offer no later than Day 16, which would compel the landlord, pending your payment of the removal and storage charges, to surrender possession to you on Day 21.
Once you have made the payment the landlord is relieved of further responsibility for your possessions. So it is essential that you immediately retrieve all of it at the time payment is tendered. Have friends, movers and transportation readily available. . . whatever it takes.
Reference A.R.S. § 33-1368(F)
Notwithstanding the preceding, the law contemplates you and the landlord reaching an agreement that he will hold your belongings beyond the 21 days. As with everything, for your protection you should have a written record of any such arrangement. Be sure to read our article on Giving and Receiving Notices.
Reference A.R.S. §§ 33-1370(A), 33-1370(G) and 33-1370(H)
As mentioned above, in the circumstance of abandonment a landlord is required to hold your personal property for 10 days after the landlord has declared the premises abandoned. As such declaration is a 5-day notice, the hold period only extends another 5 days. Unless you’ve kept a beady eye on the door of the rental premises, where such abandonment notice is required to be posted, you may not even know about the notice unless and until you receive the mandatory confirmation copy by certified mail (especially if there is a forwarding address registered with the post office). Thus, in all practicality, your abandoned personal property could well be gone by the time you know it is legally abandoned. For this reason, every single Arizona renter should be familiar with the statutory definitions of abandonment, in order that those circumstances don’t sneak up on you unawares. A fundamental is the periodic rent, the payment of which automatically proscribes abandonment. Thus, if you are out of town, hospitalized or otherwise incapacitated, just make sure the rent is paid.
This having been said, as long as the landlord has not already sold or otherwise disposed of your personal property, you can trigger the landlord’s obligation to allow the property’s reclamation within five days, by giving written notification that you intend to remove the personal property from the dwelling unit or the place of safekeeping. That means, you can make the offer anytime within 10 days of the abandonment notice, but it could extend out indefinitely, depending on what the landlord has done with your property. If you are depending on this factor, make sure you have assembled evidence substantiating that the property has not yet been sold or disposed. To reclaim the property, you must pay for the removal and storage costs. Nothing else.
While the abandonment statute is otherwise silent on reclamation procedures, we recommend that you immediately retrieve all of it at the time payment is tendered. Have friends, movers and transportation readily available. . . whatever it takes.
The Landlord's Obligations
A major purpose of this article is guiding you to set the stage for holding the landlord accountable for his failure to abide by the applicable statutes. A.R.S. § 33-1368(E)specifies that, as to eviction-related holding of property, if the landlord fails to surrender possession when required, you may recover the possessions or your damages if the landlord has destroyed or disposed of the possessions before the 21-day hold period or after an offer to pay the removal and storage costs. However, A.R.S. § 33-1370 does not specify any similar opportunity to compel recovery or be awarded damages. But my experience in Arizona is that most courts are pretty sensitive to issues regarding personal property, and you would have a fair shot if you were to build a decent factual case and be represented by competent counsel.
Accordingly, outlined below are the landlord’s obligations. While he must independently fulfill them, it is a good idea for you to establish a paper trail record requesting that he do so. You want to exhibit good faith on your part, and show bad faith on the landlord’s. That’s how to elicit the court’s favor and, ultimately, be awarded damages.
Reference A.R.S. §§ 33-1368(E) and 33-1368(F)
For a period of 21 days beginning on the first day after a writ of restitution is executed as prescribed in A.R.S. § 12-1181, a landlord is required to:
* Use reasonable care in moving and holding your property;
* Prepare an inventory of the property;
* Promptly notify you of the location and cost of removal and storage by sending a notice by certified mail, return receipt requested, addressed to your last known address and to any of your alternative addresses known to the landlord,
* Allow you access to that property to obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including those related to my immigration status, employment status, public assistance or medical care;
* If you notify the landlord in writing on or before 21 days have elapsed from the execution of a writ of restitution or writ of execution that the landlord intends to remove the personal property from the dwelling unit or place of safekeeping, then it is the landlord’s duty to provide you five days to reclaim the personal property, provided you pay the landlord for the cost of removal and storage for the period your personal property remained in the landlord’s safekeeping;and
* If the landlord holds your property for 21 days and you make no reasonable effort to recover it, then it is the landlord’s duty to sell the property, retain the proceeds and apply them toward your outstanding rent or other costs which are covered in the rental agreement or otherwise provided for in title 33, chapter 10 or title 12, chapter 8 and have been incurred by the landlord due to your termination, and mail any excess proceeds to you at your last known address.
Reference A.R.S. § 33-1370, subsections (A), (B), (D), (E), (F) and (G).
Five days after posting and mailing of a notice of abandonment, the landlord may retake the dwelling unit, and is required to:
* Use reasonable care in holding your personal property;
* Store your personal possessions in the unoccupied dwelling unit that was abandoned by you, in any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available;
* Notify you of the location of the personal property by sending you a notice by certified mail, return receipt requested, addressed to your last known address and to any of your alternate addresses known to the landlord, and also by posting a notice on the door of the dwelling unit or any other conspicuous place on the property for five days;
* Allow you access to that property to obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including those related to your immigration status, employment status, public assistance or medical care;
* If you notify the landlord in writing on or before ten days have elapsed from the landlord’s declaration of abandonment or before the landlord sells the property, whichever is the latter, that you intend to remove the personal property from the dwelling unit or place of safekeeping, then it is the landlord’s duty to provide you five days to reclaim the personal property, provided you pay you for the cost of removal and storage for the period your personal property remained in the landlord’s safekeeping;
* If the landlord holds your property for ten days and you make no reasonable effort to recover it, then it is the landlord’s duty to sell the property, retain the proceeds and apply them toward your outstanding rent or other costs which are cover in the rental agreement or otherwise provided for in title 33, chapter 10 or title 12, chapter 8 and have been incurred by the landlord due to your abandonment, and mail any excess proceeds to you at your last known address;
* For a period of twelve months after the sale of the property, keep adequate records of the outstanding and unpaid rent and the sale of your personal property; and
* Hold any excess proceeds which have been returned as undeliverable for your benefit.
© 2017 by Kenneth A. Volk. All rights reserved.