There are few things more frustrating for a landlord, when it has either fought to get its premises back or has received them back in unwelcome circumstances, than to be faced with items littering the property. Although the temptation to bin the items can be strong, the landlord would be well advised to think twice.
When assessing the options, much can depend on the nature of the item. A full discussion of this aspect goes well beyond the scope of this article, but the landlord can of course do what it wishes with items that have become so connected to the property as to form part of the premises, such as a lift installed as part of a shop fit. However, the majority of other items will be designated “chattels”, and these can potentially cause landlords difficulties.
The starting point is that, even after the term has ended, a tenant’s item remains the tenant’s item unless it can be shown that it was abandoned – and proving abandonment is not always easy. Most leases will make it expressly clear that the tenant must clear its items out of the premises at the end of the term, and the tenant will be liable to the landlord for a breach of that covenant. Some leases will go further and include an authorisation for the landlord to dispose of any of the tenant’s items left behind at the end of the term, but the tenant can give no authority to dispose of a third party’s items.
While the tenant will therefore be liable for costs incurred by the landlord in storing them, this is generally of little comfort to the landlord, who has often just seen its tenant disappear and therefore knows it is unlikely to be good for the money. However, if the landlord simply disposes of them, it could be exposed to a risk of a claim for damages from the owner.
Landlord’s obligations
If the landlord simply leaves the items in the premises, its obligations are fairly minimal:
■ not to deliberately injure the items;
■ to treat them in a reasonable way; and
■ to permit the owner to collect them.
If the landlord moves them, it is obliged to take reasonable care of the items and to keep them safe. Also, when handing the items over to anyone else, the landlord must take reasonable steps to confirm that the recipient is entitled to take them.
How to get rid of the items
If the goods are obviously worthless, the landlord may feel comfortable simply disposing of them straightaway, knowing that if the owner subsequently comes out of the woodwork, the financial risk is low.
If the tenant approaches to recover its items, it must be allowed a reasonable opportunity to do so – the landlord cannot insist on a payment in return, such as the clearance of any rent arrears. However, even if the tenant has gone to ground, the Torts (Interference with Goods) Act 1977 sets out a procedure that, if followed, will give the landlord some comfort when it sells or disposes of the goods.
The procedure involves serving a notice under section 12 of the Act, providing, among other things, sufficient particulars of the goods, and requiring the tenant (or the true owner of the goods) to come and collect them within a reasonable time, and otherwise threatening a sale of the goods.
Problem items
■ Items containing data: particularly in light of the new obligations imposed by the General Data Protection Regulations, this can be a very tricky area for a landlord. The key is to be aware of whether any items left behind contain data (paperwork and computer hard drives or servers, for example) rather than engaging with what that data is. In the absence of a response to any Torts Act notices, a landlord is best advised to have the paperwork securely shredded, and any computer equipment securely disposed of so as to make the data unrecoverable.
■ Fresh food: the landlord ought to ensure that it does not cut the electricity to freezers and fridges, in order to preserve such items.
■ Animals: practical issues arise, including animal welfare and, if the owners do not collect them, who the animals ought to be passed on to. Liaising with an animal welfare charity can be a sensible course of action.
The notice should be sent to the former tenant if its new contact details are known (by recorded delivery and, if the landlord suspects the tenant won’t accept that letter, by first class post too), and also attached to the premises in a place where it can be seen from the outside, often the front window or door. It will generally be in the landlord’s interests to do what it can to bring the notice to the tenant’s attention, so sending the notice to any e-mail addresses held by the landlord or its agents can also be sensible. It would also be prudent to check the items in the premises for any indications that the items are owned by third parties – for example, goods taken on hire purchase may have stickers attached with the name and contact details of the owner. The notice should then be sent to them as well.
If all reasonable steps have been taken to contact the former tenant with no response, it is more reasonable to assume the goods have been abandoned, in which case the landlord may feel comfortable disposing of them. However, it is a question of assessing the risk on each occasion. Unless the landlord needs the premises cleared quickly, it can often be best to leave the items in situ for as long as possible, or carefully move them into secure storage.
While the law in this area is not as clear as it might be, and each case depends on its own facts, by following the correct procedures, a landlord ought to be able to minimise its risk when clearing premises.
Richard Housley is a managing associate in the property dispute resolution team at Cripps
