Involuntary Bailee – What to Do?
Whilst we all have an expectation that others will act reasonably, morally and lawfully; this does not always happen in practice.
A common example of the above is where a lessee or a seller vacate a property but do not fully clear it of their belongings.
This is an extremely annoying, selfish and irritating way to behave, and many landlords or buyers understandably would like to dispose of the belongings or equipment left behind as quickly as possible, taking the view that it’s not their responsibility. Unfortunately, the law is not that simple.
A person becomes an involuntary bailee in law where they, without their consent, found themselves in possession of goods belonging to another.
As an involuntary bailee, certain legal obligations arise, which are: –
- Not to deliberately or recklessly damage or destroy the goods.
- Where a 3rd party comes forward or is found who appears to be connected to the person(s) who left the possessions, to take care to ascertain whether that 3rd party in fact has the third party has the owner’s authority to receive them.
What to do?
Dealing firstly with the situation, unfortunately not as uncommon as may be imagined, when a property is purchased, there is a temptation to go and check the property is clear before completing and to consider instructing your solicitor not to release funds to the seller’s solicitors until you are satisfied that the property has been properly cleared. However, short of a clear contractual term allowing such an approach, which would be very unusual, even though a seller who leaves possessions or fixtures and fittings they had agreed to remove would be in breach of contract, the type of breach would not entitle a refusal to complete. In practical terms also, where there is a chain of dependent completions on a given day, it would be very difficult for all parties to check in a chain and still complete on the agreed day, so prevention is unfortunately impractical.
In both a sale transaction or a lease or in fact in any situation of involuntary bailment, the bailee is not required to keep the items where they were left – they can be moved elsewhere.
In a landlord and tenant situation, where a tenant leaves possessions or equipment the landlord will need to attempt to serve a notice under Schedule 1 of the Torts (Interference with Goods) Act 1977, requiring the tenant (or the true owner of the goods) to come and collect the goods. The notice will need to:-
- State where the goods are now.
- If the bailee plans to sell the items left, where the sale will take place.
- Make clear that if the items are saleable and sold, sale and storage costs will be retained from the sale proceeds.
- Attach a schedule of the goods that remain on the premises.
The notice should be sent to the former tenant, if its new contact details are known, and, in any event, attached to the premises in a place where it can be seen.
Other practical tips
Document everything just in case a dispute arises later to substantiate the defence of abandonment.
Consider retaining the sale proceeds for a reasonable period in a separate bank account pending a final decision that the items have been abandoned. There is no hard and fast rule as to how long to wait, the more valuable the items, the longer the period it may be reasonable to still treat them as potentially subject to having the proceeds reclaimed.
For advice on property law, commercial or residential leases, contact Allan Hooper at JE Baring & Co for expert property law advice.