Personal Property Disposition
by Kiyam Poulson
Druckman Law Group PLLC – USFN Member (NY)
Personal
property disposition remains a hot topic in the eviction industry.
We’ve all heard the stories concerning the “Rolex”
watch or the “Picasso” painting that was left behind after
an eviction. The question remains: how best to protect the lender
against claims for such property? Some states require a personal
property eviction to dispose of the personal property, and still others
do not.
New York law
does not require a personal property eviction to dispose of personal
property. Even if the real property is discovered to be vacant, but
personal belongings were left behind, the sheriff (or marshal) will
still proceed to lockout.
After a lockout
is completed, New York law mandates that ordinary chattels belonging to
a former homeowner, and left on the premises after removal or eviction,
are not abandoned. It is the duty of the lender to notify the former
homeowner to remove the personal property; and if it is not removed, to
cause its removal. The law implies an obligation on the part of the
former homeowner to reimburse the lender for the reasonable cost of
removal.
In some
instances, agreements to vacate by a specified date are entered into
with the borrowers. In these cases, it is beneficial for the lender to
make sure the terms of the agreement include language stating that any
personal property left after the borrower vacates is viewed as trash and
will be disposed of. In New York, this agreement, once entered in the
court, will protect the lender when personal property is involved.
Eviction vs. Legal Possession
In cases where no agreement is entered, the distinction is between an
eviction and a legal possession. In an eviction, both the former
homeowner and his personal property are removed from the premises. On
the other hand, in a legal possession, the former homeowner is removed
from the premises, and his property remains under the care and control
of the lender as bailee for the former homeowner. The sheriff is
required to perform whichever service is requested by the lender and may
not restrict itself to conducting legal possessions only.
If the lender indicates that it desires mere possession of the property
rather than having the premises delivered to it in broom-clean
condition, upon giving possession of the former homeowner’s
premises to the lender, the lender or his representative must endorse
the back of the warrant as follows: “Possession of the [former
homeowner’s] premises with the contents intact is hereby
acknowledged. The [lender] accepts responsibility for all of the
property on the premises, releases the sheriff/marshal from any
liability, and agrees to save the sheriff/marshal harmless from any
action resulting from the enforcement of this warrant.”]
In all situations where the sheriff and the mover have access to the
former homeowner’s premises at the same time, and the
homeowner’s property is to be removed, a sheriff must remain on
the premises until all property has been removed and secured in the
moving van. This rule applies whether the sheriff performs an eviction
or a legal possession. Under no circumstances shall the former
homeowner’s property ever be permitted to remain on the
sidewalk.
If the lender
has requested a legal possession and no property is being removed, a
sheriff must remain until the lender has possession of the premises. A
lender has possession of the premises when the sheriff has secured the
premises by changing the locks, or has them changed under his direction
and in his presence.
Where a lender
has requested a full eviction (e.g., possession of premises in
broom-clean condition), the cost of removing the former
homeowner’s property and its delivery to a bonded warehouse must
be borne by the lender.
Inventories
The sheriff is required to prepare a written inventory of all
items contained in the premises of the former homeowner being evicted.
The inventory shall be prepared regardless of whether an eviction or a
legal possession is conducted. The inventory must be complete and
accurate, giving a description of all appliances, household furniture,
goods, and properties present. Both the quantity and condition of the
personal property must be noted.
The full name of the former homeowner must be present on all
inventories. The inventory form needs to be dated, and signed by the
sheriff, the lender (or his representative), and, whenever feasible, the
former homeowner. The inventory form used should have a specially
designated place for each of the above-mentioned signatures. A copy of
this inventory must be provided to the former homeowner at the time of
the eviction, whether or not it is specifically requested. If the former
homeowner is not present, the sheriff must make a copy of the inventory
available to the former homeowner upon request. Whenever electronic
equipment such as stereos, televisions, appliances, and the like are
inventoried, the make, model, and, where possible, the serial number
must be recorded on the inventory. The sheriff should take extra care to
ensure that the carton count is correct and legible. Numbers, rather
than hash marks, are to be used in reflecting the quantity of cartons
inventoried. If no cartons are prepared, indicate “zero” in
the quantity column.
All valuables (e.g., money, jewelry, and negotiable instruments) should
be inventoried even when the items are small enough to fit into a
carton. Any valuables which, in the sheriff’s opinion, need to be
safeguarded should also be inventoried. The inventory should reflect
that the valuables are being safeguarded. To protect these items, the
sheriff should deposit them in a safe place in his office. The items
should be properly tagged for identification, and the former homeowner
should be notified as to the location of the valuables. It is
recommended that the sheriff keep an accurate record of his attempts to
notify the former homeowner.
Inventoried items that are carried away by a former homeowner or his
representative should also be noted on the inventory form. The former
homeowner’s signature should be present on the inventory as a
release authorization. Any property that is inventoried but not removed
(for example a washing machine) should be noted as such on the
inventory.
If a sheriff finds cash, he must leave it in the custody of the local
police precinct. If this is not possible, the sheriff should keep the
money in a secure place in his office. If any contraband such as drugs
or guns is found, the local police precinct must be contacted.
If the real property is completely vacant, a sheriff must still prepare
an inventory form indicating that the inventoried property contained no
personal property.
Final Dos and Don’ts
These articles are not to be removed from the premises until after a
lockout: food; groceries, including canned goods and packaged food;
dishes encrusted with food particles; any fixture so attached to the
realty that its removal will cause damage to the realty; rugs and
wall-to-wall carpets that are firmly affixed to the floor; and linoleum
or tiles.
If the former homeowner is present during the eviction or legal
possession, it is important that he be informed that he may remove any
personal property or valuables. A list of what he removes should be
made. If a third party appears during the process, identifies himself as
a friend, relative, or neighbor and asks to remove certain property, a
sheriff must not release any property until he is satisfied that the
person has the authority to take the property. A list of the articles
removed is to be prepared by the sheriff with the person’s full
name, address, and signature.
Personal property disposition can lead to a multitude of problems if
handled improperly in the state of New York and elsewhere. Lenders will
benefit in consulting legal counsel in the jurisdiction concerning the
proper measures to be taken.
Copyright
© 2009 USFN. All rights reserved.
Spring USFN Report
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