With the signing into law of 2011 Wisconsin Act 143, a landlord’s obligations with regard to a tenant’s abandoned property has just gotten much easier.
Prior to Act 143 a landlord had three options with respect to a tenant’s abandoned property. The landlord could:
1. Store the tenant’s abandoned property on or off the premises and take a lien on the property for the actual and reasonable cost of removal and storage of the property, or
2. Dispose of the property if the tenant didn’t reclaim it within 30 days of the landlord sending the tenant written notice of the abandoned property, or
3. Store the abandoned property without a lien and return it to the tenant.
Some landlords got themselves into trouble under the old law. Some would forget to send out the abandoned property notice to the tenant. Some would dispose of the abandoned property prior to 30 days after mailing the notice. Others would refuse to return the tenant’s property unless the tenant paid up all past due rent (this is called distrain and was outlawed years ago). If the tenant’s abandoned property had value sometimes these landlord would get sued. In an effort to educate landlords about this law I even drafted an Abandoned Property Notice form that was sold at Wisconsin Legal Blank noting the 3 options the landlord had.
Wisconsin’s new law regarding tenant’s abandoned property is more simple.
As long as a landlord provides written notice to the tenant — at the time that the tenant enters into the rental agreement or renews the rental agreement – that the landlord is NOT going to store any of the tenant’s abandoned personal property, a landlord is allowed to immediately dispose of the abandoned property in any manner that the landlord, in his sole discretion, feels is appropriate.
There are two exceptions to the new law allowing a landlord to immediately dispose of a tenant’s abandoned property.
First, in the case of prescription medication or prescription medical equipment, a landlord must hold such items for 7 days from the date of discovery to allow the tenant time to retrieve those items. If the tenant contacts the landlord within the 7 day period and requests the return of the medical items the landlord shall promptly return them to the tenant. After the 7 days have passed, the landlord is allowed to dispose of the medical items in any way that he determines to be appropriate.
Second, if the tenant has abandoned a titled vehicle or a mobile or manufactured home, the landlord must give the tenant — and any secured party that the landlord has actual notice of — written notice of the landlord’s intent to dispose of the titled vehicle or mobile/manufactured home, personally or by regular or certified mail addressed to the tenant’s last known address.
So for those of you that want to avail yourself of this streamlined process of the key is to provide the required “notice” language to the tenant. It makes the most since to simply include the required language in your rental agreement and any renewal agreement.
Below is the sample notice language that I added to the rental agreement that I draft for Wisconsin Legal Blank.
ABANDONED PROPERTY: Landlord will not store any items of personal property that tenant leaves behind when tenant vacates, except for prescription medication or prescription medical equipment, which will be held for seven (7) days from the date of discovery. If tenant abandons a manufactured or mobile home or a titled vehicle, landlord will give tenant and any other secured party that landlord is aware of, written notice of intent to dispose of the property by personal service, regular mail, or certified mail to tenant’s last known address.
Please be aware that if you fail to provide the required notice to your tenant then you will be required to abide by the old law and follow one of the three options explained earlier in this post.
It is important to note however, that this new law does NOT relieve a landlord of his duty to evict a tenant through the judicial eviction process if the tenant has not vacated. A landlord should not just assume that the tenant’s property is abandoned and the tenant has vacated the unit. A landlord still must make the very important (and sometimes costly) analysis on a case by case basis as to whether or not the tenant is still living in the unit or whether he has vacated and abandoned his property. This new law does not prevent a tenant from suing a landlord for double damages and attorney’s fees for engaging in a self-help eviction. All this law does is make it simpler and easier to dispose of a tenant’s abandoned property once the tenant has vacated the rental property.
#1 by Larry on May 13th, 2012
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I am curious if the language of ABANDONED PROPERTY is in the lease, in an eviction action would I need to post a bond when the sheriff goes to evict the tenant, seeing that with the language in I would be allowed to immediately dispose of the abandoned property in any manner that the landlord, in his sole discretion, feels is appropriate.
#2 by Tristan R. Pettit, Esq. on May 15th, 2012
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Larry — As I think I touched on in my blog post the “abandoned property” language only applies when a tenant has moved out and left property. If you are involving the Sheriff then the tenant has not vacated the property but rather they are still residing there (or at least that is somethign that you are concerned about and being safe) and that is the reason that you filed an eviction action against them and are sekking the Sheriff to execute the writ. two completely separate issues.
#3 by Lee Franzen on May 21st, 2012
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My concern regarding abondoned property, is the storage of a tenant’s medicine(s). What if the tenant’s medicine is a controlled substance? I am weary to have myself or staff handle, transport, and store one or serveral tenant’s abandoned controlled substance medications? Potentially, we could have a small pharmacy of controlled substances in an office lock box. Any suggesstions?
#4 by Tristan R. Pettit, Esq. on May 24th, 2012
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Lee – thanks for your comment. The new law says you only need to hold the prescription medicine for 7 days. On day 8 you can dispose of it. So if you do that I dont believe that you would turn into a pharmacy? Additionally, you only have to hold ont to prescription medicine. If it is a controlled substance that is not a prescription medicine then you can dispose of it.
You would have been faced with this same predicament under the old law – except you would have had to hold the medicine for 30 days and send the tenant a letter advising them of the abandoned proeprty.
So I dont think this new law will create any situation that is different from one that could have arisen under the old law. It simply means you can get rid of the property sooner – whether it is a prescription med or not.
#5 by Dawn on June 5th, 2012
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Our tenant moved out in Jan. 2012 and has not removed farming equipment to this date. Our new renters would like it removed. We have tried to contact the old tenants without sucess. They don’t return our calls or come back for the equipment. They also moved out without giving us notice. What can we do?
#6 by Tristan R. Pettit, Esq. on June 8th, 2012
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Hi Dawn — I’ assuming that the rental agreement that you entered into with your tenant predated 4-1-12 so the new law regarding a tenant’s abandoned property will nto apply. As such, you would still be required to follow the old law which I believe I mention in my blog post. Essentially, you will need to send a notice of the abandoned proeprty to the tenant (if no forwarding address was given then send to last known address – your rental). The letter should adivse the tenant generally what the abandoned property consists of and that you will hold it for 30 days. You may charge a reasonable storage fee for storing the property. You are not required to keep the property where it was abandoned – you can move it to another secure location. If the tenant doesnt contact you to reclaim the property within 30 days then you are allowed to dispose of it. If you sell it, you are supposed to send the proceeds of the sale, less your costs, to the government for placement in a fund to assist homelessness.
Make sure you add the new law language to yoru future leases and you will no longer have to hold the property for 30 days in the future.
Good luck.
#7 by Uwe on June 16th, 2012
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So I understand the old law and the new law and their requirements.
I also understand that with your suggested paragraph that landlord will dispose of abandoned property it makes it even easier.
But if the lease was signed after 4/1/12, then the new law is in effect. If there is not mentioning of abandoned property in that lease, why would I have to follow the old law, as you mentioned in the blog post?
Wouldn’t it rather be the new law, which says the landlord can dispose of it (simply put), or according to paragraph 2, sell it (e.g. sell the old CRT sitting in the living room to the next tenant for 1 penny). Except the meds and vehicles, of course. I don’t see the particular need for the clause in the lease as suggested.
#8 by Tristan R. Pettit, Esq. on June 19th, 2012
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Uwe — the reason that you need to include the new notice provisions re: disposal of abandoned proeprty is becasue the new law says that if the notice language is not in your rental agreement 9even one entered into post 4-1-12) then you cannot avail yourself of the right to dispose of the abandoned property under the new law. You would be required to follow the old law which requires you giver 30 day written notice prior to disposal.
So the short answer is – becasue the law says so : ).
You dont have to include the notice language if you dont want to but then you do not get to follow the new law.
#9 by Rick on September 27th, 2012
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When can a landlord dispose of a contractor’s abandonded equipment?
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#10 by Tristan R. Pettit, Esq. on September 28th, 2012
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Rick — I cant give legal advice via this blog. Also your questions doesn’t really focus on landlord-tenant law. As far as I am aware there is no Wisconsin statute addressing your issue. So you should use “reasonableness” as your guide. Generally speaking I would send written notice of the property left behind and give them a date certain to pick it up or it will be disposed of. Having said that, the facts surrounding your issue are vitally important and would need to be considered before any good advice could be given.