Being sued 5 thousand dollars for property damage

[bjainskie]

I subleased my apartment to somebody. When it was time to move out, he messaged me saying he moved his belongings out of the apartment, upon reaching there, some of his belongings were still in the apartment, i contacted him several times to asking why they were still there and that he needed to come get them. I have call records showing that. He told me he was out of town but he will arrange for somebody to come retrieve them, He messaged a mutual friend if she could come get his stuff but she said she couldn't, i also have a proof of the texts he sent her. However 2 months later, when my lease was up and it was time for me to move out, his belongings were still there so i put them out of the apt, now hes suing for 5,000 property damage. how do i win dis in court?
If this helps, i had a conversation with him recently and he said he assumed i was going to renew my lease with the apartment and i still was going to be there, which is why he didn't move his stuff. Also his phone was off for sometime and we communicated via twitter, will this message thread be accepted as proof in small claims? Also there is no way his property was worth $5000 dollars, it was just two travel bags full of clothing. Also i'd like to note that there was no way i could have given him any written notice because he was out of town when he left my apartment.Also i read somewhere that he is required to send me a demand notice before he can sue, which he never did.

 

[army judge]

A landlord, which you became when you sublet the apartment can't just dispose of a tenant's property.

You live in a very tenant friendly state, NY.

That further complicates things for you, maybe.

Did you negotiate and deliver to your sub-lessee a SIGNED lease?

Were you authorized to sublet your premises in YOUR lease with YOUR landlord?

Was the property "rent controlled"?

Was you apartment certified as being a property for for habitation? Your state and NYC requires this.

Before I go too far afield, you need to provide more details, as in answers to the above queries.

But, here's some basic things a landlord must do when a tenant abandons the premises and leaves abandoned property therein:

LANDLORD LIABILITY FOR UNCLAIMED TENANT PROPERTY​

By: S. Scott Perkins, Esq.

With a significant number of summary eviction proceedings commenced annually in Saratoga County (there were 375 warrants of eviction effected by the Sheriff in 2006 alone), it is perhaps inevitable that disputes will arise over the legal status of so-called "abandoned" tenant property. Not surprisingly, many landlords are unaware of their legal obligation regarding personal property left at the premises by an evicted tenant. This article will briefly examine the legal status of unclaimed, post-eviction tenant property, a landlord's duty of care for those belongings, and recommended action to dispose of the property.

When a summary eviction proceeding results in the issuance of a warrant of eviction, the Saratoga County Sheriff is typically directed to remove the tenant and his belongings from the premises. It is not the Sheriff's policy, however, to either transport from the premises or store the tenant's personal property. Rather, it is the landlord who bears the responsibility for the collection and storage of unclaimed tenant belongings on the theory that the landlord is an involuntary constructive bailee of such property. Accordingly, the law imposes upon the landlord as a gratuitous bailee a duty of care for the proper treatment of tenant property. Because the landlord has no bailment contract with the tenant and the bailment is clearly not for the benefit of the landlord, the landlord only owes the tenant a minimal or slight duty of care for the tenant's personal property until the property is returned to the tenant or the tenant relinquishes title.

Contrary to popular belief, the property of an evicted tenant is not considered "abandoned" simply because the property is left at the premises at the time the warrant is effected. Whether property is abandoned depends upon the intent of the owner. Unless there is a clear manifestation of intent by the tenant to discard or abandon the property (ie. placing the property in a trash receptacle, indicating to the property manager that the property is being thrown out, etc.), title to the property remains vested with the tenant. Since the landlord involuntarily comes into possession of post-eviction property owned by the tenant, the property may not be retained by the landlord, discarded, or neglected. The landlord under those circumstances has a duty of care to the tenant, albeit slight, for the proper collection, transportation, storage, and eventual disposition of the tenant's property. The landlord will be liable if there is gross negligence resulting in the damage or destruction of the property in his possession. Gross negligence could include leaving tenant property outside and exposed to the elements, recklessly handling the property during transportation, or discarding the property altogether. Therefore, a landlord risks liability and a potential claim for damages if a minimal degree of care is not provided while the property is in the landlord's possession.

To avoid post-eviction property claims, landlords would be well advised to plan for the possibility of unclaimed tenant property at the conclusion of a tenancy. For instance, the landlord may wish to state in any written lease or other document the specific procedure to be utilized in the event there is unclaimed personal property, either following eviction or after a voluntary surrender of the premises. The writing should include a procedure for an inventory of the property, notice to the tenant as to how the property may be claimed, the time period within which the property may be claimed, and notice that the property shall be deemed abandoned should the tenant fail to take possession of the property within a specified period of time. The writing should also state that abandoned property shall be disposed of through private sale if the tenant fails to arrange for the timely removal of the property after the tenant vacates the premises.

Without a specific lease provision, reasonable notice to the tenant should be provided prior to any disposition of the property. It is advisable that the landlord give at least 30 days' written notice to the tenant of the tenant's right to claim and remove any personal property in the landlord's possession or the property will be deemed abandoned. If the tenant fails to remove the property within the specified time period, the landlord may consider the property abandoned and discard same; however, it is highly recommended that the landlord dispose of the property by means of a private sale by published notice, especially where the property has substantial value. In such case, a final written notice to the tenant should be provided, indicating the date and time when the property will be offered for sale. The landlord should then publish a legal notice of the sale of abandoned tenant property, identifying the property to be sold, the place and time of sale, and terms of sale. Once the sale is conducted, proceeds from the sale may be applied against any judgment the landlord may have previously obtained against the tenant. Additionally, costs of the sale may be deducted from sale proceeds, with the balance, if any, to be paid to the tenant.

An alternative to the landlord's storage of unclaimed tenant belongings is the rental of a commercial self-storage unit for a fixed term which should be, at a minimum, 30 days, with notice to the tenant that the property may be claimed at the facility. Should the tenant fail to claim the property, the storage facility has the right to assert a storage lien pursuant to Lien Law Section 182, and to dispose of the property in accordance with that statute.

When a landlord involuntarily comes into possession of the personal property of an evicted or vacated tenant, ownership of the property nevertheless remains with the tenant unless there is clear evidence of the tenant's intent to abandon the property. The landlord has a duty, although slight, to care for the property until claimed and will be liable to the tenant if the property is converted by the landlord, summarily discarded, or if there is gross negligence in failing to protect the property. If, after reasonable notice, the tenant fails to claim and take possession of the property, the landlord may deem the property abandoned and discard the belongings or, preferably, dispose of them by a duly noticed private sale. Instituting reasonable procedures for the care, storage, and disposition of tenant property will greatly reduce the likelihood of a post-eviction tenant claim.
- S. Scott Perkins, Esq. is a principal with Perkins and Perkins, Saratoga Springs. He has an active landlord/tenant practice and has litigated to judgment over 1,500 summary eviction proceedings.

http://www.perkinslegal.com/articles-perkins-legal.asp

If a tenant abandons your property the law imposes upon you, the landlord, a duty to serve as the custodian of the tenant's property. As custodian you are responsible for the safe keeping of the items the tenant left behind. This is referred to as bailment, which is defined as the process of placing personal property or goods in the temporary custody or control of another.

I know this is aggravating, but the law imposes upon the landlord a duty to care for the property and return it to the abandoning tenant. Failure to do so will result in the landlord owing the tenant for the value of the items left behind. I can tell you from first-hand experience that when this type of claim is brought, the tenant always left behind a 60 inch Plasma television, leather sofas, high end stereo systems, etc. – you should be catching my point that if you can't prove what was abandoned, the tenant will stretch the truth to earn some quick cash from the unsuspecting and uninformed landlord.

Here is a list of the general guidelines a landlord must follow with dealing with an abandoned tenant's property:

* Give the former tenant notice that states what the property is, where it can be claimed, how long they have to claim it, what will happen if it's not claimed and how much it'll cost for you to store it (you can be paid for your storage costs before the tenant can obtain his property).
* When you enter the premises bring another person with you who can verify the property abandoned by the tenant. In some situations videoing the contents could prove useful if the former tenant later resurfaces and alleges you stole his valuables.
* Hand deliver the notice to the tenant or mail it to his last known address.
* If the property goes unclaimed and it is worth more than $300 you may have to sell the property at a public sale with competitive bidding (this requires publishing notice of the sale in a local newspaper). If it's worth less than that amount, you can keep it or dispose of it in any way you like (throw it away).
* If you sell the property at a public sale, the sale proceeds less your cost must be given to the treasurer of the county where the sale took place, and if it goes unclaimed for at least one year, you can claim that money.

As a landlord you will find that the law appears to favor tenants. This fact may be irksome to you, but it comes with the territory. If you are unsure of your legal obligations check with a local attorney and ask him what is required of you in a bailment situation and whether or not you can demand back rent in addition to costs before turning over the property should the tenant return.



http://www.biggerpockets.com/renews...-a-tenants-abandoned-property-could-cost-you/

 

[bjainskie]

There was never a signed lease agreement between me and him, he was only there for 5 and a half weeks, and he needed a place to stay for his summer classes, so it was more like a favor i did but he did pay me. I live in an apartment complex and i believe subleasing is not allowed. Yes, i paid them monthly rent, (Im not sure if that answers the question on if it is "rent controlled"). And yes it is certified as property for habitation. Like i said earlier, my lease was up at the apartment, and i had my belongings to worry about as per moving them out.

 

[army judge]

There was never a signed lease agreement between me and him, he was only there for 5 and a half weeks, and he needed a place to stay for his summer classes, so it was more like a favor i did but he did pay me. I live in an apartment complex and i believe subleasing is not allowed. Yes, i paid them monthly rent, (Im not sure if that answers the question on if it is "rent controlled"). And yes it is certified as property for habitation. Like i said earlier, my lease was up at the apartment, and i had my belongings to worry about as per moving them out.

All I can say is that you need to show up and defend the lawsuit.

The plaintiff has to prove he had those things.

The absence of a written lease won't help you, because he wasn't a guest.

You took money from him, big mistake.

He was YOUR tenant, perhaps sketchy, nevertheless; he was your tenant.

You have to prove you didn't have those things.

Proving a negative is very difficult.

Bottom line, if he proves he ever had any of those things, you'll likely lose.

He may not get $5,000, but he's likely to get something.

It might be time to settle with him.

In the end, paying him $2,000, is better than owing him $4,000 or $5,000.

 

[Michael Wechsler]

I subleased my apartment to somebody. When it was time to move out, he messaged me saying he moved his belongings out of the apartment, upon reaching there, some of his belongings were still in the apartment, i contacted him several times to asking why they were still there and that he needed to come get them. I have call records showing that. He told me he was out of town but he will arrange for somebody to come retrieve them, He messaged a mutual friend if she could come get his stuff but she said she couldn't, i also have a proof of the texts he sent her. However 2 months later, when my lease was up and it was time for me to move out, his belongings were still there so i put them out of the apt, now hes suing for 5,000 property damage. how do i win dis in court?
If this helps, i had a conversation with him recently and he said he assumed i was going to renew my lease with the apartment and i still was going to be there, which is why he didn't move his stuff. Also his phone was off for sometime and we communicated via twitter, will this message thread be accepted as proof in small claims? Also there is no way his property was worth $5000 dollars, it was just two travel bags full of clothing. Also i'd like to note that there was no way i could have given him any written notice because he was out of town when he left my apartment. Also i read somewhere that he is required to send me a demand notice before he can sue, which he never did.

Being in New York, I was going to ask you what court you are in since I saw "$5,000" - an interesting round number. And then I saw you mentioned small claims court. I'm guessing he's suing you for $5,000 because he will ask for the maximum amount. Seeing a judge or an arbitrator doesn't make much of a difference except for appeals.

IMHO having had some experience there, as army judge said you need to show up. This court has informal rules. In many instances, I've found that "rough justice" is sometimes handed out. I doubt that the landlord-tenant law will even come into play here too much. The key is to be prepared with your evidence and stick to one very important set of points -- the tenant knew his lease was up, messaged you that everything had been moved out. That ends the case there if you have the proof. If there is still discussion about items remaining, the tenant, after having plenty of notice and opportunity, failed to do anything. After two months of storing his belongings for free and at your own expense, you could no longer store them anywhere else and that after such a long period of time had gone by, you had no choice but to consider them abandoned. Key points to make and have all your evidence prepared.

(1) tenant messaged you that he moved out (if you have this message, it's critically important.) So from the tenant's standpoint, you had no further obligation as per the tenant's own admission.

(2) After seeing that there still were items stored in the apartment, despite having no obligation, you contacted tenant (have call records ready for inspection for the judge.) Tenant had more than ample time to pick up the items.

(3) Show proof of texts that a second pick up did not happen.

(4) Point out that you had no obligation to hold the items, you held them at your expense.

You could even counterclaim for an amount as a storage fee for this tenant. I'm not sure if the judge would allow it (or be amused) but you might want to point this out. And after storing these items at your own expense in the apartment, you had no other choice after two months but to do with the items what the plaintiff knew you had to do with them by vacating the apartment.

My guess is that the plaintiff will be making all sorts of excuses and I am sure an arbitrator or judge will see right through the excuses and not be moved or amused. They not only have to make their case but have to prove that what they say was left was actually there. After all, if you have a message saying it has all been moved, then there is no case.

Best of luck.