Daily Development for Monday, May 3, 1999


By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri


There are three cases here.  The first two deal with a common vexing problem for landlords what to do about the leftover personal property when tenant leaves.  The third addresses a related issue and I threw it in because I had it and it didn't warrant a DD on its own.


LANDLORD/TENANT; LANDLORD'S LIABILITY FOR DAMAGE TO TENANT'S PROPERTY; EVICTION:  Landlords' removal and storage of tenant's personal property after they wrongfully evicted tenant is not a conversion where landlords made repeated

requests to have tenant retrieve her property, never refused to return the property, and always acknowledged tenant's ownership of the property. 


Paxton v. Wiebe, 584 N.W.2d 72 (N.D. 1998).


Landlords owned a small mobile home park.  Tenant was placed with landlords through a women's shelter network, and landlords initially went out of their way to accommodate her.  They personally guaranteed her uility obligations, provided her with larger mobile homes when they came available, and let her drive their cars.  They also hired her to care for one landlord's 89-year-old father.  Tenant stole over $1000 from the father, and later pled guilty to the theft.


This incident, and other disagreements between the parties, led the landlords to ask the tenant to move out.  Tenant disappeared for two weeks and then called to notify landlords that she "was moving out" and was living elsewhere.  Landlords asked her to come and retrieve her personal property from the mobile home, and she answered that "she had

other things to do," but nevertheless did not pay the rent due that month. Two weeks after the above conversation (and  two days after the rent default) landlords changed the locks on the mobile home and a few days later moved tenant's personal belongings into storage on their farm.


Thereafter, despite repeated attempts by landlords to make the personal property available for tenant's retrieval, the parties were never able to get together.  At one time teanant demanded that she be permitted access to the property on the next day, and landlords replied that they would be out of town on that day, and offered the next day following, which tenant refused. 


Tenant sued the landlords for wrongful eviction and conversion, and in connection with the conversion sought punitive damages.  The trial court awarded treble damages ($900) for wrongful eviction, but denied relief for conversion.  Tenant appealed. 


Although the supreme court reports the facts of this case from a viewpoint very sympathetic to the landlords, the ultimate conclusion below, which was not appealed (but in which the appeals court concurred) was that the landlords had wrongfully evicted tenant by failing to give a statutory thirty day notice before resorting to self help.

The trial court, although it did grant the statutory relief, found that landlords' conduct in this regard was neither extreme nor outrageous.


The supreme court affirmed the trial courts finding that there was no conversion.  It noted that, under North Dakota law, conversion does not require a wrongful intent  an intent to assert ownership.  The only requirement is an interference with the owner's use of personal property "to an actionable degree."  It further pointed out that there is no

requirement that the party exercising wrongful control over the goods derive any benefit from its actions  only that it deprived the owner of control to a degree sufficient to justify the "forced sale" remedy that conversion provides.


The tenant argued that the changing of the locks constituted a wrongful act of conversion, but the court noted that not every unauthorized taking of goods amounts to a conversion.   "Intention may be good, the duration brief, the event harmless; and if so, the severy remed of forced sale . . . will not be applied."  In light of the landlords' expressed willingness to accomodate tenant in retrieving possession of her personal property, the

court affirmed the trial court's conclusion that, although there was a wrongful deprivation of the leasehold interest, there was no conversion of the personal property.


Comment 1: Obviously, the very symphathetic facts played an important role in the court's finding here.  It characterizes the landlords as "dogooders" rather than businesspersons, although they clearly were businesspersons in the business of landlording, and should have known better than to violate state law on termination of possession.


Absent the symphathetic facts, it is easy to imagine a court reaching an opposite conclusion where a landlord wrongfully changes the locks on a rental unit and is not very, very forthcoming in permitting the tenant access to the goods inside. 


Comment 2:  Landlords must be quite mindful of the dangers here.  It might be wise to have a provision in the lease acknowledging the rights of landlord in the event personal property is left on the premises in the event of a change in possession.  Most leases that contain such language likely do not cover wrongful eviction (clause is triggered by "change in possession" of the rental unit  rather than by "eviction" or "abandonment"), and perhaps they should, as conversion damages can be severe.


LANDLORD AND TENANT; LANDLORD'S LIABILITY FOR DAMAGE TO TENANT'S PROPERTY; EVICTION:  Absent the creation of a bailment by contract, statute or construction, a landlord is not liable for damages for the manner in which a sheriff executes a writ of possession, including the removal of the tenant's personal property in the course of a lawful eviction. 


Khan v. Heritage Property Management, 584 N.W.2d 725 (Iowa App. 1998)


Tenant leased an apartment and failed to pay rent for the first three months.  The landlord brought an eviction action.  Just prior to execution of the eviction, the tenant left a note for landlord telling landlord tenant would be leaving town on a trip and enclosing a money order for more than the amount of the unpaid rent. 


Landlord elected to proceed with the eviction.  Landlord's uncontroverted evidence was that the sheriff removed tenant's belongings and left them on the sidewalk.  When tenant later returned from his trip, his belongings were either stolen or vandalized. 


The Iowa Supreme Court here concluded that landlord owed no duty to tenant on these facts.  Where a duty of care to provide for the protection of a tenant's personal property does not arise by statute, judicial decisions or contract and the landlord does not become a constructive bailee by taking actual or constructive possession of the personal

property of an evicted tenant, no duty of care will be imputed to the landlord for overseeing the manner in which a sheriff carries out an order of eviction. 


The court noted that the lease did contain language granting the landlord the right to take possession of abandoned goods and store them, but noted that this language simply gave the landlord an option, and did not impose a duty, and in any event the evidence suggested no abandonment by the tenant.


The court cites common law authority in Colorado, New Jersey, Texas and Florida consistent with its position here.


Comment 1: An interesting feature of the case is the dicta in footnote 4, where the court states that if a landlord does take possession of a tenant's property following eviction, the landlord would be a gratuitous involuntary bailee and would own "only minimal care toward the property and is usually liable for damages if any gross negligence or bad

faith is found."  One would assume that leaving the property on the sidewalk would constitute gross negligence, but the landlord dodged that bullet by establishing that the sheriff did all the removal of property. 


Comment 2: See also:  Paxton v. Wiebe, 584 N.W.2d 72 (N.D. 1998) reported under the same heading (even in wrongful eviction, landlord who provides reasonable opportunity to tenant to retrieve personal property not liable for conversion). 


LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT'S PROPERTY: Fact that Landlord reserves the right in the lease to require presentation of identification in order to obtain access to tenant's leased property does not mean that Landlord assumes the duty to make such a requirement, and therefore Landlord is not liable when it permits unidentified persons to drive away in tenant's truck. 


Warner Enterprises, Inc. v. MNX Carriers, Inc., 163 F.3d 490 (8th Cir.1998). 


The court's ruling was based upon a number of independent grounds. First, the court noted that the clause related only to access to the premises, and not to the release of Tenant's property.  Second, there was additional language in the lease that demonstrated that the Landlord assumed no duty to supervise the release of the Tenant's property.  The

reasoning in the caption, which is the broadest basis for the decision, was an alternative holding.


Comment 3:  In commercial setting, landlords also be wary of the potential rights of parties with security interests in the tenant's personal property.  Once they seize possession of the personal property, they may have a duty to restore possession only to the party lawfully entitled to it, and this may not be the tenant by the time the restoration of possession occurs.  The editor has had several situations in which the editor's

landlord client checked UCC records, notified secured parties of the situation, and wound up renting the premises to the secured parties as storage for the personal property for three or four months. 


Comment 3: See also Khan v. Heritage Property Management, 584 N.W.2d 725 (Iowa App. 1998), reported under the same heading (Landlord not liable where sheriff in lawful eviction removes tenant's property to sidewalk.)


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