By E. Thomas Moroney (December 2014)
Question: After recovering possession of the premises from an evicted tenant, does landlord need to give additional notice to tenant concerning tenant’s recovery of personal property left behind?
Short answer: For tenants who have been evicted and were served with a writ of possession, the answer is no; excepting the publication requirements for sale/auction.
The writ of possession served by the sheriff includes this notice: personal property remaining on the premises will be sold or otherwise disposed of in accordance with CC 1174 unless you or the owner of the property pays the judgment creditor the reasonable cost of storage and takes possession of the personal property not later than 15 days after the time the judgment creditor takes possession of the property.
Every practice guide I have says that the notice in the writ of possession is all that is required. California Eviction Defense 28.16, and Rutter California Practice Guide Landlord Tenant 9.590.
California Code of Civil Procedure (CCP) 715.030 provides: “The disposition of personal property remaining on the real property after the judgment creditor [landlord] is placed in possession thereof pursuant to the writ of possession is governed by subdivisions (e) to (m), inclusive of CCP 1174.”
CCP 1174(f) provides: “The landlord shall give notice pursuant to Section 1983 of the Civil Code to any person (other than the tenant) reasonably believed by the landlord to be the owner of personal property remaining on the premises unless the procedure for surrender of property under Section 1965 of the Civil Code has been initiated or completed.” [emphasis added]
Civil Code Section 1983 is the procedure for a landlord to provide 15-18 days written notice (the number of days required depends on how the notice is served) to tenant about the return of his property. The notice must include a reasonable description of the property. Some property mangers, landlords and lawyers read this section of the Code, and are concerned that they have to provide the CC Section 1983 notice to an evicted tenant. I do not believe CC 1983 notice is required for a tenant who was served with a writ of possession, which already includes the 15-day notice. Hence the language in CCP 1174(f): “landlord shall give notice pursuant to Section 1983 of the Civil Code to any person (other than the tenant)“ [emphasis added]. Providing the additional CC 1983 notice may be prudent, and if done immediately upon recovery of possession of the premises, it will not delay the sale/auction of the personal property. In my opinion, however, it is not necessary.
Civil Code Section 1965 is the procedure whereby a tenant can send landlord a written request for return of tenant property within 18 days of tenant vacating.
CCP 1974(g) provides: “The landlord shall store the property in a place of safekeeping until it is either released pursuant to subdivision (h) [upon tenant Civil Code Section 1965 written request] or disposed of pursuant to subdivision (i).”
CCP 1974(i) provides: “Personal property not released pursuant to subdivision h [property released pursuant to tenant Civil Code Section 1965 request] shall be disposed of pursuant to Section 1988 of the Civil Code.”
Civil Code Section 1988 provides:
(c) After deduction of the costs of storage, advertising, and sale, any balance of the proceeds of the sale which is not claimed by the former tenant or an owner other than such tenant shall be paid into the treasury of the county in which the sale took place not later than 30 days after the date of sale. The former tenant or other owner may claim the balance within one year from the date of payment to the county by making application to the county treasurer or other official designated by the county. If the county pays the balance or any part thereof to a claimant, neither the county nor any officer or employee thereof is liable to any other claimant as to the amount paid.
My Quick Hit: After eviction, store the personal property either onsite or offsite. After 18 days have passed from the date landlord takes possession of the premises (the last day for tenant to send a written request for return of personal property), you may initiate the procedure for public sale.
If you disagree or have experiences that suggest otherwise, please email me through this site.