New Jersey Real Estate Attorney Blog
Several months ago, we discussed the Abandoned Property Act. Under N.J.S.A. 2A:18-72, et. seq., a landlord cannot dispose of a tenant’s property until the following two conditions occur:
- The Landlord must have regained possession from the tenant, either by way of eviction action, or by way of other conclusive proof that the tenant has voluntarily surrendered possession of the premises (e.g.; the tenant turned in the keys or indicated in writing that he or she has surrendered possession); and
- The landlord shall also serve the tenant with a written notice, advising the tenant that he or she must claim all belongings in the apartment within 33 days, or they will be presumed to be abandoned, and may be disposed of.
The Abandoned Property Act exists for the benefit of both the landlord and the tenant. For the tenant, it affords an additional month to claim any belongings that may not have been claimed at the time the tenant moved out (or was locked out). For the landlord, the Abandoned Property Act provides a date at which the Landlord can dispose of the tenant’s property, ostensibly without the risk of further claims by the tenant.
For several years, we believed that our clients who complied with the Abandoned Property Act would be immune to further action by the tenant. However, in a recent matter, where the landlord’s compliance with the Abandoned Property Act was seemingly undisputed, there were some factual circumstances that controverted the ordinary rules. In November of 2014, we evicted tenant, and a lockout was performed and our client served the tenant with the appropriate Notice to Claim Abandoned Property. Approximately 55 days later, the tenant later filed an Order to Show Cause, claiming that she had a right to a return of her belongings. The Court did not agree, and the Court vacated the tenant’s application.
Six months later, the Landlord still had possession of the belongings, and he decided to give them to an auction company to sell the belongings. When the tenant learned that her belongings were about to be sold at auction, she filed another Order to Show Cause, again arguing that she had a right to return of her belongings. In opposition to the tenant’s Motion, I argued the principle of Res Judicata, which is the civil equivalent of “double jeopardy.” Since the tenant’s new Motion did not allege any facts that were not previously argued in the original Motion, our position was that the tenant was barred from re-arguing the same case that had already been denied six months earlier. Additionally, I re-asserted the fact that the Landlord had complied with the Abandoned Property Act, and accordingly, the tenant had no cognizable claim for any of her belongings.
However, in the new Motion, the tenant argued that the reason she had not been able to retrieve her belongings within the 33-day period afforded in the Abandoned Property Act was that the Landlord did not respond to her numerous requests to allow her access to pick up her belongings. The tenant stated her belief that she was never provided with a specific time to pick up her belongings. Conversely, the Landlord argued that he was waiting for the tenant to respond to him with a specific time to pick up her belongings, and that in the two months that passed after the Abandoned Property Notice was served, the tenant never gave him a time, during which he should allow access. After lengthy arguments by both sides, the Court entered its verdict.
The trial Judge stated that, while the tenant was served with a proper Notice under the Abandoned Property Act, it did not appear that the tenant was really given a fair opportunity to retrieve her belongings. Accordingly, the Court ruled that, notwithstanding the fact that the legal requirements of the Abandoned Property Act were complied with, the tenant should be afforded an additional week to claim her belongings. The Court, however, did order that the tenant was responsible for the reasonable storage fees charged for the auction company.
Following this decision, we have issued revised instructions to our clients that in addition to satisfying the two requirements set forth in the Abandoned Property Act, the Landlord should either suggest a series of dates when he or she would be available, or ask the tenant for a series of dates when he or she would be available to meet for retrieval of belongings. For questions regarding Landlord Tenant law, please contact our office.