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CAUTION: BY DEFAULT, ONCE POSSESSION IS DELIVERED THE LANDLORD CAN IMMEDIATELY REMOVE AND DISPOSE OF YOUR BELONGINGS LEFT BEHIND, WITHOUT LIABILITY.
THEREFORE, REGARDLESS OF WHETHER YOU HAVE BEEN EVICTED, ABANDONED THE RENTAL PREMISES, SURRENDERED POSSESSION MY MUTUAL AGREEMENT, OR VACATED AT THE END OF THE LEASE, NEVER RETURN YOUR KEYS TO THE LANDLORD (OR AGENT) BEFORE ALL OF YOUR PERSONAL PROPERTY HAS BEEN REMOVED. PLAY IT SAFE AND HAVE ALL YOUR STUFF OUT BEFORE RETURNING THE KEYS.
OSTENSIBLY, REMOVAL AND DISPOSAL OF YOUR BELONGINGS AFTER DELIVERY OF POSSESSION COULD BE AVOIDED BY HAVING A WRITTEN AGREEMENT OTHERWISE, BUT EVEN THAT IS PUSHING THE BOUNDARIES.
Reference A.R.S. § 33-1370(I)
THE SHOCK OF SEPARATION
There are only two instances when a landlord must hold your personal property left behind after you vacate. One circumstance follows lock-out after the tenant has been evicted; the other is subsequent to a landlord’s declaration of abandonment. The statutes applicable to these events are: as to eviction, A.R.S. § 33-1368; and as to abandonment, A.R.S. § 33-1370.
Whereas, if you vacate at the time of lease expiration and return possession (keys), just leaving your belongings behind, the landlord is not obliged to hold your property.
Hopefully you are reading this before the lock-out occurrences (known as “execution of a writ of restitution” or “retaking”), so you can remove your personal property prior to being excluded. Because, regardless of the legalities, once you are separated from your property, getting it back is likely to be an uphill battle. It is much better to take your personal belongings and place them in storage under your own control, rather than ending up with nothing. Even if homelessness befalls you, at least you will have the option of meanwhile accessing your property and later using it once you have secured new lodgings.
I will later detail the landlord’s obligations relative to the care and record-keeping of the property. The most important thing to know is what you must do to reclaim the property.
On an interim basis, once the landlord is holding your personal property, after eviction or abandonment you are entitled to right of access of:
". . . clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including all those related to the tenant's immigration status, employment status, public assistance or medical care."
Reference A.R.S. §§ 33-1368(E) and 33-1370(F)
In my 26 years of landlord-tenant experience I have seen landlords routinely flout provision of such access to tenants. Or, by the time the tenants gain such access, the items have disappeared.
KNOWING WHEN YOU'VE LOST IT
A landlord may be obligated to hold your personal possessions following a court judgment for special detainer or forcible detainer (evictions), or subsequent lock-out by a constable or other authorized personnel (execution of a court authorized writ of restitution). In either circumstance, care for the tenant's personal property remaining in the rental dwelling unit is as prescribed in the abandonment statute, A.R.S. § 33-1370.
In the instance of eviction, grounds and procedures are set forth in A.R.S. § 33-1368. Service of summons and complaints, setting the hearing date, restitution and judgment procedures are set forth in A.R.S. § 33-1377. Judgment and writ of restitution are set forth in A.R.S. § 12-1178. If the landlord and process server are following the law, you should have notice of what eviction steps are happening when, including any impending lock-out. That being said, the first time a lot of tenants find out they've been evicted is after the fact.
As to abandonment, there's far less accountability. Unless you’ve kept a beady eye on the door of the rental premises, where abandonment notice is required to be posted, you may not even know about the notice unless and until you receive the mandatory confirmation copy by certified mail. Thus, in all practicality, your abandoned personal property could well be gone by the time you know it is legally abandoned (especially if there is a forwarding address registered with the post office, which would delay your receipt of the mailed copy of the notice).
For this reason, every single Arizona renter should be familiar with the statutory definitions of abandonment, in order that those circumstances don’t sneak up on you unawares. A fundamental is the periodic rent, the payment of which automatically proscribes abandonment. Thus, if you are out of town, hospitalized or otherwise incapacitated, just make sure the rent is paid.
HOW THE LANDLORD MUST CARE FOR YOUR PROPERTY
Under A.R.S. § 33-1372 distraint for rent is abolished, and any lien or security interest on the landlord’s behalf as to your household goods is not enforceable. It was, is, and remains your own personal property. The question is the degree of the landlord’s responsibility relative to that property, which is detailed below.
Perishable and contaminated items can be removed or disposed of, and pets be must cared for or placed with a shelter or boarding facility. Some property may be non-recoverable. A landlord may destroy or dispose of property if he:
". . . reasonably determines that the value of the property is so low that the cost of moving, storage and conducting a public sale exceeds the amount that would be realized from the sale."
Reference A.R.S. §§ 33-1368(E) and 33-1370(F)
Apart from the preceding, the landlord must use reasonable care in holding your property, storing it in an on-site dwelling unit or storage space if available, or otherwise off the premises. The landlord must prepare an inventory of the property and notify you of its location and storage cost, sending you this information by certified mail, return receipt requested, to your last known address or any alternate addresses known to the landlord. Notwithstanding the preceding, over the decades I have been assisting tenants I can count on one hand the number of times that landlords actually have mailed out such an inventory, storage location and cost notification.
A landlord is required to hold your personal property for at least 14 calendar days after taking possession of the dwelling unit, if by way of a execution of a writ of restitution following eviction, or retaking after a declaration of abandonment. That being said, it must be returned to you sooner once you have triggered its return, as explained in the next section, below. After the 14 days have elapsed without your request for return of the property, it can either be donated to charity or sold. How the funds from such a sale are to be applied and chronicled is delineated in A.R.S. § 33-1370(F), and is not addressed in detail here because that is not the subject matter of this article.
RECOVERING YOUR PERSONAL PROPERTY
During the 14-day period, or so long as the landlord still holds your personal belongings even if it extends beyond the 14 days, you can set in motion a five-day opportunity to reclaim your personal property by giving the landlord written notice of your intent to remove the personal property from where it is being stored. Within five days from your written offer to pay the storage or removal charges the landlord must surrender possession of your personal property when the payment is tendered. It is a fallacy that you must pay off rent due, or any judgment amount, in order to reclaim your personal property. To repeat, payment is required only for the costs of removal and storage.
Given what is at stake here, we suggest that tenants seeking to retrieve their personal property use a process server for all related communications with and conveyance of funds to the landlord. For more information of this subject, you may wish to review the article in the Tenants Library of the Arizona Tenants Advocates website, entitled Giving and Receiving Notices.
We highly recommend that you immediately retrieve all of your stored possessions at the time payment is tendered. Don't push your luck by allowing any delay. Have friends, movers and transportation readily available. . . whatever it takes.
It is possible the landlord may, at some point, allow you access to retrieve your property on a limited basis, such as 15 minutes or so. Obviously, you should avail yourself of that opportunity, even if it requires a peace officer as civil standby. However, such a limited duration is typcially inadequate, and if so you may want to construe that as obstruction.
In that vein, the landlord’s failure to timely return your belongings allows you to commence legal action to recover the possessions. If the landlord destroyed or disposed of your possessions during the 14-day period or after your offer to pay, you can commence legal action for monetary damages in an amount determined by the court. My experience in Arizona is that most courts are pretty sensitive to issues regarding personal property, and you would have a fair shot if you were to build a decent factual case and be represented by competent counsel.
Accordingly, outlined below is a summary of the landlord’s obligations. While he must independently fulfill them, it is a good idea for you to establish a paper trail record requesting that he do so. You want to exhibit good faith on your part, and show bad faith on the landlord’s. That’s how to elicit the court’s favor and, ultimately, stand a decent change of being awarded damages. The landlord must:
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