Full question:
In North Carolina , a tenant who promises to pay back rent with a settlement from an unknown source , finally abandones a property ,moves his person and other tenants to another location and does not remove property for a period of more than 30 days is entitled to what ? Back rent excessive (more than $10,000 and house unfit to live in)
- Category: Abandoned Property
- Date:
- State: North Carolina
Answer:
Generally, abandoned property is property that has been left behind and the owner has no intent to return to claim it. North Carolina law provides that personal property "shall be deemed abandoned if the landlord finds evidence that clearly shows the premises has been voluntarily vacated after the paid rental period has expired and the landlord has no notice of a disability that caused the vacancy. A presumption of abandonment shall arise 10 or more days after the landlord has posted conspicuously a notice of suspected abandonment both inside and outside the premises and has received no response from the tenant."
If the landlord is found to be a bailee of the property, it would likely be a gratuitous bailment, since the lease was expired, and a lower standard of care would apply. In finding a gratuitous bailment was created, the court would assess whether slight care was used, based upon how a reasonable person would act in a similar set of circumstances.
When a person who is not a landlord agrees to hold property for another, a bailment is created.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
If a bailee fails to use proper care, it may be liable to the bailor for resulting damages. If a new item is returned used, the damages are typically the difference in value between the item when new and the item when used. The court often uses locally advertised rates for a similar product to establish values.
Please see the following NC statute:
§ 42-25.9. Remedies.
(a) If any lessor, landlord, or agent removes or attempts to remove a
tenant from a dwelling unit in any manner contrary to this Article, the
tenant shall be entitled to recover possession or to terminate his lease
and the lessor, landlord or agent shall be liable to the tenant for
damages caused by the tenant's removal or attempted removal. Damages in
any action brought by a tenant under this Article shall be limited to
actual damages as in an action for trespass or conversion and shall not
include punitive damages, treble damages or damages for emotional
distress.
(b) If any lessor, landlord, or agent seizes possession of or
interferes with a tenant's access to a tenant's or household member's
personal property in any manner not in accordance with G.S. 44A-2(e2),
42-25.9(d), 42-25.9(g), 42-25.9(h), or G.S. 42-36.2 the tenant or
household member shall be entitled to recover possession of his personal
property or compensation for the value of the personal property, and, in
any action brought by a tenant or household member under this Article,
the landlord shall be liable to the tenant or household member for actual
damages, but not including punitive damages, treble damages or damages
for emotional distress.
(c) The remedies created by this section are supplementary to all
existing common-law and statutory rights and remedies.
(d) If any tenant abandons personal property of five hundred dollar
($500.00) value or less in the demised premises, or fails to remove such
property at the time of execution of a writ of possession in an action for
summary ejectment, the landlord may, as an alternative to the procedures
provided in G.S.42-25.9(g), 42-25.9(h), or 42-36.2, deliver the property
into the custody of a nonprofit organization regularly providing free or
at a nominal price clothing and household furnishings to people in need,
upon that organization agreeing to identify and separately store the
property for 30 days and to release the property to the tenant at no
charge within the 30-day period. A landlord electing to use this
procedure shall immediately post at the demised premises a notice
containing the name and address of the property recipient, post the same
notice for 30 days or more at the place where rent is received, and send
the same notice by first-class mail to the tenant at the tenant's last
known address. Provided, however, that the notice shall not include a
description of the property.
(e) For purposes of subsection (d), personal property shall be deemed
abandoned if the landlord finds evidence that clearly shows the premises
has been voluntarily vacated after the paid rental period has expired and
the landlord has no notice of a disability that caused the vacancy. A
presumption of abandonment shall arise 10 or more days after the landlord
has posted conspicuously a notice of suspected abandonment both inside
and outside the premises and has received no response from the tenant.
(f) Any nonprofit organization agreeing to receive personal property
under subsection (d) shall not be liable to the owner for a disposition
of such property provided that the property has been separately
identified and stored for release to the owner for a period of 30 days.
(g) Ten days after being placed in lawful possession by execution of a
writ of possession, a landlord may throw away, dispose of, or sell all
items of personal property remaining on the premises, except that in the
case of the lease of a space for a manufactured home as defined in G.S.
143-143.9(6), G.S. 44A-2(e2) shall apply to the disposition of a
manufactured home with a current value in excess of five hundred dollars
($500.00) and its contents by a landlord after being placed in lawful
possession by execution of a writ of possession. During the 10-day period
after being placed in lawful possession by execution of a writ of
possession, a landlord may move for storage purposes, but shall not throw
away, dispose of, or sell any items of personal property remaining on the
premises unless otherwise provided for in this Chapter. Upon the tenant's
request prior to the expiration of the 10-day period, the landlord shall
release possession of the property to the tenant during regular business
hours or at a time agreed upon. If the landlord elects to sell the
property at public or private sale, the landlord shall give written notice
to the tenant by first-class mail to the tenant's last known address at
least seven days prior to the day of the sale. The seven-day notice of
sale may run concurrently with the 10-day period which allows the tenant
to request possession of the property. The written notice shall state the
date, time, and place of the sale, and that any surplus of proceeds from
the sale, after payment of unpaid rents, damages, storage fees, and sale
costs, shall be disbursed to the tenant, upon request, within 10 days
after the sale, and will thereafter be delivered to the government of the
county in which the rental property is located. Upon the tenant's request
prior to the day of sale, the landlord shall release possession of the
property to the tenant during regular business hours or at a time agreed
upon. The landlord may apply the proceeds of the sale to the unpaid
rents, damages, storage fees, and sale costs. Any surplus from the sale
shall be disbursed to the tenant, upon request, within 10 days of the
sale and shall thereafter be delivered to the government of the county in
which the rental property is located.
(h) If the total value of all property remaining on the premises at the
time of execution of a writ of possession in an action for summary
ejectment is less than one hundred dollars ($100.00), then the property
shall be deemed abandoned five days after the time of execution, and the
landlord may throw away or dispose of the property. Upon the tenant's
request prior to the expiration of the five-day period, the landlord
shall release possession of the property to the tenant during regular
business hours or at a time agreed upon.
§ 44A-2. Persons entitled to lien on personal property.
(a) Any person who tows, alters, repairs, stores, services, treats, or
improves personal property other than a motor vehicle or an aircraft in
the ordinary course of his business pursuant to an express or implied
contract with an owner or legal possessor of the personal property has a
lien upon the property. The amount of the lien shall be the lesser of
(1) The reasonable charges for the services and materials; or
(2) The contract price; or
(3) One hundred dollars ($100.00) if the lienor has dealt with a legal
possessor who is not an owner.
This lien shall have priority over perfected and unperfected security
interests.
(b) Any person engaged in the business of operating a hotel, motel, or
boardinghouse has a lien upon all baggage, vehicles and other personal
property brought upon his premises by a guest or boarder who is an owner
thereof to the extent of reasonable charges for the room, accommodations
and other items or services furnished at the request of the guest or
boarder. This lien shall not have priority over any security interest in
the property which is perfected at the time the guest or boarder brings
the property to said hotel, motel or boardinghouse.
(c) Any person engaged in the business of boarding animals has a lien
on the animals boarded for reasonable charges for such boarding which are
contracted for with an owner or legal possessor of the animal. This lien
shall have priority over perfected and unperfected security interests.
(d) Any person who repairs, services, tows, or stores motor vehicles in
the ordinary course of the person's business pursuant to an express or
implied contract with an owner or legal possessor of the motor vehicle,
except for a motor vehicle seized pursuant to G.S. 20-28.3, has a lien
upon the motor vehicle for reasonable charges for such repairs,
servicing, towing, storing, or for the rental of one or more substitute
vehicles provided during the repair, servicing, or storage. This lien
shall have priority over perfected and unperfected security interests.
Payment for towing and storing a motor vehicle seized pursuant to G.S.
20-28.3 shall be as provided for in G.S. 20-28.2 through G.S. 20-28.5.
(e) Any lessor of nonresidential demised premises has a lien on all
furniture, furnishings, trade fixtures, equipment and other personal
property to which the tenant has legal title and which remains on the
demised premises if (i) the tenant has vacated the premises for 21 or
more days after the paid rental period has expired, and (ii) the lessor
has a lawful claim for damages against the tenant. If the tenant has
vacated the premises for 21 or more days after the expiration of the paid
rental period, or if the lessor has received a judgment for possession of
the premises which is executable and the tenant has vacated the
premises, then all property remaining on the premises may be removed and
placed in storage. If the total value of all property remaining on the
premises is less than one hundred dollars ($100.00), then it shall be
deemed abandoned five days after the tenant has vacated the premises, and
the lessor may remove it and may donate it to any charitable institution
or organization. Provided, the lessor shall not have a lien if there is
an agreement between the lessor or his agent and the tenant that the
lessor shall not have a lien. This lien shall be for the amount of any
rents which were due the lessor at the time the tenant vacated the
premises and for the time, up to 60 days, from the vacating of the
premises to the date of sale; and for any sums necessary to repair damages
to the premises caused by the tenant, normal wear and tear excepted; and
for reasonable costs and expenses of sale. The lien created by this
subsection shall be enforced by sale at public sale pursuant to the
provisions of G.S. 44A-4(e).
This lien shall not have priority over any security interest in the
property which is perfected at the time the lessor acquires this lien.
(e1) This Article shall not apply to liens created by storage of
personal property at a self-service storage facility.
(e2) Any lessor of a space for a manufactured home as defined in G.S.
143-143.9(6) has a lien on all furniture, furnishings, and other personal
property including the manufactured home titled in the name of the tenant
if (i) the manufactured home remains on the demised premises 21 days
after the lessor is placed in lawful possession by writ of possession and
(ii) the lessor has a lawful claim for damages against the tenant. If the
lessor has received a judgment for possession of the premises which has
been executed, then all property remaining on the premises may be removed
and placed in storage. Prior to the expiration of the 21-day period, the
landlord shall release possession of the personal property and
manufactured home to the tenant during regular business hours or at a
time mutually agreed upon. This lien shall be for the amount of any rents
which were due the lessor at the time the tenant vacated the premises and
for the time, up to 60 days, from the vacating of the premises to the
date of sale; and for any sums necessary to repair damages to the
premises caused by the tenant, normal wear and tear excepted; and for
reasonable costs and expenses of the sale. The lien created by this
subsection shall be enforced by public sale under G.S. 44A-4(e). The
landlord may begin the advertisement for sale process immediately upon
execution of the writ of possession by the sheriff, but may not conduct
the sale until the lien has attached. This lien shall not have any
priority over any security interest in the property that is perfected at
the time the lessor acquires this lien. The lessor shall not have a lien
under this subsection if there is an agreement between the lessor or the
lessor's agent and the tenant that the lessor shall not have a lien.
(f) Any person who improves any textile goods in the ordinary course of
his business pursuant to an express or implied contract with the owner or
legal possessor of such goods shall have a lien upon all goods of such
owner or possessor in his possession for improvement. The amount of such
lien shall be for the entire unpaid contracted charges owed such person
for improvement of said goods including any amount owed for improvement
of goods, the possession of which may have been relinquished, and such
lien shall have priority over perfected and unperfected security
interests. "Goods" as used herein includes any textile goods, yarns or
products of natural or man-made fibers or combination thereof. "Improve"
as used herein shall be construed to include processing, fabricating or
treating by throwing, spinning, knitting, dyeing, finishing, fabricating
or otherwise.
(g) Any person who fabricates, casts, or otherwise makes a mold or who
uses a mold to manufacture, assemble, or otherwise make a product
pursuant to an express or implied contract with the owner of such mold
shall have a lien upon the mold. For a lien to arise under this
subsection, there must exist written evidence that the parties understood
that a lien could be applied against the mold, with the evidence being in
the form either of a written contract or a separate written statement
provided by the potential holder of the lien under this subsection to the
owner of the mold prior to the fabrication or use of the mold. The
written contract or separate written statement must describe generally
the amount of the potential lien as set forth in this subsection. The
amount of the lien under this subsection shall equal the total of (i) any
unpaid contracted charges due from the owner of the mold for making the
mold, plus (ii) any unpaid contracted charges for all products made with
the mold. The lien under this subsection shall not have priority over any
security interest in the mold which is perfected at the time the person
acquires this lien. As used in this subsection, the word "mold" shall
include a mold, die, form, or pattern.
§ 42-36.2. Notice to tenant of execution of writ for possession of
property; storage of evicted tenant's personal property.
(a) When Sheriff May Remove Property. — Before removing a tenant's
personal property from demised premises pursuant to a writ for possession
of real property or an order, the sheriff shall give the tenant notice of
the approximate time the writ will be executed. The time within which the
sheriff shall have to execute the writ shall be no more than seven days
from the sheriff's receipt thereof. The sheriff shall remove the tenant's
property, as provided in the writ, no earlier than the time specified in
the notice, unless:
(1) The landlord, or his authorized agent, signs a statement saying
that the tenant's property can remain on the premises, in which case the
sheriff shall simply lock the premises; or
(2) The landlord, or his authorized agent, signs a statement saying
that the landlord does not want to eject the tenant because the tenant
has paid all court costs charged to him and has satisfied his
indebtedness to the landlord.
Upon receipt of either statement by the landlord, the sheriff shall
return the writ unexecuted to the issuing clerk of court and shall make a
notation on the writ of his reasons. The sheriff shall attach a copy of
the landlord's statement to the writ. If the writ is returned unexecuted
because the landlord signed a statement described in subdivision (2) of
this subsection, the clerk shall make an entry of satisfaction on the
judgment docket. If the sheriff padlocks, the costs of the proceeding
shall be charged as part of the court costs.
(b) Sheriff May Store Property. — When the sheriff removes the personal
property of an evicted tenant from demised premises pursuant to a writ or
order the tenant shall take possession of his property. If the tenant
fails or refuses to take possession of his property, the sheriff may
deliver the property to any storage warehouse in the county, or in an
adjoining county if no storage warehouse is located in that county, for
storage. The sheriff may require the landlord to advance the cost of
delivering the property to a storage warehouse plus the cost of one
month's storage before delivering the property to a storage warehouse. If
a landlord refuses to advance these costs when requested to do so by the
sheriff, the sheriff shall not remove the tenant's property, but shall
return the writ unexecuted to the issuing clerk of court with a notation
thereon of his reason for not executing the writ. Except for the
disposition of manufactured homes and their contents as provided in G.S.
42-25.9(g) and G.S. 44A-2(e2), within 10 days of the landlord's being
placed in lawful possession by execution of a writ of possession and upon
the tenant's request within that 10-day period, the landlord shall
release possession of the property to the tenant during regular business
hours or at a time agreed upon. During the 10-day period after being
placed in lawful possession by execution of a writ of possession, a
landlord may move for storage purposes, but shall not throw away, dispose
of, or sell any items of personal property remaining on the premises
unless otherwise provided for in this Chapter. After the expiration of
the 10-day period, the landlord may throw away, dispose of, or sell the
property in accordance with the provisions of G.S. 42-25.9(g). If the
tenant does not request release of the property within 10 days, all costs
of summary ejectment, execution and storage proceedings shall be charged
to the tenant as court costs and shall constitute a lien against the
stored property or a claim against any remaining balance of the proceeds
of a warehouseman's lien sale.
(c) Liability of the Sheriff. — A sheriff who stores a tenant's
property pursuant to this section and any person acting under the sheriffs
direction, control, or employment shall be liable for any claims arising
out of the willful or wanton negligence in storing the tenant's
property.
(d) Notice. — The notice required by subsection (a) shall, except in
actions involving the lease of a space for a manufactured home as defined
in G.S. 143-143.9(6), inform the tenant that failure to request
possession of any property on the premises within 10 days of execution may
result in the property being thrown away, disposed of, or sold. Notice
shall be made by one of the following methods:
(1) By delivering a copy of the notice to the tenant or his authorized
agent at least two days before the time stated in the notice for serving
the writ;
(2) By leaving a copy of the notice at the tenant's dwelling or usual
place of abode with a person of suitable age and discretion who resides
there at least two days before the time stated in the notice for serving
the writ; or
(3) By mailing a copy of the notice by first-class mail to the tenant
at his last known address at least five days before the time stated in
the notice for serving the writ.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
