Legal Question in Real Estate Law in California

If a person leaves their personal property with someone and doesn't keep in contact or pick up their property in two years do they the right to claim it

Asked on 10/20/09, 4:06 pm

2 Answers from Attorneys

Timothy McCormick Haapala, Thompson & Abern, LLP

Yes. The legal term for the situation is a gratuitous bailment. The person who is holding the property can terminate the obligation to keep the property by giving "reasonable" notice to the person who left it that it needs to be claimed or it will be disposed of. Until that notice is given and ignored, however, the person who left the property has the right to claim it or otherwise dispose of it.

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Answered on 10/20/09, 5:38 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

There is both a three-part general answer and several special-situation answers.

The special situations include where the person holding the personal property is a former landlord, an innkeeper, a pawnbroker, a common carrier or bonded warehouse, and where the property is a live animal or a perishable commodity.

The more general situation then breaks down into three subcategories - and the legal term for the property left is a "deposit" and the holder is the "depositary" and the person leaving the property is the "depositor:

1. Gratuitous: where the property was left and the person having possession (depositary)receives no consideration beyond the mere possession of the things;

2. Storage: where the property was left and the holder of the property (depositary) was to get some kind of compensation for holding on to it; and

3. Deposits for Repair, Alteration or Sale:

The liability of the person holding the property, and the degree of care he must exercise, increases with each category, 1 through 3. Usually a depositary in category 1 need give only slight care for the deposit, in category 2 it is "ordinary care" but in category 3 the depositary may have strict liability for any harm to the deposit.

In category 1, the gratuitous holding of the deposit can be ended any time by giving the depositor reasonable notice to "come and get it" and a reasonable opportunity to do so. In other words, the depositary can't give the depositor 30 days' notice, but limit the times when the thing can be picked up to between 4 a.m. and 5:30 a.m. on Tuesdays. That would not meet the reasonableness test. Also, mailing a notice to an old address would not be reasonable when the depositor's new address, e-mail address or phone number are known or easily discovered.

If after notice and opportunity the thing isn't picked up, the depositary can dispose of the stuff in a commercially-reasonable manner. This may be by selling it through a dealer or broker, advertising it, selling it on eBay, or whatever is appropriate. If the stuff is junk, the only reasonable disposition may be hauling it to the dump, but discretion is advised and an inventory should be made and kept.

The net proceeds of sale, after costs and commissions, belong to the depositor (original owner), not the depositary! The money will always belong to him (or escheat to the state if he can't be found) and never to the depositary.

The rules for #2 and #3 category place successively greater burdens on the depositary, and usually a court will enforce a contract between the parties, either an actual express contract or a contract that is implied in law based on the parties' conduct and prior intent with respect to the deposit.

This is all in the Civil Code, mostly in sections 1813 to 1878.

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Answered on 10/20/09, 5:41 pm

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