Some landlords will find goods left behind in their properties by departing tenants. Understanding the law around how they should deal with the disposal or sale of such goods is imperative.

If goods are disposed of by the landlord which later turn out to be of value, the landlord may be liable under a claim for damages as an involuntary bailee (someone who has, without their consent, found themselves in possession of goods belonging to another).

This is where the Torts (Interference with Goods) Act 1977 comes in.

The Notice, the Sale, and the Disposal

A landlord can serve a notice under Section 12, Section 13 and Schedule 1 of the Torts (Interference with Goods) Act 1977, providing the former tenant, and/or any third party owner, with a specified reasonable period stipulated in the notice to collect the goods. This notice must set out contact details, a description of the goods and a reasonable period in which the bailor must collect their goods.

In Houghland v R R Low (Luxury Coaches) Ltd  [1962], where a coach passenger could not locate her bag after having to transfer from one defective vehicle to another, it was recognised that the duty of care of a bailee is the standard one.

In the event that the landlord has fulfilled their duty under the Torts (Interference with Goods) Act 1977 but the tenant fails to respond, if at all, within a reasonable period, the landlord is authorised to sell the goods. Where these goods are not in a saleable condition, however, the landlord must decide on the next step. This could mean deciding to dispose of the goods and, if this were to occur, the landlord is encouraged to keep a sufficient record of all of the goods so disposed to reduce the risk of any future damages claims against them.

Additionally, the sale of the goods should be for an appropriate price and the landlord should preserve the proceeds of sale. The length of such period will depend on the amount of money involved and all other circumstances.

Where a notice cannot be given as it is near impossible to ascertain the rightful owner of the goods, the abandonment argument may be used. This would require establishing a reasonable entitlement to conclude that no one is interested in the goods so disposal is the only option.

For instance, in Campbell v Redstone Mortgages Ltd [2014] EWHC 3081, the High Court dismissed a claim by a bailor (former tenant) for damages where the landlord had disposed of the previous tenants’ goods. It was held that even though the bailor had attended the property on various occasions to remove goods, they had not cleared the property entirely, and therefore the landlord had acted reasonably in disposing of the remainder of the bailor’s possessions.

It also confirmed that until the landlord has disposed of the belongings, they have a duty to ensure that the goods are not damaged or destroyed deliberately or recklessly. In particular, a landlord should take greater care with high value goods, perishable goods, animals, hazardous materials, as well as items which may contain sensitive data.

Notwithstanding the above, however, the bailor (former tenant) also has certain duties of which they should be aware. These include:

• paying for any agreed services undertaken by the bailee/landlord
• collecting the goods at the agreed/appointed time or within a ‘reasonable time;’ and
• compensating the bailee/landlord for any costs incurred in preserving and maintaining the goods.

Leases/Tenancy Agreements

The practical consequences are that the rightful owner of as many goods in the premises as possible should be outlined in the lease. It is always stressed that landlords should tread carefully with regard to tenants’ abandoned goods to avoid claims for damages being made against them. It is usually good practice to have a clause that deals with situations where goods are left behind and to confirm that landlords are entitled to remove them.

Da Rocha-Afodu v Mortgage Express Ltd [2014] EWCA Civ 454 is a prime example of a case where the mortgagee in possession was held not to be liable for damages where the mortgagee gave its mortgagor access to retrieve goods on several occasions whilst also providing numerous warnings and notices before the goods were disposed of.

Third Parties

A landlord should be mindful of the fact that some goods may belong to a third party and/or may have been borrowed, rented, hire purchased, held in trust, or otherwise not owned by the former tenant. This can leave a landlord vulnerable to a claim by the third-party owner if their goods are disposed of. In order to limit potential liability, a landlord should take reasonable steps to check whether the goods show any indication that they might be owned by a third party (such as a rental label or sticker) and make contact with the third party to arrange for collection of the goods. In some circumstances, it may even be appropriate to serve a separate notice on the third party in addition to the former tenant.

Recent notable cases

Recent notable cases have clarified further aspects that can arise from The Torts (Interference with Goods) Act 1977:

In Scipion Active Trading Fund v Vallis Group Ltd (formerly Vallis Commodities Ltd) [2020] EWHC 1451 it was held that the definition of “wrongful interference” in Section 1 of the Torts (Interference with Goods) 1977 Act did not include claims for breach of a contractual bailment. Therefore, claims under the Torts (Interference with Goods) 1977 Act can only be in tort.

In Walton Family Estates Ltd v GJD Services Ltd [2021] EWHC 88, it was held the freeholder of an aerodrome, who was an ‘involuntary bailee,’ i.e. found themselves in possession of goods belonging to another without their consent, was entitled to an order requiring the former tenants to remove their aircraft parked at the aerodrome. The freeholder was also granted the right to apply for an order to sell, remove or scrap the aircraft if the tenants failed to remove it. Before this case it was previously unclear whether cases of involuntary bailment would qualify for a statutory power of sale, but it was permitted by the Court in this instance.

In Credit Agricole Corporate and Investment Bank v Persons Unknown [2021] EWHC 1679 (Ch), it was held the Courts’ power to order the statutory sale of goods could be exercised even where there were no Defendants to the proceedings and the original owners were unknown.

Tips and Tricks for Landlords

• Inspect the property thoroughly once/just before tenants depart to ensure no goods have been left behind. This may act as evidence if you are required to defend a claim for damages.
• Keep a sufficient record of all of the goods left behind – take photographs and keep an inventory (with description) of the goods.
• Put up a general goods (section 12) notice to the door of the property after taking back possession.
• Store all items accordingly and ensure they are not damaged or destroyed, deliberately or recklessly.
• Retain any sale proceeds for a ‘reasonable period’.
• Remember, the higher the value of the goods, the more responsibility is placed on you. Possibly seek the opinion of experts/professionals to ascertain the value of the goods and consider using an independent body (such as an auction house) to facilitate the sale of the goods.