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We thought it would be useful for you to share a series of Property Guardianship Insight articles discussing some FAQs specific to the property guardianship world (as well as continuing to keep you updated on developing issues pertinent to the property guardianship sector, such as our update last week about the CMA tackling “sham licences”. First up, we’re considering what to do if a property guardian leaves belongings behind when they have vacated the property or have been evicted.

We have seen this situation crop up many times: the property guardian either vacates by agreement or pursuant to a Notice to Determine, or upon a lawful eviction – you may recall a previous article we shared about the potential consequences of carrying out an illegal eviction.  But when they leave several personal items behind: what do you do? It is important for property guardian providers to have a clear understanding of the relevant law to know how to deal with or dispose of these items to avoid potential repercussions under the Torts (Interference with Goods) Act 1977 (the “T(IG) Act 1977”).

If goods are disposed of by the property guardian provider that later turn out to be of value or belong to a third party, the property guardian provider may be liable under a claim for damages as an “involuntary bailee” (someone who has, without consent, found themselves in possession of goods belonging to another).

If you know the items belonged to a specific property guardian

If a property guardian leaves items behind in the circumstances mentioned above and you know these items specifically belonged to them, the property guardian provider can serve a notice on the former property guardian, and/or a third party owner, with a specified reasonable period stipulated in the notice to collect the items pursuant to the T(IG) Act 1977. The notice must clearly:

• state contact details for the best person at your company to contact should they choose to collect the items;
• a description of the goods; and
• a reasonable period within which the property guardian must collect them  – we suggest allowing 14 days is good practice.
The notice can be served by affixing a copy of it to the front door or in some other prominent place and serving it to a forwarding address if you have one. Assuming you have served a valid notice and waited for the reasonable period to pass, and the property guardian has not responded, you are entitled to dispose of or sell the goods. Many items left behind are unlikely to be saleable and may be disposed of either by donating to charity and/or putting in the bin or recycling. In both circumstances (either selling or disposing), we still recommend keeping a sufficient record of these goods so as to reduce the risk of any future damages claims. If an item is sold, the sale should be for an appropriate price, and you should preserve the proceeds of sale as they will belong to the former property guardian. In practice, it would be difficult for a property guardian owing arrears to try and claim this money though.

You are also entitled to compensation from the former guardian of any costs incurred preserving or maintaining the items. Again though, in practice you are unlikely to recover these costs.

If you’re unsure about who the items belonged to

In some circumstances, you might not be sure who the item/s belonged to if it is something left in a shared, communal space, and therefore a notice (as outlined above) cannot be served. In this case, the “abandonment” argument may be used instead. This would require the property guardian provider establishing a reasonable entitlement to conclude that no one is interested in the goods, so disposal is the only option.

In both cases, until you have disposed of the item/s in some way, you are under a duty to ensure those goods are not damaged or destroyed deliberately or recklessly. In particular – greater care should be taken with high value goods, as well as items that may contain sensitive data.

A clause in the licence agreement?

It may be good practice to have a clause in your licence agreements that expressly governs what happens when goods are left behind and what the property guardian provider is entitled to do. You could insist upon high-value items, say over £250, being notified to you so you have a record and have a better understanding of ownership of the high value items where there may be the greatest chance of a damages claim being pursued. If these high-value items are hired from a third party, you could ask to know about this upon notification. Other ways to check if a third-party may have any rights include some sort of sticker or label with their details – in these circumstances you may wish to serve a notice on the third party as well to err on the side of caution.

Other practical tips

• Inspect the property as soon as possible during/after the property guardian vacating to ensure no items are left behind – this may act as evidence if you needed to defend a claim.
• Keep a written and photographic record of any items left behind – to show the state you found them in and list them in an inventory with sufficient detail/description.
• Put up a notice to the door of the property after taking back possession.
• Store items safely to ensure they are not damaged.
• Retain any proceeds of sale for a “reasonable period”.
• If you have a “what to do on vacating the property” policy, you may wish to say any items left behind and not collected within a reasonable period, will be sold or disposed of any proceeds of sale donated to your chosen charity, for example.

If you need help evicting a guardian or find items left behind and are unsure what you need to do next, please get in touch with our highly experienced Property Guardianship team who will guide you through the process.

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