Community Associations Must Exercise Caution When Removing Personal Property in Common Area Due to Potential Legal Exposure

As children, most of us are taught to clean up after ourselves and to respect our living environments, as well as the living environments of others. Unfortunately, many people have forgotten – or sometimes disregard – those lessons.  Residents, tenants, and visitors sometimes leave trash, store belongings, and abandon bulky-items where it may be most convenient for them, including in community association common area. This occurs when a resident leaves items abandoned in storage units, garages, or patios and balconies. Sometimes it is obvious that the property has been abandoned, however, the situation can sometimes be less obvious. We have seen lawsuits where trespassers (with no known connection to the community) have deposited property in association common area and thereafter claimed that the association destroyed or damaged it because such property was not handled properly.

Disposal of personal property from association common areas is not simply a matter of providing notice and then removing it. It can be fraught with risks and results in liability if certain precautions are not taken. Community associations must be aware that they may have statutory obligations relating to the disposal of personal property. It is the intent of this series to outline an association’s legal obligations when dealing with unsupervised personal  property in common area– which may include items that appear to be trash, but could be of value to someone.

Determining the Character of the Property: Identifying It As Abandoned

While the obligations of community associations are typically guided by an Association’s Governing Documents and the Davis Stirling Act, many guidelines relating to a community association’s dealings with abandoned personal property are derived from landlord-tenant law. Multiple courts have held that a community association is, for all intents and purposes, a landlord with respect to its common areas (see e.g. Frances T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490, 499). Such rulings have indicated that when addressing the abandonment of personal property in common areas, associations must meet the same requirements as a traditional landlord when handling such personal property (though additional guidelines and procedures may be present in governing documents as well).

In order to determine which statutory procedures may apply, the association must determine the character of the property at issue. Under the landlord – tenant statutes, community associations have several (nonexclusive) statutory methods of removing and disposing of personal items left in association common area, dependent upon the character of the personal property at issue:

  1. Apparently “abandoned” property: “Abandoned property” is personal property that a tenant (or, in this case, an Association Member) has left behind on the premises after the premises has been vacated or title to the property had been transferred. If it appears that property left behind has been abandoned, the association may dispose of it pursuant to procedures outlined in Civil Code §1980 et seq.
  2. Apparently “lost” property: “Lost property” is personal property wherein the legal owner is unknown. If it appears that property left behind is lost, the landlord (association) may generally dispose of it pursuant to the procedures outlined by Civil Code § 2080 et seq.
  3. Property as to which tenant (or member) has requested return: If the vacating residential tenant (member) timely requested return of the property, the landlord (association) may surrender it pursuant to the procedures outlined in Civil Code §1965.

Determining which statutory procedure to follow is based upon the landlord’s reasonable belief as to the character of the property. Pursuant to Civil Code §1980(d) a “reasonable belief” means:

“The actual knowledge or belief a prudent person would have without making an investigation (including any investigation of public records) except that, where the landlord has specific information indicating that such an investigation would more probably than not reveal pertinent information and the cost of such an investigation would be reasonable in relation to the probable value of the personal property involved, “reasonable belief” includes the actual knowledge or belief a prudent person would have if such an investigation were made.”

While associations must act based upon a reasonable belief, much of the litigation that centers on whether an association’s determination of the character of the property was reasonable. Therefore, while there are several general guidelines, we recommend that associations consult their attorneys in situations where the character of the property is not immediately clear.

For more information on how to handle lost, abandoned, or returnable property, please check back in the following weeks for parts two, three, and four of this series.

Written by Jonathan R. Davis

Jonathan R. Davis, Esq. is a Senior Associate Attorney at Richardson|Ober|DeNichilo.