Abandonment of Personal Property Under the Laws of Florida

What Constitutes Property Abandonment?

Property abandonment is a legal term used to describe the relinquishment of an individual’s proprietary interests in personal property by either intentional conduct or failure to act with regard for the property. Basically, it requires both an intent to abandon the property and an actual abandonment of the property. Generally, if a person merely vacates property, that person does not abandon the property itself. Intent to abandon cannot be inferred from the mere fact of vacancy. The Florida Court of Appeals has held that the proper time to consider whether personal property has been abandoned is when the property could lawfully have become the property of the state (in Florida, this occurred five years after the property became so vacant) . Abandonment may be exhibited through numerous acts. However, a showing of the owner’s intent is absolutely essential to supporting such a claim. If the owner failed to pay rental payments on the personal property, such failure will be considered an act of abandonment if it is accompanied by some other fact from which it is inferable that there has been an intention to give up the property. Abandonment may also be exhibited by an ongoing absence from a property containing personal property. Abandonment of personal property may even arise in the context of a marital relationship if spouses agree that the items shall be a thing with respect to which there should be no community property interest.

Laws on Abandonment of Property in Florida

In the Florida Uniform Commercial Code, the law governing consumer transaction – also known as Article 9 – identifies a lien on goods in a commercial lease as a "Purchase Money Security Interest" or a security interest that enables the property owner or a third-party to retain a right, in the property (also known as collateral), until a financial obligation is fulfilled. A question has arisen in the legal community as to whether this entitles a landlord or property owner to recover abandoned property after an eviction in reaching finality.
When a tenant abandons the commercial property, the landlord may believe that it is within its rights to move all the abandoned property as the abandoned property belongs to the landlord, and the landlord has a claim on all of it. The landlord may even believe that it has pre-existing legal right to resell the property. However, an Article 9 fixture lien only attaches to the tenant’s interest in the property, while the property itself is still in the tenant’s name. While it may seem on its face that the landlord should be able to possess all abandoned property located on the commercial property so that it can recoup the owed amount, the truth is that the landlord may only have a right, as a result of the tenant’s abandonment of the property, to possession of the tenant’s property and not to any property belonging to the tenant’s family, friends or a third party. In fact, according to Florida Statute 83.604(7) with regard to abandoned personal property, where a judgment is entered awarding possession to the landlord, a landlord is "not responsible for any person’s claim for damages resulting from the removal of property by the landlord," unless the owner notifies the landlord within 30 days that the property in question belongs to him or her. So in order to recover the personal property of another, the landlord must give a notice to that owner.
This passage may imply that if the landlord takes possession of a tenant’s personal property, there are no consequences for the landlord. This is simply not the case. Under that same statute, the law also states that if the owner of the abandoned property files a lawsuit against the landlord for taking possession of the tenant’s personal property, the tenant is entitled to attorney fees as well as costs. This provision is designed to protect third-party persons who may not be aware that the tenant vacated the property and may have a legal interest in property that was wrongfully taken.
Moreover, as detailed in the article, Your Property Rights vs. the Right to Sell Property That is Left Behind After An Eviction, landlords may not be able to immediately sell the property that is recovered even if it just abandoned personal property belonging to the tenant. The law in almost all other states is similar to that in Florida, in that it may require the former tenant to pay off any remaining balance due before the property can be returned or resold. If the former tenant is to fail to do this, and the time to pay the landlord has passed, then the landowner may dispose of the tenant’s personal property after a required period.

Procedure For Declaring Property Abandoned In Florida

In Florida, the process of declaring personal property abandoned is dependent on the nature of the property and the context in which the abandonment doctrine is being applied. The most commonly applied aspects of the doctrine of abandonment arise in the context of landlord-tenant relationships and the distribution of probate property.
Absent a statute that specifically provides otherwise, however, the general rule is that it is the responsibility of the party seeking to declare personal property as abandoned to do so by filing an action with the court. While there are different statutory provisions that address the abandonment doctrine, the procedure for seeking relief is essentially the same. Namely, the party seeking to declare personal property abandoned files an action with the court, serves process on the other parties, and obtains a judgment that the property at issue is abandoned. A few examples of the use of this doctrine are as follows.
Florida Statutes § 715.104(3)(a) provides a procedure for the trial court to declare any tenant improvements to real property abandoned under Florida Statutes § 715.01. This statute applies to a "commercial property lease." Specifically, § 715.01 defines commercial property to mean "any real property … intended to be used as a venue by a person who conducts business operations at the property or uses the property to provide the public with access to goods or services."
Florida Statutes § 705.16(5) provides an identical procedure to declaration of an abandonment pursuant to Florida Statutes § 705.01, but to a lienholder of a lien foreclosed in a commercial foreclosure action. A commercial property lease does not need to be involved for statute § 705.16 to apply: the statute is broader than that.
Florida Statutes § 715.109 provides a procedure for the trial court to declare personal property, left behind by a tenant on rental premises abandoned under Florida Statutes § 715.104. The judicial procedure set forth in § 715.109 is the same as the declaration made by the Court in a commercial property lease action pursuant to § 715.104.
Similarly, § 83.5951 provides the same procedure for commercial and residential actions, but denies relief to the party seeking to declare the property abandoned if the tenant pays the rent past the due date of the rental period. State v. Martin Cty. Comm’n, 732 So. 2d 1156 (Fla. 4th DCA 1999).

Owner’s Rights and Duties

Florida law provides that if property is not "abandoned" (as defined by statute), the owner of the property has a possessory interest over that property. This right to possession gives property owners the ability to have their property in the county or circuit court (if a county court does not have jurisdiction in an action for possession) either summarily (via a replevin motion) or via a partition action, if necessary. The right to possession also gives property owners the ability to potentially get their property back through a "civil theft" cause of action (if another person’s interference with the property was willful and malicious, and the property owner can prove actual damages as a result). Property owners may also be able to pursue criminal charges and seek reimbursement for certain costs under various criminal statutes, such as Florida Statute 810.09, 812.155, 812.155, or 810.12.
And even if the property owner does not know where their abandoned property is located (and thus cannot get it back), they may still have some recourse. For example, property owners may be able to recover for treble damages for "unjust enrichment" against the "trespassers turned good Samaritans" who took their property if those parties had no "permission or right to take other people’s property and keep it for themselves."

Tenant’s Rights in the Disposal of Abandoned Property

If the tenant believes that a landlord has wrongfully claimed that a tenant’s personal property is abandoned, a tenant has the right to file a lawsuit against the landlord to recover the property allegedly abandoned. The lawsuit shall be filed in the circuit court where the tenant’s residential premises is located . In any action brought pursuant to this section, the court shall award the prevailing party all of the damages sustained and reasonable attorney’s fees. The Florida Legislature has provided an expedited procedure that allows tenants to schedule a hearing on abandoned property issues typically within 21 days of filing the lawsuit.

Police Involvement in Cases of Abandonment

In many instances, the involvement of law enforcement and other legal authorities in abuse abandonment matters can be beneficial and sometimes necessary. When signs of personal property abandonment arise, the situation may escalate, leading to heightened matters that may require the expertise of law enforcement officials or legal representatives. Much like the public action arising under sections 715.07 and 715.104 Florida Statutes addressed elsewhere in this article, a police officer may be called to the scene to determine whether the legal definitions of abandonment set forth are met. As noted in the previous section of this article, a police officer or other law enforcement representative may need to witness the relevant circumstances or hear the specific statements made to come to a conclusion regarding the right of a party to remove the property.
The police may also have some authority to dispose of personal property under section 715.04 Florida Statutes. Pursuant to this statute, a sheriff, deputy sheriff, or police officer may assume custody of any abandoned property on nonresidential real property. The police then have 10 days to provide a notice of the abandoned property to the local Zoning and Code Enforcement boards so they can assist in locating the owners. After this notice, the boards have just seven days to provide information about the owner or other representatives so that a notice can be sent to them about the abandoned property. This notice provides the owner or other party just 15 days to acquire the property or provide alternative instruction. Finally, if no action is taken, the police may sell the property or otherwise dispose of it in accordance with the law.
Specific police procedures for the handling of abandoned property may vary in different jurisdictions so local ordinances should be consulted for the most accurate information. Having this information may not only help in dealing with these matters, but can also elucidate the importance of following the law and engaging in some analysis before taking matters into one’s own hands.

Common Conflicts and Remedies

Common disputes about personal property abandonment arise in many contexts, from landlord-tenant conflicts arising from the intentional leaving behind of below-value, no-longer-wanted property to probate fights involving post-mortem decedent identifier property (jewelry, art, etc.), to credit card and other consumer transactions in which debtors simply abandon property on the floor or other areas out of customer reach in order to try to evade payment. Stock brokers have been known to leave behind investor property during unilateral account termination, arguing that property abandoned in their office does not constitute the property of the account holder, but that of the office. Other consumer organizations have similarly pursued claims against corporate entities and employees for intentional abandonment of property when received with the intent to convey ownership. A recent example of an attempt to pursue a claim against the Florida Department of Revenue (DOR) for intentional abandonment of property was the suit of Croman v. Florida Department of Revenue, Case No. 092008CA020412. In Croman, an investor in real estate sought recovery of what he referred to as his "unclaimed property." However, the case was ultimately dismissed because, as with earlier litigation emphasizing an abandonment theory instead of a bailment theory, the investor had failed to establish an enforceable, valid access right to the "property" in question. Croman had maintained and accessed his rental property by establishing a site map that allowed him to recover his "property" without restriction. However, due to failure to prove standing and the right to maintain the location of the access points on his map, the Florida court found that the plaintiff – at best – possessed nothing more than a mere interest in property of uncertain value. Croman should remind other property owners and investors considering a bailment theory claim against a third person, business, agency, or institution to closely examine the nature of anticipatory contracts for all applicable terms and limit language that may alter the intended use, maintenance, and other storage rights associated with the property at issue. Failure to study potentially applicable Florida Law regarding real property abandonment and use issues may result in the loss of valuable property rights when neglect and lack of proper maintenance is outweighed by an adverse possessor who has shown long-term possession. Consideration of potential liability for injuries and/or damages caused to existing property or land by an abandoning party should similarly be relevant to an analysis of risk versus reward when transferability, legality, and other ownership factors are present in any personal property loan or bailment agreement.

Avoiding Unintentional Abandonment

While the above discussed analysis of whether property has been abandoned is true, the real question is how to prevent it in the first instance. The most obvious response is to not leave your personal belongings on another person’s property without an expectation of having them returned. But that may not even be entirely true because one simply cannot control the uses or disposition of items left in someone else’s home or business. Absent contractual obligations – such as rental agreements or leases – you have very little ability to control how use is undertaken of property in the possession of another.
One method for prevention is a method that is akin to putting "brass knuckles" on your property and that is by simply attaching conditions to the use of appurtenant property. For example, you can insure that any friend or family member has knowledge of the conditions states on the property which govern its ultimate disposition. This is a clumsy way of preventing the sale of items of value but can be effective in curtailing outright theft of described property . It should be noted however that the simple presence of an attachment to such property likely would have little effect on the analysis of whether property was abandoned under the Restatement and Florida law discussed above.
Another preventative measure is open communication. If you leave personal property in a person’s possession and expect its return then they should know it. You must be fair in your expectations and expectations must account for the lack of knowledge as to what a friend, family member, acquaintance, or business partner may do. The best way to prevent unintentional abandonment is by clearly and specifically letting someone know when you possess an expectation on how to handle an item that has been left. The old adage of your mother telling you to "always be polite", rings true in this regard. Absent a notice that something is not abandoned, the expectation of its return likely will never be fulfilled. The law will not protect your property if the other party had no idea of your intent with regard to the described property.