Abandonment must be clear and unequivocal.[1] The tenant need not expressly state an intention to abandon. Such an intention may be implied by law.[2] “This inference may be drawn from anything which amounts to an agreement on the part of the tenant to abandon.”[3]
The Residential Landlord-Tenant Act abolishes the common law right to distress for rent.[4] Any landlord who takes or detains the property of the tenant without express written consent and refuses to return the property upon demand to do so may be liable for actual damages and attorney’s fees.[5] If the refusal is intentional the landlord may in addition be liable for $100 per day up to $1,000.[6] The landlord may be liable even if not holding the property for rent.[7]
If the tenant abandons the rental property while in default in rent the landlord “may immediately enter and take possession of any property of the tenant found on the premises and may store the same in any reasonably secure place”.[8]
The landlord must make reasonable efforts to give notice to the tenant of the landlord’s address, the location of storage, and the time and manner of the planned disposition of the property. The landlord must then store the property for 45 days, or 7 days if the cumulative value is less than $250 and is not personal papers, family pictures, and keepsakes.
If the tenant requests return of the property the landlord may charge only reasonable drayage and storage. If the property remains unclaimed the landlord may sell and after holding the funds for one year, keep the proceeds or discard the property.
The section only applies if the tenant is in default in rent. A reasonable interpretation can be made that the section only applies if the landlord intends to seek to keep the proceeds of a sale of the property.
The operative sentence reads in pertinent part “the landlord may immediately enter and take possession of any property of the tenant found on the premises and may store the same in any reasonably secure place”. The second “may” is unnecessary unless it is intended to make storage permissive. Giving effect to each word of a statute is “a requirement of one of the most basic rules of statutory construction”[9].
The plain language is permissive. “May store” means may store, not shall store. If the legislature intended to require storage the sentence would read that upon abandonment the “landlord may enter immediately and if so shall store…”.
As noted above, the Residential Landlord-Tenant Act in a separate provision abolishes the landlord right of distress for rent. The provision on tenant abandonment created an exception to the abolishment and allows the landlord, under very narrow circumstances, to detain the tenant’s property, sell it, and retain the proceeds. The common law right was an elective remedy and this provision may be interpreted as a narrow the retention of that elective right.
Finally it is worth observing that the provision applies only if the tenant is in default in rent. Why? Why not apply it to all tenant abandonment, regardless of default in rent. By its plain terms the provision simply does not apply – and therefore storage is not required – unless the tenant is in default in rent. This lends strength to the argument that the landlord is only obligated to store if the landlord seeks to detain the tenant’s property for rent.
However, this argument has not been considered by an appellate court and may not be accepted in litigation. This article is not a substitute for legal advice.
If you have questions about the landlord’s duty to store tenants’ belongings consult with an attorney.
[1] Mike v. Tharp, 21 Wash. App. 1, 8 (1978).
[2] Moore v. Northwest Fabricators, Inc., 51 Wash. 2d 26, 314 P.2d 941 (1957).
[3] Id. at 30.
[4] RCW 59.18.230.
[5] Id.
[6] Id.
[7] Sollenberger v. Cranwell, 26 Wn. App. 783, 614 P.2d 234(1980).
[8] RCW 59.18.310(1)(b).
[9] State v. Bauer, 92 Wn.2d 162, 595 P.2d 544(1979), citing
