The Internet is awash in state-by-state summaries of what a landlord can and can’t do with property left behind by a residential tenant. The various abandoned property rules range from making the landlord do nothing, to requiring it to hold the tenant’s property for a fixed number of days, to sending formal notice to the tenant before disposing of the property. For a good summary of various state’s abandoned property laws, see here. Chicago’s (where I practice) Residential Landlord Tenant Ordinance (RLTO), widely viewed as pro-tenant in every way, requires a landlord to store the property for seven days before disposing of it. See RLTO 5-12-130(f)
Zissu v. IH2 Property Illinois, LP, 2016 WL 212937, examines what causes of action apply where a landlord puts an evicted tenant’s property on a city street and the property is destroyed or stolen as a result.
The plaintiffs, who were evicted in an earlier state court forcible detainer action, sued their ex-landlord in Federal court (the landlord was a Delaware business entity) alleging negligence, conversion, bailment, and intentional infliction of emotional distress after the former landlord placed the plaintiff’s home furnishings, jewelry and personal documents on the sidewalk and the plaintiff’s property was stolen or damaged.
Granting in part and denying in part the landlord’s motion to dismiss, the court examined the pleading elements of the bailment, trespass to chattels and intentional infliction of emotional distress torts.
The court upheld the plaintiff’s bailment count. A bailment occurs where one party delivers goods or personal property to another who has agreed to accept the property and deal with it in a particular way.
To recover under a bailment theory, a plaintiff must allege: (1) an express or implied agreement to create a bailment, (2) delivery of the property to the bailee by the bailor, (3) the bailee’s acceptance of the property, and (4) the bailee’s failure to return the property or delivery of the property to the bailor in a damaged condition.
An implied, or “constructive,” bailment occurs where a defendant voluntarily receives a plaintiff’s property for some purpose other than that of obtaining ownership of the property. The implied bailment can be found with reference to the surrounding circumstances including (i) the benefits received by the parties, (ii) the parties’ intentions, (iii) the kind of property involved, and (iv) the opportunities for each party to exert control over the property.
The court held that the complaint’s allegations that the defendant actively took possession of the plaintiff’s property and removed it from the leased premises was sufficient to state a bailment claim under Federal notice pleading standards.
The court also sustained the plaintiff’s conversion and trespass to chattels claim. The crux of both of these claims is that a defendant either seized control of a plaintiff’s property (conversion) or interfered with a plaintiff’s property (trespass to chattels). A colorable conversion claim contains the added requirement that a plaintiff make a demand for possession – unless the defendant has already disposed of a plaintiff’s property; in which case a demand would be futile.
The court here found that the plaintiffs’ allegations that their former landlord dispossessed plaintiffs of their property stated a trespass to chattels and conversion claim for purposes of a motion to dismiss. The court also agreed with the plaintiff that a formal demand for the property would have been pointless since the defendant had already placed the plaintiffs’ property on the street and sidewalk next to the plaintiffs’ home.
Lastly, the court denied the defendant’s attempt to dismiss the plaintiff’s intentional infliction claim. An intentional infliction of emotional distress plaintiff must plead (1) extreme and outrageous conduct, (2) a defendant’s intent to inflict severe emotional distress on a plaintiff, and (3) the defendant’s conduct did in fact cause the plaintiff emotional distress.
Here, the court found that the plaintiffs’ claims that the defendant put expensive jewelry, medication and sensitive financial documents on the street in view of the whole neighborhood sufficiently stated an intentional infliction claim.
This case presents an interesting illustration of some lesser-used and venerable torts (bailment, trespass to chattels) adapted to a modern-day fact pattern.
The continued vitality of the bailment and trespass to chattel theories shows that personal property rights still enjoy a privileged status in this society.
The case also serves as a reminder for landlords to check applicable abandoned property laws before disposing of a decamped tenant’s belongings. As this case amply shows, a landlord who removes tenant property without notice to the tenant, does so at its peril and opens itself up to a future damages action.