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Does your lease have anything in it related to abandoned property?
Does the personal property have considerable value?
Have you sent any notice to the tenant regarding the abandoned property?
No worries, the question will remain open as long as you need it to..
Ok, NY has no set statutory written laws that address this and set out a fixed process, but there are a couple things that I would suggest that you do to protect yourself from any claim by the tenant.
First off, if this is just junk, you can simply dispose of it in the trash. But if there are things that have value, I would suggest inventorying it, then store anything that has value in a storage facility like you have done. Then I would send a written letter both regular mail and certified mail to the rental address stating that the personal property that was left will be disposed of in 30 days as abandoned if it is not reclaimed by paying any storage fees.
Then after 30 days, if they don't contact you to reclaim the property and pay the storage fees, you are free to sell, donate, or otherwise dispose of it and would be protected under the law as you gave them an opportunity to recover their property before disposing of it.
As an aside, in addition to being an attorney, I have also been a landlord for over 26 years...
If the tenant wants to make this an issue of this, then it is strictly a civil matter and the tenant will have to take it up in civil court. The police only get involved with criminal matters..
So I would just tell him to take it up in court if he wanted to make an issue of it.
As I mentioned earlier, there is no NY statute that addresses this for some reason. So the way that most landlords handle this is with a 30 day notice of abandonment before disposing of any abandoned property. The courts would look at this from the perspective that if someone didn't seek out their property within a month, then that is a pretty good indication that they have abandoned it.
But for future reference, I would add a clause to your lease that presumes abandonment automatically if they are gone over 30 days and haven't paid rent..
And yes, if you post it on the door and take a photo of the notice as well as keeping a copy, that is good proof that you attempted to give them an opportunity to retrieve their property prior to disposing of it as abandoned. Him telling you he is moving out doesn't help much unless you have proof of that in something like an email, text or voicemail.
If the police broke in, then you can sue the police dept for any damages that they caused since the tenant has abandoned the property and this is not an illegal lockout, but rather you just retaking possession of an abandoned unit.
The police likely called the local housing court to see if you got a formal eviction against the tenant and if not, they decided it was an illegal lockout and decided to take action to gain entry. This is legal for them to do in NY if there is an illegal lockout. (Section #241-12 of the Patrolman's Guide.)
It does seem kind of odd though that all this is happening right now after 3 months of the tenant being gone...
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I don't understand what you mean by " if it's illegal for me to broke in abandoned apt for 3 mos"".... you are the owner so you can't break into your own property... you just retook possession after a presumed abandonment..
But what you should have done is just go ahead and evict the tenant when they got behind on the rent and then you could have legally disposed of everything without any question.
So at this point, if he has retaken possession and is claiming an illegal eviction, then I would go ahead and post a 3 day notice to pay everything that is owed for back rent and then go through a formal eviction. I would definitely contact the tenant and tell them that they can make arrangements to get their personal property out of storage so that mitigates any claim that they might try to make for personal property.
If the tenant tries to claim there was an illegal lockout, then you can just respond by showing that they haven't paid rent for 3 months and told you that they were leaving.
So you really shouldn't cut corners and try to avoid going through a formal eviction because it can end up with problems like this. Set up a fixed process and then follow it every time a tenant gets behind on rent. I tell tenants that this is just a business and I have to run it like one, so I follow a set process with every tenant...