Overview of Texas Personal Property Abandonment Statutes

Overview of Abandonment Law

Abandonment of property is a fairly common principle, even a concept that is often seen in movies and television. However, the legal idea of abandonment is very nuanced, and it is important to understand the specifics in laws, particularly if you are in a situation where you need to understand your rights to property.
Essentially, abandonment of property is an action or behavior in which the property owner intentionally relinquishes all claims to a property. From a legal standpoint, there are three elements needed to prove abandonment:
— The property owner voluntarily and intentionally relinquishes the property claimed.
— The property has been delivered to another person, or a person has assumed a position of control over the property.
— The property must be treated as no longer being the responsibility of the former owner.
While most abandonment situations involve physical property , certain texts on the topic have also referred to financial information—think of this type of abandonment as neglect or oversight that leads to loss of value. Even seemingly valuable property could be abandoned simply by the actions of the owner, such as pursuing a strategy that actively or passively harms the value of the property.
Abandonment laws exist at both the state and federal levels, and specific laws and applicable statutes can vary based on the type of property, the nature of the ownership of the property, the relationship between or among parties, and many other factors. Texas law in particular has many variations on abandonment laws. For example, the Texas Abandoned Property Bill was passed in 2017 and established a set of procedures concerning the disposition of certain forms of unclaimed property such as money or a security covered by a contract of sale.

What Constitutes Abandonment of Personal Property?

The Texas Supreme Court has defined the abandonment of personal property as "the voluntary surrender of a right, title, or claim of possession, coupled with an intent to deprive the owner thereof and the capacity to do so." Central Expressway Sign Assocs. v. City of Dallas, 290 S.W.3d 877, 884 (Tex. 2009) (quoting City of Galveston v. Simpson, 219 S.W. 550 (Tex. App.-Galveston 1920, writ ref’d)). "Abandonment requires more than a mere intent to abandon and involves affirmative action by the owner or property," Westleg Corp. v. City of Houston, 87 S.W.3d 538, 546 (Tex. App.-Houston [14th Dist.] 2002, no pet.), and "the owner must actually throw it away or burden it with a new title or claim in another person." Central Expressway Sign Assocs. v. City of Dallas, 290 S.W.3d at 884.

Requirements under Texas Abandonment Law

Texas law governing personal property left behind allows landlords to impose a 30-day deadline before the property can be claimed by the landlord. A common reason for a deadline is that the tenant has vacated the premises, but the landlord believes that the tenant still wants/needs the personal property. It’s a practical reason, given that some tenants leave things behind because they are unaware that their lease is terminated. Others leave behind personal property because it is too expensive to buy a new one or re-purchase the property.
If a tenant moves out, but leaves something behind, the landlord must give a notice to the tenant stating that the items must be removed from the leased premises by the 30th day after the date on which the notice is given or they will become the landlord’s property without compensation.
A "landlord" is the person who leases a part of a building, structure, or property to another (the "tenant"), in exchange for rent. A "tenant" is the person who pays the rent for the property.
The statutes governing personal property left behind are contained at Tex. Prop. Code §§ 54.021-54.023. These sections provide that a landlord can only dispose of any abandoned personal property thereafter. If the value of the property to be disposed of is less than $500.00, then the landlord must sell the property at public auction. If the value of the property to be disposed of is more than $500.00, then the landlord must sell the property at public auction, but the landlord must also provide notice of the sale to the tenant at least 15 days before the date of the sale.
The following example may help you to understand how the statute works. Let’s say that your apartment complex (the "Apartment") has a treadmill that a tenant (the "Tenant") left in the mailroom when the Tenant vacated the Apartment. The Apartment sends a letter to the Tenant asking the Tenant to remove the treadmill. The letter is sent on February 1, giving the Tenant 30 days to do so.
After 30 days have passed, and the treadmill is still in the mailroom, the Apartment must sell the treadmill at public auction. If the treadmill is worth more than $500, the Apartment must send the Tenant a notice of sale, via certified mail, at least 15 days before selling. If the treadmill is worth less than $500, the Apartment must still send the Tenant notice of the potential for sale, but does not need to send notice of the actual sale.
Once the treadmill is sold, if it was worth $500 or less, the Apartment may dispose of the property. If the treadmill was worth more than $500.00, and the Apartment sells the treadmill for less than $500.00, the Tenant can make a claim for the difference between the sale price and $500.00. The Apartment is not required to return the full $500.00. Rather, the Apartment has only the obligation to return the surplus. An example illustrating this distinction is a tenant leaving an antique that sells at auction for $2,000.00. The tenant would be entitled to $1,500.00 ($2,000.00 sales price – $500.00) and not $500.00.
Once the sale is made, the tenant must pay to the landlord any amount due for compensable damages to the tenant’s property. These damages must be evidenced, such as from the rental agreement or an itemized statement of damages or damages must be established through a judicial proceeding.
If the tenant has a claim against the landlord, the proceeds of the sale must be used to satisfy that claim, up to the total amount of proceeds. If the tenant does not have a claim, then the landlord must use the proceeds solely to compensate the landlord for damage to the landlord’s property damage, either under a rental agreement or from other evidence, or both.
The tenant may request the return of the proceeds, or the remainder after all claims have been satisfied, if the landlord fails to make the sale within a reasonable time.
The statute allows a landlord to dispose of abandoned property after 30 days, provided the landlord gives adequate notice of impending sale. Section 54.021 also defines the rights of a landlord who suffers damages to its property, but it also permits recovery for other claims or damages as well.

Allocations of Rights under Abandonment Statutes

A property owner’s rights and responsibilities in dealing with abandoned personal property generally depend on whether the person in possession of the property has a legal right to possess it. If so, the person has a duty to take reasonable steps to safeguard the property. If not, the person may be deemed to be in wrongful possession of the property because he has kept the property beyond the time allowed for him to keep it. In that event, the person is no longer in legal possession of the personal property, and the property owner may proceed with a claim to recover possession of the property without regard to whether the owner has met the statutory requirements to abandon the property.
Several court cases have addressed when certain kinds of personal property are abandoned or lost. For example, personal property abandoned in a building is "lost" if it was "accidentally left" there. On the other hand, personal property must be "placed" in a building to be "abandoned" there. A long line of court cases has defined "placed" as having the intent to relinquish ownership and, at the same time, voluntarily putting the property out of one’s control.
The owner of personal property may protect his right to recover that property by filing a "plaintiff’s affidavit for a writ of sequestration" (a "plaintiff’s affidavit") with the justice of the peace in the precinct where the property is located. The primary purpose of a plaintiff’s affidavit is to obtain possession of property before a lawsuit is filed on the theory that obtaining such possession in advance will help maintain the status quo. To obtain a plaintiff’s affidavit, the owner must swear to several things, including that the owner "has a legal right to possession" of the property. This requirement does not eliminate the defense that the owner abandoned the property, however. To the contrary, it expressly refers to the owner’s possession and to his surrender of that possession before it was abandoned. If the owner did not abandon the property, then he "has a legal right to possession" even if the property was left somewhere. And because the alleged abandonment is no defense to the plaintiff’s affidavit, it should be included in the affidavit.
The landlord in this case knew that the tenant no longer wanted the personal property in his apartment. But the landlord failed to take possession of that property in a timely manner as required by the applicable statute. The landlord also failed to include this crucial fact in his plaintiff’s affidavit. As a result, the landlord lost his right to possession of the property under that affidavit. Although the tenant lost the personal property without getting any compensation, the landlord did not get to keep the property either. This case squarely places the landlord out of possession of the property without giving the landlord the benefit of the property.

Remedies and Procedures for Recovery of Abandoned Property

If personal property is abandoned in Texas, there are certain processes that property owners must complete to reclaim the property. If personal property is abandoned on land owned, leased or occupied by any person, that person has certain rights under Texas law.
The Texas Property Code states, "If personal property is left unattended on the premises for a time longer than required for the purpose for which it was placed there, the property shall be regarded as abandoned and shall be disposed of in the manner provided by Subsection (b)." Additionally, this same law requires the abandonment to exceed 30 days after written notice of intent to remove the property has been provided to the last known address of the owner.
Land owners who have personal property abandoned by a tenant can have the condition of the property specified in a lease, including when possession is to be returned to either party and what happens to any personal property left behind. If the lease is silent on the terms for removal of property left by a tenant, then the outlined process in the Texas Property Code applies.
Abandoned property left by a tenant generally falls under the Abandoned Tenant Property Recovery Act. The law begins with the tenant, occupant, subtenant and personal representative of the tenant, occupant or subtenant receiving written notice that items must be removed by a specific date. After expiration of the timeframe specified in the required notice, the property can be disposed of, but the tenant must be provided written notice again once the property is removed.
If personal property has been left in a place other than on the premises being leased or occupied, a specific notice must be given to the last known address of the owner requesting the property be picked up by a specific date.
After the legal requirements for written notice have been followed, landowners in notice of abandoned property have a couple choices. First, if the value of the property is less than $100, the property can be disposed of and either shredded or dumped. The only requirement for remaining in compliance with the law is providing one more written notification of the destruction of the property. The second option allows for disposition of the property in a way where it can be retrieved by the tenant. Once proper notice has been given, the desired outcome of the disposition is disregarded if the tenant requests the property within 30 days of the original notice.
If the applicable requirements have been followed and applicable deadlines have been met, the law states that "a lien is created for the storage, preservation, preparation for sale, and sale of abandoned property."
In the case of property being abandoned or left at the place of employment, written notice is required along with notice from the employer that the property be picked up by the employee or a representative of the employee. If the property is not picked up, the employer can dispose of the property. A similar process is in effect if the property is stored by mutual consent of the employer and employee. The only requirement is that the employer must provide written notice of the availability of the property at least 10 days before contacting a third party for disposition. In the event that disposition is sought, the employer must notify any depository for the property and should sell the property unless there is no reasonable opportunity to do so. If there is no reasonable opportunity for the sale of the property, then the employer may dispose of the property in some other manner.

Repercussions for Property Abandonment

A tenant’s or former tenant’s abandonment of personal property left on the premises can have legal and financial consequences for both the tenant and landlord, respectively. Also, improper handling of property left behind may result is liability for the landlord.
Where a tenant leaves behind personal property, the landlord must follow the proper steps to provide the tenant with a chance to recover their property before selling or disposing of the property. Texas Property Code § 24.005(f) explains the steps and methods of providing notice to the tenant on abandoned property. For a lease of residential property, the landlord is required to mail notice to the tenant at the tenant’s current address (or last known residential address) or, if the tenant has provided no forwarding address, affix the notice in a conspicuous place on the inside of the main entry door of the premises being vacated by the tenant. Notice must include:
With respect to non-residential property, landlord is required to mail notice to the tenant’s current address (or last known residential address) or, if the tenant has provided no forwarding address, affix the notice in a conspicuous place on the inside of the main entry door of the premises being vacated by tenant . Notice must include:
Once the prescribed requirements have been met, the landlord is only required to hold personal property for 30 days. If the property is not picked up within 30 days, the landlord may sell or dispose of it without defaulting the owner or tenant or breaching any obligation of bailment.
The landlord may not sell or dispose of any electronically reproduced computer program (including a program stored on a compact disc, CD-ROM, a microchip, or other means) or medical records without the consent of the tenant who either purchased or created the records. This does not, however, apply to electronic copies of medical records that have been printed out onto physical paper. In addition, the landlord may not sell or dispose of items that are stored in a small lockable storage container like a safety deposit box.
If a landlord fails to comply with the provisions of the statute, the landlord is liable to the tenant or owner of the property for any damages that result. The landlord’s liability is subject to a $500 statutory cap and the tenant or owner of the property is prohibited from recovering attorney’s fees.

Cases and Examples

An instructive case is that of Strong v. Garcia, which involved a dispute over the ownership of personal property after a couple’s divorce. The husband, unable to move all of his belongings before the court-imposed deadline, left a portion in the marital residence. When he attempted to retrieve the property months later, the wife refused to allow him access. The court noted that the "difficulty of defining tangible and intangible property leads to some uncertainty in the law," but confirmed that the statutes cited earlier were broad enough to encompass a wide range of property types. Thus, because the property left behind was "factually abandoned," it became the complete property of the wife, even though there had been a court order for its return to the husband.
Garcia underscores that if property is abandoned with the intent never to reclaim it, the owner has lost all legal claim to it. Although the case does not address the issue of unintentional abandonment, the legal principle remains inescapable–Property left behind, without any intention of ever reclaiming possession, has been abandoned and is no longer owned by that person.
In another instructive case, Wiggins v. Phillips, an angry contractor abandoned an unfinished project at the marital residence and left behind a truck load of building materials. After the divorce, the property owner sought possession of the building materials. The contractor refused to surrender the property until $6,000.00 in damages were paid. The property owner filed suit to recover the materials. Phillips (the property owner) was awarded summary judgment for the value of the building materials and the court of appeals affirmed. Although the court recognized that the contractor had a possible claim, it held that after Phillips tendered the fair market value of the building materials, they belonged to Phillips. Further, based on the language under Section (c)(1), it was clear to the court that the Legislature did not intend that a former spouse could force the other spouse to choose between paying for damages and assuming ownership of property. By paying for the fair market value of the building materials, Phillips had acquired full title to the property and the contractor was clearly "willing to pay… the cost of keeping his property."
In Wiggins, the court focused on paying the "fair market value" of the abandoned property, where no one wanted the property back. However, the court held that the spouse who did not want the abandoned property back must bear the costs of storing it (if applicable), as that spouse cannot take possession of the property unless the other spouse "pays any storage costs to the extent that the value of the property is offset by the costs." In other words, one could not simply offset his or her costs of storage against the value of the property.
It should also be noted that the definition of "property abandoned by the owner" is very broad under Section (c)(1), which has important implications for the property owner who has not removed his or her personal property from the other spouse’s residence or the former marital residence. Merely moving out of the "marital residence" will not guard against the potential loss of ownership of personal property. This is also true for property that may have been specifically awarded to that party in the divorce decree. If the spouse who won that property actually left it behind, distributive property that has been left behind in the other spouse’s home may be abandoned. Where applicable, the former spouse also has the right to pay for the fair market value of the property, taking care to document a change of possession and receipt of payment of the fair market value. For example, if the former spouse acquires possession of the property, he or she should move the property to their home and record this action through photographs. Payment can be by "cash on hand, cashier’s check, personal check or other negotiable instrument."

Resources and Tips for Avoiding Abandonment Claims

To avoid or minimize the potential for future litigation, certain steps should be taken to ensure personal property of a debtor is not left behind. First, tracking all tenant possessions and documenting their condition at the start of the lease is crucial to preventing future litigation. Upon entering a property, an inventory of all of the tenant’s contents is highly recommended. Pictures are always encouraged. When taking pictures, the more photos, the better. Take as many pictures as necessary to adequately document all of the conditions of the property, even if it feels like overkill. It’s better to have too many pictures than to not have enough. If the pictures are particularly clear, you could take fewer pictures. However, multiple angles are always more convincing than one picture. For example, if there is a spot on the carpet, take pictures of the affected area from above and then the affected area from the corner. Pictures of the area from on your knees showing the stain are also helpful. It may seem unnecessary, but it works as a great way to demonstrate the extent of the "damage" (understanding that in Texas "normal ware and tare" is not chargeable to the tenant). Second, an inventory list should be made that describes all of the contents of the unit. Sometimes a picture is worth a thousand words, but sometimes the written word is better. Take care in describing items of value and items of no value. Be specific in the terms used to describe the personal property to help prevent future claims by the tenant as to what was in the room and what condition it was in. Third, a thorough walkthrough at the beginning of the lease will help to determine if the tenant caused any property damage that might confuse the tenant when the property is returned after the tenancy ends. This will ideally aid in settling any dispute that might arise regarding the condition of the personal property dropped off in the unit. Fourth, make sure to look for potential items that might have been left outside the unit. Items such as trash cans and landscape trash bags are regularly provided by tenants and forgotten once they vacate. In addition, the occasional broken lawn chair and patio tables left outside should also be noted. All items in the common areas of an apartment are equally subject to being abandoned and the statute applies to these items as well. Remember, the abandonment statute does not allow landlords to keep items left behind by the tenant as a sort of reward for their lack of liability. The property must be returned to the renter, regardless if it appears to be damaged beyond repair by the tenant. If the tenant is unreachable to return the property, it can be disposed of after 60 days have passed under the statute. It is recommended that some effort be put into locating the tenant so that the property is not lost inadvertently. Finally, always be clear on the distinction between normal wear and tear and damage. Any time you have a question ask yourself this: "Is the damage that I noticed the result of an accident or gradually occurring, or was it intentional, or a result of foreseeable wear?" Knowing how to analyze your situation using these guidelines will help guide you through the process of differentiating what leads to tenant liability and the normal wear and tear of a tenant’s use of the property.

Wrap-Up

In conclusion, there are two statutes regarding the abandonment of personal property in Texas, and it is important to be aware of the distinctions between each. Under the Property Code, personal property may be presumed abandoned if an individual has not taken possession of it or paid storage fees on it for more than three years. The presumption established by the Property Code allows the current property owner to dispose of the property, but the displaced owner may seek its return . Under the Civil Practices and Remedies Code, however, personal property abandoned for six months or longer can be disposed of by a property owner without concern for the original owner. This statute also addresses personal property left on a residential leasehold, allowing the property owner to dispose of such items after a notice has been provided.
While I hope to never find a client in need of these statutes, they do provide a means by which abandoned property may be dealt and more importantly, avoid stale litigation.