by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today I will answer a question that touches upon several legal topics including landlord/tenant, fixtures, legal rights to chattel, and small claims court. Jade from Cambridge, Massachusetts wrote:
On my moving day August 31st this year, I had to leave my dryer (one in good working condition) at the rental apartment I was moving out of. The truck I used for the move was too loaded to take the dryer along. I said to my roommate then that I will return to pick up the dryer a few days later. She agreed. Since September, she has ignored almost all my email and phone messages regarding my pick-up requests of the dryer. The one reply I received from her says that I should've picked up the dryer the day after the move. I have also emailed the landlord about it and he ignored my email as well. (My previous roommate and the landlord are good friends with each other.) I do not owe any rent or bills on the apartment. Is it legal for my previous roommate to not release my dryer just because I didn't move it out on moving day or the day after? What legal steps could I take to get my dryer back without having to spend more money than the value of the dryer?
Sorry you have had to go through this Jade. This question touches upon several legal topics. A preliminary issue is fixtures. A fixture is personal property that is attached to land or a building and that is regarded as an irremovable part of the real property, such as a fireplace built into a home. Normally, if a tenant attaches a fixture to rental property, and it cannot be removed without damaging the property, then the tenant cannot take the fixture with him when he ends his tenancy. A dryer is not generally considered a fixture because it can be easily detached from the property and moved. So, the law of fixtures is not implicated, and the dryer is treated like any other piece of personal property.
The next issue is whether Jade abandoned her property in the rental unit when she left. Normally, any personal property left behind in a rental unit after a tenancy terminates becomes the property of the owner. However, if the tenant communicates an intent to return for the personal property, then the property has not been abandoned. Jade did not simply abandon the dryer. She told her roommate that she would return for it, the roommate agreed, and so Jade did not abandon it to the roommate. The landlord might argue that Jade abandoned the property because she never informed him that she would return to take the dryer. This argument would likely fail because Jade did express an intent to return for the dryer, and abandonment requires a strong showing of an intent to wholly and permanently divest oneself of property. Further, if the property is still being rented, then the landlord does not have a current right to enter the unit and take property anyway.
So, the dryer is not a fixture, and was not abandoned. So, the situation is one where the roommate is currently interfering with Jade’s possession of her property. What the roommate has done is not legal.
The remedy: try writing letters first. If your email attempts have been unsuccessful, it might be worth it to write an actual letter to your former roommate and the landlord, and CC it to your lawyer. Politely express in the letter that this is your last demand, and that the next step is court. That will communicate that you are serious, and will also create a nice paper trail.
If those letters do not work, sue for conversion in small claims court. Conversion is a tort that generally means someone took something from you, or has interfered with your ability to get to something you own. Here, the roommate has converted the dryer to his own, and has no valid defense. A small claims court action is effective for several reasons. First, in most states, it costs nothing or very little to file a small claims action. Second, in most states, attorneys are not allowed in small claims court, so there will be no legal fees, and the former roommate and landlord cannot sick their high-priced lawyers on you. Third, an actual court action often wakes people up and forces them to play nice. Right now, it is easy to ignore emails. When your former roommate gets served with a court action, it becomes more difficult to ignore.
Good luck Jade.
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