Perhaps you had a tenant who left some possessions behind, or you agreed to store some things for a friend or family member who has now gone MIA. If you find yourself in possession of abandoned personal property don’t know what to do with it, Alberta has several legislative schemes in place to deal with abandoned personal property in different scenarios.
How is personal property abandoned by a residential tenant dealt with?
In the case of a residential tenancy, section 31 of the Residential Tenancies Act, SA 2004, C R-17.1 (“RTA”) outlines the process for a landlord to deal with abandoned personal property. The RTA defines “abandoned goods” as goods left by a tenant who has either abandoned the leased premises or who has vacated the leased premises and whose tenancy has expired or been terminated.
Per s 31(3), the landlord may sell the abandoned goods by a means and for a price the landlord believes is reasonable if the landlord believes either:
- That storage of the goods would be unsanitary or unsafe or would rapidly result in total or substantial depreciation in their market value; or
- that the goods are worth $2,000.00 or more but that the cost of removing, storage, and selling would exceed the proceeds.
Otherwise, per s 31(4), the landlord must store the abandoned goods for the tenant for 30 days, after which the landlord may dispose of the abandoned goods by public auction or (with court approval) private sale.
Per s 31(9) of the RTA, the landlord may apply the proceeds of any sale of abandoned goods to
- the landlord’s proper costs of removing, storing, and selling the goods, and
- satisfy the tenant’s liabilities to the landlord in respect of the tenancy, if the liabilities are established in accordance with the regulations.
For the latter, this refers to unpaid rent or for damage to the property – to deduct the same the landlord must complete an affidavit and mail the same to the tenant and Director of Residential Tenancies in accordance with the Regulations.
Thereafter, the landlord must then pay any surplus to the Minister.
Finally, per ss 31(13)(14) of the RTA, for 3 years after the sale of the goods, the landlord must keep a record of the sale which includes:
- a description of the goods;
- the period for which and the location at which they were stored; and
- the particulars of the sale, the amount claimed by the landlord for the landlord’s costs or for any unpaid tenant liabilities, and the amount, if any, paid to the Minister.
In the case of a commercial tenancy, the RTA does not apply. Rather, the commercial lease will usually describe what constitutes abandoned personal property and outline what can be done with it.
How is personal property abandoned by a non-tenant dealt with?
The government of Alberta keeps a central registry of personal property that is unclaimed and presumed abandoned by its owner. The relevant legislation for this scheme is the Unclaimed Personal Property and Vested Property Act, SA 2007, c U-1.5 (“UPPVPA”). Subject to certain exceptions, the UPPVPA applies to unclaimed tangible property worth $1,000.00 or more, and unclaimed intangible property (for example, an interest evidenced by money or a cheque) worth $250.00 or more.
Per s 4(1), personal property is presumed to be abandoned if it is unclaimed by the apparent owner within the applicable periods prescribed in the regulations. Per s 4(3), personal property is unclaimed if, within the applicable period prescribed by the regulations, the apparent owner has not either:
- communicated with the holder concerning the personal property or the account in which the personal property is held (i) in writing, or (ii) by other means reflected in a record prepared by or on behalf of the holder at the time of the communication; or
- otherwise indicated an interest in the personal property by an action in accordance with the regulations.
Holders of abandoned personal property must notify property owners between 3 and 8 months prior to transferring the property to TRA (see s 5 of the UPPVPA for the specific notice requirements). Thereafter, the holder of the abandoned personal property must report and transfer the abandoned personal property (or its cash equivalent) to the Alberta Treasury Board and Finance, Tax and Revenue Administration (TRA). The owner can make a claim for that property. For more information, see the Government of Alberta’s website.
How are abandoned motor vehicles dealt with?
Section 72(1) of the Traffic Safety Act, RSA 2000, c T-6 (“TSA”) prohibits persons from abandoning vehicles on a highway or public or private property without the consent of the owner or person in possession or control of the property. For vehicles left on private property, s 72(2)(b) of the TSA states that a vehicle will be deemed to have been abandoned if it has been left standing on said private property for more than 72 consecutive hours without the consent of the owner or person in possession or control of the private property.
Though the TSA does not specifically require the owner or person in possession or control of the private property to provide notice to the vehicle’s owner to remove the vehicle, providing reasonable notice to the vehicle’s owner (if known) to remove the vehicle would generally be a prudent first step. Thereafter, to remove an abandoned vehicle, the owner or person in possession or control of the private property may notify a police or peace officer (collectively defined as “Peace Officers” in the TSA). Sections 77(1)-(2) give Peace Officers the authority to remove abandoned vehicles and either store the vehicle or, if the Peace Officer believes on reasonable grounds that the vehicle is worthless, send the vehicle to a salvage yard or municipal dump for disposal.
It should be noted that abandoned vehicles to which ss 69(8) or 77 of the TSA applies do not constitute tangible personal property for the purposes of the UPPVPA.
Can you charge the owner of the abandoned personal property for storage or for the cost of caring for the property?
In certain circumstances, the Possessory Liens Act, RSA 2000, c P-19 (“PLA”) gives persons storing personal property for others a mechanism to collect reasonable costs incurred for caring for the personal property and/or to collect storage charges. Section 4 of the PLA states that in addition to bailees for reward, gratuitous bailees may have a lien on a chattel bailed to the bailee by the owner of the chattel (the bailor) for any charges due under a contract. Additionally, per s 4(2), if there is nothing due to the bailee for bailment, the bailee may still have a lien on the chattel for the bailee’s reasonable charges for caring for it in two circumstances:
- After the term of the contract for bailment has expired; or
- If there is no term in the contract, or no contract at all, then after the expiration of the time specified in a notice given by the bailee to the bailor to take possession of the chattel.
What this means is that if a person (the bailee) is storing the personal property of a bailor for no consideration and under no agreement (i.e., a gratuitous bailment), the bailee must notify the bailor to come to collect their property before the expiration of a deadline as determined by the bailee. Only after the expiration of this first notice can the bailee then commence charging the bailor for the bailee’s reasonable costs for caring for the property. However, the bailee must have evidence of incurring reasonable charges for caring for the property to collect the same from the bailor – this was held by the Court of King’s Bench in Pigeon Lake Golf Club (1991) Holdings Ltd. v Greene, 2019 ABQB 718, following a review of the PLA (see paras 25 and 28).
Reasonable charges for caring for the property are different from storage charges. Storage charges are addressed in s 9 of the PLA. Storage charges may be charged if the contract for bailment permits, or, in the case of a motor vehicle, for ordinary and reasonable charges for the storage of the vehicle during the period of detention.
If there are no debt or storage charges owed, then following the expiration of the time set out in the s 4 first notice, a second notice must then be sent to the bailor per s 10. This second notice must specify the property detained and state that an application will be made to the court on a specified date and time for permission to sell the property.
If a debt and/or storage charges are owed, the s 10 notice must also include the amount owing and a reasonable time and place for payment of the debt (see s 10(1)(a) for the notice requirements where a debt or storage charges are owed). However, notwithstanding s 10, if certain conditions are met, s 12 permits the bailee and lienholder (if they believe on reasonable grounds that the property has a total market value of less than $350.00) to sell the property for a price they believe is reasonable.
It’s very important to note that the PLA does not create liens. Rather, it creates a statutory means by which liens that arise at common law may be enforced. Per Pigeon Lake Golf Club v Greene, the PLA “gives holders of common law liens the right to sell the property to enforce the debt of which the lien arises” (para 15). Therefore, to make use of the mechanisms under the PLA, the bailee, even a gratuitous bailee, must also be a lienholder. See Pigeon Lake Golf Club (1991) Holdings Ltd. v Greene, 2019 ABQB 718, for a further review of the PLA.
Alberta has several legislative schemes in place to deal with abandoned personal property in different scenarios including the Residential Tenancies Act, the Unclaimed Personal Property and Vested Property Act, the Traffic Safety Act, and the Possessory Liens Act. For more information, or if you require assistance dealing with abandoned personal property, contact the lawyers at Stillman LLP.
By Jessie Bakker
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.