Vacant and Abandoned: Can Creditors Discard Personal Property Following a Foreclosure in Ohio?

Personal property is often left by the prior owner or a tenant following a foreclosure. Sometimes it is difficult to determine whether the personal property has been abandoned. I am often asked what must be done with the personal property left behind once the creditor takes possession of an otherwise vacant property.  Can the creditor discard the personal property, or is an eviction required to have the personal property removed? 

Unfortunately, Ohio does not have a statute governing the disposition of personal belongings left at a property.  The only legal remedy would be to commence an eviction, and there is no legal process in place to have the personal property discarded in lieu of an eviction. Alternatively, a creditor may choose to resort to self-help by discarding the personal property without the benefit of a legal proceeding, but by choosing to do so it may be exposing itself to some potential risk.   

The question in legal terms is whether the creditor has committed an act of conversion by discarding the personal property, and can it be held liable for damages caused by the conversion?  

In Ohio, conversion is defined as the unauthorized act of control or exercise of dominion by one party over the personal property of a second party which deprives the second party of the possession of the property in denial of or under a claim inconsistent with the right of the second party.¹  The essential elements for a cause of action in conversion are: 1) Plaintiff's ownership or interest in the property; 2) Plaintiff's actual or constructive possession or immediate right to possession of the property; 3) Defendant's wrongful interference with plaintiff's property rights; and 4) Damages.²  In addition, the plaintiff must also present a demand for the return of the personal property prior to commencing the suit and be met with a refusal to return the items.³

The primary defense to a conversion claim is the abandonment of the discarded personal property.  In other words, a claim of conversion could not prevail if the owner of the personal property had previously abandoned what was left behind.  Consideration of this defense is essential in determining whether or not to resort to the self-help remedy of removing the personal property in lieu of an eviction.

If the property is truly abandoned, then self-help would be an appropriate remedy, but abandonment is difficult to establish.  Abandoned property is property over which the owner has relinquished all right, title, claim and possession with the intention of not reclaiming it or resuming its ownership, possession or enjoyment.⁴  Mere non-use is not sufficient to establish the fact of abandonment, absent other evidence tending to prove the intent to abandon.⁵  Intent to abandon must be shown by unequivocal and decisive acts indicative of abandonment.⁶ 

Courts throughout Ohio will scrutinize the facts and the evidence on a case-by-case basis to determine whether intent to abandon exists.  For instance, when a tenant was given three opportunities to retrieve belongings after an eviction, and failed to do so, the court found intent to abandon.⁷  Intent to abandon was also found when a tenant, upon request was granted two weeks to remove belongings from property, and the tenant retrieved some items, leaving behind many others.⁸  On the other hand, when the tenant testified that he had intended to sell possessions left in property, but was prevented from doing so when he was locked out of the property, the Court found no intent to abandon.⁹  Nor was there any intent to abandon when the tenant, after being locked out of a business, had contacted the landlord and requested return of personal belongings.¹⁰  Some specific operative facts must exist to demonstrate the intent of the prior owner or tenant to abandon the personal property left behind, otherwise a creditor could be liable for damages for resorting to self-help.

Practically speaking, a creditor needs to try to create some operative facts to demonstrate the owner of the personal property's intent to abandon before resorting to self-help.  Communicating with the owner of the personal property by phone, or mail, or posting written notices at the property, requesting to have the personal property removed could help to establish such an intent, but these methods are still not ironclad.¹¹  A more determinate solution would be to have the owner of the personal property execute a Personal Property Release expressing their intention to abandon the belongings left behind.  Naturally, it is not always possible to obtain a written release because the prior owners or tenants have left the property, and cannot be easily located.  

If a determination has been made to resort to self-help, a creditor should carefully document by taking photos of every item found at the property, as well as the condition of the items.  These photos will not necessarily shield a creditor from potential claims, but could be used as evidence to establish the value of the personal property left behind in case it becomes necessary to defend against a lawsuit for conversion.  The creditor should also consider placing the items in storage before discarding the items if it appears that the items are valuable.  If a demand is subsequently made by the owner for the return of the personal property, then the items could be retrieved from storage and returned.  Understandably, the desired course of action would likely be to discard the personal property, but such a course of action is never without some risk. 

¹ Saydell v. Geppetto's Pizza & Ribs (1994), 100 Ohio App. 3d 111, 652 N.E.2d 218 
² Preston Trucking Co. V. Lindamood, 1987 Ohio App. LEXIS 9223 (Oct. 19, 1987). 
³ Ohio Telephone Equipment & Sales, Inc. V. Hadler Realty Co. (1985), 24 Ohio App. 3d 91, 493 N.E.2d 289
⁴ Doughman v. Long (1987), 42 Ohio App.3d 17, 21, 536 N.E.2d 394, citing Jackson v. Steinberg (1949), 186 Ore. 129, 205 P.2d 562.
⁵ Long v. Noah's Lost Ark Inc., 158 Ohio App.3d 206, 814 N.E.2d 555, 2004-Ohio-4155, ¶ 35 (7th Dist.)
⁶ Erie Metroparks Bd. of Commrs. v. Key Trust Co. of Ohio, 145 Ohio App.3d 782, 790, 2001 Ohio 2888 at P 47, 764 N.E.2d 509
⁷ Covey v. Natural Foods, Inc., 2004-Ohio-1336 
⁸ Durben v. Malek, 2014-Ohio-2611 
⁹ Perez Bar & Grill v. Schneider, 2012-Ohio-5820 
¹⁰ Nguyen v. Chen, 2014-Ohio-5188 
¹¹ Beavers v. PNC Bank, N.A., 2013-Ohio-5318