Possession of Personal Property
When property is loaned, the person in possession has a duty to care for it. The duty of care changes depending on the circumstances:
- Extreme care is required when property is loaned especially for your use. For example, if a neighbor loans you his lawn mower, you have the highest duty of care when it is in your possession.
- Ordinary care is required when property is loaned for the benefit of both the owner and user. If the same neighbor expects you to mow his lawn as well as yours with the loaned mower, your duty of care is the same you use with your own property—no more, no less.
- Minimal care is required when property is loaned for the benefit of the owner only. The only care you have to exercise in this situation is to not intentionally allow the property to be harmed. You do not have to do anything to care for the lawn mower the neighbor puts in your backyard while he is out of town. If the neighbor asks you to mow his lawn using his mower while he’s on vacation, you only owe minimal care.
A renter must return property in the same condition as when it as rented. Typically, rental agreements provide that "ordinary wear and tear" is acceptable.
Most heavy equipment rental agreements limit hours of use on the machinery in the agreement. An 8-hour limit is typical. Try to find a renter that limits the length of the rental period rather than hours of use if you plan to use the equipment for longer than 8 hours.
TIP: Compare two rental rates by calculating the amount you are paying per hour. For example, renting a tractor at $150 for 24 hours (less than $11/hour) and using it from 7:00 a.m. to 9:00 p.m. on a Saturday is a better deal than $100 for 8 hours ($12.50/hour) per hour of use.
Ownership never passes from the original owner when the property is stolen, even to an innocent purchaser. The property owner cannot lose title to, or ownership in, her property without her express consent. For example, stolen property that is sold or "fenced" to an innocent purchaser can always be recovered by the police and returned to the rightful owner.
Although cash and other negotiable instruments are personal property, the original owner can lose title to an innocent purchaser, since it is almost impossible to prove she originally owned the cash. The person who has given something in value in exchange for the stolen money, without the knowledge that it was stolen, acquires the right to the property. For example, the store that unknowingly sold a stereo to a bank robber who paid with the stolen cash is not required to give the money back.
Once personal property is abandoned, the prior owner no longer has any right to it. Abandonment requires:
- that the owner intended to abandon the property; and
- he actually leaves or throws it away.
Abandoned property belongs to whoever finds it and claims it. A purse left in a restaurant is not abandoned property since it is presumed it was not intentionally left. However, a box of clothes set out by a dumpster is probably abandoned since clothes generally are not stored in that fashion by their owners.
I left a motorcycle in a friend’s garage, and he moved while I was overseas. The new owner claims I have abandoned the motorcycle. Is he correct?
No. The new owner is incorrect. Unless you had an intention to "throw away" the motorcycle, you did not abandon it. Since you left the bike in your friend’s garage while you were out of the country, it appears you meant to store it until your return.
When I moved, I left some furniture I did not want in the garage. I want the furniture back, but the new owner says it is hers. Is she right?
Yes. You abandoned the furniture. By selling the home and moving without the furniture (and with no plan to come back and get it), you showed an intention to no longer own the items. Once you have abandoned property, you cannot reclaim it. The new owner gets to keep the furniture.
My roommate moved out in the middle of the night, owing rent and leaving no forwarding address. Can I sell the clothes he left?
Yes. Your roommate’s actions show a clear intent to abandon the clothing. His middle-of-the-night move is inconsistent with wanting to keep his clothing. If he had wanted the items, he would have taken them with him or left word with you concerning their disposition. You can sell the clothes and keep the proceeds.
I sold a file cabinet at a garage sale that contained some rare maps. The buyer is arguing I abandoned the maps and they belong to her. Is the buyer correct?
No. Your only intent was to sell the filing cabinet. Overlooking the maps is not the same as throwing them away. You did not abandon the property. The maps were "mislaid" and you always have a superior right to them over the finder.
I repair cameras and a woman dropped one off without leaving a name and address. The telephone number she gave is disconnected. It has been two months and there is no way for me to determine the owner. Has the camera been abandoned?
Yes. Without a name or address, the owner of the camera is unknown. Furthermore, you attempted to locate the owner by calling the phone number you were given, and you have had the camera in your shop much longer than the usual repair time. Based on the facts, it appears the woman intended to abandon the camera. You can do what you want with it, and the woman has no right to reclaim it at this late date.
My neighbor’s horses are malnourished and wander onto our property frequently. Has she abandoned them?
Yes. Under some state laws, neglected and mistreated animals are deemed to have been abandoned. In this case, animal control can seized the horses and they will not be returned to the owner until she reimburses the city for their care.
My partner in a business has pressured me to stay away from the premises, and as a result I have not been back in months. He claims he has the right to sell the equipment because I abandoned it. Is he correct?
No. An owner must abandon his property voluntarily. If an item is abandoned due to coercion or pressure, ownership is not relinquished. You have not voluntarily walked away from the premises; your partner has pressured you to stay away. He cannot say you intended to abandon any property in the business, and he has no right to sell the equipment.
I have not used a tractor that is at my brother’s farm in years. Have I abandoned it?
No. Mere nonuse of your property does not mean you intended to abandon it. You must have made a statement or acted in a way that positively showed you did not want to own the tractor anymore.
I just learned that my grandmother left me some jewelry when she died years ago. My cousin says it belongs to her now because I never claimed it. Is she right?
No. You can only give up ownership or abandon property if you know it is yours. Since you did not know the jewelry existed, you could not have abandoned it.
My friend who works at a bar told me I could look through items left at the coat check and take what I wanted. I took one home, but the customer recently showed up and wants it back. Do I have to give it to her?
Yes. Although your friend intended to abandon the items left behind in coat check, the actual owner did not. Your friend (and other employees of the bar) is a custodian entrusted with taking care of customers’ property. Whether or not the coat was abandoned depends on the intention of the coat’s owner and since she did not intend to throw it away, you must give it back.
Someone dumped a working lawn mower on my neighbor’s acreage and I picked it up while she was at work. My neighbor says it belongs to her because it was dumped on her property. Is she right?
No. The first person that takes possession of abandoned property becomes the new owner. In this case, your neighbor did not even know about the lawn mower and did nothing to show that she had taken possession of it. You own the lawn mower.
I put an old table in the apartment dumpster and my neighbor took it. Can I get it back if I have changed my mind about getting rid of it?
No. Once you abandoned the property, you have no more right to it than anyone else who finds the table.
The last revision date for this article was November 1, 2011.