You grant a lease or a licence, and the tenant or licensee (in
this note, we will refer to both as "tenant") moves out
leaving fixtures or other items in the premises. (Fixtures are
items which are fixed to buildings or land in a way which indicates
that they are not meant to ever be removed and reused somewhere
else, and non-fixtures are items such as furniture, computers and
other moveable items – referred to in this note as
A landlord's rights in relation to abandoned items will
depend very much on the terms of the written lease or licence
document. While most leases say something about this issue, some
leases, and many licence documents, do not deal with the issue,
which can lead to significant problems for both parties.
Where the lease or licence does not deal with the issue
If the lease or licence does not properly deal with the issue of
abandoned goods, then the legal position depends upon whether the
goods are fixtures or chattels.
The legal position in relation to fixtures has significant
consequences for the parties. If there is a fixture which
previously belonged to the tenant, that fixture will become the
property of the landlord on the expiry or earlier termination of
the lease or licence. This means that the landlord is free to deal
with the fixture as it thinks fit. It also means that the landlord
cannot require the tenant to remove the fixture. If the fixture is
valuable, this position could significantly favour the landlord. If
the fixture has no significant value, and the landlord needs to
remove it and dispose of it, the position could significantly
disadvantage the landlord.
A landlord might assume that it is entitled to remove and
dispose of abandoned chattels on the expiry or earlier termination
of a lease or licence. However, the position in New South Wales is
governed by the Uncollected Goods Act, 1995. This Act sets
out a procedure that the landlord must follow if it wishes to
dispose of uncollected goods. The procedure is onerous and may
require the landlord to apply to the Local Court for orders
authorising it to dispose of uncollected goods, and even where a
court order is not required, may require the landlord to give a
tenant a lengthy period of time to collect their goods. This can be
a significant problem for a landlord.
Where the lease or licence deals with uncollected goods
Thankfully, there is a solution to the problems outlined above.
The common law, and the Uncollected Goods Act, both apply
subject to any agreement between the parties. This means that if
the lease or licence document sets out the procedure to be followed
by the parties in relation to uncollected goods, the parties may
safely follow that procedure.
In practice, it is common for lease documents to say something
about the issue. Licence documents, which tend to be less
comprehensive, often fail to address the issue.
Whether you are a landlord or a tenant, you should ensure that
the relevant lease or licence sets out a procedure in relation to
uncollected goods. The procedure should address the following
The tenant should be allowed a fixed period of time after
expiry or termination of lease or licence to remove its property,
and if the tenant does not remove its property in that period the
landlord should have the right to remove it, store it and dispose
of it as it thinks fit.
The tenant should pay the landlord's costs of removing,
storing and disposing of items.
The landlord should be entitled to apply the proceeds to sale
of such items towards payment of such costs and towards any other
monies owing by the tenant to the landlord.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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