abandoned property – Homeless Law Blog

May 31, 2012May 14, 2020

When is it legal to take stuff from the trash?

**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Usually, property that is left for trash collection is considered to be abandoned. It is perfectly legal to take abandoned property, but it isn’t always easy to tell if property is truly abandoned. The picture here shows household furnishings alongside trash cans left on the strip of grass between the sidewalk and the street just hours before the garbage truck is due. Obviously, those household furnishings have been left for trash collection.

But what if the chairs and desk were there without trash cans nearby or not on trash collection day? In those circumstances, it wouldn’t be so clear that this property was being abandoned. The owners might be planning to move it somewhere or to have friends come and get it. A safe way to avoid legal problems is to ask the owner if you can take the stuff.

If the stuff was next to or even inside of trash containers and those trash containers, whether dumpsters or ordinary trash cans, were on private property, then the stuff might not have been abandoned. The owner might still be thinking about taking it back into the house.

If the stuff wasn’t abandoned, then taking it away without the owner’s permission is the crime of theft. If you go onto private property to look through a dumpster or trash can, you can be charged with trespassing. When you go to do legal research about trash ownership and abandonment, you are not likely to find much relevant information in the category of theft. However you can find relevant cases and law journal articles in Google Scholar if you search for the words “dumpster” and “trespassing” in the same search. Reading those cases, you can get an idea of how courts analyze whether property was abandoned and whether looking in a dumpster was a trespass in that particular case. Here is one example in which somebody went hunting for discarded documents in a dumpster at a Walt Disney facility.

Searching for “dumpster” and “abandoned property” in Google Scholar, you will mainly find cases and articles about police conducting searches and seizures by going through trash containers. Even the police cannot look in or take non-abandoned trash without permission of the owner or a judge who has issued a search warrant. Here is one case with a good clear explanation of the law of abandoned trash. Smith v. State 510 P.2d 793 (Supreme Ct. Alaska, 1973). Here is the seminal Supreme Court case on the topic of police access to abandoned trash. California v. Greenwood 486 U.S. 35 (1967).

February 19, 2012March 17, 2021

How can a squatter get the actual title to the property?

The earlier post about squatter’s rights identifies the behavior that can give a squatter rights to property. But the legal right to property is only complete when the title is transferred. Usually, a title is transferred when a seller conveys property to a buyer.

A squatter attempting to get title is not buying from the seller; he or she is trying to get property for which no seller seems to exist. The process for obtaining the title without having the last owner sell it to the buyer is called an “action to quiet title.” Generally, there are three big steps involved in quieting a title:

Searching for anyone who has a claim to all or part of the property, even if the claim is just a right to use the property for some purpose and not to own it. For example, there might be a neighbor who has an easement that allows him to drive his truck through the property every morning. This search is a big expensive investigation. Most state laws about quieting title will require claimants to prove that they have thoroughly hunted in public records (vital and property) and placed multiple ads in various newspapers as ways of searching for the current property owner.
Filing documents in the appropriate court. In this step, you have to write and submit assorted documents according to all of the rules required in your jurisdiction. You might be able to find a sample of someone else’s action to quiet title by contacting or going to the court clerk’s office and paying for copies of the documents in that case. If the clerk’s office will not provide you with a full case file, they might at least give or direct you to a list of things that you have to include in your court filing. You can also look for sample forms in Justia. Here is an example from the Philadelphia, Pennsylvania section in Justia Forms: “Fraudulent Conveyance- Quiet Title Packet.” If you cannot find online forms for your county, you will need to go to a law library and find a book of standard real estate forms. Any form from a book must be re-designed to match the requirements in your county court’s document rules. Here are the quiet title instructions for Kansas. Here are the Colorado quiet title instructions. Here is North Dakota’s quiet title law. Here is an example of a Complaint to Quiet Title in Florida. Here is an example of a Complaint to Quiet Title in California.
Making your claim. When you write the court documents in an action to quiet title, you will have to tell about and show the proof that you satisfied all of your state’s requirements for adverse possession and that you also satisfied your state and county requirements for taking action to quiet title. This is a detailed descriptive writing project, not merely the simple work of completing a form. If your documents are accepted by the court, you will be assigned a date to appear in court. In court, you will have to answer questions that the judge asks you. If the current property owner does not come to court that day, you might have to do an additional procedure asking the judge to give you a “default judgment.” If the judge decides that you have satisfactorily proved your claim, he or she will give you a document to file with the deeds office.

May 2, 2008June 1, 2012

If you don’t own or rent a place in which to store your possessions, but store them in somebody else’s home, do the homeowners have the right to move or use your things? Do they have the right to throw them away if you are gone for any particular period of time?

There are two areas of law to look at in answering these questions: contracts and torts. A contracts analysis would consider whether the homeowner had agreed to take care of your things or at least store them for a particular amount of time and whether you had any obligations in return. Torts is the area of law that is known more casually as “personal injury.” A torts analysis would look at the act of “conversion” which means taking unauthorized control over someone else’s possession. A milder tort claim that might apply but would be harder to prove is “trespass against chattels” which is a claim against someone for unauthorized use of possessions.[i] Both a contract claim and a tort claim would be made in civil court, probably small claims court depending on the monetary damage that has been suffered.

In the contract dispute, the person whose possessions were taken or discarded seeks to show that the homeowner stopped protecting or storing the possessions. In other words, the terms of the storage bargain were violated. (A contract claim would probably apply to a situation involving the homeowner’s use of the stored possessions only if he used them so much that they wore out; only in that extreme kind of situation would it be likely to say that using the stuff breached an agreement to store and care for it.)

Since contract law comes from past cases, rather than statutes, the facts of each dispute are compared to previous cases with similar facts. Those facts have to be backed with good proof. If the possessions were in a church locker because that church had a policy that poor people could store things there for up to thirty days, then the court claim would have to include a copy of that written policy or admissions from church officials about the existence of the policy.[ii]

If the possessions were suddenly gone from a friend’s basement, the claim would have to demonstrate where and for how long the friend agreed to keep the stuff. Relatives of the homeowner might serve as witnesses to the agreement. Perhaps the homeless person can convince the court that he had another place where he would have moved his things had he not relied on this friend to keep them.

Clearly, there will be different facts involved with each situation, but the person trying to prove that an agreement existed always has to show as much detail as possible about the content of the agreement and the way both of the parties to the agreement knew those terms. Then, conveying that the terms were not followed will convince a court that the contract was breached.

To make the conversion claim, it is necessary to prove that even though the homeless owner of the possessions put them in the custody of the homeowner:
1. the homeowner took control over the stuff and
2. the homeless owner of the stuff could not get it back after asking for it or was not even able to ask for it.

Under the common law, and still in many states, the court claim to sue someone who has converted someone else’s possessions to his own is called “trover.” In filing that kind of lawsuit, it is proper to say something like, “the plaintiff is suing the defendant in trover to recover money damages for the television that plaintiff stored in defendant’s house and which defendant converted to his own possession by installing it in his den and subsequently refusing to return it to the plaintiff.” Although this example, which was only intended to show how the words “trover” and “conversion” relate to each other, makes a claim for money damages, that is not the only remedy for conversion. It is also proper to sue for return of the possessions, especially if they have sentimental value.

Note that a conversion claim is not only used when someone appropriates another person’s stuff. It is also correct to make a claim for conversion if someone storing things threw them away or gave them to someone else or otherwise made them unavailable to the owner.[iii]

See the Homeless Law Blog posts about court for information about bringing a contracts and/or torts case in civil court.

[i] It has been said that both of these tort claims are really the same when somebody takes and carries away another person’s possession. Wint. V. Alabama Eye and Tissue Bank, 675 So. 2d 383 (Ala. 1996).

[ii] This example is used to demonstrate that even though the word “homeowner” is generally being used in this section, the legal reasoning applies to any private favor-type of arrangement that is not as formal as having a fee-based storage deal.

[iii] To find cases involving conversions in the state where you live, look in a West case digest or a legal encyclopedia published by West using the topic “trover and conversion.” The digests and encyclopedias will show dozens of ways that people take control over other people’s things. They will also have lots of real-life examples of how people tried to get their stuff back or tried to prevent the person who was only supposed to store it from using it.

March 31, 2008May 25, 2017

What if you find something that is not labeled with the owner’s name, the way shopping carts are? Does that count as theft? Suppose you find something that seems impossible to trace, is it still illegal to have that item?

Having possession of lost property can count as theft. The basic definition of theft has three components:
1. possessing something that belongs to someone else
2. without the owner’s permission and
3. intending to deprive the owner of it[1]

If police believe that these three components are true, they can charge theft. Most state codes have a broad theft statute like this[2] as well as specialized varieties of theft such as burglary, robbery, and grand theft auto. In some states, the basic theft law might have an additional component: taking the item. This does not have to mean that someone took an item away from the owner while the owner was actually holding it; it can mean that he took it away from where he found it. [3] (Note that state codes might use the words “larceny” or “theft” instead of “stealing”.)

Alternatively, under the right circumstances, police can charge a finder of lost goods with possessing or receiving stolen property. The basic components of those crimes are: 1. that the accused knew the item was stolen, 2. that the accused had control over the item, 3. that the accused intended to keep the item from the owner and, 4. that the item really was stolen.<[4]

The Model Penal Code, a set of criminal law examples that most states have incorporated or adapted for their own criminal codes, has category of larceny specifically about keeping lost property. It has three components:
1. the finder knows that the item was mistakenly dropped or left behind
2. the finder has the opportunity to return the item, but does not return it and
3. the finder intends to deprive the owner of it[5]
Some of the states that have codified this law are New York[6], Montana[7][8],Idaho, and Oregon[9] There are hundreds of cases, from all over the country, analyzing the circumstances under which keeping found property can count as theft. To find these cases in case indexes published by West, look under the topic of Larceny key 10.

Some states, rather than punishing finders of lost items, have laws establishing incentives for returning found property. In Iowa, a long-time law requires that people whose lost property is returned pay ten percent of its value as a reward to the finder.[10] In Alabama and California, a finder is entitled to be repaid for money spent to protect or return lost property.[11] In Illinois and New Jersey, a finder is entitled to keep the lost property if the person who lost it has not claimed it within six months.[12] In Wisconsin, the wait is only ninety days. [13] In Massachusetts, Iowa, and New York, it is a full year.[14] In Oregon, a finder only has to report the finding to authorities if it is worth more than $100 and then wait three months to be named the legitimate owner.[15] Iowa has even taken the step of legislating that finders are not financially responsible for accidental damage done to found goods. [16]

After the police charge someone with a crime, a court determines whether the accused defendant is guilty of the crime. As you can see from the previous paragraphs, all of the possible theft charges against finders of lost property included two hard-to-prove facts: what the finder knew and what he intended.

Failure to return found property requires proof that the finder knew that the item was lost while theft requires proof that he knew the item still belonged to another person and receiving stolen property requires that he knew that the item was stolen. Intent is the same in all three charges; he intended to deprive the owner of the item. Since knowledge and intent both happen inside the head, a finder can defend himself by disproving the accusations about what he knew or intended when he found the item.

Here is an example to consider:
Suppose a homeless person finds a coat on a bench in the park where he sleeps and, because the evening is getting cold, he puts the coat on and plans to keep it for the winter. A month later, the police catch him with the coat and arrest him.

To show that he did not know the coat was lost or stolen when he found it, he can say and demonstrate that he believed the coat was abandoned or even donated. He might cross examine a police officer to get testimony about the known presence of homeless people in the park. He might bring other homeless people as witnesses to testify that people bring clothing and food donations to them in the park. He might be able to prove that there was often garbage near this bench which led him to believe that this coat may also have been tossed there as garbage.

To show that he did not intend to deprive the owner of the coat, he might ask witnesses to testify that they continued to see him residing in the park after finding the coat which was a way of making the coat visible to the owner if he came back looking for it. He might say that he wore the coat intending to protect it from being blown away or discarded before the owner came back for it.

There are many ways of defending against a charge that by keeping a found item someone has broken the law. But if a found item seems valuable or can be traced to an owner, a finder should know that the item was lost or stolen and a prosecutor will likely accuse him of knowing that if he is caught with the item. Finders can avoid criminal charges by taking valuables and labeled items to the police before assuming that they can keep them.

[i] Black’s Law Dictionary 1516 (8th ed. 1999).[ii] 50 Am. Jur. 2d. Larceny § 2 (2006).[iii] 50 Am. Jur. 2d. Larceny § 14 (2006).[iv] Model Penal Code §223.6 (1962). See also, Wayne R. LaFave, Criminal Law §20.2 (4^th Ed. 2003); Carroll J. Miller, What Constitutes “Constructive” Possession of Stolen Property to Establish the Requisite Element of Possession Supporting an Offense of Receiving Stolen Property” 30 A.L.R. 4^th 488 (1984).[v] Model Penal Code §223.5 declares that “A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.” Model Penal Code § 2235 (1962).

[vi] N.Y. Penal Law § 155.05 (McKinney 2007); N.Y. Penal Law § 165.40 (McKinney 2007).

[vii] Mont. Code Ann. § 45-6-302 (2005).

[viii] Idaho Code §18-2403(2)(c) (Michie 2007).

[ix] OR. REV. STAT. § 164.065 (2006).

[x] Iowa Code § 556F.13 (2004); Flood v. City Nat’l. Bank, 253 N.W. 509 (Iowa 1934); State v. Couch, 92 N.W. 2d 580, 582 (Iowa 1958).

[xi] Auto. Ins. Co. v. Kirby, 144 So. 123 (Ala. Ct. App. 1932); Cal. Civ. Code § 2080 (West 2007).

[xii] 765 Ill. Comp. Stat. Ann. 1020/28 (West 2006); N.J. Stat. Ann. § 40A:14-157 (West 2007).

[xiii] Wis. Stat. § 170.10 (2006).

[xiv] Mass. Gen. Laws Ann. ch. 134, § 4 (West 2007); Iowa Code § 556F.11 (2005); N.Y. Pers. Prop. § 257 (McKinney 2007).

[xv] Or. Rev. Stat. § 98.005 (2006).

[xvi] Iowa Code § 556F.16 (2005).

March 24, 2008May 6, 2015

What is “squatting”? Is there such a thing as “squatter’s rights”?

“Squatting” is an old casual word for occupying a place that legally belongs to someone else when that owner hasn’t given permission for the occupation. “Squatter’s rights” is an assertion that someone is entitled to own land after he’s been squatting there. Although “squatter’s rights” is an old concept, it is certainly not casual. The legal name for squatter’s rights is “adverse possession.”

To see the research process for getting actual title to the property, see this post.

The doctrine of adverse possession is a venerable legal standard by which a possessor of land can become the owner of that land without buying it. Generally, it is only possible to get control of privately-owned land by adverse possession; government property like abandoned public housing units, plots of land in alleys, empty schools, and other government-owned land and buildings cannot be taken-over by individuals.[i] If the property is owned by individuals, a non-government organization, or a private business, there are several things that a land possessor has to accomplish and prove in order to become the legal owner. Until all of these things are accomplished, the possessor, i.e., the squatter, is considered an illegal trespasser.

The possessor first has to possess the land in a way that is open. It can’t be hidden or secret; he can’t just put his own subtle markers around the perimeter and later claim that those markers denoted his possession. The test that courts apply to decide whether possession has been “open” is to ask whether the possession is so visible that “a reasonably prudent owner in the exercise of ordinary care would have discovered that someone was asserting a claim to the property adverse to his.”[ii]

Next, in order to qualify for adverse possession, the possession must be continuous. If the possessor only spends the one day a month there or goes there just to pick apples sometimes, it isn’t continuous.[iii] If the owner has the possessor jailed for trespassing, the possession is also not continuous because the time spent in jail breaks the continuation of time that the possessor expected to spend on the land. For how long does this continuous possession have to go on before title is granted? That is determined differently in each state. Generally, it ranges between five and twenty-one years.[iv]

Third, the possession must be exclusive. This means that the possessor and the owner are not sharing the property. It does not necessarily mean that the possessor has to be the only one on the property.[v] Multiple possessors could eventually become co-owners if they share the property in the same way for the same amount of time.

Consider the example of a homeless person who consistently stays on a particular piece of land. Maybe there are other people, homeless or not, who join him by staying on the land for weeks or months. The owner, however, almost never occupies the land during the years that this homeless person occupies it. This homeless person will have satisfied the legal requirement that his possession of the land was exclusive.

If the story is changed slightly so that two homeless people, not members of the same family, occupy the property together for the legal number of years needed for adverse possession, they both get to claim exclusive possession. Even though neither one was alone on the property, those two people together controlled the property exclusively, without the owner’s involvement.

Fourth, the possession must be adverse. This means that it truly has to be without the owner’s permission. Sometimes, court cases use the word “hostile” to show that the possessor’s use of the property is against the owner’s interests. This criterion doesn’t require that the possessor be mean to the owner, it only requires that his reason for using the property is contrary to the owner’s right to have his land left alone.[vi]

When there are multiple owners and one of them has given someone permission to be on the property, the possession is no longer considered adverse and the possessor cannot hope to gain ownership of the property under the doctrine of adverse possession. Permission does not always come in the form of a clear statement like, “sure, it’s okay with me if you stay here.” It may be that the owner knows that the possessor is there, but does not interfere with the possession.[vii]

In sum, it is possible for squatters to get a legal claim to the property where they squat, but only if it is done openly in a clear obvious way, if the squatting lasts for the number of years required in that state, if the squatter had pretty much exclusive possession of the property for all of those years, and if the squatting was definitely against the owner’s interests in the property. To see the research process for getting actual title to the property, see this post.

RESEARCH TIP: To find the adverse possession laws in your state, try one of these strategies:
1. Look in a West case Digest for your state or region using the topic “Adverse Possession” and Key Number 13. 2. Look in the volume of your state’s statutory code covering “property.” If there isn’t a volume or major section on that topic, look for “adverse possession” in the alphabetical index to the code. It might be listed under “A” or it might be listed as a sub-topic within “property” or “real property” or “real estate.” Try navigating through the online version of your state code. 3. Look in a library catalog for a general book about property law in your state.

[i] R.P. Davis, Acquisition by Adverse Possession or Use of Public Property Held By Municipal Corporation or Other Governmental Unit Otherwise Than for Streets, Alleys, Parks, or Common, 55 A.L.R. 2d. 554 (1957 & 2006). To read about adverse possession of streets and alleys, see 11 McQuillin on Municipal Corporations §30.179 (1991 & Supp. 2006).

[ii] John F. Major, Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261, §8 (2006).

[iii] “Acts which are consistent with sporadic trespass are insufficient to apprise a reasonably diligent owner of any adverse claim” Pierz v. Gorski, 276 N.W. 2d 352, 355 (Wis. Ct. App. 1979); “An annual entry upon another man’s lands, to cut timber, to feed cattle, to hunt or fish, can never give title, and the cultivation of a truck-patch during the summer as incidental to the other pursuits, does not redeem such entries from the character of occasional trespasses.” Wheeler v. Winn, 53 Pa. 122, 131 (Pa. 1866); “(1) mowing and maintaining the property each and every summer; (2) storing their lake equipment on the property each and every winter; and (3) allowing their children and grandchildren to play on the property… [are] best described as occasional and sporadic, failing to satisfy the elements of adverse possession.” Standard v. Urban, 453 N.W.2d. 733, 735 (Minn. Ct. App. 1990).

[iv] Examples: District of Columbia – 15 years, D.C. Code § 16-1113 (LexisNexis 2006); Florida – 7 years, Fl. Stat. Ann. § 95.16 (West 2006); Minnesota – 15 years, Minn. Stat. Ann. § 541.02 (West 2005); Nevada – 5 years, Nev. Rev. Stat. Ann. §§ 11.070, 11.110, 11.150 (West 2006); Ohio – 21 years, Ohio Rev. Code Ann. § 2305.04 (LexisNexis 2006); Washington – 7 years, Wash. Rev. Code Ann. § 7.28.050 (LexisNexis 2007).

[v] Bryant v. Palmer Coking Coal Co., 936 P.2d 1163 (Wash. Ct. App. 1997); Roche v. Town of Fairfield, 442 A.2d 911 (Conn. 1982).

[vi] Griffin v. Brian Dev., 938 So.2d 337 (Miss. Ct. App. 2006); Schuler v. Oldervik, 143 P.2d 1197 (Colo. Ct. App. 2006); Wood v. Bell, 902 A.2d 843 (Me. 2006).

[vii] Jonathan M. Purver, 2 C.J.S. Adverse Possession § 80 (2003).