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JW, LLC v. Ayer

Supreme Court of Vermont

July 18, 2014

JW, LLC
v.
Brian M. Ayer and Debbie Martell

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Chittenden Unit, Civil Division. Geoffrey W. Crawford, J.

The court's order requiring landlord to return tenant's property is reversed. The matter is remanded for proceedings consistent with this decision.

Christopher A. Micciche, Burlington, for Plaintiff-Appellant.

Brian M. Ayer, Defendants-Appellees, Pro se, Grand Isle.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morse, J. (Ret.), Specially Assigned

OPINION

Dooley, J.

[¶1] This landlord-tenant dispute concerns the status of tenants' personal property, which landlord[1] cleared from the leased premises at the time a writ of possession was executed. The trial court concluded that landlord did not rightfully have possession of the property and ordered landlord to return it to tenant. Landlord argues that pursuant to statute he is entitled to retain the property, and, in the alternative, the court erred in denying his request for a writ of attachment for the property. We reverse and remand.

[¶2] The trial court found the following facts. In February 2005, tenants began leasing a single-family home from landlord. Tenants resided in the home with their children and animals, including dogs and chickens. At the time tenants moved in, the house was relatively new and in excellent condition. The monthly rent was $1300. Tenants paid no rent in March and April 2012. They paid rent in May 2012 plus $300 in arrears, but made no further rental payments.

[¶3] Landlord filed for eviction in July 2012. The court issued a rent escrow order. Tenants made only a partial rental payment in August 2012, and the court issued an order for a writ of possession. The writ issued on August 10, 2012 and was served on August 22, 2012. The writ stated that tenants had to vacate the premises by midnight on September 6, 2012. On the return of service, the sheriff noted that he had explained the writ and tenants had no questions, and, although tenants refused to take the paperwork, the sheriff left it at the residence.

[¶4] The writ was executed on September 7, 2012 by the sheriff, who removed tenants from the home. Landlord was present with his lawyer. The house and surrounding area were filled with tenants' personal property, including auto technician work tools belonging to tenant Brian Ayer. Landlord hired a moving crew to clear away tenants' personal property. Some items were discarded as trash, and other property was kept by landlord in various storage facilities. The home required extensive cleaning and repairs to make it habitable again.

[¶5] Landlord denied tenant further access to the residence to claim property. Landlord also denied tenant access to the items that landlord had retained. Landlord claimed that the justification for retaining tenants' personal property was based on two statutes. The first relates to property left in an abandoned or vacated dwelling unit, 9 V.S.A. § 4462(c), and states:

If any property, except trash, garbage, or refuse, is unclaimed by a tenant who has abandoned a dwelling unit, the landlord shall give written notice to the tenant mailed to the tenant's last known address that the landlord intends to dispose of the property after 60 days if the tenant has not claimed the property and paid any reasonable storage and other fees incurred by the landlord. The landlord shall place the property in a safe, dry, secured location, but may dispose of any trash, garbage, or refuse left by the ...

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