2014 VT 71


JW, LLC v. Ayer and Martell
(2013-089)
 
2014 VT 71
 
[Filed 18-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 71

 

No. 2013-089

 

JW, LLC


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Brian M. Ayer and Debbie Martell


December Term, 2013


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Christopher A. Micciche, Burlington, for
Plaintiff-Appellant.
 
Brian M. Ayer, Pro Se, Grand Isle, for Defendants-Appellees.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund
and Robinson, JJ., and Morse, J. (Ret.),
                    
Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   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 tenant. The tenant may
claim the property by providing the landlord with the following within 60 days
after the date of the notice:
 
  (1) A
reasonable written description of the property; and 
 
  (2) Payment
of the fair and reasonable cost of storage and any related reasonable expenses
incurred by the landlord. 
 
  If the
tenant does not claim the property within the required time, the property shall
become the property of the landlord.  If the tenant claims the property
within the required time, the landlord shall immediately make the property
available to the tenant at a reasonable place and the tenant shall take
possession of the property at that time and place.
 
The second
relevant statute is about property remaining on property following eviction,
and states in part: “A landlord may dispose of any personal property remaining in
a dwelling unit or leased premises without notice or liability to the tenant or
owner of the personal property: (1) 15 days after a writ of possession is
served pursuant to this chapter.”  12 V.S.A. § 4854a(a).
¶ 6.            
Landlord initially viewed tenants’ personal items as abandoned property
under 9 V.S.A. § 4462(c), and demanded that within sixty days tenants pay
$10,000 for the fair and reasonable cost of removal and storage of the
property.  Tenants responded by seeking a court order requiring landlord
to release their property.  Tenants argued that landlord’s moving and
storage costs were unreasonably high, and they offered $2700 for the cost of
storage.  The court held a hearing on the motion at which both landlord
and tenants testified.  At the close of the hearing, the court concluded
that the property was not “abandoned” within the meaning of the statute and
granted tenants’ motion for return of the property.  The court signed an
order directing landlord to release the property to tenant.  Landlord
responded by releasing some, but not all of tenants’ property, and by moving
for a writ of attachment.  
¶ 7.            
The court consolidated the request for a writ of attachment with the
final hearing on damages.  At the hearing, landlord and tenant Ayer
testified concerning the property items that had not been returned to
tenants.  This list included a yellow tool box with tenant Ayer’s
automotive tools, some carpentry tools, a car dolly, an all-terrain vehicle, a
muzzle loader in a gun case, a 5-drawer tool cart, and a small tool box. 
Tenant Ayer testified at the hearing that the automotive tools were necessary
for him to do his auto-mechanic job.  
¶ 8.            
At the hearing, landlord for the first time argued that he could legally
retain the property under 12 V.S.A. § 4854a, which became effective before the
writ of possession was filed in this case.  2011, No.
137 (Adj. Sess.), § 11 (effective May 14, 2012).  Landlord argued
that because tenants did not remove their property within fifteen days after
service of the writ of possession, he was free to do whatever he wanted with
the property including keeping it.  
¶ 9.            
The court issued a final order the same day.  The court concluded
that landlord was entitled to damages for back rent, costs to repair and clean
the property, and attorney’s fees.  Subtracting amounts tenant paid as a
security deposit and for rent escrow, the court granted landlord judgment in
the amount of $31,721.  As to the personal property, the court rejected
landlord’s contention that once fifteen days had passed from service of the
writ of possession, landlord was entitled to retain tenants’ personal property
remaining on the leased premises.  The court concluded that § 4854a
did not confer on landlord ownership of tenants’ personal property that
remained in the dwelling.  The court construed the section as dealing with
“the disposal of trash and valueless property.”  The court explained its
view that § 4854a was 
limited
to shielding the landlord from “liability to the tenant or owner of the
personal property” if he or she disposes of it after 15 days.  It does not
confer ownership.  If § 4854a were to confer ownership of any
property remaining on the premises 15 days after service of the writ, it would
effectively repeal 9 V.S.A. § 4462 which deals with unclaimed property
“except trash, garbage or refuse” remaining in a dwelling unit “no longer
occupied as a full-time residence.”  
 
The court
explained if a landlord evicts a tenant and there is personal property that is
not trash, the landlord is still required to make reasonable efforts to find
out what tenant plans to do with the property and to store the property for
sixty days.  The court found that in this case because tenant had demanded
the property at the time of eviction and before landlord incurred any moving or
storage costs, tenant was entitled to have the personal property without any
storage payment.  The court explained that landlord could not seize
tenants’ personal property to satisfy an unrelated debt—the money owed to
landlord for the unpaid rent and damage to the property—without first obtaining
approval for the action by seeking a writ of attachment or other order. 
The court ordered that all personal property be returned to plaintiff within
seventy-two hours.  
¶ 10.        
Landlord filed a notice of appeal and moved to stay the order requiring
the return of property pending appeal.  The court granted the stay,
subject to tenants’ right to access the property for purposes of inspection, appraisal,
and preparing an inventory.  
¶ 11.        
The main issue on appeal is the proper construction of 12 V.S.A.
§ 4854a.  This is a question of law that we review de novo.  Chayer
v. Ethan Allen, Inc., 2008 VT 45, ¶ 9, 183 Vt. 439, 954
A.2d 783.  “The goal in interpreting statutes is to effectuate
legislative intent.”  Vt. Human Rights Comm’n v. State, Agency of
Transp., 2012 VT 45, ¶ 5, 191 Vt. 485, 49 A.3d 149.  To determine this
intent, this Court first looks at the statute’s plain meaning and where the
language is unambiguous, it is enforced according to its express meaning. 
Id.  If the meaning of the language is ambiguous, “we determine its
intent from a consideration of the whole and every part of the statute, the
subject matter, the effects and consequences, and the reason and spirit of the
law.”  Ran-Mar, Inc. v. Town of Berlin, 2006 VT 117, ¶ 5, 181 Vt.
26, 912 A.2d 984 (quotation omitted).  
¶ 12.        
Landlord argues that the court misconstrued the statutory scheme.
 Landlord contends that while 9 V.S.A. § 4462 addresses a landlord’s
responsibilities concerning property left behind when a tenant voluntarily
departs from a rental unit, it does not provide instruction concerning a
landlord’s rights or responsibilities as to property remaining in a rental unit
after a  tenant is removed through an ejectment proceeding. 
According to landlord, 12 V.S.A. § 4854a was passed to fill that gap in
the law and the Legislature chose to give landlords the right to dispose of any
property, not just trash, remaining in a dwelling unit following
ejectment.  
¶ 13.        
Turning to the statutory language, it is evident that 12 V.S.A.
§ 4854a pertains exactly to the situation presented in this case. 
The statute is included in the chapter entitled “Ejectment,” and a subchapter
labeled “Superior Court Ejectment.”  The title of the section is “Property
of tenant remaining on premises after eviction.”  12
V.S.A. § 4854a.  The language states that after fifteen days
from when a writ of possession is served, a landlord “may dispose of any
personal property remaining in a dwelling unit or leased premises without
notice or liability to the tenant or owner of the personal property.”  Id.
§ 4854a(a).[2] 
The only exception is if a court stays execution of the writ, id.
§ 4854a(b), which is not applicable here. 
¶ 14.        
In this case, the uncontroverted facts are that fifteen days from
service of the writ of possession had passed by September 7 when the sheriff
came to execute the writ.  Therefore, at that point, landlord was entitled
to “dispose of any personal property remaining” on the premises “without notice
or liability to tenant or owner of the personal property.”  
¶ 15.        
The statutory language does not support the trial court’s construction
that 12 V.S.A. § 4854a deals only with disposal of trash and not personal
property of value.  Unlike 9 V.S.A. § 4462, the statute does not
differentiate between trash and other items remaining on the property. 
The phrase “dispose of” connotes more than throwing out trash—it is used to
signify any number of methods for dealing with property, including transferring
it, discarding it, or destroying it.  This is illustrated by 9 V.S.A. § 4462,
which gives landlord the right to “dispose of” any unclaimed “property, except
trash, garbage, or refuse” after notice to tenant.  Authority to “dispose
of” property can mean sell.  See, e.g., 9 V.S.A. § 4470(d) (requiring
owner of campground to protect personal property left behind and allowing owner
to “dispose of it in a commercially reasonable manner and then pay to the owner
the sale proceeds less any storage and sales fees incurred” if not claimed
within six months).  
¶ 16.        
It also does not follow as the trial court posited that applying 12
V.S.A. § 4854a to all property, and not just garbage, “would effectively
repeal” 9 V.S.A. § 4462.  Although overlapping in some respects, the
statutes deal with two different situations.  As explained above, 12
V.S.A. § 4854a relates solely to ejectment proceedings.  It is not
limited to residential ejectment, but extends to any kind of eviction
proceeding, including an action to evict a commercial or industrial
tenant.  It authorizes a landlord to dispose of a tenant’s personal
property that remains on a landlord’s real property fifteen days after a writ
of possession is served.  
¶ 17.        
In contrast, 9 V.S.A. § 4462[3]
applies to a tenant in a “residential dwelling unit” and only to property left
in a dwelling unit that has been abandoned or that the tenant has
vacated.  As the trial court aptly noted in this case, the personal
property remaining in a dwelling unit after ejectment, which fits under 12 V.S.A.
§ 4854a, does not meet the requirements of 9 V.S.A. § 4462 because
the dwelling unit has not been abandoned and the tenants have not
vacated.  9 V.S.A. § 4462(a) (defining abandoned dwelling unit as one
where reasonable person would believe unit is no longer occupied, rent is not
current and landlord has made reasonable efforts to contact tenant). 
Here, the tenants were still present on the property when the sheriff arrived
to execute the writ of possession, and therefore the trial court correctly concluded
that it was “obvious that the property was not ‘abandoned.’ ”  Therefore, 9 V.S.A. § 4462(a) is not made
obsolete; it has continued viability in situations where a residential tenant
abandons or vacates a dwelling unit without being formally evicted, and 12
V.S.A. § 4854a applies in circumstances where 9 V.S.A. § 4462(a) does
not.
¶ 18.        
For this reason, we disagree with the trial court that 12 V.S.A.
§ 4854a only allows a landlord who has evicted a tenant to dispose of
trash without the threat of liability, and for other property requires a
landlord “to make reasonable efforts to find out what tenant plans to do and to
store the property for 60 days.”  Because the dwelling unit was not
abandoned and the tenant did not vacate, 9 V.S.A. § 4462 does not apply,
and there is no statutory basis to require a landlord to store property
remaining in a dwelling unit after an eviction.  
¶ 19.        
We recognize that there are competing policy concerns at play in this
area of the law.  See L. Weiser & M. Treu, Adding Injury to Injury:
Inadequate Protection of Tenants’ Property During Eviction and the Need for
Reform, 20 Loy. Consumer L. Rev. 247, 262-66 (2008) (describing competing
policy concerns raised during debate in Washington state over amending statute
regarding disposal of tenant’s property on eviction).  As another court
described, “A landlord’s right in quickly recovering his or her property is
balanced with a tenant’s personal property rights.”  Parker
v. Taylor, 150 P.3d 127, 129 (Wash. Ct. App. 2007).  A tenant
who has remained until a writ of possession is executed and is removed by the
sheriff is likely to have personal items left on the premises.  On the
other hand, a landlord who is forced to remove a tenant through an ejectment
proceeding has likely already lost rental income and is anxious to have
possession of the rental property so that it can be profitable again.  The
Legislature resolved the conflict by authorizing landlords to dispose of
property remaining on the property without threat of liability and without a
requirement to store the items left behind.  The apparent purpose of this
is to allow landlords to retain possession of their real property and remove
items so as to make the property ready for another renter.
¶ 20.        
We agree with the trial court, however, that the statute does not confer
ownership of tenant’s property to a landlord.  We derive this from the
statutory language as well as its purpose.  The statute’s plain language
allows a landlord to “dispose” of property without liability, but does not
grant ownership of the property to the landlord.[4]  In fact, the language appears to
acknowledge that an owner other than landlord exists insofar as it states that
the landlord is not required to give notice to “the tenant or owner of the
personal property.”  12 V.S.A. § 4854a(a)
(emphasis added).  This contrasts with the language used in 9 V.S.A.
§ 4462(c), which unambiguously grants ownership of the tenant’s property
to the landlord by stating: “If the tenant does not claim the property within
the required time, the property shall become the property of the
landlord.”  Granting landlords the right to dispose of a tenant’s
property, but not to ownership, is also consistent with the policy behind the
statute of making it easier for landlords to obtain usable possession of the
real property.
¶ 21.        
We draw two conclusions from the superficially inconsistent aspects of
the statute.  First, if the statutory terms are met, as here, the landlord
may take possession of the remaining personal property, and dispose of it,
without incurring liability for having done so.[5]  Thus, the trial court’s order that
the landlord return the personal property to the tenant is inconsistent with
the language of the statute, and we must reverse it.
¶ 22.        
But second, we cannot read the statute as giving the landlord the value
of the personal property found on the premises at the end of the statutory
period.  The landlord may incur no liability for the act of disposing of
the property, but this does not mean that the landlord can be enriched by the
value of the property in cases where the property does have value.  We
conclude that any benefit landlord realizes from the sale or retention of the
personal property is subject to a claim of unjust enrichment.  Unjust
enrichment arises when “[t]he law implies a promise to pay [because] a party
receives a benefit and the retention of the benefit would be
inequitable.”  Cedric Elec., Inc. v. Shea, 144 Vt. 85, 86, 472 A.2d
757, 757 (1984) (per curiam); see Restatement (Third) of Restitution and Unjust
Enrichment § 1 (“A person who is unjustly enriched at the expense of
another is subject to liability in restitution.”).  Although most restitution
cases involve benefits conferred in connection with contracts, restitution is
not limited to such cases, and can apply in cases where a benefit has been
conferred “upon the defendant without mistake and without wrongdoing or breach
of an agreement by the defendant.”  1 D. Dobbs, Law of
Remedies § 4.1(1), at 553 (2d ed. 1993).  To demonstrate
unjust enrichment, tenant must show that a benefit was conferred on landlord,
landlord accepted the benefit, and it would be inequitable for landlord not to compensate
tenant for its value.  See DJ Painting, Inc. v. Baraw Enters., Inc.,
172 Vt. 239, 242, 776 A.2d 413, 417 (2001) (setting forth elements); see also Kellogg
v. Shushureba, 2013 VT 76, ¶ 22, ___ Vt. ___, 82 A.3d 1121 (explaining that
unjust enrichment applies if under the totality of the circumstances it would
be inequitable for the benefitted party to retain the benefit).  The
measure of damages is the amount of the benefit received.  See In re
Estate of Elliot, 149 Vt. 248, 253 n.2, 542 A.2d 282, 285
n.2 (1988) (“Unjust enrichment focuses on the value of the benefit
actually conferred upon the defendant.”).  
¶ 23.        
Here, all of the unjust-enrichment factors are met.  Landlord
received and accepted the benefit of tenant’s property, whether the monetary
value of its sale or the value of its use.  Further, it would be
inequitable for landlord to retain that benefit without compensating tenant for
the value.  Because there is no information in the record as to the value
of the benefit conferred on landlord, we remand for a further hearing.[6]  Any sums should be offset against
landlord’s judgment.[7]
¶ 24.        
Finally, landlord also argues that the trial court failed to make findings
of fact regarding his motion for a possessory writ of attachment.  See
V.R.C.P. 4.1(b)(4) (requiring specific findings of
fact as a basis for a possessory writ of attachment).  Because we conclude
that landlord is not obligated to return tenants’ property, we do not reach
this question. 
The court’s
order requiring landlord to return tenant’s property is reversed.  The
matter is remanded for proceedings consistent with this decision.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Landlord is a limited liability company solely owned and managed by James
Weston.  For ease of understanding, this opinion refers to landlord using
the pronoun “he.”


[2] 
We note that the statute’s use of fifteen days after the writ of possession is served
will in some cases create some inconsistencies and confusion.  The
ejectment statute states that execution of a writ of possession is made “no
sooner than ten days after the writ is served.”  12
V.S.A. § 4854.  Since § 4854a allows a landlord to dispose
of property remaining “15 days after a writ of possession is served,” it is
likely that the Legislature intended that there would be a five-day grace
period for tenant to remove property between execution of the writ of
possession and when landlord had the right to dispose of property.  That
the Legislature intended there to be a five-day period during which tenant
could reclaim personal property after landlord had taken possession of the
rental unit is reinforced by another section of the statute, which states that
if the court stays the execution of a writ of possession, then a landlord may
dispose of remaining personal property “five days after the landlord is legally
restored to possession of the dwelling unit.”  Id. § 4854a(b).  However, where no stay is granted, the
five-day period is not guaranteed and is just one of multiple scenarios that
could arise.  Under § 4854, a writ of possession can be executed no
less than ten days after service, but could be executed much later, even
beyond the fifteen days specified in § 4854a.  In some cases, the
writ could execute even more than fifteen days after service.  In this
situation, the language authorizes the landlord to remove property even before
execution of the writ.  It is unlikely that the Legislature intended this
result.
 
As it happened in this case, the execution of the writ
of possession occurred fifteen days after the writ was served.  As a
result, the landlord’s possession coincided with the right to dispose of the
personal property.  Apparently, this result was unplanned because the
landlord was at the time unaware of the enactment of 12 V.S.A. § 4854a.


[3] 
This section is entitled “Abandonment; unclaimed property,” and under a chapter
entitled “Residential Rental Agreements.” 


[4]
 Of course, ownership is not the only interest in the personal property
that could be present.


[5]
 To be clear, the statute plainly allows landlord to dispose of property,
and, therefore, does not place an affirmative obligation on landlord to store
or keep any items left in a dwelling unit after fifteen days from when the writ
of possession is served.  12 V.S.A. § 4854a(a)(1).


[6] 
Tenants are pro se in this appeal.  Although they did not file a brief,
tenant Ayer appeared for oral argument.  He argued, as he had below, that
his property had value, that landlord was wrongfully retaining it, and that he
wanted it back.  To be sure, tenants have not specifically pled unjust
enrichment, but they have certainly appealed to this Court for return of or
compensation for the property retained by landlord.  
 


[7] 
Certainly, landlord may choose to return the property to tenant.



