Is my plan for my ex’s belongings legal?
Welcome to Sisters In Law, news.com.au's weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to disposing of an ex-partner's belongings.
QUESTION: I finally threw my ex out of my house last year in November. It's my house (family property) and I ended up calling the police to get him out. But almost a year later, I still haven't managed to get rid of all of his stuff - three rooms' worth, to be precise. I've asked him on the phone and in writing several times to come get his belongings or I would put them out for council collection, but he just ignores me. I want my house back and don't have the room to store all his stuff anymore, but I'm worried I'll run into legal troubles if I follow through on my threat and put all his stuff out for rubbish collection. What are my rights when it comes to disposing of someone else's property? Mish, NSW
ANSWER: We hear you sister. Ideally, you'd go as far as having a yard sale or putting his things on eBay to make some money to compensate you for the inconvenience of it all. Unfortunately, though, the law is not on your side in this regard.
If you leave his things out for rubbish collection, without his agreement or providing the required notice, you could find yourself responsible to him for the cost of the items or, at the extreme, be facing theft charges.
However, there are some steps you can take that would allow you to dispose of his things while still abiding by the law.
In New South Wales there is a law that specifically deals with "uncollected goods" and says:
• You need to take care of the items he has left behind;
• You need to ensure that you don't damage the items, and;
• You need to try to get his permission before you dispose of them.
It is not clear what items your ex has left behind, however the value of them does impact on how you can deal with his things and the notice period you need to provide him before you dispose of them.
The law says:
• If the items are perishable (for example food) you can dispose them immediately after given oral or written notice and a reasonable time frame to collect them.
• If the items are valued at less than $100, you need to give him 28 days' oral or written notice that you intend to dispose of them and you can get rid of them how you please.
• For items of between $100 and $500 value, three months' written notice and they must be disposed of by public auction or private sale.
• For items of between $500 and $5000 value, six months' notice and you have to publish a notice in a newspaper (in print or online) that circulates throughout NSW. They can then only be disposed of by public auction.
• For anything over $5000, you need an order of a court to dispose of the items.
The law is less clear on how you work out the value of the items - whether it is the collective value of all of his things or each individual item. Generally, the value of the items will be the cost of replacing them with items that are the same age and in a similar condition.
Your written notice to your ex should list each individual item he has left behind to ensure there is no argument down the track that you kept something that was his or didn't let him know a particular prized possession had been left behind.
Once his items are considered "uncollected" under the law - that is, you have given the required notice and they have not been collected within the time period - you can sell, keep or dispose of the items as per the law outlined above.
After you dispose of the items, you need to keep a further list (for six years) that outlines how you disposed of each item (e.g. took it to the rubbish dump; if you sold it - to who and for how much), the date you disposed of them and any money you have kept from the proceeds of sale and why.
The law doesn't allow you to cash in from selling your ex's items. You are allowed to recover any costs you have incurred because of storing, repairing, maintaining or selling the items.
Any further money you earn will be payable to the NSW Government as "unclaimed money".
If you had a formal lease agreement with your ex so that he was a tenant and you/your family was/were the landlord then different rules apply.
If the tenancy has ended then you can dispose of any rubbish or perishable items straight away. For any other items you must give your ex (the former tenant) notice that you intend to dispose of the goods. You can tell him in writing, in person or over the phone - we recommend you notify him in writing so you have a record of it.
If you ex hasn't collected the items after 14 days then you can:
• Dispose of the goods;
• Donate the goods to charity;
• Keep the goods in the property for use by future tenants (but your ex can reclaim the goods for as long as they are in your possession), or;
• Sell the goods for fair value.
If you're selling the items, the proceeds of the sale must go to your ex. If he doesn't claim the money after six years then you must send it to the Office of State Revenue.
It sounds like he had so many items that you may have been prevented from renting the premises. If this is the case (and you were intending to rent the house) then you can charge him an occupation fee, which is a maximum of the equivalent of 14 days rent he was paying.
The law protects you so that as long as you follow the processes above, your ex cannot come after you after you have dumped or sold his property.
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