Kim v. Wong – 5/26/2022
Arizona Court of Appeals Division One holds that a landlord does not owe a duty to protect an evicted tenant’s property if the landlord does not actively take control of the property.
When a jewelry store owner’s commercial property lease expired, his landlord eventually gave notice of intent not to renew. The tenant store owner refused to vacate or remove his inventory and was eventually locked out of the property. The landlord obtained in justice court an eviction and, a few days later, a writ of restitution. The tenant nevertheless returned to the property and was arrested. While the tenant sat in jail, someone broke into the property and stole his inventory.
The tenant sued the landlord for breach of bailment, arguing the landlord became a bailee of the inventory when the writ restitution was served. The landlord then breached his duty of reasonable care by failing to protect the inventory. Unpersuaded, the superior court found that the forcible eviction did not create an involuntary bailment.
In a short opinion, the Court of Appeals affirmed. The Court noted that in some jurisdictions eviction can create a bailment where the landlord actively assumes possession or control of the tenant’s property. Here, however, the landlord did not move or disturb the tenant’s inventory. Nor did the landlord refuse access to the property—on multiple occasions the landlord gave the tenant opportunities to remove his inventory and the tenant refused. The Court also found no evidence of the landlord’s intent to act as a bailee or to claim the inventory to secure unpaid rent.
As such, the Court found no bailment was created by the eviction and the landlord therefore held no duty to protect the tenant’s inventory.
Judge Swann authored the opinion of the Court, in which Judges Bailey and Williams joined.