ASSOCIATION FACES CONVERSION CLAIM FOR DENYING ACCESS TO PROPERTY
What do you do with “stuff” left behind following a foreclosure or tenant eviction? This does happen, even in all communities.
Recently, a Florida appellate court ruled that an association could be liable for conversion of an owner’s property. In Ice v. The Cosmopolitan Residences on South Beach, 42 Fla. L. Weekly D 2604 (Fla. 3rd DCA, December 13, 2017), the facts indicate that both the Association and the unit’s mortgage lender filed foreclosure actions. The Association’s foreclosure action proceeded faster, resulting in the unit being sold to a third-party purchaser.
As a result of the mortgage foreclosure, a writ of possession required the “new” owner to remove his belongings. Although the owner removed some of his possessions, he was unable to remove all of his furniture. Therefore, two days later, the deputy sheriffs removed the owner’s remaining property from the unit, placing it in the condominium parking garage.
The owner sued the Association for conversion, alleging that he was told by the property manager that the furniture would be placed in the parking garage, but the Association denied him access to remove the property. Additionally, the owner alleged that the property manager wanted the couch in return for access to the property. The trial court dismissed the case.
The Florida appellate court reversed the dismissal of the conversion claim. The appellate court noted that conversion “constitutes the exercise of wrongful dominion and control over the property to the detriment of the rights of the actual owner.” The court explained that once the property was placed in the parking garage the Association had no right to require the owner to give the property manager items of property as a “quid quo pro” for access to recover the rest of his property. “The allegations are quite clear that Mr. Ice did not abandon his remaining property, but instead made numerous and repeated demands and efforts to recover that property,” the court stated.
In order to avoid potential liability involving personal property following mortgage or lien foreclosure sales, it is important that associations take proper care when disposing of “left” personal property. Once a writ of possession has been obtained, the best course of action may be to let the sheriff’s deputies remove the property. And obviously, you normally cannot limit access to the building for removal in return for taking some of the property.