The Common Law #7

The Common Law #7
(The following column originally ran in the March 19, 2008 edition of the Moody County Enterprise.)

The Common Law:

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

Spring is coming. Every year, at about this time, the snow begins to melt and slowly reveals all the stuff the good lord saw fit to keep covered up for the last six months. With spring foliage still weeks away, this is our a once-a-year opportunity to get a good look at the leftover junk lying around our shelter-belts, bushes, and backyards. Truth be told, this is the ugliest time of year, and is probably the reason we invented “spring cleaning.” One astute reader has forwarded a question particularly appropriate for this time of year. What do we do when the junk we find lying around is not ours? 

Abandoned property usually shows up in one of three situations. First, you have abandoned money, like forgotten bank accounts, insurance proceeds, or the contents of old safe-deposit boxes. Second, you have property left behind by renters. This usually includes items like old couches, broken bookshelves, and unopened cans of clam chowder. Finally, there is the ubiquitous abandoned car. This usually involves an abandoned car. For reasons I cannot fathom, we in South Dakota have enacted completely different sets of rules for handling abandoned property in each of these situations. 

For abandoned money, the rules are complex, and probably beyond the scope of this column. In simple terms, if money is left behind with a bank, insurer, credit company, or other financial institution, it has to sit for around five years before it can be considered “abandoned.” Once it is abandoned, the financial institution holding that money does a bunch of paperwork and eventually turns it over to the State Treasurer. Abandoned property handled in this way is governed by S.D.C.L. Chapter 43-41B. Interestingly, this chapter purports to apply to all forms of abandoned property, not just intangible stuff like money. A quick call to the State Treasurer's office, however, will confirm that they're not terribly interested in receiving other forms of abandoned property, like old cars, used furniture, or canned goods. 

With this in mind, let us next consider the abandoned car. Abandoned cars enjoy their own set of rules, in a completely different part of South Dakota law. For the private landowner who wants to remove someone else's car from the premises, SDCL Chapter 32-36 provides a surprisingly simple solution. He can have it towed. If a car is left on private land without permission, the owner (or tenant) of that land can call a towing company to come take the car away. The towing company must then give notice to the owner of the car that it has been towed, and if the owner does not take steps to claim it, the towing company will eventually get title to the car. This simple approach applies only to motor vehicles, however. 

Finally, we have the “old furniture and canned soup” dilemma. Often, when a tenant moves out of his home or apartment, he will leave a few items behind. Most of the time, the items left behind have little value, like used couches, canned food, or broken electronics. Once the tenant is gone, the landlord is left to figure out what to do with this stuff. These situations are governed yet another set of rules, set out in SDCL Chapter 43-32. For property with a value of less than one hundred dollars, the property is simply presumed abandoned and the landlord may “dispose of it” after ten days. For property is worth more than one hundred dollars, the landlord must store the property for at least 30 days. (He can place a lien against it for the cost of doing so.) After that thirty days has lapsed, he may likewise treat the property as abandoned and “dispose of it.” 

Unfortunately, when it comes time for “disposal,” the law is not entirely clear whether the landlord is free to (A) simply discard the property, (B) keep it for himself, or (C) turn it over to the State. When asked which option to take, most attorneys will groan and fake an emergency meeting. Most landlords will pick option A and get on with their spring cleaning. 

The foregoing column is written for informational purposes only, and does not constitute legal advice. For those desiring more information see SDCL Chapters 43-41B, 32-36, and 43-32. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at