Could a Maryland county require landlords, instead of the county itself, to store an evicted tenant's belongings?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General about a proposed Baltimore County ordinance that would shift responsibility for storing and disposing of a tenant's belongings, after they were removed from leased premises under a summary ejectment warrant, from the county to the landlord. The specific questions were whether a charter county could supplement the state's landlord-tenant law with local legislation at all, and whether it could require a landlord to take on responsibility for an evicted tenant's displaced property. The opinion concluded that Article XI-A of the Maryland Constitution and Article 25A, §5(S) of the Maryland Code, the county home rule "general welfare" or police powers provision, authorized charter counties to legislate in the landlord-tenant field so long as the local law did not conflict with state law, and found no conflict here because the state ejectment statute, RP §8-401, was completely silent on what happened to a tenant's property once removed. The opinion further concluded that the county could root this obligation in its police power to keep public streets and sidewalks clear of obstructions, since the practical effect of an eviction was that a tenant's property ended up on the sidewalk, and that requiring the landlord, who benefited from regaining the property and had effectively appropriated public space for a private purpose, to store and eventually sell or dispose of the goods was a legitimate exercise of that power. The opinion did flag two concerns for the General Assembly's or county's attention: an apparent gap in the ordinance's requirement to reimburse a tenant from sale proceeds but not when the landlord simply destroyed or gave the property away, and the ordinance's failure to account for secured creditors' existing rights in a tenant's property under the Commercial Law Article.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion's own editor's note describes the underlying legal question as "unsettled" and cites a Court of Appeals decision from the same year, Parkington Apartments, Inc. v. Cordish, touching on a related issue. Maryland's summary ejectment statute, county home rule authority, and the allocation of responsibility for a tenant's property after eviction have likely been clarified or changed by statute or case law since 1983; verify the current version of the Real Property Article and any applicable county code provisions before relying on any specific rule described here.

Common questions

Could a Maryland county pass its own law about what happens to a tenant's belongings after an eviction, or did that have to be handled entirely by state law?
According to this opinion, a charter county could pass supplemental legislation in this area, because the state's summary ejectment statute, RP §8-401, addressed only the eviction procedure itself and was completely silent on the separate question of what should happen to the tenant's property afterward, leaving room for the county to fill that gap without conflicting with state law.

Why did the opinion connect a landlord's storage obligation to the county's control over public streets and sidewalks?
The opinion reasoned that once a tenant's property was removed under a warrant of restitution and placed on the sidewalk, it became an obstruction and a target for theft, and that counties have a recognized duty and power to keep public rights-of-way clear and safe, so requiring the landlord who benefited from the eviction to promptly store the property served a legitimate public safety purpose beyond the individual eviction itself.

Did the opinion find any problems with the proposed ordinance?
Yes. It flagged that the ordinance would have required a landlord to pay a tenant any surplus from a sale of unclaimed property but did not require any payment if the landlord instead chose to destroy or give the property away, and separately warned that the ordinance did not account for secured creditors who might already hold rights in the tenant's property under the Commercial Law Article, potentially creating conflicts with state law that the opinion urged be addressed before enactment.

Background and statutory framework

The opinion grounded charter county authority to legislate on landlord-tenant matters in Article XI-A, §3 of the Maryland Constitution and the "general welfare" or police powers provision, Article 25A, §5(S), of the county Express Powers Act, noting that the Court of Appeals had already recognized in County Council for Montgomery County v. Investors Funding Corporation that §5(S) lets a charter county legislate on apartment rentals and landlord-tenant concerns even though the Express Powers Act does not expressly mention that field. Applying the settled rule from Mayor and City Council of Baltimore v. Sitnick and Firey that a county may not prohibit what state law expressly permits or permit what state law prohibits, but that silence in a state statute opens the door to supplemental local regulation, the opinion found RP §8-401 silent on the disposition of a tenant's property after removal, so the proposed Baltimore County ordinance would supplement, not conflict with, state law.

The opinion then grounded the county's authority to impose this specific storage obligation in its police power over public streets, citing Westchester West No. 2 Limited Partnership v. Montgomery County for the requirement that police-power legislation bear a real and substantial relation to public health, safety, and welfare, and Bethesda Armature Co., Inc. v. Sullivan and Adams v. Commissioners of Trappe for the county's duty to keep public ways clear of obstructions. Applying the "special use" doctrine recognized in Bethesda Armature and Citizens Savings Bank v. Covington, the opinion reasoned that a landlord who benefited from regaining possession of the rental unit was, in effect, using the public sidewalk for a private purpose by placing the tenant's belongings there, an appropriation the Court of Appeals had called illegitimate in Heubschman v. Grand Company, and that requiring the landlord to bear the resulting storage costs was not an unconstitutional taking under Loretto v. Teleprompter Manhattan CATV Corporation given the ordinance's reimbursement mechanism through redemption or sale proceeds. The opinion closed with two cautions: an apparent gap letting a landlord avoid reimbursing the tenant by destroying or giving away unclaimed property instead of selling it, and the ordinance's failure to address secured creditors' rights in a tenant's property under Title 9, Subtitle 5 of the Commercial Law Article and the security-interest exemption from levy in RP §8-307(b).

Citations

Statutes:

• Md. Const. art. XI-A, §3 (charter county home rule legislative authority)
• Article 25A, §5(S) (county "general welfare" or police powers provision)
• Article 25A, §5(T) (county authority over public streets, referenced alongside §5(S))
• RP §8-401 (summary ejectment; warrant of restitution procedure)
• RP §8-401(d) (sheriff's authority to remove tenant's property under the warrant)
• RP §§8-402 and 8-402.1 (referenced alongside the ejectment procedure)
• RP §8-307(b) (perfected security interests exempt from levy under distraint)
• Title 9, Subtitle 5 of the Commercial Law Article (secured creditors' rights in personal property)
• §16-3 of the Baltimore County Code (existing county responsibility for removing and storing tenant possessions)

Cases:

• County Council for Montgomery County v. Investors Funding Corporation, 270 Md. 403, 416-19 (1973)
• Montgomery Citizens League v. Greenhalgh, 253 Md. 151 (1969)
• Mayor and City Council of Baltimore v. Sitnick and Firey, 254 Md. 303, 317 (1969)
• Rossberg v. State, 111 Md. 394, 416 (1909)
• North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975)
• Westchester West No. 2 Limited Partnership v. Montgomery County, 276 Md. 448, 455 (1975)
• Bethesda Armature Co., Inc. v. Sullivan, 47 Md. App. 498, 500-01 (1981)
• Adams v. Commissioners of Trappe, 204 Md. 165, 171 (1954)
• Citizens Savings Bank v. Covington, 174 Md. 633, 635 (1938)
• Levine v. Jale Corporation, 413 S.W.2d 564, 567 (Mo. App. 1967)
• Ryan v. Gordon L. Hayes, Inc., 254 N.Y.S.2d 706, 707 (N.Y. Sup. Ct. 1964)
• Donovan v. Bender, 204 N.Y.S.2d 632, 633 (N.Y. App. Div. 1960)
• State v. Boone, 284 Md. 1, 7 (1978)
• Heubschman v. Grand Company, 166 Md. 615, 626 (1934)
• Townsend, Grace & Co. v. Epstein, 93 Md. 537, 555 (1901)
• Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 434 (1982)
• State ex rel. Marsol Apt. Co. v. Vannuci, 428 N.E.2d 468 (Ohio App. 1980)
• Gargano v. Venezio, 118 A.2d 78 (N.J. 1955)
• Parkington Apartments, Inc. v. Cordish, 296 Md. 143, 146 n.1 (1983)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LANDLORD AND TENANT

Summary Ejectment—Local Government—Charter County—Conflicts/Preemption—Landlord's Responsibility for Ejected Tenant's Property—County May Enact Legislation Governing Disposition of Property.

February 23, 1983

The Honorable Anne S. Perkins
Maryland House of Delegates

You have requested clarification of a landlord's legal responsibility with respect to the disposition of a tenant's personal property after that property has been removed from leased premises as a result of a summary ejectment proceeding. Specifically, you inquired about the impact on §8-401 of the Real Property Article ("RP" Article) of proposed Baltimore County legislation that would require a landlord to store and subsequently dispose of property removed under a warrant of restitution.

The issues underlying your inquiry are as follows: (1) whether a charter county may enact local legislation to supplement the existing public general law that regulates landlord-tenant relations; and (2) whether a county, in the exercise of its police power, may require a landlord to assume responsibility for a tenant's displaced possessions.

For the reasons given below, we believe that Article XI-A of the Maryland Constitution and Article 25A, §5(S) of the Maryland Code authorize charter counties to enact legislation in the landlord-tenant field to the extent that the legislation does not conflict with existing public general law.1 More specifically, we believe that the proposed Baltimore County ordinance would not conflict with existing public general law; furthermore, we believe that, in the interest of promoting county health, safety, and welfare concerns, a charter county may enact legislation that would require landlords to store a tenant's property after its removal by the sheriff.

1 Specifically, Article XI-A, §3 states that a charter county, "subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said . . . County . . . upon all matters covered by the express powers granted" by the General Assembly. Article 25A, §5(S) provides in turn: "The foregoing or other enumeration of powers in this article shall not be held to limit the power of the county council, in addition thereto, to pass all ordinances, resolutions or bylaws, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county."

I
The Proposed Baltimore County Ordinance

As we understand it, the proposed ordinance would operate whenever personal property belonging to a tenant has been removed from the premises by a sheriff, acting pursuant to a warrant of restitution. RP §8-401 provides that a warrant issue, by court order, in instances of nonpayment of rent or continued possession by the tenant in violation of the lease. See also RP §§8-402 and 8-402.1.2

The proposed county ordinance would obligate the landlord to store the tenant's property, at the landlord's immediate expense, after the sheriff has executed the warrant and placed the property on the sidewalk. On providing the tenant with notice of the storage location and the procedure for recovery, the landlord would be required to store the property for 30 days. During this time, the owner could redeem the property by paying all reasonable storage costs. If the property remained unclaimed for 30 days, the landlord could then sell or otherwise dispose of the property, offsetting the storage costs against the sale proceeds. Finally, if any surplus proceeds were not claimed within six months, the balance would be forfeited to the landlord.3

2 Specifically, if a tenant fails to yield possession of the premises within two days of a judicial finding that the rent is unpaid, then, upon the landlord's petition, the court shall "issue its warrant, directed to any official of the county entitled to serve process, ordering him to cause the landlord to have again and repossess the property by putting him (or his duly qualified agent or attorney for his benefit) in possession thereof, and for that purpose to remove from the property, by force if necessary, all the furniture, implements, tools, goods, effects or other chattels of every description whatsoever belonging to the tenant, or to any person claiming or holding by or under said tenant." RP §8-401(d).

II
Statutory Authority

Generally speaking, a home rule charter county is limited in its exercise of local legislative power to matters within the scope of Article 25A, §5 (the "Express Powers Act"). Section 5 does not specifically authorize charter counties to regulate landlord-tenant relations. Nevertheless, the Maryland Court of Appeals has held that §5(S), the "general welfare" or "police powers" provision, enables a charter county to legislate in the area of apartment rentals and landlord-tenant concerns. County Council for Montgomery County v. Investors Funding Corporation, 270 Md. 403, 416-19 (1973).4 See also Montgomery Citizens League v. Greenhalgh, 253 Md. 151 (1969). Cf. 62 Opinions of the Attorney General 523 (1977) (State escrow statute does not preempt municipal landlord security deposit ordinance).

3 Section 16-3 of the Baltimore County Code now requires the county to remove and store a tenant's possessions. The proposed legislation would shift the responsibility from the county to the landlord.
4 See note 1 above for the text of §5(S).

Despite judicial recognition of concurrent authority in the landlord-tenant field, however, a charter county may not legislate in a fashion that conflicts with existing public general law. That is, a county may not prohibit that which State law expressly permits, or permit that which State law prohibits. County Council v. Investors Funding Corp., 270 Md. at 419 (quoting Mayor and City Council of Baltimore v. Sitnick and Firey, 254 Md. 303, 317 (1969)). See also Rossberg v. State, 111 Md. 394, 416 (1909). Yet, as the court in Sitnick also pointed out: "[U]nless a general public law contains an express denial of the right to act by local authority, the State's prohibition of certain activity in a field does not impliedly guarantee that all other activity shall be free from local regulation and in such a situation the same field may thus be opened to supplemental local regulation." 254 Md. at 317 (emphasis added).

RP §8-401 details the procedure by which a landlord may evict a tenant. However, the State law is silent as to disposition of the tenant's property, the sole issue addressed by the proposed local legislation. The proposed Baltimore County ordinance thus would enlarge or supplement, not conflict with, the State statute.5

RP §8-401 itself neither expressly nor implicitly prohibits a charter county from enacting supplemental legislation in this area of landlord-tenant relations. It is our view, then, that Article XI-A of the Maryland Constitution and Article 25A, §5(S) of the Maryland Code authorize Baltimore County to provide for the storage of a tenant's possessions, once removed from the landlord's property under a warrant of restitution. See generally Investors Funding Corp., 270 Md. 403. As we explain in Part III below, the county is exercising concurrent legislative authority in the furtherance of legitimate health and general welfare concerns.

5 We do not believe that the proposed ordinance requires an involvement by the landlord that State law prohibits. Statutes such as RP §8-401, which establish a formal summary ejectment procedure, are designed to inhibit arbitrary dispossession of tenants. Statutes of this nature ensure that tenants will receive notice of a pre-eviction hearing and an opportunity to present their defense. See e.g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). Here, the judicial process is over. In fact, by imposing bailment obligations, the ordinance would provide supplemental protection of a tenant's own interests, as the landlord must remove the tenant's property from a site of potential vandalism.

III
County Police Power

It is well established that regulatory legislation, enacted pursuant to a political subdivision's police power, must have a real and substantial relation to the public health, safety, and welfare. Westchester West No. 2 Limited Partnership v. Montgomery County, 276 Md. 448, 455 (1975). The proposed Baltimore County ordinance would not only resolve the immediate problem of scavengers removing a tenant's unguarded property, but would also indirectly protect and further public safety and welfare by promoting unimpeded use of public streets and highways.

Each county is under a duty to keep its public streets and sidewalks free from obstruction and other encroachments that materially impair use. See Bethesda Armature Co., Inc. v. Sullivan, 47 Md. App. 498, 500-01 (1981); Adams v. Commissioners of Trappe, 204 Md. 165, 171 (1954). See also Article 25A, §5(T). To this end, a county properly may enact legislation designed to minimize interference with pedestrian traffic.

Moreover, the Maryland courts recognize the "special use" doctrine. When an adjoining property owner makes a "special use" of the sidewalk, or creates a particular hazard on it, the property owner, not the county or municipality, is responsible for any damage caused by that special use. Bethesda Armature Co., 47 Md. App. at 501, 503; Citizens Savings Bank v. Covington, 174 Md. 633, 635 (1938). See also Levine v. Jale Corporation, 413 S.W.2d 564, 567 (Mo. App. 1967). It is not unforeseeable that injury could result to a pedestrian trying to avoid obstructions on the pavement. Ryan v. Gordon L. Hayes, Inc., 254 N.Y.S.2d 706, 707 (N.Y. Sup. Ct. 1964); Donovan v. Bender, 204 N.Y.S.2d 632, 633 (N.Y. App. Div. 1960). In effect, the proposed county ordinance defuses this situation, by requiring the property owner to remove objects hindering free passage before any injury might otherwise occur.

A landlord derives a private benefit from the execution of a warrant of restitution, as the landlord thus regains access to the rental property. See RP §8-401(d). See also State v. Boone, 284 Md. 1, 7 (1978). In pursuing these private interests, by placing a tenant's property on a public right-of-way, the landlord in effect appropriates public property for its own use. But, as the Maryland courts have noted, "the obstruction of a public highway for a wholly private purpose cannot be legalized". Heubschman v. Grand Company, 166 Md. 615, 626 (1934). See Townsend, Grace & Co. v. Epstein, 93 Md. 537, 555 (1901). Here, the proposed ordinance would represent a legislative decision that a landlord's ability to resort to the judicial process should not absolve responsibility for the end results of the summary ejectment procedure.

In this context, the requirement that the landlord shoulder the storage costs is not, as a legal matter, unduly burdensome. Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 434 (1982) (while permanent physical occupation of another's property is a taking, temporary invasion is not). Indeed, the proposed ordinance would provide for reimbursement, either from the tenant's redemption of the property or through proceeds from the sale of unclaimed items.6

6 Other jurisdictions recognize an implied obligation on the part of the tenant to reimburse the landlord for expenditures incurred in removing the tenant's property from the premises. See, e.g., State ex rel. Marsol Apt. Co. v. Vannuci, 428 N.E.2d 468 (Ohio App. 1980); Gargano v. Venezio, 118 A.2d 78 (N.J. 1955). To the extent that sale proceeds do not compensate for storage expenses, therefore, a landlord may have a cause of action against the tenant for unreimbursed costs.

We therefore conclude that a charter county, exercising its police power, may enact legislation requiring a landlord to temporarily store a tenant's personal property in instances of summary ejectment. Such legislation not only prevents immediate theft of the tenant's possessions, but also reflects county responsibility for maintaining public thoroughfares in a safe condition for travel. In so concluding, however, we do not mean to suggest that, as a policy matter, it is necessarily more appropriate to allocate these responsibilities to the landlord rather than, as at present, to the county.

IV
Caveat

For your consideration, we also address certain concerns that we have with the proposed legislation.

First, we note an apparent inconsistency. The proposed ordinance provides that "the landlord may sell the goods [remaining unclaimed for 30 days] at public or private sale, or otherwise dispose of the goods". In instances of sale, the ordinance would require that the balance of sale proceeds be paid to the former tenant, after deduction of the landlord's expenses. However, if the landlord chose to "dispose of the goods", i.e., by destroying or giving the property away, a landlord need not reimburse the tenant for the tenant's loss.

More importantly, the proposed ordinance, as drafted, fails to take into account existing security interests that creditors might have in the tenant's property. The rights of a secured party are specified in Title 9, Subtitle 5 of the Commercial Law Article. For example, a creditor may retake possession of the collateral through a replevin action, or otherwise forestall a landlord from selling the item to satisfy storage costs. Moreover, a creditor's perfected security interest in the proceeds of any sale would supersede that of the landlord. Indeed, even in an action of distress, security interests perfected before a levy under distraint are exempt from the levy. RP §8-307(b).

With regard to the disposition of a tenant's goods, therefore, we strongly recommend that attention be given to the various provisions of the Commercial Law Article relating to security interests, so as to avoid potential conflict with State law.

Stephen H. Sachs, Attorney General
Avery Aisenstark, Chief Counsel
Opinions and Advice
Lynette M. Phillips, Staff Attorney
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the unsettled nature of the issue addressed [cf. Parkington Apartments, Inc. v. Cordish, 296 Md. 143, 146 n.1 (1983)], it is published here albeit in a slightly revised format.