Top 5 Weird Legal Questions

Top 5 Weird Legal Questions

by Connie Heyer, TSSA Legal Counsel

1) “I’ve forgotten where I put Aunt Betty ….”

Question: I recently purchased a facility and found a unit that the previous owner was using to store personal items left behind after auctions. Going through the items, I found an urn containing human ashes. There is a name for a funeral home on the box, so I contacted them and asked them to contact a next of kin. They were unable to locate anyone related to the deceased. I still have the ashes in my possession. What should I do?

Answer: First, call your nearest relatives right now, tell them you love them, and ask them to pretty please not forget you in a storage unit after your time comes. Then, try to locate the former tenant and send him the ashes. Consider hiring a skip trace service (akin to a private investigator) to trace the current location of the former tenant. Normally, these searches cost under $100, and it is amazing how quickly a good skip tracer can locate someone when given a name and former address. Then attempt to contact the tenant, and ultimately, if you can confirm it is the same person, mail the ashes.

If you and/or the skip trace service are unable to locate the former tenant, document your efforts at locating him (calling the funeral home, hiring skip trace, doing Google search, etc.). Send a letter to the last known address for the tenant, and mark “address correction requested,” explaining the situation and summarizing contact efforts to date. Tell the tenant that the ashes will be scattered over uninhabited public land if he doesn’t make arrangements to pick them up by a deadline. If the tenant fails to retrieve the ashes by the deadline, scatter them over any uninhabited public land (this is legal in Texas).

In an auction situation, if you find ashes or other personal items prior to an auction, go ahead and auction them in order to “clear title” so to speak. Then, if you wish, ask the buyer to voluntarily leave it behind. Auction rules can contain a clause stating, “Buyer is requested to leave personal items found in the purchased unit (scrapbooks, family photos, etc.) at the facility or return them to facility if later found.”

I generally don’t recommend putting the tenant in contact with the buyer. If a tenant inquires as to who bought the unit contents in an attempt to recover personal effects, it is probably best to tell the tenant you will be happy to provide the buyer with the tenant’s information and leave things up to the buyer.

2) Smile, you’re on candid (dummy) camera…

Question: We have a tenant who claims that his unit was opened, and items were removed overnight. We did not notice his lock removed or broken on our morning walk-through of the property. He is demanding that we turn over our surveillance tapes from the evening in question. Our cameras are decoys and do not function. How should we respond?

Answer: Tell the tenant that the video cameras in question are non-operational and there are no video surveillance tapes to hand over. Refer the tenant to paragraph 15 of the TSSA lease, which clearly states that “video cameras may be non-operational or unmonitored.” In addition, refer the tenant to the paragraph at the bottom of page 1 of the TSSA lease, including the language: “No representations of safety or security have been made…tenant hereby releases lessor…from loss or damage to property…”. (The tenant should have initialed this paragraph.) Finally, refer the tenant to paragraph 20 of the TSSA lease, which requires tenants to purchase insurance or self-insure and relieves the lessor of all liability for the security of the tenant’s property.

If your self-storage facility does have working cameras, consider adopting a facility rule outlining the circumstances under which you will allow tenants access to video, (e.g. “Video cameras may be non-functional or unmonitored at any time). Facility has no duty to keep any surveillance video for any length of time. If video is stored, facility may at its discretion deny access to video, limit access to such video to law enforcement officers, or otherwise condition access.”

In the situation of a break-in or tenant claim of loss, remember that by definition, self-storage is “cared for and controlled by the tenant.” It is the tenant, not the facility, who is responsible to “care for” his unit’s contents. Consider also requiring all tenants to initial an express insurance refusal document such as Form ADD-7 “Insurance Acknowledgement” found in the Members Only section of txssa.org.

3) Dealing with Credit Card Deadbeats

Question: We have a tenant who has been paying via automatic credit card for years. Last month the charge went through without a hitch. This month, payment on auto pay was declined so the tenant came in and authorized payment. He has since declared both of these payments fraudulent, disputed the charges, and his credit card company has returned the money to him. The question is, can we take him off auto pay so this does not continue to happen or do we need to get his written authorization to quit running his charge? Due to his action, he is now in lien status.

Answer: Paragraph 5 of the TSSA lease allows the lessor to change the permitted mode of payment at any time upon notice to tenant (e.g., “Dear tenant, your autopay will no longer be accepted. As of today, all payments must be via cash or credit card.”) You may remove this tenant from autopay by sending such a notice. Although there is no duty to send the notice via certified mail, it is recommended in order to have a record of the notice.

In addition, TSSA Form ADD-6, “Authorization for Automatic Credit/Debit Cards” (also in the Members Only section of txssa.org), expressly allows you to prohibit further automatic payments if a payment is rejected. The form states: “We reserve the right with advanced written notification to terminate your participation in this payment option” and it provides that if an auto-pay is rejected, tenants will be required to provide an al- ternate method of payment. An automatic payment being rejected is no different from other types of non-payment, so you may require an alternate method of payment for this reason as well. Remedies for auto-pay rejections and/or non-payment include late charges, overlocking, and the lien and foreclosure process.

4) Foiling an angry husband’s would-be plot

Question: I have a tenant who is getting a divorce, though every other week the couple seems to be reconciling. Right now, the wife is the only person on the lease (no one is listed as having additional access rights) and she stores a really nice RV. The wife asked me to change the entry code so that her husband could no longer get in and I honored her request. The other day the husband showed up at the facility saying that he wants to rent a small unit from me (he didn’t want to say what he had to store) and asked if he would get his own entry code to gain access to the facility. What should I do? I am pretty sure that as soon as he has an entry code, he will drive off with the RV. The rent is paid up to date. Should I warn the wife about the husband’s action?

Answer: You may warn the wife if you wish; that is your business decision. I would tend to stay out of it. You do not have a duty to refuse to rent to the husband, but in my opinion, you made a wise business decision in not renting to him. If you do warn the wife, unfortunately this could make her decide to rent elsewhere, and/or create an unrealistic expectation that you will notify her anytime her soon-to-be ex-husband tries to rent or otherwise gain access in the future.

If you do choose to warn the wife, I recommend you do it in writing, in order to prevent a “no good deed goes unpunished” situation. Send a notice that reads something very generic like: “Dear Suzy, this is a courtesy notice to let you know that your husband attempted to rent a unit at our facility recently. We are happy to provide this notice as a courtesy; please take any appropriate measures you believe warranted in order to safeguard your stored items in the future.”

Regarding spousal conflicts in general, these situations are one of the primary reasons that you only want one tenant’s name on the lease. A spouse may be listed as a person with access rights or as an emergency contact, but only one person should be listed as the tenant. Generally, I recommend that self-storage operators try to stay out of issues regarding feuding spouses. Do not grant access to a spouse who is not a tenant or listed as person with access rights, even if the spouse pays for a delinquent balance. Bottom line—unless the individual is a tenant or person with access rights, no access! Regarding persons with access rights and emergency contacts: you have the right, but not duty, to assist them in lock cutting. If you sense, or know, that this is a feud, decline to assist. Wait for a court order or other firm resolution.

5) Tenant made himself at home (sweet home)

Question: There is a tenant who is sleeping in their unit, what do we do?

Answer: This answer will hit the highlights of the process. For a complete description please see the “Eviction” tab in the TSSA Goldbook©.
First, give the tenant three-days written notice. The notice should be delivered in person to the premises (the unit) or by mail to the premises in question. Mailing will be challenging because needless to say mail is not delivered to individual units. So realistically you will need to hand-deliver it. You may use the form E-3, “Notice to Vacate Storage Space for Non-rent Breach of Rental Agreement.” All of the forms may be found in the Members Only section of txssa.org. The tenant’s lease violation will be living or sleeping in the unit in breach of TSSA lease paragraph 36c. You will need to be able to prove this breach, so you will need as many witnesses as reasonably possible, ideally a manager and at least one other employee or other witness, to be able to testify to his sleeping or living in the unit. If the tenant enters with an access gate code your gate software should be able to show that he came in at a certain time and never left until the next day for example.

An alternative and more straightforward eviction action would be to give the tenant 15-day notice of lease termination pursuant to TSSA lease paragraph. This notice should be sent to his address listed on the rental agreement, or the last written change of address the tenant has given you. (But for good measure, if you find him at the premises, also hand deliver a copy.) Then to evict, you don’t have to prove any breach other than that he did not vacate at the end of the 15 days.

If you would rather not have to prove that he is living at the unit (which he will likely deny and you never know what a judge will do) and want to go this route, give the tenant TSSA form E-1 “15 Day Notice of Termination of Storage Rental Agreement.” Then at the end of 15 days, if he hasn’t vacated, give him the form E-4 “Notice to Vacate for Holding Over.” If he is not out at the end of the three-day period outlined in the Notice to Vacate for Holding Over, then file an eviction petition with the Justice Court, citing holdover as the reason for the eviction.

At the time you give him the 15-day notice of termination or the three-day notice to vacate for sleeping/living in his unit, I would suggest you also try and talk to the tenant and try and get him to voluntarily vacate. Tell him (or leave him a separate note) that if you have to evict him, he will be responsible for all legal fees and court costs under the TSSA lease, and he will have the eviction on his record, which will hurt his chances of being able to find another place to live. See if he will voluntarily vacate.