Self-Storage Solutions

by TSSA Legal Counsel Connie Heyer, Niemann and Heyer, LLP Q: If a manager or owner conducts his own auctions and closes the office during the auctions, is there any potential liability if a tenant calls in during the time the office is closed to pay the balance prior to the gavel actually falling on the tenant's unit? A: If you have posted office hours, or office hours are listed in your rules and regulations, to be safe, the office should remain open during those hours (staffed by someone). Alternatively, you can forward the office phone to a cell phone during the auction. At minimum, you should place a sign on the door directing walk-ins to the area of the property where the auction is being held. I would suggest in any rules and posted office hours, reserving the right to close the office without notice (have a "caveat" in any posted office hours or rules that office hours are subject to change without notice). The only way the tenant could pay over the phone is with a credit card. TSSA lease paragraph 5 has check boxes as to whether a tenant "may" or "may not" pay by credit card, and furthermore allows you to change the permitted mode of payment at any time upon notice. Since credit card payments can be disputed and reversed, use caution in accepting credit card payments to stop a unit from being auctioned. If you have an answering machine at the office, and you close the office during your auctions, you might change the outgoing message on your answering machine to include the statement, "If you are calling to pay off your balance before the sale today at [time], payments must be made in person, and only by money order, traveler's check, certified funds, or cashier's check." Q: An incident occurred at our facility which caused damage to a tenant's boat. The tenant's insurance company is trying to get me to pay for the damages and has requested a copy of the signed rental agreement between the tenant and our facility. Should I provide them a copy of the rental agreement? A: In my opinion, you should provide the insurance company a copy of the agreement. If you are using the TSSA lease, the lease makes abundantly clear that the lessor is not responsible for damages. I would suggest when you provide the insurance company a copy of the lease and you highlight the bottom left hand corner of the first page (the "Notice to Tenant and Release" paragraph which the tenant initials), and also highlight paragraph 20 regarding non-liability and insurance requirements. Q: I have a tenant who refuses to give an accurate address to send the Notice of Claim (and any other important letters regarding 36 her account). I have spoken with her by phone and she tells me she is not at any one address for very long. Is it okay to send the notice to her place of employment? I have sent one to her last known address, and of course it was returned as undeliverable. A: The Chapter 59 foreclosure statute requires the Notice of Claim to be delivered to "the tenant's last known address as stated in the rental agreement or in a written notice from the tenant to the lessor furnished after the execution of the rental agreement." Hopefully, the tenant listed an address on the rental agreement (this should always be a condition of rental) ­ and ideally you used the tenant information sheet and had the tenant fill it out in her own writing (so she can't accuse you of not recording the proper address) to obtain the mailing address. Then you copy the information from the tenant information sheet to the lease. Absent any alternate address in writing from the tenant, the address listed on the lease (or the one you copied from the tenant © Copyright TSSA March/April 2009 · www.txssa.org

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