Who Is Knocking at Your Door?

Scott I. Zucker Comments
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Typically, the only people a self-storage owner wants to see in his facility are tenants or potential customers. However, there are always people coming and going, and many are not the tenants themselves but those on their behalf— people who work at the tenants’ businesses, are helping them move or making deliveries. Sometimes, the visitor is the police carrying a search warrant, and sometimes it is a delinquent tenant, locked out of his space.

The truth is, under the theory that self-storage is not a bailment and the facility does not take care, custody or control of its tenants’ property, as long as the lease is not in default, any party who has the access code and key to a unit can enter a storage site, whether a tenant or not. Certainly, any tenant has the right to give his access code and keys to another person, and a storage operator is not obligated to verify that person’s right to be in the storage unit. This is true whether the tenant is an individual or a business.

But what about someone who does not have the access code or keys? What if the person is not the tenant but claims to be “authorized” to enter the unit? First, the general rule is no matter who the person is (with the exception of law-enforcement), if he does not have the key and code, the operator should not permit access. This is true even if the person can prove he is the spouse, roommate, sibling or child of the tenant. This problem gets more difficult if the person is listed on the lease as a co-tenant, but was never given the key or code. Still, access should be denied.

What if a facility allows its tenants to create an authorized-access list? Unfortunately, unless a specific definition of authorized access is provided as part of that register, all the list does is give a person with the gate code and key the right to be in the unit. Does this mean someone who has the key and code but is not on the list cannot enter the unit? What is an operator supposed to do when someone is on the list but doesn’t have the key or code? Only if the lease states that “authorized access” provides permission for the operator to disclose the gate code and cut the lock is the problem solved. If the lease is silent on the definition, the best advice is to deny access to anyone other than the tenant or someone who holds the key and code until you can confirm from the tenant himself that access is allowed.

What about access in so-called “emergency” situations, such as a daughter seeking entry to her mother’s unit while she is in the hospital, the wife demanding entry to her husband’s unit while he is in jail, or the employee requesting immediate access to his company’s unit to retrieve some merchandise? None of these scenarios necessarily allow for easy answers. Although the facility can always bend the rules and allow someone access to the tenant’s unit, the best answer will always be “no.”

In most instances, all it takes is for the person trying to get access to get written permission from the tenant. Although a notarized authorization is best, a signed document, even faxed, can be considered acceptable as long as the signature on the form and on the tenant’s lease match. Where a tenant is hospitalized or incarcerated, a power of attorney can be issued to enable another party to act on behalf of the tenant. In true emergency situations, a facility manager can also seek the advice of the police, if necessary.

Although it is sometimes an unpleasant task to say “no,” especially where the plea for access to the unit is sincere and possibly even compelling, the facility operator must consider the risks of trying to do the

Authorized access, deliveries, search warrants and facility trespass nice thing compared to doing the right thing. Certainly, all of the fences, gates and locks wouldn’t mean much if people who aren’t tenants could simply come in to request access to a tenant’s unit. An operator must be diligent in protecting access to the facility, if not for the tenants’ benefit, then for his own protection from liability.

Dealing With Deliveries

The advent of deliveries being accepted by self-storage facilities has also created new questions concerning access to units. When it comes to these deliveries (such as UPS, Federal Express, etc.), unless an operator makes special arrangements and has a separate agreement with his tenants, the facility should not accept any deliveries, since taking possession of a tenant’s property, even if temporarily, could create a bailment.

It is clear that to fully compete in today’s self-storage market and enhance the services provided to customers, many facilities have agreed to accept deliveries for their tenants—especially commercial customers—during business hours. There are basically two types of delivery services offered. The first is where a facility keeps a key to a tenant’s unit and opens the unit to allow deliveries. The second is where the facility allows deliveries to be made to its office or a central holding area (typically an unused storage unit) where the tenant later retrieves the property. In this approach, the facility does not keep a key to the tenant’s unit.

If a facility operator chooses to accept deliveries for his tenants, the less-troubling method would be the latter, in which the facility does not retain a key. Under this approach, if a tenant’s property is lost or damaged, his claim would be limited to the delivered property and not extend to other property in his unit. Keep in mind that as long as a facility keeps a key to a tenant’s unit, it could be considered a bailee of the stored property and may be held responsible for any loss or damage.

If a facility agrees to accept deliveries, it should have the tenant sign an addendum to the lease in which he agrees to release the facility for any claims of loss or damage to the property. The tenant should also declare the value limit of the property (for example, no more then $50 per package) and state that any property delivered COD will be refused unless the tenant has paid the owner in advance.

Further, the release should address indemnification protection for the facility from the tenant for injuries that may occur to others, and should clarify that the terms and conditions of the rental agreement are not affected nor waived by the addendum. Lastly, the addendum should provide for some nominal consideration to the facility for providing this service. Again, as long as a facility recognizes the risk of accepting deliveries and prepares itself through a written addendum with the tenant, accepting deliveries can be offered as an added benefit for tenants.

Search Warrants

Self-storage facilities are a common site for law-enforcement searches and seizures. Can a facility operator provide the names of his tenants renting without the need for a subpoena or even a search warrant? To the extent an operator owns the proprietary right to the facility’s rent roll, he can choose to divulge whether a particular tenant is renting at his site. With that information, the authorities can better support their request for a subpoena for the tenant’s document file and a search warrant to inspect the property in the rental unit.

There have been recent cases that have addressed the issue of plain-view searches and reasonable access. In the case of State v. Bobic, the Washington Supreme Court upheld a search by law enforcement of one storage unit when viewed by the police from an adjacent, empty unit. The court found the police were authorized to look into the locked unit through a hole in the wall.

In another case, U.S. v. DeTurbiville, the Ninth Circuit Court of Appeals upheld the right of authorities to enter a locked storage unit where permission was provided, not by the tenant, but a friend who had been given the key and code to the unit. The court found the tenant assumed the risk that his friend would allow others to enter the unit, even the police.

As the likelihood of these police searches increase, facility operators should consider amending their rental agreements to explain their rights and protections in these matters. For example, the agreement should state that the facility retains the right to provide authorities information concerning all of its tenants. The rental agreement should also state the facility has the right to enter the unit where it is believed illegal activity is occurring inside. By establishing the facility’s rights in the rental agreement, there is less of a risk to the operator of tenant-trespass claims.

When can an operator enter a tenant’s unit? A landlord should retain the right to enter a unit, if necessary, for purposes of repair, emergency or to determine if there is a violation of the contract. A typical rental-agreement provision might read:

In cases where Owner considers it necessary to enter the space for purposes of examining the space for violation of this agreement or condition in the space or making repairs or alterations thereto, or to comply with this agreement, or due to emergency, Tenant agrees that Owner, or Owner’s representative, shall have the right without notice to enter into and upon the space and Owner reserves the right to remove contents to another space.

On the issue of lease compliance, there should also be a “use” provision in every rental agreement that limits the contents of what can be stored in a unit. A standard provision might read:

The space named herein is to be used by the Tenant solely for the purpose of storing any personal property belonging to the Tenant. The Tenant agrees not to store any explosives, or any flammable, odorous, noxious, corrosive, hazardous or pollutant materials or any other goods in the space which would cause danger or nuisance to the space of facility. The Tenant agrees that the property will not be used for any purposes unlawful or contrary to any ordinance, regulation, fire code or health code, and the Tenant agrees not to commit waste, nor to create a nuisance, nor alter or affix signs on the space, and will keep the space in good condition during the term of the Agreement. The Tenant agrees not to store jewels, furs, heirlooms, art works, collectibles or other irreplaceable items having special or emotional value to the Tenant. There shall be NO HABITABLE OCCUPANCY of the space by humans or pets of any kind for any period whatsoever, and violation of these prohibitions shall be grounds for immediate TERMINATION of the Agreement.

Under this provision, a facility operator would have the right to enter the storage unit to verify that no use violation has occurred as set forth above.

No Trespassing

Finally, one of the most difficult issues under landlord and tenant law is determining the point when a tenant’s access on the property may become a trespass. Normally, a tenant is considered an “invitee,” or one who is invited on the property, since he pays for that benefit through his rent. But tenants can also become trespassers.

Criminal trespass is defined as the intentional entry onto another’s property with knowledge that the entry is unauthorized. In that context, a tenant who has properly paid his rent but tries to enter the premises before or after gate hours without permission can be considered a trespasser. The same might be considered true for a tenant who has properly paid his rent but is on the property in violation of the terms of his rental agreement (i.e., is in breach of the peace). In that instance, after being asked to leave the premises by the operator, the tenant’s refusal to leave may be considered a trespass.

What about a tenant who is in default under his lease? Once a tenant is locked out of the facility by the gate or a unit overlock, he may be considered a trespasser by entering the facility without authorization. Furthermore, if the tenant cuts the facility’s lock to gain access to his unit, such an act could even be seen as breaking and entering.

Practically speaking, if a tenant enters his unit during default to retrieve his property, it is unlikely law-enforcement authorities would prosecute for trespassing and theft of his own goods. Certainly, such a decision will depend on the tenant’s other acts in entering the facility and retrieving its property —for example, whether he destroyed any property (i.e., damaged gates, doors or locks) or there was any assault or battery when the entry occurred. Without such occurrences, a tenant’s retrieval of his own property may be seen as more of a civil matter then a criminal one, and the tenant might not be prosecuted.

Much of the confusion over who has rights to be in a facility or enter a unit, or what rights the landlord himself has concerning access can be resolved though a well-written rental agreement. Attention should be given to the use of undefined access lists or delivery agreements that do not contain liability release. Operators should obtain permission from their tenants in advance to release information to law enforcement and recognize their right to enter a unit if there is an emergency. An operator should also be proactive in handling tenant-trespass issues by involving the police. The bottom line is, you should know who is knocking on your door before you let him in.

Scott Zucker is a partner in the law firm of Weissmann & Zucker P.C. in Atlanta. Mr. Zucker specializes in business litigation with an emphasis on real estate, landlord-tenant and construction law. He is a frequent lecturer at national conventions and is the author of Legal Topics in Self-Storage: A Sourcebook for Owners and Managers. He is also a partner in the Self-Storage Legal Network, a subscription based legal service for self-storage owners and managers. For more information, call 404.364.4626 or e-mail scott@wzlegal.com.

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