Applicability to Self-Storage
That’s lot of legal technical talk; now let’s apply it to self-storage. You already know you have to ask whether a tenant or a dependent (normally a spouse) is in the active or military reserves. Do you have to specifically ask about a same-sex spouse through a gay marriage or civil union? No. The SCRA merely requires you make inquiry about military service of the tenant and dependent.
While it would not make sense for the servicemember or spouse to lie, under the SCRA, you’re allowed to rely on the answer provided to you by the tenant completing the self-storage rental agreement. That is, if the tenant doesn’t want you to recognize his civil union, you do not have to. Thus, you would not need to be concerned if you were to put up for sale the unit of a tenant who is the same-sex civilian life partner of a military member.
Naturally, you still would not be able to sell the unit of any named tenant who’s in active or reserve military, subject to a release under the SCRA. However, should a servicemember wish to list his domestic partner as a “spouse” or “dependent,” the best course of action, for now, is to afford that civil union spouse/dependent/partner the protections afforded any other heterosexual spouse under the SCRA.
If a tenant acknowledges being the gay partner of a person in the military and lists that civil union as a response to your question about spouses or dependents in military service, then even if you are in a state that doesn’t officially recognize gay marriage, you should treat that spouse as protected by the SCRA. This means you should follow your standard procedure to get a waiver or court order to proceed to a lien sale or other collection activity, just as you would if you were dealing with a heterosexual couple.
A Contentious Subject
The topics addressed in this article are a bit controversial. Many people have strong feelings about what they deem to be a “legal” marriage. But self-storage operators need to know this information to avoid a potential violation of the SCRA that could cause them to suffer large fines or even jail time.
I discussed this article with several self-storage operators prior to writing it. Some said that if a potential tenant gave indication of having a gay spouse, they would simply ask that person to rent elsewhere to avoid having to accord that person SCRA protection. This is not advisable. In many states, homosexuals are protected against discrimination. If your state is one of them, you could end up embroiled in an expensive and potentially embarrassing piece of litigation. The best solution is to continue to rent as you always have and require an SCRA waiver from every military tenant or dependent.
If a tenant discloses that he has a same-sex partner to whom he believes the SCRA applies and he wants to invoke coverage, obtain an SCRA waiver. The waiver is complicated. Make sure you discuss all important aspects—proper use, form and execution—with your attorney before using it. The servicemember and the dependent can waive their rights under the SCRA, although many are advised not to do so. As a self-storage operator, you can require this waiver as long as you require it for every military tenant uniformly. Obtaining the waiver means not having to address the issues of gay marriage if, down the road, you have to enforce your lien rights against the military member or spouse.
The intent of this article is simply to provide you with legal information and help you avoid a mistake that buys you unnecessary litigation. I hope you welcome all good-paying tenants, regardless of military service or sexual orientation.
Author’s note: This article is dedicated to the memory of Chris McGrath, the self-storage industry guru on the SCRA. I miss your advice, counsel, wit and witticism on SCRA matters every time I speak or write about it.
This column is for the purpose of providing general legal insight into the self-storage field and should not be substituted for the advice of your own attorney.
Jeffrey J. Greenberger is a partner in the law firm of Katz, Greenberger & Norton LLP in Cincinnati, where he concentrates his practice in the areas of commercial real estate with a particular concentration in self-storage industry. He consults with self-storage owners and operators to design and implement legal procedures, policies and other operational issues in most states with a focus on litigation and liability reduction and avoidance. To reach him, call 513.721.5151; visit www.selfstoragelegal.com .