In reviewing self-storage rental agreements, I frequently see a line asking the tenant to list “authorized users” of the unit. When I press facility operators about this, they say they it’s because they only allow one named occupant on the rental agreement, but when they rent to spouses, significant others or families, everyone wants equal access to the space. Authorized access becomes their solution for offering entry to more than one person.
Permitting only one tenant to sign the rental agreement isn’t the problem. In fact, there are good reasons for that. Collecting the names of others who are authorized to have access, on the other hand, implies you perform a service you don’t actually provide, which could lead to a misunderstanding or lawsuit between you and your renter.
What do I mean? Allowing for authorized access to the unit suggests you’re the gatekeeper to the space. It’s like saying you check all the people coming and going from the facility every day to make sure only the customer and his authorized persons are entering his unit. Unless you have some sign in/out procedure to get into a building, this simply isn’t the case.
Further, by asking for the names of authorized users, you’re inferring that you’ll prevent anyone who isn’t approved from entering the unit. In reality, with today’s access-control and automation technology, you aren’t personally checking who’s coming and going. Also, your gate hours may exceed attended office hours. How are you ensuring only authorized parties are entering when there are no employees on site?
Finally, what are you willing to do for authorized parties? Do you cut the lock if they want into the unit and don’t have a key? When you allow tenants to name authorized users, you’re indicating that you’ll get those people into the unit upon request. This is where confusion can cause lawsuits.
Duty of Loyalty
This all comes down to contract law. One party agrees with another to have some relationship between them. In your case, you’re accepting rent in exchange for allowing a certain person to use a portion of your facility. That person, the tenant, should be the only one to whom you owe a duty of responsibility.
By allowing authorized access, you divide that duty of loyalty. If you’ve ever dealt with a couple going through a divorce, you know the awkward position you’re in when each party makes demands on you instead of fighting with each other. This happens daily at self-storage facilities when a tenant ends a relationship, as the now estranged parties often share a unit.
Now, because you’ve collected the name of a person or people who are authorized to access, you’ll find yourself faced with that former spouse, boyfriend or girlfriend demanding you allow him/her into the unit because “you know” they’re supposed to have access. We also see domestic-relations attorneys threatening storage operators with contempt of court if he allows one party in and not the other because of mutual restraining orders issued at the beginning of many divorce cases. When you only have a duty of loyalty to one party, this ceases to be an issue.
Self-storage is a relatively simple business—until we do things to screw it up. Authorized access is one of the things we do to complicate it.
The solution is to abolish the term “authorized access” from your rental agreement. Don’t represent that you’re the gatekeeper, that you have the ability to let people in if they don’t have keys or a gate code, or you control who comes and goes from the unit.
The easy answer to that husband and wife who want to rent a unit together is, “We only allow one occupant to sign the rental agreement; however, this is a lock with three keys. As long as you know the gate code and have a copy of the key, you can come and go equally.” This simple solution avoids an enormous amount of unexpected, uncompensated liability to you. It leaves you with a duty of loyalty to only one tenant per unit.
Finally, don’t confuse authorized access with alternate contact. I’m all in favor of collecting alternate contact information, even if it isn’t required by your state statute. I steer away from the term “emergency contact” because some tenants claim that nonpayment of rent doesn’t qualify as an emergency. They then say we’ve violated their privacy when we send said contact a copy of the default notice. Instead, refer to these as “alternate contacts” and define it in the rental agreement on the grounds that you can contact the alternate, so there’s no misunderstanding.
This column is for the purpose of providing general legal insight into the self-storage field and shouldn’t be substituted for the advice of your own attorney.
Jeffrey J. Greenberger is a partner in the Cincinnati law firm of Greenberger & Brewer LLP. Licensed to practice in Kentucky and Ohio, he focuses primarily on representing the owners and operators of commercial real estate, including self-storage. His website, selfstoragelegal.com, contains legal opinions and insights as well as an article archive. To reach him, call 513.698.9350; e-mail [email protected].