One of the biggest risks to a self-storage operator is a claim for wrongful sale arising out of an allegation by the (now former) tenant that the required statutory lien-sale notices were not served to him at the right (often referred to as “last known”) address. The tenant alleges he put the operator on notice of a new address; the operator claims he was not informed of a new address and sent the notices to the address he had on file, normally the one provided by the tenant in the rental agreement.
The problem is compounded by many state statutes that define the term “last known address.” They generally define it as (I’m paraphrasing several statutes here): The address provided by the Occupant in the last version of the rental agreement or any address subsequently provided by written notice to Operator.
The term “written notice” in statutes drives me crazy because tenants have the wildest justifications for how they have provided “written notice” that operators have no idea they received. These explanations range from the simple (an e-mail or fax) to the sublime (a scratched-out address on a rent check or a different return address on the outside of the payment envelope), to the ridiculous (a different address used in a newspaper article discussing the arrest of the tenant). For this reason, I beat the stump and preach that you must define, in your rental agreement, what is an acceptable form of written notice.
I’m not so concerned with what you find to be acceptable. If you want to accept the risk of an e-mail, it’s ok with me, though I prefer in-person delivery, Certified Mail, or submission via a secure, password-enabled website. Whatever you will accept, state it in your rental agreement and preclude all other methods of changing an address.
The one state in which I’ve never really had to preach this issue was Florida because its self-storage statute defined “last known address” with specific ways of serving it. According to the old statute, the “last known address” was the one provided by the tenant in the most recent rental agreement or via hand delivery or Certified Mail in a subsequent written change-of-address notice. I just loved that definition. It made life so simple and clear, at least on that one point.
Imagine my surprise when I started to read the revised Florida statute that goes into effect July 2012 and saw that, among all the really great changes, the definition of “last known address” has been altered. The new definition is “the street address or post office box address provided by the tenant in the latest rental agreement or in a subsequent written change-of-address notice provided by hand delivery, First-Class Mail, or e-mail.” Ugh!
As you can see, Certified Mail is gone and e-mail is in. I’m all for the lien-law modernization efforts made by the national and state self-storage associations, and I completely understand the movement to give operators more options for notifying delinquent tenants, such as verified First-Class Mail. But I’m not comfortable with selling someone’s property based on an e-mail only, at least not yet. I’m not certain it’s necessary to remove Certified Mail as an option for sending default notices. Instead, it’s beneficial to simply add other reliable methods of acceptable service of default notices to tenants.
I recognize the significant cost savings of alternate delivery methods to self-storage operators, and appreciate the value of those changes to the bottom line. I also mean no disrespect to the Florida Self Storage Association and its board and members. But I do look at things through a more narrow legal view, and that view is positive and negative in light of these changes. The negative, in my view, was removing Certified Mail and statutorily mandating e-mail as a way to legally notify an operator of an address change.
Was this a case of the “red pen” run amuck? In the zeal to do away with all things Certified Mail, did the red pen scratch out all references to it, even though that requirement in the “last known address” section of the statute was a benefit to self-storage operators? That’s my two cents. Let me know what you know, and what you think.
Two thoughts to take away from this post … First, make sure your self-storage rental agreement defines how you will accept “written notice” of a change of address (and maybe of intent to vacate), especially if you are not in Florida. Second, if you’re in a state that’s looking to make statute modifications, be careful not to just delete every reference to Certified Mail. There’s nothing wrong with leaving options such as Certified Mail in the statutes as an option, so long as you expand the service options to include more reliable and less expensive methods of notice such as verified First-Class Mail.