How can I protect myself against liability while having doors installed?

Mini- Storage Messenger - How can I protect myself against liability while having doors installed?

This month’s question is: I have an older storage facility and have to replace approximately fifty (50) roll up doors. I am fortunate that I am 100% full, but I have been told that when I replace the doors the installers will need to be in the units and have approximately three feet of clearance inside the unit. This means, I will have to open the tenant’s units and potentially move some of their stored property out. Is there anything I can do to protect myself against liability?

The answer is that I do not have a “magic” answer for you. If you need to enter tenant’s units and touch or move their property, you have entered the world of bailments. You have the liability of a bailment (which we have discussed in this column before) and you face exposure for claims of damage or missing stored property.

In a perfect world you would want to have the tenant come down to the facility at a scheduled appointment time, remove their lock, watch you move their property out (or even more ideally have them move their own property out), stay during the entire door replacement, once the door is replaced, put their property back in the unit, and have the tenants lock the door with their own lock. That is not just a perfect world, that is a fantasy world, given that your tenants may not be able to take three or more hours out of their life to sit at your facility and watch a door being replaced, if your tenants were even located in or around where the facility is, as opposed to where tenants are from out of town.

There are some precautions you can take to help minimize your liability to the tenant:

1. Notify your tenant that this will be happening and ask if your tenant will agree to come and then remove the lock and then replace the lock when you are done. Even if your tenant will not wait through the three or more hour replacement time, and even if the tenant will not help you move the property, at least your exposure is minimized by having your tenant there at the beginning and end of the transaction to inspect that their property is there at the beginning and back in the unit at the end.

2. Short of that, if you are going to have to cut a lock you should do so while videotaping the process so you can get an accurate videotape picture of the condition of the unit, videotape the removal of the property to show that it is not done in a careless manner, then videotape the property in its existing position at the end of the door replacement, and the property being replaced back into the unit. Once you have locked with a new lock, we recommend mailing the keys to the tenant, rather than holding on to the keys until the next time your tenant comes down to the facility to minimize the amount of time that you are “in control” of the contents of the unit.

3. You want to make certain that you have as many good supervisory controls in place as possible, that is your manager or other trusted site employees supervises or conducts the lock cut, conducts the move out of the property, watches the property while the roll up door replacement people are in the unit, and replaces the property. It probably is not necessary to post a “security guard” or someone who is bonded. I do not believe that has any additional or real credibility. Bonding only means that if the person who will be watching the move steals property, you may be able to recover damages as opposed to the people installing the doors or any other tenant on your facility as they walk by and find something to their “liking.”
Nevertheless, when you open a tenant’s unit and they are not in default, but they are not there for you, you have created a bailment and when you create a bailment you will have responsibility for care of the property. And when you have a duty to care for the property you raise the stakes in a possible claim for loss or damage to the property. Particularly since you have notified the tenant that you will be entering the property by cutting their lock, moving their property, you will likely increase the number of claims tenants will make for alleged or missing property. It is thus important to make sure you have checked with your insurance agent to see if there is any additional or standard coverage you may want to purchase before embarking on this process.
After the replacement you should send a letter to the tenant stating that the replacement has been completed, how the replacement occurred, i.e. you personally supervised the removal, stood by the property while the replacement roll up doors were being installed, and replaced the property personally, put a new lock on the door and enclosed are the keys. You would want to include in that letter to a request to please check the door and the satisfaction with the status of the property in the unit within thirty days or waive any claims if you are not notified in thirty days. This will help reduce the possibility of future claims when a tenant becomes disgruntled. While you may be increasing the number of claims within the thirty days, at least you will know what claims are out there and you can deal with them appropriately versus waiting for them for the next two to five years to find out what those claims may be. You should also consult with an attorney to help you formulate that exact strategy to reduce and avoid, as much as possible, any claims that could be made.

You can send your questions, comments, or suggestions for future topics to Jeffrey Greenberger at info@selfstoragelegal.com or mail them to Jeffrey Greenberger c/o Katz Greenberger & Norton LLP, 105 E. Fourth Street, Suite 400, Cincinnati, Ohio 45202 or you can reach Mr. Greenberger at (513) 721-5151, or visit his website at www.selfstoragelegal.com.