Acceptance of partial Can I Allow the Spouse of a Tenant Into a Unit?

Mini- Storage Messenger - Can I Allow the Spouse of a Tenant Into a Unit?

Question: This month’s question is from a manager in North Carolina: “I have a customer who is now two months delinquent and may have to start the lien process. The problem I have is that the customer is going through a divorce and the husband is not on the contract. The wife took some of her stuff and left town. We told him since he is not on the lease we could not let him in, but what happens if she does not pay and I have to go through the lien process? Am I then allowed to let him in and sell the goods back to him?”

Rob, in response to your questions,

So far you have acted appropriately. I always advocate that a self-storage facility only have one named occupant thus, there is only one, for lack of a better term master, which you as the landlord must serve, rather than have multiple parties on the lease and thus having to answer for every action to multiple parties who may have different interests. Particularly in the case you have stated these interests are now in conflict with each other and that could have created a large problem. When one person is your occupant, you only have the duty to respond to that one occupant. All others must gain access either by being authorized by the existing occupant (and when I say authorized, I mean that occupant has given that person the key and/or gate code, I do not mean they are a listed as an “authorized access party” on your paperwork), or that person must get a court order to get into the unit, often done through the divorce court. Thus, as you have not stated that this person is an authorized access party (which I believe is a good thing, I do not believe in gathering authorized access parties in your paperwork), you are not letting husband into the space unless you can reach one of these three options:

1. Get a written release from your occupant to allow this person into the unit. This written release should include a release to you that once this person has gone through the unit, then you are completely released from any damages the occupant may suffer by what this person may take out of the unit. If you reach this sort of release with your occupant you should also have written releases with the person entering the unit which includes a release of any liability for any property that is not there, for release of any liability for any injuries that he may suffer as a result of being on the property, and with the agreement that when the husband leaves, the unit will be broom clean and anything left behind is deemed abandoned. Please note this is different than getting the lease assigned, which I think is a riskier proposition once the lease is in default, and which I will discuss next.
2. Get an assignment of the lease, by which your occupant signs over the lease and all rights to access the space and any right they have to the property in the space to, in this case, the husband. This would require that any default be cured which I am guessing the husband would be willing to do, proper paperwork should be drafted by your legal counsel. An assignment is riskier because your state statute may allow for redemption by the tenant but not anyone else (except a secured lien holder). In this case your occupant is not redeeming thus there is some risk.
3. Allow the unit to go to sale and simply notify the husband of the date and time of the sale. The husband can then come and most likely purchase for less than what is owed on the lien on the property in the unit and clean it out. This option is cleaner and requires no involvement of the “ex”-spouse, but does increase your costs. However, it is the recommended method because it is going to be hard to be certain that any document you have “signed” by wife is really going to be signed by her. You may end up having accepted a forged document and be at risk of liability to your tenant.

The one thing you should not do is you should not let husband in the unit to remove property unless or until you have some sort of release or assignment of lease signed by the actual occupant or allow the husband to purchase at the sale. There is no other time that letting husband in the unit to remove the property, although it may save you money, would be the right answer. To allow someone to remove property without a release, (permission), without assignment of the lease, or tenant’s sale, is what is called a constructive eviction and it could set you up for liability to the wife should she reemerge before the sale to pay her indebtedness and you have cleared the unit out. You would be liable for ultimately denying her the property and/or wrongfully selling the property and could expose yourself to a long litany of damages that could or could not have actually existed because of property now gone from the unit.

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.

(actual version to be printed)
Legal Q&A
Should I Allow A Spouse Access?
By Jeffrey Greenberger

Question: This month’s question is from a manager in North Carolina: “I have a customer who is now two months delinquent and I may have to start the lien process. This customer is going through a divorce and her husband is not on the contract. She took some of unit’s contents and left town, and we told the husband we could not give him access. If I have to go through the lien process, am I then allowed to let him in and sell the goods back to him?”

So far, this manager has acted appropriately. I always advocate that a self-storage facility only have one named occupant rather than multiple parties on the lease, and thus having to answer to different parties who may have different interests. The case described above is a good example. These parties’ interests are now in conflict, and having both on the lease could have created a problem. When one person is your occupant, however, you only have the duty to respond to that one person. In most cases, the only way others should gain access is either through authorization by the existing occupant (the occupant has given that person the key and/or gate code) or by court order, which sometimes happens in the case of a divorce.

Thus, as the husband referred to in the letter does not have authorized access (which I believe is a good thing), there are three directions you may follow. One approach is that you could allow him access to the unit with a written release from the occupant. This should include a statement that, once this person has gone through the unit, the facility is completely released from any damages the occupant may suffer. In addition, you should also have a written release with the person entering the unit, which includes a release from any liability for any property that is missing. The document should also include a release of any liability for any injuries he may suffer as a result of being on the property, and should also include in the agreement that, when he leaves, the unit will be broom cleaned and anything left behind deemed abandoned.

Another option is to get the lease assigned, which I think is a riskier proposition once the lease is in default. An assignment of the lease involves the occupant signing over to another party the lease and all rights to access the space, as well as any right they have to the property. This would require that any default be cured, which I am guessing the husband in this case would be willing to do. If you take this route, the proper paperwork should be drafted by your legal counsel. I believe an assignment is riskier because your state statute may allow for redemption by the original tenant but not by anyone else (except a secured lien holder). In this case, your occupant is not redeeming; thus, there is some risk.

A third option is to allow the unit to go to sale and simply notify the husband of the date and time of the sale. The husband can then come and purchase the unit (most likely for less than what is owed on the lien on the property). This option is cleaner and requires no involvement of the tenant who is on the lease, but it does increase your costs. Nevertheless, this is the method I recommend because it would be difficult to be certain that any document you received from the husband was actually signed by your tenant (the wife). You could end up accepting a forged document and would be at risk of liability to your tenant.

The one thing you should not do is let the husband go into the unit without a release or assignment of lease, unless he has purchased the unit at a sale. There is no other time that letting the husband in the unit to remove the property would be the right answer. The wife could reemerge before the sale to pay her indebtedness, and you would be liable for ultimately denying her the property and/or wrongfully selling the unit.

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.