How do I know if I need a liscensed auctioneer?

Mini- Storage Messenger - How do I know if I need a licensed auctioneer?

QUESTION: This month’s question: How do I know whether or not I need a licensed auctioneer to conduct my self storage sale?

Answer: If you are in a state where you have a self storage statute the answer is often found with in the statute. If you are in a state (and there are a few left) that does not have a self storage statute, the answer is dictated by your state Uniform Commercial Code and/or your self storage contract.

Lets focus on the states with a statute. The language of the statute may not be, on first glance, specific about the requirement to use an auctioneer or not. However, the term “auction” is generally a legal term of art in your state statute. What does this mean? What this means is if your state statute uses the term “auction” the term auction is often defined in another one of your statutes. Take for example, West Virginia which requires the operator to “proceed to enforce the self-service storage lien by selling the contents of occupant’s unit at “public auction” for cash and applying said proceeds to the satisfaction of the self-service storage lien, with the surplus, if any, to be disbursed as provided…” One might be thrown off by the term “public auction” as opposed to “auction”. However, “auction” is a term of art in West Virginia meaning a sale conducted by a licensed auctioneer, with certain exceptions. In another section completely unrelated to the self storage statute, there is definition of what an auctioneer is and it includes certain requirements such as: apprenticeship; graduating from an accredited auctioneer school; a certain number of auctions conducted under the supervision of a licensed auctioneer; a test both written and oral; and paying a license fee to be an auctioneer. Thus clearly in West Virginia, we know what an “auctioneer” is by definition and the term auction is defined as a sale by an auctioneer, so you are required to use an auctioneer.

Contrast this against the state of California which merely discusses the concept of a lien sale (this is of course after an enormous amount of other work) the term “auction” is not present. We can assume that the legislature in California did not intend for the sale to be an auction, rather a public or private sale, what they refer to in California as a lien sale. Thus, California does not require the use of an auctioneer.

The state of Indiana, as another example, specifically states and provides “for a sale or other disposition of the personal property”. Again, from this, you can presume that the legislature in Indiana did not intend to require that such sale be conducted by an auctioneer because the Indiana statute does not refer to it directly as an “auction.”
Thus, the answer to your question lies in the state statute in which your facility is located, unless of course you are in a state that does not have such a statute.
As always, it pays to have an attorney assist you with understanding the requirements of your statute however, you should also read your statute carefully, as demonstrated by this article, there are “loaded” words in every statute that have meaning when read carefully, and in context with other state statutes of which you may not be familiar. We find that most people do not understand all of the requirements of their state statute even if they have read it many times.

One final note, if you are located in a state where your statute does not call for an auction, you should not refer to it as an auction in your notices or advertisements, because to call it an auction implies that you will be using a licensed auctioneer. Use the term that is in your statute, such as sale, public sale, private sale, or other disposition, not auction.

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.