What am I to do if my client is in jail?

Mini- Storage Messenger - What am I to do if my client is in jail?

QUESTION: This month’s question: The Police came to my facility with a search warrant for the unit. While I was reviewing the warrant the police informed me that the person believed to be the occupant (is) was in jail. I got the impression from the police he was going to be in jail for a long time. Now what do I do with the unit? Complicating this issue is that the ex-wife has called and wants to get her property out of the unit. Although she is offering to rent a smaller unit from me for her stuff, I am not sure what to do.

Answer: This is always a difficult question to answer. But the first thing I challenge you to do is to take the idea of your occupant in jail out of the story and tell me what your answer would be.

Many people have occupants that end up “unable” to come to their unit for various reasons, most often of which are death, disability, disappearance, or incarceration. Your question is actually, perhaps, a bit easier than a death or disability case because in those types of cases we are often looking for a probate “document” which relatives of the deceased or disabled person are willing to go to court to procure.

First, let us start with the most basic question. Do you let the ex-wife in? The answer is, probably not, except as described below. The wife is not your occupant. Self storage, like any other real estate transaction, lives and dies by the rental agreement (your lease). In your case, even if wife were listed as an additional “access party” that means she has the right to get into the unit without you stopping her. In a moment I will explain why I do not even like the term “access party”, however, the access party does not mean that under any set of circumstances that you have to, as an example, cut the lock off and give this woman access to the unit to remove part of the property stored in the unit and leave the rest. What happens to the rest? It becomes abandoned property. How do you know wife is only taking her property and not some of ex-husbands? You do not. That is why you do not give access without appropriate documents.

An access party, at best, means if the lady were in the unit with on her own (with her own key) you would not call the police. The term “access party” is troubling anyway because it implies that you are somehow a gate keeper of the facility and you are not. To take a list of access parties implies that you will cut a lock off or give access in some other way to these people. How do you know for certain these people are the people the occupant designated as access parties, for example, Bill Smith, which Bill Smith? It also implies, in my mind, that you will not let other people into the unit. If you are not sitting at the gate checking identification you should probably not be collecting listed access parties for the rental agreement. I know there are lots of operators out there who will disagree with me, but it is a recipe for disaster.

Back to the question, since I contend you should not let ex-wife in because she is only an “access party,” as the question stands right now, what do you do? The best answer I can give is that the ex-wife gets a statement from ex-husband assigning the self-storage unit to her or giving you written permission to cut the lock at her request. This is certainly different than an access party; this solution requires specific written direction from your occupant. You might be asking how do I know the document is really from my occupant? The only way to do that is to get a notarized document from your occupant, unless you desire to go visit your occupant in jail. With a properly written notarized document you can get specific instructions about what the occupant wants you to do with the unit. This way you are not going against your occupant’s instructions. This presumes, of course, that the occupant will give this type of notarized affidavit. There is almost always a notary at the jails, at least some days each week for various other legal reasons, thus the request to get a notarized document is not nearly as onerous as it may sound to you in reading this column. If occupant does not want to give a notarized set of instructions to you then treat the unit as one in default. Short of a notarized document I recommend that you put the unit into lien sale at the appropriate time following appropriate procedures in your state, and simply advise ex-wife when the sale will occur. She can come, like any other bidder, to the sale and buy whatever of her property she wants and you will avoid liability to the occupant, who will some day get out of jail and want to make hay out of your letting his ex-wife into the unit by either getting approval from the occupant or properly selling the unit, as you will have to do at some point in the due course of business.

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.