Are we invading privacy?

Mini- Storage Messenger - Are we invading privacy?

QUESTION: This month’s question: We have a 600+ unit facility where we use a standard month-to-month agreement that forbids the storage of hazardous materials, munitions, etc. There is a concern from the local fire department that there may be units with hazardous materials in them. The fire department has suggested adding sprinklers and seismic bolting, etc,. which is not feasible in our facility, or to employ a master key system so that the fire department can inspect. We would rather provide occupants with a thirty (30) day notice to remind them not to be storing hazardous materials and that management reserves the right to bring in trained dogs to try to detect any hazardous materials, munitions, etc. The fire department does not like the “trust but verify” approach because of the invasion of privacy and commotion issues that may occur with a false positive. (If we bring in the dogs) Are we invading our occupant’s privacy?

Answer: This question is actually loaded with questions. Let me try to answer in “as all encompassing” manner as possible.
First, your rental agreement should contain a provision giving you the right to enter for several different reasons. They are, as examples:

(1) To enter in the event of an emergency;
(2) To enter under the order of a governmental or quasi-governmental order such as the order from a fire marshal;
(3) To enter in the event of a court order, such as search warrant; and
(4) To enter to perform regular and necessary maintenance and inspections of the units.

If you do not have this type of provision, it is something you should be adding to your rental agreements and also distributing to your occupants as a modification of the rental agreement as the rental agreements renew.

As for including a provision about drug sniffing dogs, I do not believe that needs to be in your rental agreement; however it is not a bad idea to disclose such activity to your occupants. This can be done in one of several ways:

(1) Disclosing by signage in your office that the police department uses your facility for drug, hazardous waste, etc., dog training. This sign can include notices of what days the training may happen and/or that the facility may be briefly closed during these periods of time to allow the dogs free run if that is necessary.

(2) Some of our clients conversely put up a thank you letter from the police department thanking the facility for being a place where the drug/hazardous waste dogs are trained and for the cooperation with the local police department.

(3) You can also have signage on your gate or fence stating that during certain periods the facility may be inaccessible due to drug dog training or it could be something you post at your gate stating that on a certain date the facility will not be accessible for “x” number of minutes or hours for police training.
This really does not belong in your rental agreement. It is not a term and condition between yourself and your occupant; it is an expression of your willingness as a facility owner to allow the police onto the property to train/search for nefarious activity. If you really want it in your rental agreement there is not too much harm except if you stop the training after a while and it remains in your rental agreement, people may say they have relied on the existence of dogs training to keep their units safe from crime, and keep the facility crime free, which may not then be happening.

As for master key lock systems, they are my least favorite item in self-storage. I have certainly written articles where I have said there are certain limited conditions under which a master key lock system would not be a bad option; however those circumstances are extremely limited. Generally, if you have a master key to the locks you are inviting additional claims for lost or missing property by your occupants who are going to say there is sign of forced entry yet property is missing, thus it must have been stolen by you or your employees. An argument can certainly be made that by maintaining a master key to the facility you not only are allowing yourself the right to inspect, which is what the fire department wants, but that you are now accepting an additional duty to enter the units to inspect them for roof leaks and other damage, damaged property, lost property, etc. on a regular basis. This bailment duty is not one you want to assume as a self-storage operator.

To me, the best answer is the one that the fire department really is not keen about. Make sure your rental agreement permits you to enter on governmental orders, purposes, for inspection, maintenance, etc. or circulate said notice and give one or more months notice to allow that to take effect. Post notice of intent to bring drug/hazardous material dogs, to the property for training purposes. If the fire or police department get a positive, whether or not it is a false positive, the fire/police department can then go and get a search warrant. A search warrant is authority by the court to enter into a unit (in this case) to search for certain contraband based on the reaction of the dog. This is how most drug cases in vehicles get started. A police officer pulls over a motorist, suspects drug usage, asks for permission to inspect the car, the owner of the car denies permission, they bring out a drug dog, the dog sniffs and indicates the presence of drugs, a search warrant is then issued, the car is then searched, the drugs are found. The same is true of self storage. If there is a false positive and a search warrant is issued I feel strongly that the operator is not going to be held liable or for a wrongful entry because the rental agreement permits you to allow governmental officials in, and if they have come with a search warrant, and you have let them in. Since governments are generally immune from this type of action there will be no one to sue. In a false positive situation you will obviously want to replace the lock quickly and get the keys to the occupant as quickly as possible. If there is a positive finding and there are drugs or hazardous materials found you have gone a long way towards protecting your facility from an explosion or other problem.

In the end, nothing says safety and security (without saying those dirty words) to occupants better than knowing that drug / hazardous material dogs, etc. are walking the property looking for trouble, hopefully finding it (if there is trouble on the property) and getting it out of the buildings before there is a fire or other catastrophe.

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.