The question of “abandonment” of stored property is challenging in the self-storage industry. Tenants move in and out of their units on a daily basis. When moving out, some intentionally leave items behind (for example, moving truck too small), others leave items by mistake and then there are others who, based on circumstances often out of their control, simply elect to forego all of their stored items because they simply can’t pay the outstanding rent needed to retrieve the property or the cost to remove them.
How does a self-storage operator determine whether the items left behind in a storage unit have been abandoned by their owner? Other than obtaining a written abandonment form (which is the best solution), what other tools can an operator use to verify that the property left in a space- whether it’s a full unit or a bag of old clothes- has been intentionally abandoned by the previous tenant?
An unlocked space by itself may not indicate a voluntary move out. So property simply left in an unlocked space would not necessarily indicate abandonment. But add a rent default or pending lien action and the facts may indicate otherwise. Further, add a text or e-mail from the tenant about their intent to vacate and that might be sufficient. Communication is key. Before acting on any assumptions, an operator should communicate with the tenant, by letter, e-mail, text or phone. Confirming a moveout is the simplest way to avoid an incorrect assumption about an abandonment.
What does your law say? There are a few states that provide specific guidance in their self-storage law on the issue of abandonment. Maine, for example, does one of the best jobs to aid storage operators by not only defining what abandonment is, but clarifying the rights of the operator once the property is deemed abandoned.
Maine defines Abandonment as follows:
§1372. Definitions As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings. [PL 1989, c. 62 (NEW).] 1. Default. "Default" means the failure to perform on time any obligation or duty set forth in the rental agreement. [PL 1989, c. 62 (NEW).] 1-A. Abandoned leased space. "Abandoned leased space" means a leased space that the operator finds unlocked and empty or unlocked and containing personal property with a value less than $750 or a leased space possession of and all rights to which and any personal property within which have been surrendered to the operator by the occupant.
Then the Statute provides direct guidance to the operator on their rights after the abandonment has been triggered:
§1378. Abandonment. In the case of an abandoned leased space, the operator has the right to immediately take possession of the leased space and dispose of any personal property in the leased space by any means at the operator's discretion.
It would be very helpful if more states followed this process in their laws. At the end of the day, if the pieces of the puzzle on abandonment are not clear, an operator always has the right to simply wait to allow the lien for default to trigger and for the lien enforcement process to be completed to sale. Then the property can be removed. By waiting, the operator obtains not only the factual defenses of the tenant’s abandonment over the stored goods, but the statutory protection by complying with the law. Each situation has its own set of facts. A lien sale for a bag of clothes with zero market value is different from a lien sale for a unit full of household goods. Operators need to use their best judgment to gauge whether their tenant has abandoned their property (and breached their rental contract) or other circumstances are at play.
Again, communication and verification are the best options. After that, absent statutory guidance, each operator must decide for themselves whether the property left behind was left by mistake or was left intentionally.
This article was originally published in Self Storage Legal Monthly Minute by Scott Zucker, December 2023
Scott Zucker is a founding partner in the Atlanta law firm of Weissmann Zucker Euster Morochnik & Garber P.C. and has been practicing law since 1987. Scott represents self-storage owners and managers throughout the country on legal matters including property development, facility construction, lease preparation, employment policies and tenant claims defense. He also provides, on a consulting basis, advice to self-storage companies in the areas of foreclosure and lien sales, premises liability and loss control safeguards. Scott can be reached at 404-364-4626 or by e-mail at Scott@wzlegal.com.
