BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 655 (Emmerson)
          As Amended May 20, 2010
          Hearing Date: June 29, 2010
          Fiscal: No
          Urgency: No
          BCP:jd
                    

                                        SUBJECT
                                           
                           Self-Service Storage Facilities

                                     DESCRIPTION  

          This bill would revise the existing declaration of objection  
          that permits an occupant of a self-service storage facility to  
          object to a lien sale of their items, and additionally:
           standardize the time frame in which the owner may deny an  
            occupant access to a space, enter the space, and remove the  
            property for safe keeping; 
           enhance the notice of lien sale; 
           permit a person claiming a right to stored goods to pay the  
            lien amount and one month's rent in advance, but if a court  
            order is not obtained within 30 days, the claimant must pay  
            the owner a monthly rental charge, and if that is not paid,  
            the owner may sell or dispose of the property without  
            liability; and
           make other clarifying changes.

                                      BACKGROUND  

          Existing law, the California Self-Service Storage Facility Act,  
          governs self-service storage facilities and specifies certain  
          procedures to be followed when their occupants are delinquent in  
          their payments.  When an occupant is delinquent, the owner must  
          first send a preliminary lien notice that informs them that if  
          they do not pay the amount due that their right to use the space  
          will terminate, they will be denied access, and an owner's lien  
          will be imposed on all stored property.  If the occupant fails  
          to pay the amount, the owner may then send a notice of lien  
          sale, which states that the property will be sold to satisfy the  
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          lien on or after a specified date (not less than 14 days after  
          mailing) unless: (1) the amount of the lien is paid; or (2) the  
          occupant executes and returns a declaration in opposition to the  
          lien sale.  If that declaration is returned, the owner must file  
          a court action to enforce the lien.

          This bill, sponsored by the California Self Storage Association,  
          would modify existing law by, among other things, modifying the  
          process for that declaration of objection, enhancing the notice  
          of lien sale, and standardizing the time frame between the  
          sending of the preliminary lien notice and the ability to deny  
          an occupant access, as specified.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Self-Service Storage Facility Act,  
          specifies remedies and procedures for self-service storage  
          facility owners when occupants are delinquent in paying rent or  
          other charges.  (Bus. & Prof. Code Sec. 21700 et seq.)

           Existing law  provides that if an owner sends an occupant a  
          preliminary lien notice by certified mail, the owner may, upon  
          the effective date of the lien, deny the occupant access to the  
          space, enter the space, and remove property to safe keeping.   
          However, if the owner sends the preliminary lien notice by  
          first-class mail with certificate of mailing, the owner may not  
          remove the property for at least 14 days following the effective  
          date of the lien.  (Bus. & Prof. Code Sec. 21705.)

           Existing law  requires owners to send occupants a notice of lien  
          sale that states the property will be sold to satisfy the lien  
          after a specified date that is not less than 14 days from the  
          date of mailing unless: (1) the amount of the lien is paid; or  
          (2) the occupant returns a declaration in opposition to lien  
          sale in a specified form under penalty of perjury.  (Bus. &  
          Prof. Code Sec. 21705 (c).)

           Existing law  permits a person claiming a right to the stored  
          goods, prior to any lien sale, to pay the lien amount and  
          reasonable expenses.  In that event, the goods shall not be  
          sold, but shall be retained by the owner subject to the court's  
          disposition of the property.  (Bus. & Prof. Code Sec. 21709.)  

           This bill  would revise the current declaration in opposition to,  
          instead, inform the occupant that if they oppose the lien sale,  
          they can return the declaration and file a lawsuit for hearing  
                                                                      



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          on the validity of the lien no later than 21 days after  
          returning the declaration.

           This bill  would provide that if a Declaration in Opposition to  
          Lien Sale is received by the owner, as specified, the owner may  
          enforce the lien only as follows: (1) the owner shall not sell  
          the property for 30 days from the date of receipt of the  
          declaration; (2) if the occupant files a complaint, and serves  
          the owner as specified, the owner shall not sell the property  
          until the court issues a judgment on the complaint in favor of  
          the owner's lien; or (3) if the occupant does not serve the  
          owner, or the owner is granted a judgment in favor of the lien,  
          the owner may advertise and sell the property.

           This bill  would provide that if a preliminary lien notice has  
          been sent and the total sum due has not been paid within 14 days  
          of the specified termination date, the owner may deny the  
          occupant access to the space, enter the space, and remove the  
          property for safe keeping.
           This bill  would require an owner, after sending a preliminary  
          lien notice, to send the occupant a notice of lien sale that  
          states all of the following:
           the occupant's right to use the storage space has terminated  
            and that the occupant no longer has access to the property;
           the stored property is subject to a lien, the current amount  
            of the lien, and that the lien will continue to increase if  
            rent is not paid;
           that the property will be sold to satisfy the lien after a  
            specified date that is not less than 21 days from the date of  
            mailing the notice;
           a statement that the occupant may regain full use of the space  
            by paying the full lien amount prior to the (above) specified  
            date;
           a conspicuous statement that the occupant may challenge the  
            sale by filing an action in any court having jurisdiction to  
            render a judgment in the amount of the lien; and
           that any excess proceeds of the sale (over the lien amount and  
            costs of sale) will be retained by the owner and  may be  
            reclaimed by the occupant or claimed by another person at any  
            time for a period of one year from the sale and that the  
            proceeds will then escheat to the county where the sale takes  
            place. 

           This bill  would provide that prior to any lien sale, any person  
          claiming a right to the goods may pay the amount necessary to  
          satisfy the lien together with one month's rent in advance.  In  
                                                                      



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          that event the goods shall not be sold, but shall be retained by  
          the owner pending a court order directing the disposition of the  
          property.  

           This bill  would provide that if a court order is not obtained  
          within 30 days, as specified, the claimant shall pay the owner  
          the monthly rental charge for the space where the property is  
          stored.  If the claimant does not pay that rent, the owner may  
          dispose or sell the personal property in accordance with the  
          above lien sale provisions.  Furthermore, this bill would  
          provide that the owner shall have no liability for the sale or  
          other disposition of the personal property to any claimant who  
          fails to secure a court order or pay that rental charge.   

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

            AB 655 will make several changes to the California  
            Self-Service Storage Facility Act that will make it more  
            consistent with other statutory lien enforcement procedures  
            in California as well as other states.  

          2.    May 20, 2010 amendments reinsert the ability of an occupant  
            to send a declaration of opposition to delay the sale of  
            property  

          In response to concerns raised last year about the elimination  
          of the Declaration in Opposition, which permits occupants of  
          self-storage facilities to object to the sale of their goods,  
          the May 20, 2010 amendments reinsert a modified version of that  
          declaration.  Under existing law, the current declaration is  
          sent to an occupant who may fill it out and return the document.  
           To inform the occupant of the consequences of returning the  
          declaration, the document itself requires the occupant to sign,  
          under penalty of perjury, that: "I understand that the  
          lienholder may file an action in court against me, and if a  
          judgment is given in his or her favor, I may be liable for the  
          court costs."  Once that declaration is signed and returned, the  
          storage facility must file suit to be able to sell the property.  
           

          The policy question raised by this bill, and the May 20, 2010  
          amendments, is who should have the burden of filing an action in  
                                                                      



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          court when an occupant objects to the sale of their goods.   
          Unlike existing law, the revised declaration proposed by this  
          bill would place the burden to file an action on the occupant,  
          not the self-storage facility (in other words, the occupant  
          would have to sue the storage facility to stop the sale of their  
          items).  In support of the revised declaration and shifting the  
          burden to file an action onto the occupant, the proponents  
          assert that the current declaration does not act as a consumer  
          protection and that:

            Out of 98 suits filed by storage operators against tenants  
            who had returned Declarations the customer requesting the  
            hearing failed to appear in 91 of those suits.  The storage  
            operator won all 98 suits filed either because the  
            delinquent customer failed to appear or the tenant had no  
            viable defense.  

          Despite that assertion, the fact that one side nearly always  
          prevails in litigation does not mean that the process by which  
          the actions are brought is flawed - the litigation process  
          itself serves the function of having a neutral third party  
          decide a dispute.  Since the occupant failed to appear in 91 out  
          of the 98 cases described above, it is difficult to determine  
          the number of cases in which tenants would have actually  
          prevailed if they had appeared in court.  Given that this bill  
          represents the policy choice to shift the burden of filing a  
          legal action onto people who are already struggling to make  
          payments on their storage units -- the Committee should consider  
          whether that burden shift is, in fact, appropriate in the  
          present economic climate where individuals are already facing  
          financial troubles due to unemployment, furloughs, and a  
          struggling economy.  

          SHOULD THE BURDEN OF FILING AN ACTION BE SHIFTED TO THE  
          OCCUPANT?

          As an alternative to that shifting of the burden, the Committee  
          should consider whether to, instead, modify the existing process  
          for the Declaration in Opposition to permit the storage facility  
          to bring the action in small claims court.  That ability would  
          reduce the costs of the facility when they are required to bring  
          these actions - that clarification should also include any  
          appropriate modifications to the declaration (such as ensuring  
          that the occupant fills out his or her address) that may  
          facilitate the bringing of those actions.

                                                                      



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          SHOULD THE BILL BE AMENDED TO RESTORE THE EXISTING PROCESS, BUT  
          PERMIT THE FACILITY TO BRING AN ACTION IN SMALL CLAIMS COURT? 
          In addition to revising the Declaration in Opposition, this bill  
          would also enhance the notice of lien sale that would accompany  
          the declaration.  That enhanced notice would warn the occupant  
          that the lien will continue to increase until it is paid, that  
          the occupant may regain the full use of the space by paying the  
          full lien amount, and must include a conspicuous statement that  
          the occupant may challenge the sale by filing an action in any  
          court having jurisdiction to render a judgment in the amount of  
          the lien.  While that enhanced notice, combined with the revised  
          declaration, would appear to provide consumers with notice of  
          their rights, as discussed above, the bill would also shift the  
          burden of filing an action in a way that could diminish the  
          bargaining power of an occupant.

          Although not addressing the issue of shifting the burden, the  
          following clarifying amendment is suggested to strike changes to  
          Section 21708 of the Business and Professions Code that are no  
          longer necessary after the recent amendments:

             Clarifying amendment:  

            On page 6, strike out lines 13 through 25, inclusive.

          3.   Immunity provision  

          Under existing law, any person claiming a right to goods that  
          have been stored may pay the amount necessary to satisfy the  
          lien and the reasonable expenses incurred.  In that case, the  
          goods shall not be sold, and are retained by the owner pending a  
          court order directing disposition of the property.

          This bill would modify that provision by, instead, requiring  
          that person to pay the amount necessary to satisfy the lien  
          together with one month's rent in advance.  If a court order is  
          not obtained within 30 days following the date of that payment,  
          the claimant must pay the owner the monthly rental charge for  
          the space, and if they do not make that payment, the owner may  
          sell or dispose of the property.  The bill would additionally  
          provide that the owner shall not be liable for the sale or other  
          disposition of the personal property to any claimant who fails  
          to secure a court order or pay the required rental charge.

          It is unclear how an owner would be liable if they are complying  
          with their proposed statutory duties thus, the following  
                                                                      



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          amendment is suggested to clarify that the immunity applies only  
          when the owner has fully complied with the requirements of the  
          chapter.  That same immunity appears in Business and Professions  
          Code Section 21708 that governs the issue of the owner  
          delivering possession of any personal property to a person with  
          a perfected security interest that has paid the total amount  
          due, as specified.


           Suggested amendment:
           
            On page 7, line 2, after "section" insert:

            , provided the owner has fully complied with the requirements  
            of this chapter.

          4.   Additional provisions  

          Under existing law, an owner may send a preliminary lien notice  
          either by certified mail or by first-class mail with certificate  
          of mailing.  When the notice is sent by certified mail, the  
          owner may deny an occupant access to the space, enter the space,  
          and remove property, if the lien is not paid by the date  
          specified in the lien notice (the termination date).  An owner  
          must wait 14 days to take the above actions if the notice is  
          sent by first-class mail with a certificate of mailing.  This  
          bill would standardize that time frame by providing that an  
          owner who has sent a preliminary lien notice (by either type of  
          mailing) may enter the space, deny the occupant access, and  
          remove property if the occupant has not paid the lien amount  
          within 14 days of the termination date specified in the notice.

          This bill would also extend the sale date from not less than 14  
          days after the notice of lien sale, to not less than 21 days,  
          and make other technical and clarifying changes. 


          Support  :  Over 120 individuals

           Opposition  : None Known

                                        HISTORY
           
           Source  : California Self Storage Association

           Related Pending Legislation  :  None Known
                                                                      



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           Prior Legislation  : AB 790 (Frommer, Chapter 267, Statutes of  
          2003), authorized an owner to provide preliminary lien notice by  
          regular first-class mail (in addition to certified mail) if he  
          or she obtains a certificate of mailing indicating the date of  
          mailing, but prohibited the owner from removing property until  
          14 days after the lien date if using this method rather than  
          certified mail.

           Prior Vote  :

          Assembly Business and Professions Committee (Ayes 8, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Floor (Ayes 76, Noes 0)

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