BILL NUMBER: AB 655 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Emmerson
FEBRUARY 25, 2009
An act to amend Sections 21702.5, 21705, 21707, 21708, 21709, and
21713.5 of, and to repeal Sections 21706 and 21710 of, the Business
and Professions Code, relating to self-service storage facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 655, as introduced, Emmerson. Self-service storage facilities.
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.
Under existing law, 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. Existing law requires
owners to send occupants a notice of lien sale stating that the
property will be sold to satisfy the lien after a date not less than
14 days following the date of mailing unless the amount of the lien
is paid or the occupant returns a declaration in opposition to lien
sale in a specified form. Existing law specifies procedures for an
owner to enforce the lien following receipt of a declaration in
opposition to lien sale. Existing law requires that a lien sale be
advertised in a newspaper of general circulation in the judicial
district where the sale is to be held, or posted in conspicuous
places in the neighborhood of the proposed sale, as specified, and
provides that prior to a lien sale, any person claiming a right to
the goods may pay the amount necessary to satisfy the lien and
reasonable expenses incurred for particular actions taken. Existing
law provides that an owner may assess a reasonable late payment fee
if an occupant does not pay the entire amount of the rental fee, as
specified based upon the amount of the rent.
This bill would provide that, if the occupant has not paid the
full amount specified by the date in the preliminary lien notice, the
lien will attach as of that date and the owner may deny the occupant
access to the space, enter the space, and remove any property to
safe keeping. The bill would require the owner to send the occupant a
notice of lien sale stating 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 occupant may regain full use of the
space by paying the full lien amount prior to the specified date; the
occupant may challenge the lien sale by filing an action in a court
having jurisdiction as specified; and other information, as
specified. The bill would eliminate the occupant's right to return a
declaration in opposition to lien sale. The bill would provide that
the lien sale be advertised in a commercially reasonable manner of
public notice, as specified. The 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 which case the owner would retain the property pending
a court order directing the disposition of the property. The bill
would also prescribe procedures to be followed if a court order is
not obtained. The bill would provide that an owner may assess a late
fee equal to the greater of $20 or 20% of the monthly rent, and may
recover reasonable expenses incurred in collecting rent and enforcing
a lien.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21702.5 of the Business and Professions Code is
amended to read:
21702.5. (a) Any lien on a vehicle or vessel subject to
registration or identification under the Vehicle Code which has
attached and is set forth in the documents of title to the vehicle or
vessel shall have priority over any lien created pursuant to this
chapter.
(b) Any lien created pursuant to this chapter on a vehicle or
vessel subject to registration or identification under the Vehicle
Code shall be enforced in accordance with the provisions of Section
3071 of the Civil Code, in the case of a vehicle, or Section 503 of
the Harbors and Navigation Code, in the case of a vessel, and not as
prescribed in Sections 21705 to 21711, inclusive , except
that actions may be conducted as provided in Section 21710
.
(c) Any lien created pursuant to this chapter on a vehicle or
vessel subject to registration or identification under the Vehicle
Code shall not include any charges for rent, labor, or other services
incurred pursuant to the rental agreement, accruing more than 60
days after the date the lien imposed pursuant to this chapter
attaches, as set forth in Section 21705, and before application is
made for authorization to conduct the lien sale pursuant to the
requirements of Section 3071 of the Civil Code or Section 503 of the
Harbors and Navigation Code.
(d) Any proceeds from a lien sale shall be disposed of pursuant to
Section 3073 of the Civil Code, in the case of a vehicle, or Section
507.5 of the Harbors and Navigation Code, in the case of a vessel.
SEC. 2. Section 21705 of the Business and Professions Code is
amended to read:
21705. (a) If the notice has been sent as required by
Section 21703 is sent by certified mail and the
total sum due has not been paid as within 14
days of the termination date specified in the
preliminary lien notice as the termination date ,
the lien imposed by this chapter attaches as of that date and the
owner may do all of the following:
(1) Deny an occupant access to the space.
(2) Enter the space.
(3) Remove any property found therein to a place of safe keeping.
(b) If the notice required by Section 21703 is sent by regular
first-class mail with a certificate of mailing and the total sum due
has not been paid as of the termination date, the lien imposed by
this chapter attaches as of that date and the owner may deny an
occupant access to the space and enter the space. The owner may not
remove the occupant's property until not less than 14 days after the
termination date, during which time the occupant may regain full use
of the space by paying the full lien amount.
(c) Under either subdivision (a) or
(b) Upon taking the actions described
in subdivision (b) (a) , the
owner shall send to the occupant a notice of lien sale ,
addressed to the occupant's last known address, and to the
alternative address specified in subdivision (b) of Section 21712, by
certified mail or by first-class mail, if the owner obtains a
certificate of mailing , postage prepaid, all of the
following:
(1) A notice of
lien sale that states all of the following:
(A)
(1) That the occupant's right to use the storage space
has terminated and that the occupant no longer has access to the
stored property.
(B)
(2) That the stored property is subject to a lien,
and the current amount of the lien
, and that the lien will continue to increase if rent is not paid
.
(C)
(3) That the property will be sold to satisfy the lien
after a specified date that is not less than 14
21 days from the date of mailing the notice
unless the amount of the lien is paid or the occupant executes and
returns by certified mail a declaration under penalty of perjury in
opposition to the lien sale in the form set forth in paragraph (2).
If the notice required by Section 21703 was sent by regular mail with
a certificate of mailing, the notice of lien sale shall include a
.
(4) A statement that the occupant
may regain full use of the space by paying the full lien amount
prior to the date specified in this paragraph
(3) .
(5) 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.
(D)
(6) 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 thereafter the
proceeds will escheat to the county in which the sale is to take
place .
(2) A blank declaration in opposition to the lien sale that shall
be in substantially the following form:
DECLARATION IN OPPOSITION TO LIEN SALE
I,_______________________________________________,
(occupant's name)
have received the notice of lien sale of the
property stored at
_________________________________________________.
(location and space #)
I oppose the lien sale of the property. My
address is:
__________________________________________________
(address)
__________________________________________________
(city) (state) (ZIP Code)
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. I declare under penalty of perjury that
the foregoing is true and correct, and
that this declaration was signed by me on
__________________ at _______________.
(date) (place)
_________________________________________________.
(signature of occupant)
SEC. 3. Section 21706 of the Business and Professions Code is
repealed.
21706. If a declaration in opposition to the lien sale, executed
under penalty of perjury, is not received prior to the date of sale
set forth in the notice of lien sale, the owner may subject to the
provisions of Sections 21708 and 21709 sell the property upon
complying with the requirements set forth in Section 21707.
SEC. 4. Section 21707 of the Business and Professions Code is
amended to read:
21707. (a) After the expiration of the time given in the notice
of lien sale, pursuant to subdivision (a) (b)
of Section 21705, an advertisement of the sale shall
be published once a week for two weeks consecutively in a newspaper
of general circulation published in the judicial district where the
sale is to be held. The advertisement shall include a general
description of the goods, the name of the person on whose account
they are being stored, the space number of the occupant, and the name
and location of the storage facility. If there is no newspaper of
general circulation published in the judicial district where the sale
is to be held, the advertisement shall be posted at least 10 days
before the sale in not less than six conspicuous places in the
neighborhood of the proposed sale.
(b) The
or following the failure of a claimant to pay rent or obtain a
court order pursuant to Section 21709, the sale shall be
conducted advertised and the personal
property shall be sold in a commercially reasonable manner
, and, after . After deducting the
amount of the lien and costs of sale, the owner shall retain any
excess proceeds of the sale on the occupant's behalf. The occupant,
or any other person having a court order or other judicial process
against the property, may claim the excess proceeds, or a portion
thereof sufficient to satisfy the particular claim, at any time
within one year of the date of sale. Thereafter, the owner shall pay
any remaining excess proceeds to the treasury of the county in which
the sale was held.
(b) Advertising of a lien sale shall be deemed to be in a
commercially reasonable manner if it is by any method of public
notice reasonably calculated to inform potential buyers and other
interested parties that the property will be sold on a specified
date, including, but not limited to, posting notice of sale at the
facility or on the owner's self-service storage facility Internet Web
site not less than 10 days before the sale, advertising in a local
publication in which sales of used personal property are advertised,
or direct communications with potential buyers of used personal
property by mail, delivery service, or electronic means.
SEC. 5. Section 21708 of the Business and Professions Code is
amended to read:
21708. Any person who has a perfected security interest under
Division 9 (commencing with Section 9101) of the Commercial Code may
claim any personal property subject to the security interest and
subject to a lien pursuant to this chapter by paying the total amount
due, as specified in the preliminary lien notice, for the storage of
the property , if no declaration of opposition to the lien
sale is executed and returned by the occupant . Upon
payment of the total amount due, the owner shall deliver possession
of the particular property subject to the security interest to the
person who paid the total amount due. The owner shall not be liable
to any person for any action taken pursuant to this section if the
owner has fully complied with the requirements of Sections 21704 and
21705.
SEC. 6. Section 21709 of the Business and Professions Code is
amended to read:
21709. Prior to any sale pursuant to Section 21706
21707 , any person claiming a right to the goods
may pay the amount necessary to satisfy the lien and the
reasonable expenses incurred for particular actions taken pursuant to
this chapter together with one month's rent in
advance . In that event, the goods shall not be sold, but shall
be retained by the owner subject to the terms of this
chapter pending a court order directing a
particular the disposition of the property.
If a court order is not obtained within 30 days following the date
of the payment pursuant to this s ection, the
claimant shall p ay the owner the monthly
rental charge for the space where the property is stored pursuant to
the terms of the rental agreement. If the claimant does
not pay this rent, the owner may sell or dispose of the personal
property in accordance with Section 21707. 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 the required
rental charge as provided in this s ection.
SEC. 7. Section 21710 of the Business and Professions Code is
repealed.
21710. If a declaration in opposition to the lien sale is
received prior to the date set forth in the notice of lien sale, the
owner may enforce the lien as follows:
(a) An action to enforce the owner's lien shall be commenced by
the filing of a verified complaint setting forth the facts upon which
the claim of lien is based. The summons and complaint may be served
by certified mail, postage prepaid, addressed to the occupant at the
occupant's last known address, in which case service shall be deemed
completed on the fifth day after the mailing, or in any other manner
authorized by Chapter 4 (commencing with Section 413.10) of Title 2
of Part 2 of the Code of Civil Procedure.
(b) The occupant shall have 10 days in which to respond to the
complaint after service of the summons is completed, which time may
be extended for good cause shown.
(c) If the occupant has not responded to the complaint by answer
or demurrer within the time allowed after service is completed, the
clerk, upon application of the owner, shall enter the default of the
occupant, and thereafter, the owner may apply to the court for
judgment in the amount of the lien, including costs.
(d) Any judgment entered on the action on the lien in favor of the
owner may be enforced by sale of the property by the owner. The sale
shall be conducted in a commercially reasonable manner, and shall
take place 10 days or more from the entry of judgment, unless within
that time period, or at any time prior to the sale, the occupant pays
to the owner the full amount of the judgment.
(e) Enforcement of the judgment may be stayed, pending appeal, by
the posting of a bond by the occupant in an amount one and one-half
times the amount of the judgment, in which case the property may be
released to the occupant.
SEC. 8. Section 21713.5 of the Business and Professions Code is
amended to read:
21713.5. (a) The owner of a self-service storage facility may
assess a reasonable late payment fee if an
occupant does not pay the entire amount of the rental fee specified
in the rental agreement, subject to the following requirements:
(1) No late payment fee shall be assessed unless the rental fee
remains unpaid for at least 10 days after the date specified in the
rental agreement for payment of the rental fee.
(2) The amount of the late payment fee shall be specified in the
occupant's rental agreement.
(3) Only one late payment fee shall be assessed for each rental
fee payment that is not paid on the date specified in the rental
agreement.
(b) For purposes of this section, a "reasonable late payment fee"
is one that does not exceed the following:
(1) Ten dollars ($10), if the rental agreement provides for
monthly rent of sixty dollars ($60) or less.
(2) Fifteen dollars ($15), if the rental agreement provides for
monthly rent greater than sixty dollars ($60), but less than one
hundred dollars ($100).
(3) Twenty dollars ($20) or 15 percent of the monthly rental fee,
whichever is greater, if the rental agreement provides for monthly
rent of one hundred dollars ($100) or more.
(4) The late payment shall not exceed the greater of twenty
dollars ($20) or 20 percent of the monthly rent.
(b) An owner may recover from the occupant any reasonable expenses
incurred in collecting rent and enforcing a lien created pursuant to
this chapter.