BILL NUMBER: AB 655 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 2, 2010
AMENDED IN SENATE MAY 20, 2010
AMENDED IN ASSEMBLY MAY 19, 2009
AMENDED IN ASSEMBLY APRIL 16, 2009
INTRODUCED BY Assembly Member Emmerson
FEBRUARY 25, 2009
An act to amend Sections 21702.5, 21705, 21706, 21707,
21708, and 21709 of, and to repeal and add Section
21710 of, the Business and Professions Code, relating to
self-service storage facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 655, as amended, 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 safekeeping. 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.
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
safekeeping. 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 14 days from the date of mailing
unless the occupant executes and returns by certified mail a
specified declaration in opposition to lien sale ; the occupant
may regain full use of the space by paying the full lien amount
prior to the specified date; the occupant may return a
Declaration in Opposition to Lien Sale on a specified form;
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 specify procedures for an occupant to
challenge a lien sale in court. 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.
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.
(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 and the total sum due has not been paid within 14 days of the
termination date specified in the preliminary lien notice, 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 safekeeping.
(b) Upon taking the actions described in subdivision (a), the
owner shall send to the occupant, 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, both of the following:
(1) A notice of lien sale that states all of the following:
(A) 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) That 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.
(C) That the property will be sold to satisfy the lien after a
specified date that is not less than 21 14
days from the date of mailing the notice, unless the occupant
executes and returns by certified mail a Declaration in
Opposition to Lien Sale declaration in opposition to
lien sale in the form set forth in paragraph (2).
(D) A statement that the occupant may regain full use of the space
by paying the full lien amount prior to the date specified in
subparagraph (C).
(E) 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.
(F) 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 Lien Sale
declaration in opposition to lien sale that
shall be in substantially the following form:
DECLARATION IN OPPOSITION TO LIEN SALE
You may file suit in any court with
jurisdiction of matters in the amount of the
lien (that may be a small claims court). The
suit must be filed within 21 days of returning
this declaration in the jurisdiction where you
reside or where the self-service storage
facility is located, or your property may be
sold.
You must complete all sections of this
declaration. If the owner cannot contact or
serve you at the address and telephone number
that you provide below, this declaration shall
be void and the owner may sell your stored
property.
I,____________________, have received the
(occupant's name)
notice of lien sale
of the property stored at ____________________
(location and space
___.
#)
I oppose the lien sale of the property,
because (provide a brief explanation of the
reason your property should not be sold):
reason the owner's lien may not be valid. For
example, ""I have paid my rent and other
charges in full''):
________________________________________________
________________________________________________
My address is:
(address)_______________________________________
(city)__________________________________________
(state)_________________________________________
(ZIP Code)______________________________________
(telephone number)______________________________
I understand that I must file a lawsuit for a
hearing on the validity of the lien no later
than 21 days after returning this declaration
in opposition to lien sale. If I do not file
suit and serve the self-service storage
facility where the property is stored, the
property may be advertised for sale and sold by
the self-service storage facility owner.
I understand that the lienholder may file an
action against me in any court of competent
jurisdiction, including small claims court, at
the address provided above, and if a judgment
is given in his or her favor, I may be liable
for the court costs. I also understand that the
declaration is not valid if (a) the address
provided in this declaration is not my current
address or (b) I change my address at any time
prior to service of an action on the lien and I
do not provide the owner the address within 10
days of the change.
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 amended to read:
21706. If a declaration in opposition to the lien sale, executed
under penalty of perjury, is not received by the owner
prior to the date of sale set forth specified
in the notice of lien sale by certified mail, is not
completed and signed by the occupant, if the occupant cannot be
contacted or served at the address provided in the declaration, or if
the occupant withdraws the declaration in opposition to the lien
sale in writing , 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. 3. SEC. 4. Section 21707 of the
Business and Professions Code is amended to read:
21707. After the expiration of the time given in the notice of
lien sale, pursuant to subdivision (b) of Section 21705, or following
the failure of a claimant to pay rent or obtain a court order
pursuant to Section 21709, 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, 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. The sale
shall be conducted in a commercially reasonable manner. 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.
SEC. 4. 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. 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. 5. Section 21709 of the Business and Professions Code is
amended to read:
21709. Prior to any sale pursuant to Section 21707, 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 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. If a
court order is not obtained within 30 days following the date of the
payment pursuant to this section, the claimant shall pay 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 set forth in
this section , provided the owner has fully complied with the
requirements of this chapter .
SEC. 6. Section 21710 of the Business and Professions Code is
repealed.
SEC. 7. Section 21710 is added to the Business and Professions
Code, to read:
21710. If a Declaration in Opposition to Lien Sale
(a) If a valid declaration in
opposition to lien sale is received by the owner prior to the
date set forth in the notice of lien sale, the owner may enforce the
lien only as follows:
(a) The owner shall not sell the property for 30 days from the
date of receipt of the Declaration in Opposition to Lien Sale.
(b) If the occupant files a complaint challenging the lien sale in
an appropriate court and serves the owner with a copy of the
complaint within 30 days of the owner's receipt of the Declaration in
Opposition to Lien Sale, the owner shall not sell the property until
the court issues a judgment on the occupant's complaint in favor of
the owner's lien.
(c) If the occupant does not serve the owner in accordance with
subdivision (b) or if
(1) File an action in small claims court as provided in Chapter
5.5 (commencing with Section 116.110) of Title 1 of Part 1 of the
Code of Civil Procedure to enforce the lien, provided that the amount
of the lien is within the monetary jurisdiction of the court.
(2) File an action to enforce the lien in any other court of
competent jurisdiction.
(3) If the owner is granted a
judgment in favor of the lien, the owner may advertise the goods for
sale and sell the property as provided in Section 21707.
(b) For any action filed pursuant to this section, the summons and
complaint may be served by certified mail, postage prepaid,
addressed to the occupant at his or her 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 5 of Part 2 of the Code of Civil
Procedure.