Enter a Tenant’s Unit: Can I?

By Richard Marmor, Esq.
AZSA Legal & Legislative Chair

I host a round-table discussion each year on sale and foreclosure issues at AZSA’s Annual Conference and Trade Show. I was surprised this year by how many times I was asked this question. Some managers went so far as to tell me that they believed it was against the law for them to enter a tenant’s unit.

The simple answer is YES, you can enter, and there is no law which says you can’t. That said, like everything else, there is a little more to it.

WHEN THE TENANT IS IN GOOD STANDING.

Those of you who attended my seminar talks last year on property law understand that when we rent out a space, we sell the right to occupy that chunk of real estate for a period of time. We still own the space, but our right to occupy it has been given up conditioned upon some terms, among them the periodic payment of money. Those terms are spelled out in detail in a contract between us and the tenant which we call a “lease.

So technically, it would seem that the answer ought to be no, since we gave up the right of occupancy during the term of the lease. But that lease contract also spells out what other rights we reserve for ourselves. Check your lease. I’ll wager there is a provision somewhere in there that says that you reserve the right to enter the unit at the minimum for the purpose of doing repairs and maintenance. The AZSA form lease goes further than that. It also gives operators the right to enter to make sure that the lease terms are being complied with.

So the answer is yes, you can enter, if the right to do so is reserved in your lease. Obviously it ought to be.

WHEN THE TENANT IS DELINQUENT.

This changes the game completely. Not only have we the right to enter the unit then, we may have a duty to do so.

Consider the most common case: as you begin the auction process you cut the lock and discover the usual pile of household effects. Can you enter the unit? Certainly. Should you? No. Take your pictures from the doorway and seal the unit.

Why not enter in that case? For one thing, the contents of the unit remain the property of the tenant right up to the moment the auction ends with “sold!” Should the tenant show up and redeem, the less interaction with that property you have the better. We know tenants store junk, but they lose heirlooms. If you touched and moved things, you can bet there will claims that property is missing. Secondly, particularly in units that have been rented for a long time, there is dust on the floor. Experienced auction bidders often view footprints in that dust as evidence that someone went through the contents and “took out the good stuff.” We don’t want to even give the appearance of impropriety, so leave well enough alone.

Generally you have to go into the unit in four circumstances. To examine:

• Potentially unsalable property. There are some things that you are prohibited by law from selling. This could include sensitive papers such as medical files, financial information, legal files and the like; pharmaceuticals; alcoholic beverages and wines and guns. You have to know what you’re dealing with and perhaps make other arrangements for the later disposition or destruction of those things.

• Lienable property. Any goods, the purchase of which might have been financed, may have a lien on them. You need to identify the make, model and serial number of those items so when you do an on-line lien search at the Secretary of State’s website, you can determine if this is the specific vending machine, office furniture, store fixture or machine which is the subject of that lien. You will also need the information in order to contact any lienholder you then discover.

• The VIN on a motor vehicle. If you find a boat, trailer or motor vehicle, you will have to get ownership information from the DMV or the Game & Fish Department. To do that, you will need the make, year, model and VIN (or HIN for a boat).

• Unusual property. If you find things not ordinarily found in a self-storage unit, you will want to identify it so you can seek buyers suitable for those goods. For example, if you find vending machines, your regular auction buyers could not be expected to bid much for them. You’ll want to call people in the vending business to attend and bid. Why you should do this is a discussion that merits another newsletter article unto itself. For now, take my word for it that you should.

I often plug the AZSA form lease here, and I’m going to do it again for good reason. In all of these situations the actions you may need to take are rights reserved to protect you in the lease. If you haven’t considered switching to it, this would be a good time.

[This article deals with a law related subject at a general level and is not intended for you to rely on. You should consult a lawyer before making a final decision in a situation involving any legal issues.]

Richard Marmor, Esq. is a self-storage consultant, facility owner and former facility operator in the Phoenix area. He is also the founding President and current member of the Board of Directors of the Arizona Self-Storage Association, serving as Chair of the Legal and Legislative Committee.

Source: Behind Closed Doors, AZSA Newsletter Archives