Tenant Property: You Can’t Just Throw it Away

by Richard Marmor, Esq.
AZSA Legal & Legislative Chair

On my first day in law school – back in the days before electric lighting – Professor “Fast Eddy” Brodky terrorized us, when he grabbed my pen out of my hand and boomed stentorily, “Is this your property?!”

“Yes,” I murmured.

“Wrong!” he shouted. “It’s a pen!”

He tried it again with my neighbor’s wristwatch. “Is this your property?!”

My seat mate, now alerted, offered, “No?”

“Then what is it?” demanded Brodky.

“A wristwatch?” ventured my seat mate.

“Yes, yes. But what else is it?” persisted Brodky.

Thus began our introduction to the law of property. “Property,” explained Professor Brodky, “is not an object. It is a concept. Property is the collection of rights you have in relation to objects that you ‘own.’ ” (The correct answer, it thus turns out, is that my pen is “the subject of my collective property rights of ownership.”)

We then went around the room considering examples of what rights we have in our pens, watches, books, clothing and everything else in our lives. For example, we can use the objects; we can lend them to others, will them to our descendants, misuse them, destroy them, etc. We can even separate some of the rights. For example, we could sell just the right of possession for a period of time, keeping all the other rights (we have special name for that: “leasing”).

Which brings me back to our topic: can we ever just throw contents away?

Throwing away contents of a storage space is effectively exercising one of those rights of ownership in property. But the contents of our tenants’ spaces are never our property – sorry, I mean are never the subject of our property rights. The contents are not ours to dispose of.

The law gives us exactly one right in respect to the contents: a lien against them when a monetary default has occurred under the lease, which includes an opportunity to foreclose the lien and auction the contents.

That’s it. So no, technically speaking, there never comes a time when we can just discard contents.

Now for the practical side of life. We are frequently left with contents that are, frankly, trash, stuff that no one would pay money for. And although we have no right to simply toss it, it makes no sense to go to all the trouble and time of staging an auction only to have it not sell. In that case, the sensible thing to do is to discard the trash. That said, before you do that, it is a very good idea to take pictures of it. I learned this firsthand when I was sued by a disgruntled tenant after I tossed the seemingly worthless contents of her space. She won the lawsuit; the judge agreed with her that I had had no right to dispose of her things as I did. But I had photographs of the contents to show the court, and though she won, the court only awarded a couple of dollars. I had demonstrated that her loss had no value.

So, lesson 1 is: When deciding whether to auction or discard, decide whether the probable sale value of the contents is an amount you’re willing to risk being sued over. And don’t forget to factor in the sentimental value of those things. After all, tenant’s store junk, but they lose heirlooms. “That coat hanger was in our family for generations.” So, take pictures!

But doesn’t there come a point when inactivity by a tenant amounts to abandonment? Arguably, but with no absolute assurance. So that still does not confer some new right in us as to stored contents. The law still limits us to our single lien right, so lesson 1 still obtains.

Which brings up lesson 2, about which I have written in the past: We can never accept an abandonment of contents from a tenant, even if the abandonment is given voluntarily.

We all know that tenants frequently have contents in their spaces that belong to others: their brother’s car, their ex-spouse’s furniture, etc. Those tenants do not own those objects. Go back to our concept of property rights: abandonment is essentially passing all of your collective ownership rights to someone else. But, you can’t abandon what you don’t have. If you don’t own the object in the first place, you can’t very well give title to it to another person. So, tenants can’t legally abandon those non-owned things.

Worse, if you think about it, you actually have no idea who owns any object stored at your facility. Theoretically,every item stored at your facility could be owned by people other than your tenants. And while  it’s obviously unlikely that all the stored contents are owned by others, it’s a certainty that some of them are.

The only right tenants have in such non-owned content is possession, not ownership (don’t bother me with talk of possession being “nine-tenths of the law”; we no longer have writs issued by a king). And with possession comes responsibility. So, when a tenant abandons something he or she doesn’t own, you take over possession and responsibility for its care; you don’t get ownership. Dispose of it and you become liable for its value to the true owner.

Since you can never know what rights you are actually getting in contents, you therefore take a risk if you accept an abandonment. The safer course is to never accept one, and to never treat contents as abandoned.

Fortunately, our lien rights extend to all stored contents regardless of ownership, so the better course is always to foreclose our lien and auction. Then the law is on your side.

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

Richard Marmor has been in the self-storage industry for over 30 years, as a facility owner and consultant. He was the founding president of AZSA and is its lobbyist at the Arizona Legislature, where he authored many of the self-storage industry’s laws. An attorney, Richard also created most of AZSA’s forms; he is a regular speaker at AZSA educational workshops around the state; and his articles appear regularly in the AZSA newsletter and website.