How To Deal With A Bad Sale Or Sale

Transcription

1 TSSA ANNUAL CONVENTION-FT WORTH TEXAS OCTOBER 27-28, 28, 2014 MURPHY S. KLASING Weycer, Kaplan, Pulaski & Zuber, PC Eleven Greenway, Suite 1400 Houston, Texas How can a Self-Storage property get sued? -Bad Sale/Auction Cases -Personal Injury Cases -Theft/Burglary Cases -Fire / Wind / Rain / Mold -Employment Matters -Just Because 2 Lawyer or individual writes or types out what happened File papers at the Court house Pay filing fee Serve papers on Defendant 3 1

2 Tenant Vacates Tenant doesn t get moved out until after the facility is closed. Gate code no longer working Calls manager but friend decides to open it himself. Friend is a bodybuilder. 4 Friend tears quad muscles in both legs. Friend sues for $100K in medical damages including pain and suffering and mental anguish. Tenant does not want to be involved in the suit and has to be subpoenaed to testify. 5 Tenant brings friend to check out a storage unit. Friend and prospective tenant enter golf cart to ride to unit. Friend is in back, is overweight and apparently not very balanced. Friend falls off when cart lurches forward and breaks upper back/neck area. Surgery: $48,000K. 6 2

3 Slip and falls. (neck) Doors coming unhinged. (broken hand) Doors bent and not closing properly (rotator cuff injury) Step up to office uneven (back) Wet surfaces (collar bone and back). Etc 7 -Close Your Facility. -Have a Maintenance Plan (periodic checks on facility gates, golf carts, sliding doors, lot surfaces, fences, etc ) -Lawsuit Tip #1: If You Have A Plan--- FOLLOW IT! -Always Render Aid Immediately. (Call for an ambulance, be kind and understanding) -Lawsuit Tip #2: If A Problem With Your Facility Is Identified FIX IT! 8 9 3

4 10 Trees went from Hackberry to Money Trees. Property Manager thought it would be cool to help got in the cherry picker and assisted in cutting the trees. Contractor testified that he cut trees exactly as directed by Property Manager who allegedly said: Who gives a F*** about Hackberry trees, cut the F***ers down. Lesson Learned: Commercial Neighbors are just like Residential Neighbors treat them neighborly get permission. If no permission, a short and to the point letter from a lawyer may help. If still nothing, give notice that you are going to cut them and then make sure your contractor cuts only what is harming building and doesn t harm the trees. -Water/Drainage issues. 11 -TSSA Lease Disavows security in numerous places. -Lawsuit Tip #3: Signage Deliver What Your Promise! -Cameras and Keypads What are they for? -What do your managers / brochures / signs say to the public about security? -Lawsuit Tip #4: Don t Promise Security! -Bad phrases: We never have any break-ins; Your stuff is very secure here. 12 4

5 -Plano Fire: Halogen Lights -Wind and Rain Damage (previous damage, roof leaks) -Mold Damage -What about Limitation of Liability Clause? 13 -Lawsuit Tip #5: Limitation of Liability Clause ineffective against a DTPA claim. -Lawsuit Tip #6: $5000 limit of value not a guaranteed winner. -Lawsuit Tip #7: Ledger Notes JUST THE FACTS! LEDGER NOTES 04/23/10: Tenant came in complaining of water in unit. Tenant says items in unit are destroyed. This is the third time this unit has flooded. Previous tenants did not file suit but we paid for some damage. Unit needs to be fixed. 04/24/10: Tenant came in again-angrier this time I explained that water from rain is not our responsibility. Tenant stormed out. Tenant is a jerk. 14 TOP 10 REASONS WHY THE SALE IS BAD - I never received notice of the sale. - I paid at another facility in cash or with a money order. - I paid by money order through the night slot. - I was in the hospital / coma / deathly ill / surgery. - I tried to pay and you wouldn t accept it. - The manager told me I could pay late / installments / after my Christmas bonus. - You knew I was protesting what you claim I owed. - It is my credit card company / bank s fault. - The proof I paid is in my unit which you have now sold. - It s Bush s / Obama s fault. 15 5

6 Notice of Sale: Make sure it goes to last known address-make sure it can be tracked (CMRRR is best) make sure the amount is correct. (Lawsuit Tip #8-Update the Address) Ledger Notes: Document all attempts to call, write, , etc (Lawsuit Tip #9: if you have alternative contact information you better use it) Inventory: Be accurate without being crazy. 3 boxes and some other stuff is not good enough. The statute says: a general description of the property. What does that mean? There are exactly ZERO cases on this so use common sense. (Lawsuit Tip #10: Have 2 people inventory so there is no allegation of theft) 16 Signed Agreement: Make sure you have a copy of the contract signed by the Tenant. If you don t do not sell. (Lawsuit Tip #11-If you sell a unit without a signed contract you are toast!) Actual Sale: Buyers have protection under the Property Code for claims from the Tenant unless there are shenanigans (sp?) (Lawsuit Tip #12: Make sure there are at least 3 bidders and that they are not your siblings, cousins or significant others) DOUBLE CHECK all procedures, notices, documents be confident that you can stand up to scrutiny after the sale. 17 Temporary Restraining Orders: 3 in the past year-attempts to Stop Sales How they work: Hearing without the company 14 days later Temporary Injunction hearing Like a mini-trial Be prepared make sure file is in order. 18 6

7 Springer 4 Units filled with exhusband s entire house. Claimed PM signed leases on her behalf so she could continue to bring in truck loads. Quit paying for 5 months while in hospital in Wisconsin 19 Springer 12 page inventory totalling $649,000. All four units sold at auction. Claimed bad sale because the signatures on the contracts were forged. Result: $ jury verdict. Lessons: Good inventory, good documentation, proper sale, good notices, good attempts to contact, good District Manager. 20 Daugirda: Rented a space to place entire apartment in while she served at the USO in Afghanistan (68 years old) Her deceased husband was career military, her son was in Iraq Relief Manager accidentally placed her auto-pay credit card on the wrong unit. Her unit never got paid, a different unit was paid instead. Sold at auction Perfect storm file, personnel, paperwork, notice. Result: confidential settlement thank thank goodness!! Lessons learned: DOUBLE CHECK at every stage before a sale is completed. 21 7

8 -Lawsuit Tip #1: If You Have A Plan---FOLLOW IT! -Lawsuit Tip #2: If A Problem With Your Facility Is Identified FIX IT! -Lawsuit Tip #3: Signage Deliver What Your Promise! -Lawsuit Tip #4: Don t Promise Security! -Lawsuit Tip #5: Limitation of Liability Clause ineffective against a DTPA claim. -Lawsuit Tip #6: $5000 limit of value not a guaranteed winner. -Lawsuit Tip #7: Ledger Notes JUST THE FACTS! -Lawsuit Tip #8: Update the Address -Lawsuit Tip #9: If you have alternative contact information you better use it -Lawsuit Tip #10: Have 2 people inventory so there is no allegation of theft -Lawsuit Tip #11: If you sell a unit without a signed contract you are toast! -Lawsuit Tip #12: Make sure there are at least 3 bidders and that they are not your siblings, cousins or significant others