At the TSSA office, we receive more calls with questions

Transcription

1 A Texas Self Storage Association Publication November 2006 Volume 2 Issue No. 2 Auction Don ts Avoid These Common Mistakes At the TSSA office, we receive more calls with questions pertaining to the foreclosure process than any other legal category. And make no mistake: Chapter 59 Property codes are a true pillar of the self-storage industry. Without it, owners would be at the mercy of delinquent tenants. Although at first glance the Goldbook section (which covers the first 17 pages) may seem a bit daunting, it really isn t. Once you have the timeline down, you will become more familiar with the procedure with each foreclosure. Hopefully, you won t have too many auctions, but the next time you do, here s a little refresher on what NOT to do. Don t: Foreclose without following the correct foreclosure procedure to the letter (depending on whether it s a regular foreclosure, a special foreclosure involving vehicles or trailers, or a special foreclosure involving boats or outboard motors the procedures are different for each). Forget (in a vehicle or trailer foreclosure) to also follow the additional procedures outlined on the back of the TXDOT foreclosure forms. Hold the sale off-site unless it s held at a reasonably near public place as required by statute. Foreclose unless you have a signed lease with the required statutory language in it. Forget to have auction rules and post them or hand them out before the auction. Auction a vehicle, boat, trailer or outboard motor if you have not followed the special foreclosure procedure. (See page 7) Sell anything that you should not legally sell (beer, liquor, wine, food, drugs, cosmetics, LP-gas containers, illegal firearms full details on next page). Use outdated TXDOT or TPWD forms for vehicle or boat foreclosures get the latest forms off the TSSA website or the TX- DOT or TPWD websites. Forget to the send the Notice of Public Sale (not required by law, but strongly recommended) in time so that your tenant will receive it prior to the sale. Forget to send the required notice of excess proceeds (if there are any). Forget to seize the unit before sending the notice of claim. (See paragraph 24 (6) of TSSA lease for definition of seizure.) Forget to collect sales tax on all auction sales (except vehicle and boat sales). Continued on page 2 Inside TSSA Legal Update Auction DON Ts...1,2 Self-Storage Solutions...3 FAQ s Regrding Military Tenants...4 Form of the Month...5 Federal Fair Debt Collection Practices...6 TXDOT Foreclosure Review... 7 SPAM Laws...8

2 Auction Don ts, continued... Don t: Immediately purge your files after the sale it is recommended that you keep all paperwork related to units that were auctioned for at least four years, and five years for vehicles (the statute of limitations for breach of contract claims). Sell before the 16th day after the first newspaper notice is published. Law states that lessor may not sell the property before the 15th day after the day that the notice is published. This is confusing to most people. The Auction Don ts! same mistake is made most of the time because the owner of the facility does not wait for the tenant to satisfy the notice of claim before the 15th day after the day that the notice is delivered. (See of Chapter 59) Run your ad in the wrong type of newspaper to save money. All notices, must be published in a paper of GENERAL CIRCULATION IN THE COUNTY IN WHICH THE SELF-STORAGE FACILITY IS LOCATED. Some facilities have most of their tenants in a nearby county and advertise in a paper that is in that county and NOT the county in which the facility is located. Leave out important information in the ad. The notice of sale must state the time, place, a general description of the property being sold, and terms of the sale. Items not to be sold at auctions There are several items that you may find from time to time in storage units which by law or government rule cannot be sold at a foreclosure sale. This is a list of some of the most common items which have restrictions on their sale. If you have a question about an item that is not on this list, you should contact your own attorney. Some of the more common items which cannot be sold at foreclosure sale are: 1. Beer, liquor and wine. Chapter 109 of the Texas Alcoholic Beverage Code provides that the Texas Alcoholic Beverage Commission controls the sale of any alcoholic beverage and specifically discusses the situation of an insurer or an insurance salver. This would likely also apply to self-service storage facilities, so you should contact the Texas Alcoholic Beverage Commission before selling any beer, liquor or wine found in a unit. 2. Food, drugs, cosmetics, and medical devices. Chapter 432 of the Texas Health and Safety Code restricts the sale of any food, drugs, cosmetics, and medical devices. A person may not sell these items without a salvage brokers license. Cosmetic is broadly defined in the statute to include lotions, perfumes, powders, and other such substance in addition to lipstick and other items commonly thought of as cosmetics. However, soap is expressly excluded from the definition of cosmetic, so soap can be sold at auction. Drugs would include prescription and non-prescription drugs. No type of drug can be sold. Food is broadly defined to include any article of human food or drink, including chewing gum. Devices include medical devices and would include items like stethoscopes, syringes and prosthetics. 3. LP-gas containers. The Texas Railroad Commission rules (Title 16 of the Texas Administrative Code) restricts the sale of both unassembled and assembled LP-gas vessels. As a general rule, the Railroad Commission does not concern itself with the sale of small propane vessels (such as a propane vessel for a propane barbecue grill). However, larger gas containers may not be sold. All articles in the TSSA Legal Update are authored by Connie Heyer. Heyer is a partner in the law firm of Niemann & Niemann, LLC in Austin and serves as legal counsel for the Texas Self Storage Association. She is co-author of the TSSA Goldbook, a comprehensive guide to laws and regulations affecting self-storage owners and managers in Texas. Niemann & Niemann, LLC is also the author of the current TSSA rental agreement and official forms. 4. Weapons or firearms. If you find the occasional weapon in a storage facility, it is lawful for you to sell it at auction without having a firearm dealer s license. In the normal course of business, you do not qualify as a dealer who is engaged in the business of selling firearms and thus do not need a federal license to sell firearms. As long as you are not engaging in a regular course or trade or business of selling firearms, then you are exempted from licensure under federal law. Federal law allows you to make occasional sales of firearms without a license. However, there are additional requirements for machine guns and sawed off guns or illegal weapons. You should contact the Bureau of Alcohol, Tobacco, and Firearms before selling any machine guns, sawed off guns, or any illegal weapons such as brass knuckles. In conclusion, if you find any of these prohibited sale items in a unit, you should exempt them from the sale. You can call the relevant governmental department (for example, the Texas Alcoholic Beverage Commission for Alcohol; the Bureau of Alcohol, Tobacco, and Firearms for weapons, etc.). Reference phone numbers are at the front of your Goldbook. TSSA legal counsel suggests that you put all non-saleable items in a vacant unit and keep track of which unit the different items came from. (You can have the non-saleable items from different units combined into one unit, just keep track of which unit they came from.) Then, if a governmental entity does not confiscate the items or instruct you to dispose of the items, TSSA legal counsel suggests sending a letter by certified mail, return receipt requested, to the tenant at his last known address in your records offering to return the item to him, and advise him that if he does not contact you to pick up the item by a certain date (two or three months should be sufficient) then you will turn the property over to the appropriate government authorities or follow their instructions regarding the disposal of the property.

3 Self-Storage Solutions by Connie Heyer, TSSA Legal Counsel Niemann & Niemann, LLP Q: I have a tenant who is incarcerated. We have scheduled his unit for auction and sent the statutory notices and received a receipt. We then received a letter from the tenant saying that the notice of claim is invalid due to the fact that it was not signed by our facility. He asserted that it was illegal to sell his contents because we have a tenant whose husband is a friend of the owner and was incarcerated for several years, and we allowed the tenant to remain there without paying (this friend of the owner s is now in the process of paying his balance). This inmate-tenant says that this is legal precedent that would make it illegal to sell his contents. Is there any merit to his arguments? A: In short, no. There is no requirement that the notice of claim be signed, as long as it contains the proper language and was sent to the tenant to the last address you have for him. If you have an alternate address (the jail), you should send the notice of claim to that address as well. The fact that you allowed a friend to remain without paying the rent is irrelevant. People discriminate in favor of their friends all the time, and that is perfectly legal. Q: We conducted a foreclosure and found during the auction process that a motorcycle was inside the unit. We did not know about this motorcycle until we cut the lock to perform our inventory prior to the foreclosure sale. I withdrew the cycle from the auction and sold the remainder of the unit. The gentleman who purchased the unit now wants to try to purchase the motorcycle. What legal obligations do we have regarding the motorcycle? There are still fees owed on the unit, even after the proceeds of the auction were applied to the account. A: You have a lien on any contents of the unit for any amounts due. So, since there are delinquent amounts still owed on the account, you may begin the foreclosure proceedings on this motorcycle. You will have to start over ; in other words you will have to start the process over, but you did the correct thing in removing the motorcycle from the initial sale. You had not gone through the special foreclosure procedures, so you would not have been legally able to sell the motorcycle in the first sale. You should start the foreclosure procedures over, and make sure you utilize the special foreclosure procedures for a vehicle. There is nothing wrong with telling the person interested in the cycle when the auction will be, and letting him bid along with any other bidder who might want to bid. Q: I am confused on when to charge tax on motor vehicles, boats, etc. Can you give me yes or no answers on whether the following is subject to sales tax when stored on my property? A: Please see the legal article on page 183 of the TSSA Goldbook. This article is entitled Sales Tax on Parking and Storage of Motor Vehicles, Boat Trailers or Boats. This article will answer all of your questions in more detail, but in general see the following list for a quick reference guide: Is sales tax collected on storage of the following items? A boat on a trailer? No A boat trailer without a boat? Yes Towable camper trailer? Yes RV (driveable)? Yes Flat bed trailer? Yes Automobile? Yes Automobile on a trailer? Yes Lawn tractor? No (assuming the lawn tractor is not meant for use on public streets or highways, but is more of a riding lawnmower type). Q: Could you explain how the refund scenario works? Specifically, the minimum lease term that we always fill in (paragraph 3 of the TSSA lease) is one month. A tenant rented a unit on September 15 and he paid in full through October 31. On September 30, the tenant decided to move out and he now wants a refund. How much if any should he get back? A: Refunds are governed by paragraphs 28 and 39 of the TSSA lease. Paragraph 39 specifies the conditions for refunding prepaid rent. The tenant must give at least 10 days written move-out notice and give you written notice of actual move-out within 24 hours of moving out. His lock must be removed on or before the move-out date, or if the lock belongs to you, the lock must be returned to you. He must not leave trash in the space or in the halls, he must stay the minimum term length in paragraph 3 (one month in this case), and must be current in all obligations at the time of move-out. In your scenario, the tenant s minimum lease term is one month, so if he leased the unit on September 15 he is obligated at minimum through October 15. He could give you 10 days notice to move-out anytime from October 5 forward. In other words, if he gave you 10 days notice of moveout on September 30, he would still owe rent through October 15 due to the one-month minimum lease term. If he gave you 10 days written notice of move-out on October 10, he would still owe rent through October 20. So under your scenario, the most you are going to owe your tenant back is 15 days of rent (from October 15 through October 31.) However, you will only owe this if he gave you notice no later than October 5 because you have to give 10 days notice prior to moving out.

4 Military Tenants Frequently Asked Questions Regarding Military Tenants The Service Member Civil Relief Act was adopted in 2003 and amended in There is a comprehensive legal article regarding this Act in the TSSA Goldbook. This article will provide answers to frequently asked questions to supplement the article in the Goldbook. Q: Do the SCRA protections expire when the tenant is discharged from the military or is there a grace period? A: The SCRA states that a person holding a lien on the property of a service member (like a self-storage facility) may not, during any period of military service of the service member, and for 90 days thereafter (the grace period), foreclose on a lien without a court order. Period of military service means the time that the person is on active duty, or in the case of a member of the National Guard, called to active service for more than 30 consecutive days. So in summary, during any period where your tenant is on active duty, and for the 90-day period following the end of his active duty status, you may not foreclose without a court order. (There is an exception if the tenant has signed a lawful waiver of his SCRA rights.) There is no exception to the grace period for dishonorable discharges the 90 day grace period still applies. Q: What does active duty mean? A: Active duty means full-time duty in the active military service of the United States. In addition to combat and other deployments, it includes full-time training duty, annual training duty, and someone in attendance at a school designated as a service school by law (while in the active military service.) Such term does not include full-time-national Guard duty. Also, there are reserve components of the Army, Navy, Air Force, and Marine Corps, so just because someone says they are in a certain branch of the military does not mean that they are on active duty. It is always important to ask (and get the answer in writing). Q: What if a military person is on the lease with his non-military spouse? They are both tenants. A: You are on foreclosure freeze during the period of active duty service (and 90 days thereafter) unless you get a court order allowing the foreclosure. Q: What if the spouse who is not in the military is my tenant, but I know that her husband is in the military on active duty? The husband is not my tenant and not on the lease. A: This is a gray area, and I would recommend that you try to avoid foreclosure without a court order if possible during the period where her husband is on active duty military service. The statute says: A person holding a lien on the property or effects of a service member may not, during any period of military service of the service member and for 90 days thereafter, foreclose or enforce the lien without a court order. It states that a person who knowingly violates this section is subject to significant penalties. So, since you know that the husband is active duty military, then I would suggest that you hold off on foreclosure or obtain a court order. In general, you have no duty to ask every tenant who says they are not in the military whether his or her spouse is in the military. But if you know the answer is yes, then I would recommend exercising caution. Remember, you can request a judge to give you permission to foreclose. If it is a situation of someone abusing the SCRA to try and get free rent when the at-home spouse is perfectly capable of paying the bills, a judge is not likely to look kindly on that situation. You may also try contacting the community affairs officer of the soldier s unit for assistance in having the military person (or his spouse) meet his or her contractual obligations. The SCRA gives dependents (the non-military spouse in this case) the right to petition the court for the same protection that the military spouse receives under the SCRA. However, this protection is not automatically afforded to nonmilitary spouses; it must be applied by a court at the request of the non-military spouse. The Act only specifies penalties for knowing violations. However, I know of no cases where someone has foreclosed in good faith on a tenant and later found out that he was in the active duty military, so the ramifications of that, and any potential consequences, are unknown. Q: In general, what information do I need from the tenant in order to be able to determine whether he or she is in the military on active duty? A: You should obtain at least the full name, date of birth and SSN of your tenant. Additionally, you should confirm at the time of leasing whether a tenant is in the military, whether he is on active duty, and if so in what branch. There are several websites that can (for a fee) assist you in performing a search to determine whether a tenant is in the military on active duty, and for most of them you need Continued on next page

5 Form of the Month Military questions, continued... a date of birth and SSN, and it helps to have the branch of the military so you don t have to search the information for each branch. One such website is This site s home page states: Although providing a social security number is the most assured and fastest method of researching a name, this site may enable searches with alternate identifying data (eg. birthdate, address). There are other site links on the TSSA website at the following link: Q: What if you have no information? The tenant did not check off that he was in the military, I can t find any friends, employers, relatives, emergency contacts, etc. to shed light on his military status, I can t reach the tenant, and I would like to have the peace of mind of knowing that the tenant is not in the military before foreclosing. A: You will likely need the date of birth and the SSN in order to get good information from one of the search websites as to whether the tenant is or is not on active duty military. This is one reason why I recommend that you get a date of birth and SSN from all tenants. If you cannot get good information, then you can take your chances with the foreclosure (the specific penalties in the SCRA are for knowingly foreclosing on a military tenant), or you can wait, continue to try to contact the tenant, and in the meantime utilize your rights under the TSSA lease to move the tenant s contents to another unit (make sure you follow all of the requisites of the lease if you do this). Any time you cannot reach a tenant, it is recommended that (whether or not you suspect he or she is in the military) you try writing letters, making phone calls, calling directory assistance, doing Internet searches, calling emergency contacts, and anything else that you can reasonably do to attempt to locate the tenant prior to foreclosing on the tenant s goods. This will not only help you find the tenant and get paid, but in the event your tenant does turn out to be in the military, this will show that you are acting in good faith and did not knowingly take action contrary to the SCRA. Affidavit for Removal of Property of Deceased, Incarcerated, or Permanently Incapacitated Tenant and Indemnification Agreement Purpose of Form: The purpose of this form is to enable you to take advantage of the language in paragraph 1 of the TSSA lease which allows you to, at your option, allow anyone who the tenant has listed in the last blank (the emergency contact blank) in paragraph 1 of the TSSA lease, or the tenant s brother, sister, spouse, parent, or child over 18 years of age, to have access to the tenant s space if that person signs an affidavit that the tenant is deceased, incarcerated, permanently missing, or permanently incapacitated. The affidavit is form MISC-2 in the Goldbook appendix (the computer disk that came with your TSSA Goldbook ). When to Use: You will want to exercise your own judgment in deciding when to use this form. If you obtain proper identification from the emergency contact or brother, sister, spouse, parent, or child over the age of 18 and the person signs this affidavit before a notary, you should not have any liability for turning over the contents of the unit to this person. However, you may want to decide on a case-by-case basis when you want to allow the emergency contact or relative of the tenant to use this option. This clause is included in the TSSA lease primarily for the purpose of allowing a tenant who cannot act for himself (he is deceased, in jail, etc.) to have a relatively easy way to access his unit. If the tenant has listed one or more people in the persons with same access and lock cutting rights as Tenant blank in paragraph 1 of the TSSA lease (the next-tolast blank), then that person has STATE OF the right to access the unit, so COUNTY OF AFFIDAVIT FOR REMOVAL OF PROPERTY OF chances are you would not need DECEASED, INCARCERATED, OR PERMANENTLY INCAPACITATED TENANT AND INDEMNIFICATION AGREEMENT to utilize this affidavit. After being duly sworn, the undersigned person states under oath that the following is true and correct: Tips for Use: You should always insist on the form being notarized, and make sure that the form is completely filled out (all of the relevant check boxes checked, the tenant s and his relative s full name filled out, etc.). Whether to utilize this form is entirely up to you. You may decline to utilize this form and, for example, institute foreclosure proceedings on a tenant who is in jail and has not paid his rent. Always keep the original of the affidavit for your files. 1. My full name is (please print) 2. My address is (current street, city, state, zip) 3. My telephone numbers are ( ) (home) ( ) (work) 4. My driver s license or gov t photo ID number is, State 5. Complete this paragraph as applicable. I (check one) am am not the emergency contact person named in the TSSA Self-Service Storage Rental Agreement that was signed by: who is shown as the tenant of Unit # in the (name of storage facility) located at in, Texas. I (check one) am or am not related to the tenant referred to above. If related, I am the tenant s (check one) father, mother, grandfather, grandmother, son, daughter, brother, sister, aunt, uncle, cousin, other 6. Such tenant is (check one) deceased, in jail or the penitentiary, or permanently incapacitated. For that reason, I wish to remove all of the tenant s property from the storage unit. I acknowledge that removal of the property from the unit does not release the tenant or the tenant s estate from liability for sums due under the rental agreement. 7. I agree to indemnify and hold the self storage facility owner, manager, and other agents or employees of the facility harmless from all damages, attorney s fees, and liabilities resulting from any claims made against the facility, its agents or employees as a result of being allowed to enter and remove property from such storage unit. Printed name of affiant Signature of affiant STATE OF THIS FORM MUST BE NOTARIZED COUNTY OF On this the day of,, before me, the undersigned authority appeared who after being duly sworn stated under oath that the foregoing statements are true and correct. Notary Public for the State of Texas Printed name of notary My commission expires

6 Federal Fair Debt Collection Practices Act Federal Fair Debt Collection Practices Act: Effect on the Self Storage Industry The Federal Fair Debt Collection Practices Act (FDCPA) has governed certain collection activities for many years, and is referenced in the Goldbook behind the Federal Statutes tab (a summary of the law is given). This article will provide you with more details on laws governing collection procedures. FDCPA Inapplicable to Owners and Employees The FDCPA does not apply to owners or employees of owners collecting debts owed to the owner. In other words, if a tenant owes you rent or other amounts, the owner of the selfstorage facility, or any of his employees, may collect debts on behalf of that owner and not fall under the FDCPA. Third Party Management Companies Third party management companies, with one exception, may collect debts on behalf of the owner without falling under the FDCPA. A New York Federal District Court ruled in 1998 that a management company is not a debt collector under the FDCPA as long as the debt being collected became delinquent after the management company took over the property. In other words, if a management company took over the management of a property, and after that time a tenant became delinquent, the management company is definitely not considered a debt collector because of an exception to the application of the FDCPA. However, what if the management company is attempting to collect debt from a tenant and this debt became due prior to the date the management company took over the management of the property? This scenario does not fall under the specific exception to the FDCPA, so TSSA legal counsel recommends that in this case the third party management company consider itself a debt collector and give the statutory 30-day notice and opportunity to cure language in its collection correspondence with the debtor (and freeze all collection activity for 30 days after sending the initial letter). In these situations where the FDCPA must be followed, management companies must: 1. Show the rental owner s name (either the real or the assumed name) in the collection correspondence. 2. I n c l u d e t h e f o l l ow i n g l a n - guage in their communications sent for the purpose of collecting a debt: FDCPA notice: Under federal law, you are informed that this communication is for the purpose of collecting a debt, and any information obtained will be used for that purpose. The debt will be assumed valid unless you dispute the validity of the debt within 30 days after receipt of this notice. This office has already verified the correctness of the claimed amount, but you have a right of additional verification of the debt by written de- mand to our office within that 30-day p e r i o d, in which e v e n t a c o p y o f such verification (procured from the creditor) will be mailed to you. The original creditor to whom the monies are owed is the same creditor as stated above. Attorneys and Third Party Debt Collectors Attorneys fall into the definition of debt collectors under the FDCPA and must use the above-referenced notice in communications that are sent for the purpose of collecting a debt. The attorney s failure to include this notice in a debt collection letter and to abide by the other provisions of the Act could result in the attorney being held liable for actual damages and penalties. An attorney s violation of the FDCPA requirement will not impose any statutory penalties or liability exposure on the owner or manager, although the attorney s violation may result in the debt collection notice being considered void or invalid, and therefore could slow down the collection process. Texas Law Under Texas law, someone collecting his own debt (including a property owner or a property owner s employee collecting delinquent rent) is considered a debt collector. The ramifications of being considered a debt collector under Texas law (as opposed to a third party debt collector subject to the FDCPA) are important. Under Texas law, any debt collector (including an owner or his employee) may not use threats, coercion, threaten violence, threaten arrest, threaten criminal action when the debtor has not violated a criminal law, or threaten to take any action prohibited by law. You may threaten to initiate civil lawsuits or other judicial proceedings to collect a consumer debt, and you may exercise or threaten to exercise a statutory or contractual right of seizure, repossession or sale. You may not harass or abuse a debtor by using profane or obscene language, placing anonymous telephone calls with the intent to annoy or harass a person, or make repeated or continuous telephone calls with the intent to harass a person. In all of your communications with your tenants (if you or your employee or manager is sending a late notice demanding payment), you must make it clear that you are attempting to collect the debt, make it clear who the debt collector is, including your street address or P.O. box, and include your phone number. In summary, unless you are an attorney, or a third party management company collecting a debt that became due before you took over management of the property, federal debt collection law doesn t apply, but you still need to make sure that your debt collection correspondence includes (1) a statement that you are trying to collect a debt, (2) who the debt collector is, (3) your street address or P.O. box, and (4) your phone number.

7 Special Foreclosure Requirements Important Reminders About TXDOT Special Foreclosure Requirements As has been previously reported in the TSSA Legal Update, the Texas Department of Transportation, in the spring of 2006, re-interpreted a 2001 statute in a manner that requires changes to the special foreclosure procedures for vehicles and trailers. This article will briefly revisit those changes, and also outline TXDOT s own internal requirements (over and above those required by statute) for title transfer. Changes in procedure required by TX- DOT s new interpretation: In short, TXDOT now requires you to send the notice of claim not only to the tenant (as was previously required), but also to the owners and lienholders of record. TXDOT now also requires these notices to be sent within five days of seizure of the vehicle. Additionally, TXDOT s new interpretation requires changes to the Notice of Claim language, which have been made in the latest TSSA forms so make sure you are using the latest Notice of Claim produced by TSSA. The Special Foreclosure for Vehicles and Trailers Goldbook legal article (pages of the TSSA Goldbook ) reflects these changes and provides more information. TXDOT s Requirements on Back of its Application and Affidavit Form. In order for a buyer of a vehicle or trailer at foreclosure sale to obtain title, the buyer must submit to TXDOT a completed TXDOT form VTR- 265-SSF. Your facility will need to give the buyer this form as it must be filled out and signed by the facility. You will need to give the original of this form to the buyer. There are several internal requirements that TXDOT has determined are necessary so that TXDOT can process the title transfer. They are all listed on the back of form VTR-265-SSF, so be sure and review the back of the form so that you can provide your buyer what he or she needs to give to TXDOT. These requirements are over and above those required by statute. This is an overview of TXDOT s internal requirements listed on the back of form VTR-265-SSF. TXDOT requires that their internal requirements be followed exactly, and TXDOT periodically revises this form without notice to the public or opportunity for public comment. You should always obtain forms either directly from a TXDOT office or from the TXDOT website to be sure they are current. The TXDOT link to this form is This form can also be accessed through the Member s Only section of the TSSA website, which is at The TSSA website links directly to the form on the TXDOT website. The following items must be provided to TXDOT (You should provide them to your buyers): (1) A copy of your facility s lease with the tenant (the tenant who was foreclosed on) (2) A completed and signed original of form VTR-265-SSF (3) Verification of Texas title and registration (if the vehicle is not registered in Texas, an alternate procedure is available see back of form and the Goldbook article referenced above for details) (4) Proof of certified mailing of the Notice of Claim (called the first notice on the TXDOT form) to the tenant and any owners and lienholders of record. Proof can be in the form of the validated (date stamped) receipts for certified mail (PS form 3800) and return receipts (PS form 3811) together with any UNOPENED certified letter(s) returned as undeliverable, unclaimed, or due to no forwarding address. There are several alternatives that will be accepted as proof of mailing and receipt, all of which are described on the back of the TXDOT form. For example, if you don t get the return receipt greencard (form 3811) back, you can submit a print-out of the U.S. Postal Service s electronic track/confirm screen, or the UNOPENED certified letters that should have been returned as undeliverable, unclaimed, or with no forwarding address. Provided you know the certified mail number of the letter, you can print out the electronic track/confirm on You should always keep records of the numbers of the certified mail letters that you send. (5) Proof of certified mailing of the Notice to Owners and Lienholders of Record. The TXDOT form calls this the second notice. Proof must be in the same form referenced in paragraph #4 above. (6) If you have notified the owners and lienholders of record by newspaper publication rather than by mail (publication of the notices described in paragraphs #4 and #5 above is available for vehicles registered out of state in some circumstances), then you must submit a legible photocopy of the newspaper publication which includes the name of the publication and the date of publication. The Goldbook article on pages provides more detail as to when notice by publication is available in short it is available when a vehicle is registered out of state, and you sent a certified letter requesting owner and lienholder information to the out of state equivalent of TXDOT, and receive no answer or receive an answer saying that the records can t be found. (7) This is not required to be given to TXDOT by statute, and not listed as a requirement on the back of the TXDOT form, but TSSA has received reports that often TXDOT also requires an original or a copy of the newspaper ad advertising your sale, so you would be well-served to provide a copy to your buyer. The original or copy should include the name of the publication and date of publication.

8 SPAM Laws SPAM Laws: Know The Laws For ing and Faxing Both state and federal laws exist to protect consumers from SPAM in the form of s and faxes. Many business owners may unknowingly violate these laws and subject themselves to large penalties for violation of these laws. This article will summarize both state and federal laws with regard to SPAM, and business owners should keep these in mind when communicating with former or potential tenants. Advertisement Restrictions 1) There are no restrictions on sending mesages, advertisements or otherwise, to your existing tenants as long as the subject line is not misleading or deceptive. (2) There are no restrictions on sending messages to people who have requested information from you as long as the subject line is not misleading or deceptive. (3) For s that don t fall into the exceptions outlined in (1) or (2) above, you must (a) have ADV: as the first four characters in the subject line; (b) provide a functioning return address to which the recipient may, at no cost to the recipient, send a reply requesting the removal of his address from your e- mail list. You have to honor his request for removal, and remove him from your list within three days; (c) provide your valid physical mailing address; (d) If someone requests to be removed from your list, you must honor the request within three days. Texas Law: Texas anti-spam legislation addressed SPAM in Chapter 46 of the Texas Business and Commerce Code was added in the 2003 legislative session. It covers any commercial that advertises or offers for sale or lease any property or service. So, this would apply to a self-service storage facility s advertisements. Under Texas law, anti-spam laws do not apply if you have an ongoing, established business relationship with a person. The relationship must be a voluntary relationship, as is the case between your facility and your current tenants. You may send communications to current tenants with regard to advertising, offers for sale or lease, etc. without having to comply with the terms of the statute. With regard to anyone other than your current tenants and people that have requested that you provide them information, you must comply with the statute. This means that whenever you are sending out unsolicited commercial messages, you must have ADV: as the first four characters in the subject line. Also on every , you must provide a functioning return address to which a recipient may, at no cost to the recipient, send a reply requesting removal of the recipient s address from the sender s list. If you receive a request to remove a recipient from your list, you must remove this person from the list within three days after receiving the request. This law also applies to companies that you may hire to send messages on your behalf. However, if you hire an company to send s on your behalf, you are not liable for their violations of the statute unless you have reason to believe that they are going to violate the statute. Federal Law: Under federal law (the CAN-SPAM Act of 2003 ) there are very similar guidelines. Any non-solicited marketing requires messages to be labeled (although the marketing label is not clearly specified as it is under Texas law) and must include opt-out instructions and the sender s physical address. There is a similar exemption for a transactional or relationship message that is, that facilitates an agreed-upon transaction or updates a customer in an existing business relationship. Federal law bans misleading or false subject information. It requires that your give recipients an opt-out method and you must honor their request to opt out. You have 10 days under federal law to honor the opt -out request. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out, and lastly, it must provide your valid physical or postal address. Each violation of federal law is subject to fines of up to $11,000. Fax Restrictions Per Federal Law (the Federal Junk Fax Prevention Act): Unsolicited fax advertisements are prohibited unless there is an established business relationship (EBR) with the recipient. All fax ads must contain an opt out notice that is clear and conspicuous on the first page of the ad, and which must state that the recipient may make a request to the sender not to send future faxes and that failure to comply with the request within 30 days is unlawful. The faxes must include a phone number, fax number and cost-free mechanism to opt out of faxes. These numbers and cost-free mechanism must permit consumers to make opt out requests 24 hours a day, 7 days a week. The fax must include the date and time the fax was sent. Per Texas law (Business and Commerce Code Section 35.47): There is no faxing from 11:00 pm to 7:00 am; No transmission charge is allowed for the receiver; and Faxes may not be sent if there was a previous request by the receiver not to send faxes. Senders of fax advertisements must make sure their advertisements comply with both state and Federal laws. There is a penalty of up to $500 per violation (per unlawful fax sent). What qualifies as an EBR? A fax advertisement may be sent if the sender: Obtains the fax number directly from the recipient, through, for example, an application, contact information form, or membership renewal form; or Obtains the fax number from the recipient s own directory, advertisement, or site on the Internet, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number in question; A fax advertisement may be sent: for directories and other sources of information compiled by third parties, the sender must take reasonable steps to verify that the recipient consented to have the number listed. If the EBR existed before July 9, 2005, and the sender also possessed the fax number before that date, the sender may send the fax ads without demonstrating how the number was obtained Hiring a third party to send faxes for you doesn t relieve your business from liability. You are (your business is) still liable, and the fax broadcaster business may also be liable if it had a high degree of involvement in the sender s fax message, such as supplying the fax numbers to which a message is sent, or advising a client about how to comply with the fax advertising rules. The national do-not-call registry applies only to phone solicitations, not fax solicitations. Questions? Contact TSSA: 595 Round Rock West Dr. #503 Round Rock, TX (512) Fax: (512) info@txssa.org