One of this year's hot legal topics concerns any storage operator who advertises the security advantages of his facility. Ironically, by using certain words to convince customers of the safety features you provide, you leave yourself vulnerable to lawsuitsregardless of contract language that releases you from liability.
How can tenants find you liable for theft and other damages? The theory goes something like this: Your lease provides all the normal language that would protect you from being liable to the tenant for losses, damage to property, theft, disappearance, etc. But wait! Then you say or do something beyond the parameters of the lease, giving the tenant cause to assume more protection or coverage was providedand a valid legal argument.
The most common way an owner inadvertently falls prey to this kind of liability is by using words such as safety and security in his facility name. As an operator, you go to great lengths to disclaim liability for guarding and protecting tenants property. But if you use security-related words in your name, customers can argue it led them to believe your facility was safer or more secure than others, influencing their decision to store with you.
Beware Two Words
Storage operators are always looking for ways to differentiate themselves from competition, and that can be especially difficult when it comes to outdoor or semi-enclosed vehicle storage. Lets face it: It's just parcel of gravel or paved lot. Many operators are turning to the security aspects of their property to create a marketing edge. Im not suggesting you ignore your security features, but when describing your setup, beware of these two words (and others like them): surveillance and monitored.
I often see these words in facility advertisements, brochures, websites, property signage and lease documents. The term surveillance normally appears in the context of video cameras, and monitored or monitoring when discussing video, alarms or access.
A major dictionary defines surveillance as close watch kept over someone or something (as by a detective). To monitor is defined as to watch, keep track of, or check, usually for a special purpose. Do you see the problem? When you use these words, you suggest someone is closely watching or keeping track of tenants belongings.
If you have cameras that are live but do not record (drones), and you dont stare at a monitor all day and night, you dont truly have video surveillance. If you videotape or digitally record 10 cameras but dont review the recordings regularly, again, you dont truly have video surveillance. If you claim to have surveillance at the gate and dont watch to ensure everyone who goes in and out has legitimate access, guess what you dont have?
Likewise, if you promise video monitoring, you imply someone is watching the video cameras playback at all times. If you claim to have monitored alarms, you give the impression someone is closely watching the alarm system round-the-clock, ready to dispatch the manager or police when an alarm sounds.
Manager Expectations, Responsibilities
Be cautious when describing a managers security duties. When you say a manager lives on site and therefore monitors the facility, you imply he is there 24/7. That claim has a few flaws. First, unless your manager is superhuman, I doubt he can watch the entire facility at once. Second, I doubt he is awake and watching only the facility day and night. Finally, your manager probably isnt on site all the time. He may shop, visit family and friends, or take vacations.
Considering the definitions of surveillance and monitoring, lets look at a hypothetical situation: An intruder vandalizes an expensive boat stored at your facility or steals a stereo inside an RV. If you claim you have video monitoring or surveillance, tenants might make several presumptions. They may think someone quickly noticed the thief lurking about the premises, witnessed the actual break-in, and contacted authorities while the crime was still occurring. After all, somebody is watching your video-camera output at all times, right?
Heres another scenario: Lets say your gate or vehicle-storage units are alarmed, and you have stated that you provide alarm monitoring. But all that really happens is an alarm goes off, and if the manager is present and hears it, he calls the police, or maybe checks the alarm later. Further, if you claim an on-site manager monitors the premises, a tenant might presume a manager is walking the property or looking through security cameras at all times. At the very least, he may think a manager is constantly vigilant for theft.
The term manager monitoring gives rise to a whole new level of employee responsibility. It may include detecting and notifying tenants of problems with their stored vehicles almost immediately after trouble is evident rather than when a manager happens to notice it. This is a very different standard. Your manager might not closely inspect every vehicle daily. But if you claim to have monitoring, a tenant could contend the manager has a duty to closely inspect every vehicle at least once a day for damage, theft, leakage, etc.
These hypothetical scenarios do not even begin to consider how a manager will know whether a vehicle has been stolen or removed by the tenant, and if he has a duty to investigate further. That is a separate issue altogether.
Based on the language you use in your collaterals and advertising, tenants can argue you changed your contractual relationship and assumed a greater responsibility to watch and care for their stored vehicles. Theres nothing wrong with putting your best foot forward and aggressively marketing your facility. But watch your words so you dont take on a higher duty of care than you intend.
Jeffrey Greenberger practces with the law firm of Katz, Greenberger & Norton LLP in Cincinnati, which primarily represents owners and operators of commercial real estate, including self-storage. This column is for the purpose of providing general legal insight into the self-storage field and should not be substituted for the advice of your own attorney. Mr. Greenberger is licensed to practice in the states of Ohio and Kentucky, and is the legal counsel for the Ohio Self Storage Owners Society and the Kentucky Self Storage Association. He is a regular contributor to Inside Self-Storage magazine and the tradeshows it sponsors. For more information, call 513.721.5151; e-mail [email protected].