Notice of Public Sale

Purpose
The purpose of the Notice of Public Sale form is to enable facility owners to notify the tenants, in a consistent format, of the time, date, and place of a Chapter 59 foreclosure sale of the tenant’s unit contents. It is not required by statute, but it is recommended by TSSA legal counsel, to be sent (in addition to the Notice of Claim required by statute) in every foreclosure proceeding. The Notice of Public Sale is required to be sent per the terms of the TSSA Rental Agreement in all pre-1996 TSSA Rental Agreement forms. It is recommended (but not required) to be sent under the 1999 TSSA Rental Agreement and all later versions. Paragraph 24(6) of the TSSA Rental Agreement contains a reference to the Notice of Public Sale.

When to Use
You must use this form (or a form similar to it) if you are using a pre-1996 TSSA Rental Agreement and it is strongly recommended that you use this form if you are using any post-1996 TSSA Rental Agreement. It should be mailed to the tenant via regular mail or certified mail around the time you publish your first newspaper notice. You may send it sooner if you know the exact date and time of your sale. TSSA legal counsel would recommend that as a standard practice, you send the Notice of Public Sale concurrently with the publication of the first newspaper notice.

Tips for Use
It is recommended that the Notice of Public Sale be mailed to the tenant every time you institute foreclosure procedures and reach the point of publishing your first newspaper ad. Even though you are not required by law to send the Notice of Public Sale giving the tenant the time, date, and place of the sale, in TSSA legal counsel’s opinion, this is a smart and important thing for you to do to protect you from additional headaches and protect the favorable law (Chapter 59) which currently exists.

The only notice that is required by law to be sent to the tenant in conjunction with the foreclosure is the certified mail Notice of Claim required by Chapter 59. This Notice of Claim is sent at the very beginning of the foreclosure process, most likely before you know the exact time, date, and place of the sale. Since this is the case, the Notice of Claim only requires that you notify the tenant of: (1) an itemized account of the claim, (2) the name, address, and phone number of the facility or the facility’s agent, (3) a statement that the contents of the self-service storage facility have been seized under the contractual landlord’s lien, and (4) a statement that if the claim is not satisfied before the 15th day after the day that the Notice of Claim is delivered, the property may be sold at public auction.

As you can see by these four requirements, you are not required in the Notice of Claim to provide the time, date, or place of the foreclosure sale. You are required to publish this information in your newspaper notices, but not in any notice which must be sent directly to the tenant per Chapter 59.

The tenant could potentially be quite upset if he was never directly notified of the time, date, and place of the sale before the sale actually took place. While it is true that this is not required by law, the tenant could still cause great headaches for you and has more likelihood of suing you (whether he would ultimately be successful or not) if he was never given personal notice of the time, date, and place of the sale. Additionally, if a sale ever occurs and a tenant has not been given notice of the date, time, and place of the sale, there is a serious risk that a tenant could complain enough to his state legislator, or this could happen directly to a state legislator, and a bill could potentially be filed to restrict a facility’s Chapter 59 lien rights.

It is good practice for facilities to do everything they reasonably can to (1) be fair to tenants, and (2) maintain the good Chapter 59 language that is currently in our state statute, and voluntarily sending a Notice of Public Sale is something that all facilities can do toward these ends.