Update – March 28th, 2013 A new site, VirtualStorageAuction.com has emerged as the clear choice in the online storage auction niche. The main differences between this site and it’s competitors is that it’s 100% free to use and it offers a legal alternative to storage facilities who are located in states where the legality of online storage auctions is questionable.
July 8th, 2012 – Over the past few years, a handful of companies which hold storage auctions online have emerged on the scene. The prominent leader in this niche is a company called Storage Battles, which recently bought out Sealed Online Bids. We here at Texas Storage Auction Schedules & News are huge fans of online storage auctions because we believe that this concept is the future of storage auctions; however, there seems to be a question as to whether they are operating legally in Texas and some other states.
This legal dilemma boils down to whether or not a storage auction can be conducted online or whether it must be held at a physical location. Some state’s self storage lien laws are vague and don’t specify where the sales are to be held; therefore, one could reasonably assume that an online storage auction would be permissible. Texas’s self storage lien laws, along with a handful of other state’s, are not so vague. Chapter 59 of the Texas Property Code, section 59.045 clearly states: A sale under this sub-chapter must be a public sale at the self-service storage facility or a reasonably near public place. So how are companies like Storage Battles operating in Texas? Through a narrow loophole that depends on one’s interpretation of what a public sale and what a public place is.
We spoke to a Texas auctioneer and former President of the Texas Auctioneer’s Association, about this matter. He replied “ Chapter 59 states that the sale must be a public sale at the self storage facility or a nearby public place. The attorney for TSSA has stated that an Ebay or internet auction does not satisfy the statute in that the internet is not a public place. This is a legal question that will either be resolved by revising the law or a lawsuit.”
According to USLegal.com, the legal definition of a public place is: an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose.
We contacted the Texas Self Storage Association about this matter and received the following response: Connie Niemann Heyer, attorney for the Texas Self Storage Association, stated that she does not consider auctions that take place online only are meeting the strict letter of the law requiring that the sale take place at or near the storage facility. Her opinion was published in the TSSA’s magazine.
We contacted Sealed Online Bids to find out how they are conducting online storage auctions for storage facilities in Texas. Kevin Gorzny, principal at Sealed Online Bids provided the following response.
“First off I want to address the fact that we have approached the Texas SSA with our stance on the Texas Lien Laws in the form of an official statement, and it was met without any opposition what-so-ever. Our attorney covered quite a few points in regards to the Texas lien laws, but I’ll address the specific one you cited. (Referring to: a public sale at the self-service storage facility or a reasonably near public place.) The definition of a consummated sale is the exchange of monetary funds, between the buyer and the seller. Simple as that. Our auctions are conducted online, yes, but the actual process of purchasing the unit-in-lien is a cash-in-person exchange performed at the storage facility where the contents are stored.
To be even more specific: our auctions are live and open for bidding for a period of 7 to 10 days, typically. Once the auction closes, the manager is provided with the buyer’s information. They organize a time for the buyer to then come in to the self storage facility’s office for the actual purchase where the buyer pays cash for the sale, just as it always has been performed. The overall issue is the fact that every state’s lien laws were written long before the mainstream internet as we know it today. Many of these laws are subject to interpretation and common sense.”
Although eloquent, I believe this response is completely off topic. The debate here is not about what a “consummated sale” is, rather, it’s about what the legal definition of a “public sale” is. According to Merriam-Webster’s Dictionary of Law, a public sale is: a sale (as an auction) that is publicly advertised and that takes place at a location open to the public. Is the internet a location or a public place? It is arguable.
I agree, a lot of state’s storage lien laws are outdated; however, Texas revised it’s storage lien laws in January, 2012. Are there still sections that don’t take modern technology into consideration, absolutely. Texas’s storage lien laws still require legal notices to be placed in a newspaper instead of being communicated electronically on a website. Do you really think they would allow the actual lien sale to occur on a website?
Regardless of how archaic some of these laws may be, if you use common sense to interpret (A sale under this sub-chapter must be a public sale at the self-service storage facility or a reasonably near public place) it’s obvious that this law was meant to be quite literal. I think that Sealed Online Bids’ interpretation of the Texas storage lien law is a bit of a stretch, but either way, this is a legal question that will inevitably be resolved when a disgruntled tenant challenges the legality of an online sale.
So, are online storage auctions legal?
The answer is – it depends. Each state has it’s own unique storage lien laws. To my knowledge, no state’s storage lien laws specifically state that storage auctions can be held online and vise versa, no state’s storage lien laws specifically state that they can’t. The only way to know for sure is to look at your state’s storage lien laws to see if they specify a location for where the sale is to be held.
How does this affect the storage auction buyer?
It really doesn’t. Most states have laws protecting the purchaser similar to Texas, Sec. 59.007 which states: A good faith purchaser of property sold to satisfy a lien under this chapter takes the property free of a claim by a person against whom the lien was valid, regardless of whether the lessor has complied with this chapter.
How does this affect storage facilities?
Whenever there is a gray area, there will be lawsuits; however, companies who hold storage auctions online are protected through lengthy disclaimers that the storage facility and buyer must agree to before using their service. This leaves storage facilities to bear the brunt of the legal challenges that may arise by former tenants that believe that the law was not complied with. In Texas, Sec. 59.005 states that: A person injured by a violation of this chapter may sue for damages under the Deceptive Trade Practices–Consumer Protection Act (Sub-chapter E, Chapter 17, Business & Commerce Code).
Storage facilities should also consider whether they need to comply storage the lien laws in the state(s) where the online storage auction company’s server/business is located. Our advise to storage facilities – consult with your attorney to make sure that this type of sale complies with federal, interstate and your state’s storage lien laws.
So, what do you think? Are Texas’s storage lien laws specific enough or do you feel that companies that conduct storage auctions online have a good argument? Should storage lien sales be permitted on the internet? Please leave you interesting and creative responses below.