SENATE BILL 141
53rd legislature - STATE OF NEW MEXICO - first session, 2017
George K. Munoz
RELATING TO LIENS; AMENDING SECTIONS OF THE SELF-SERVICE STORAGE LIEN ACT TO PROVIDE FOR ELECTRONIC NOTIFICATIONS AND ADVERTISEMENT OF SALES; PROVIDING FOR THE SALE OF ABANDONED PERSONAL PROPERTY; PROVIDING FOR COLLECTION OF LATE FEES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 48-11-2 NMSA 1978 (being Laws 1987, Chapter 314, Section 2, as amended) is amended to read:
"48-11-2. DEFINITIONS.--As used in the Self-Service Storage Lien Act:
A. "commercially reasonable manner" means a public sale, in which three or more bidders participate, of personal property in a self-storage space;
[A.] B. "default" means the failure to perform in a timely manner any obligation or duty set forth in the Self-Service Storage Lien Act or in the rental agreement;
[B.] C. "electronic mail" means the transmission of information or a communication by the use of a computer or other electronic means sent to a person identified by a unique electronic address;
[C.] D. "last known address" means the postal address or electronic address provided to the owner by the occupant:
(1) for the purposes of the latest rental agreement; or
(2) in a written or electronic notice of a change of postal address or electronic address after the latest rental agreement;
[D.] E. "occupant" means a person or the person's sublessee, successor or assign who is entitled to the use of storage space, to the exclusion of others, at a self-service storage facility under a rental agreement;
[E.] F. "owner" means the owner or the owner's heirs, successors or assigns, the operator, the lessor or the sublessor of a self-service storage facility or the lessor's or sublessor's agent or any other person authorized by the lessor or sublessor to manage the facility or to receive rent from an occupant under a rental agreement;
[F.] G. "rental agreement" means any written agreement or lease between the owner and the occupant that establishes or modifies the terms, conditions, rules or any other provisions concerning the use and occupancy of a self-service storage facility;
[G.] H. "self-service storage facility" means any real property designed and used for the purpose of renting or leasing individual storage space to occupants who are to have access to such facility for the purpose of storing and removing personal property; and
[H.] I. "verified mail" means any method of mailing that is offered by the United States postal service or private delivery service that provides evidence of mailing."
SECTION 2. Section 48-11-7 NMSA 1978 (being Laws 1987, Chapter 314, Section 7, as amended) is amended to read:
"48-11-7. ENFORCEMENT OF LIEN.--
A. An owner's lien, as provided under the Self-Service Storage Lien Act, for a claim that has become due may be satisfied as follows:
(1) after the occupant has been in default continuously for a period of five days, the owner may deny the occupant access to the occupant's space for storage;
(2) after the occupant has been in default continuously for a period of thirty days, the owner may enter the space and may remove the personal property within it to a safe place; provided that the owner has sent a notice of intent to enforce a lien, pursuant to Subsection B of this section, to the occupant at the occupant's last known address within five days of entering the space. The owner shall also give notice to all lienholders listed in the disclosure provision in the rental agreement; and
(3) no action to sell any property as provided in the Self-Service Storage Lien Act shall be taken by an owner until the occupant has been in default continuously for a period of ninety days.
B. The notice of intent to enforce a lien shall include:
(1) an itemized statement of the owner's claim showing the sum due at the time of the notice and the date when the sum became due;
(2) a brief and general statement of the personal property subject to the lien. That description shall be reasonably adequate to permit the person notified to identify the property, except that any container, including a trunk, valise or box that is locked, fastened, sealed or tied in a manner [which] that deters immediate access to its contents, may be so described without describing its contents;
(3) a notification of denial of access to the personal property. That notification shall provide the name, street address and telephone number of the owner or the owner's designated agent whom the occupant may contact to respond to that notification;
(4) a demand for payment within a specified time, not less than fifteen days after the delivery of the notice; and
(5) a conspicuous statement that unless the claim is paid within the time stated in the notice, the personal property will be advertised for sale or other disposition and will be sold or otherwise disposed of to satisfy the owner's lien.
C. All notices made pursuant to this section shall be by verified mail or electronic mail pursuant to the occupant's option at the time of entering into the current rental agreement.
D. An owner shall provide written notice by verified mail to the occupant's last known address or by electronic mail to the occupant's last known electronic address. If an owner sends a notice by electronic mail and does not receive a response, return receipt or delivery confirmation from the electronic address to which the notice was sent within three business days after the day on which the notice was sent, the owner shall deliver a one-time notice by verified mail to the occupant's last known address.
E. After the expiration of the time given in the notice of intent to enforce a lien, the owner shall publish an advertisement of the sale or other disposition of the property once a week for two consecutive weeks in a newspaper of general circulation in the county where the self-service storage facility is located. The advertisement shall include:
(1) a brief and general description of the personal property reasonably adequate to permit its identification as provided in Paragraph (2) of Subsection B of this section, the address of the self-service storage facility where the personal property is located and the name and last known address of the occupant; and
(2) the time, place and manner of the sale or other disposition. The sale or disposition shall take place not sooner than fifteen days after the first publication.
[If there is no newspaper of general circulation in the county where the self-service storage facility is located, the owner shall post the advertisement at least ten days prior to the sale or other disposition in at least six conspicuous places in the neighborhood where the self-service storage facility is located.]
Alternatively, the owner may advertise and conduct the sale in any commercially reasonable manner.
F. Any sale or other disposition of the personal property shall conform to the terms of the notification as provided for in this section.
G. Any sale or other disposition of the personal property shall be held at the self-service storage facility or at the nearest suitable place within the county to where the personal property is held or stored or may be conducted on a publicly accessible online [web site] website.
H. Before any sale or other disposition of personal property pursuant to this section is made, the occupant may pay the amount necessary to satisfy the lien and the reasonable expenses incurred under this section and thereby redeem the property. Upon receipt of the payment, the owner shall return the personal property and thereafter the owner shall have no liability to any person with regard to that personal property.
I. A good faith purchaser takes the property free of any rights of an unsecured lienholder and free of any rights of a secured lienholder who has received notice by owner as provided in this section.
J. In the event of a sale under this section, the owner may satisfy the owner's lien from the proceeds of the sale, subject to the rights of any prior lienholder who has not received notice. The lien rights of such prior lienholder are automatically transferred to the proceeds of the sale. If the sale was made in good faith and conducted in a reasonable manner, the owner shall not be subject to any surcharge for a deficiency in the amount of a prior secured lien, but shall hold the balance, if any, for delivery to the occupant, lienholder or other person in interest. If the occupant, lienholder or other person in interest does not claim the balance of the proceeds within two years of the date of sale, it shall become the property of the owner without further recourse by the occupant, lienholder or other person in interest.
K. Nothing in this section affects the rights and liabilities of the owner, occupant or any other person if there is a willful violation of any of the provisions of the Self-Service Storage Lien Act. If the property subject to a lien described in this section is a vehicle, watercraft or trailer, the occupant is in default for a continuous sixty-day period and the owner chose not to sell the vehicle, the owner may have the vehicle towed from the self-storage facility by an independent towing carrier that is licensed by the public regulation commission pursuant to the Motor Carrier Act. Within one day after the day on which a vehicle is towed, the owner shall send verified notice to the occupant's last known address or electronic address that states:
(1) the date the vehicle was towed; and
(2) the address and telephone number of the person that towed the vehicle.
L. A late fee of no more than twenty dollars ($20.00) or twenty percent of the monthly rent, whichever is greater, may be charged and collected by the owner for each month that the occupant's rental payment is in default."
- 8 -