State of Arizona
House of Representatives
Forty-ninth Legislature
Second Regular Session
2010
HOUSE BILL 2643
AN ACT
amending sections 13-806, 33-1701, 33-1703, 33-1704 and
33-1705, Arizona Revised Statutes; relating to self-service
storage.
Be it enacted by the Legislature of the State of
Arizona:
Section 1. Section 13-806, Arizona Revised Statutes, is
amended to read:
START_STATUTE13-806. Restitution lien
A. The state or any person entitled to restitution
pursuant to a court order may file in accordance with this section
a restitution lien. A filing fee or any other charge is not
required for filing a restitution lien.
B. A restitution lien shall be signed by the attorney
representing the state in the criminal action or by a magistrate
and shall set forth all of the following information:
1. The name and date of birth of the defendant whose
property or other interests are subject to the lien.
2. The present residence or principal place of business
of the person named in the lien, if known.
3. The criminal proceeding pursuant to which the lien is
filed, including the name of the court, the title of the action
and the court's file number.
4. The name and address of the attorney representing the
state in the proceeding pursuant to which the lien is filed or the
name and address of the person entitled to restitution pursuant to
a court order filing the lien.
5. A statement that the notice is being filed pursuant
to this section.
6. The amount of restitution the defendant in the
proceeding has been ordered to pay or an estimated amount of
economic loss caused by the offense alleged in the proceeding if
no restitution order has been entered yet.
7. A statement that the total amount of restitution owed
will change and that the clerk of the court in which the
proceeding was or is pending shall maintain a record of the
outstanding balance.
C. A restitution lien may be filed by:
1. A prosecutor in a criminal proceeding in which there
was an economic loss after the filing of a misdemeanor complaint
or felony information or indictment. At the time of
arraignment the prosecutor shall give the defendant notice of any
restitution lien filed.
2. A victim in a criminal proceeding after restitution
is determined and ordered by the trial court following
pronouncement of the judgment and sentence.
D. A restitution lien is perfected against interests in
personal property by filing the lien with the secretary of state,
except that in the case of titled motor vehicles it shall be filed
with the department of transportation motor vehicle division.
A restitution lien is perfected against interests in real property
by filing the lien with the county recorder of the county in which
the real property is located. The state or a victim may give
the additional notice of the lien as either deems appropriate.
E. The filing of a restitution lien in accordance with
this section creates a lien in favor of the state or the victim in
all of the following:
1. Any interest of the defendant in real property
situated in the county in which the lien is filed then maintained
or thereafter acquired in the name of the defendant identified in
the lien.
2. Any interest of the defendant in personal property
situated in this state then maintained or thereafter acquired in
the name of the defendant identified in the lien.
3. Any property identified in the lien to the extent of
the defendant's interest in the property.
F. The filing of a restitution lien under this section
is notice to all persons dealing with the person or property
identified in the lien of the state's or victim's claim. The
lien created in favor of the state or the victim in accordance
with this section is superior and prior to the claims or interests
of any other person, except a person possessing any of the
following:
1. A valid lien perfected before the filing of the
restitution lien.
2. In the case of real property, an interest acquired
and recorded before the filing of the restitution lien.
3. In the case of personal property, an interest
acquired before the filing of the restitution lien.
G. This section does not limit the right of the state or
any other person entitled to restitution to obtain any order or
injunction, receivership, writ, attachment, garnishment or other
remedy authorized by law.
H. Following the entry of the judgment and sentence in
the criminal case, if the trial court sentences the defendant to
pay a fine or awards costs of investigation or prosecution, the
state may file a restitution lien pursuant to this section for the
amount of the fine or costs.
I. A criminal restitution lien is a criminal penalty for
the purposes of any federal bankruptcy involving the defendant.
J. A self-service storage facility that forecloses its
lien pursuant to section 33-1704 may sell personal property that
is subject to a restitution lien. The proceeds from the
sale, less the reasonable costs of sale, shall be paid to the
restitution lienholder to satisfy the restitution lien as
prescribed in section 33‑1704. A person who is a good
faith purchaser pursuant to section 33-1704 and who purchases
personal property that is subject to a restitution lien takes the
property free and clear of the rights of the restitution
lienholder. END_STATUTE
Sec. 2. Section 33-1701, Arizona Revised Statutes, is
amended to read:
START_STATUTE33-1701. Definitions; exception
A. In this article, unless the context otherwise
requires:
1. "Default" means the failure to perform on
time any obligation or duty set forth in the rental agreement.
2. "Department" means the Arizona game and
fish department in the case of motorized watercraft and the
department of transportation in the case of all other vehicles.
3. "Electronic mail" means an electronic
message or an executable program or computer file that contains an
image of a message that is transmitted between two or more
computers or electronic terminals and includes electronic messages
that are transmitted within or between computer networks from
which a confirmation of receipt is received.
3. 4. "Last known address" means that
postal address or electronic address provided by the occupant in
the rental agreement or the postal address or electronic address
provided by the occupant in a subsequent written notice of a
change of address.
4. 5. "Late fee" means a reasonable fee
or charge that is assessed by the operator for the failure of the
occupant to pay rent when due pursuant to section 33‑1703,
subsection D.
5. 6. "Leased space" means the storage
space or spaces at the self‑service storage facility that
are rented to an occupant pursuant to a rental agreement.
6. 7. "Net proceeds" means the total
proceeds received from the lien sale less the total amount of the
lien.
7. 8. "Occupant" means a person or the
person's sublessee, successor or assign, entitled to the use of
the leased space at a self‑service storage facility under a
rental agreement, to the exclusion of others.
8. 9. "Operator" means the owner,
operator, lessor or sublessor of a self‑service storage
facility, an agent or any other person authorized to manage the
facility.
10. "Personal information" has the same
meaning prescribed in section 44-7501 and includes passport
information and medical or legal records.
9. 11. "Personal property" means movable
property that is not affixed to land and includes but is not
limited to goods, wares, merchandise, household items and
furnishings and vehicles.
12. "Protected property" means personal
property the sale or disposal of which is regulated by state or
federal law and that is one of the following:
(a) Documents, files or electronic data that contains
personal information relating to clients, customers, patients or
others in connection with the occupant's business.
(b) Alcoholic beverages.
(c) Pharmaceuticals other than those dispensed by a
licensed pharmacy for the occupant's personal use.
(d) Firearms.
10. 13. "Registered owner" means an
owner of a vehicle as stated in the official records of the
department.
11. 14. "Rental agreement" means any
written agreement provided to the occupant that establishes or
modifies the terms, conditions or rules concerning the use and
occupancy of leased space at a self‑service storage
facility.
12. 15. "Self‑service storage
facility" means any real property used for renting or leasing
storage spaces in which the occupants themselves customarily store
and remove their own personal property on a self‑service
basis.
13. 16. "Vehicle" means a motor vehicle,
a trailer or a semitrailer as defined in section 28‑101 and
a motorized watercraft as defined in section 5‑301.
14. 17. "Verified mail" means any method
of mailing that is offered by the United States postal service and
that provides evidence of mailing.
B. This article does not apply to a warehouseman unless
the warehouseman issues a warehouse receipt, bill of lading or
other document of title for the personal property stored.
END_STATUTE
Sec. 3. Section 33-1703, Arizona Revised Statutes, is
amended to read:
START_STATUTE33-1703. Lien; rental agreement; contents;
late fees
A. The operator of a self‑service storage facility
has a possessory lien from the date the rent is unpaid and due on
all personal property stored within the leased space for rent,
late fees and labor or other charges, and for expenses reasonably
incurred in its sale, as provided in this article. The lien
shall not impair any other lien or security interest at the time
the storage was commenced, unless the lienor or secured party
knows and consents to the storage of the personal property.
B. The rental agreement shall contain a statement, in at
least ten point bold‑faced type, advising the occupant:
1. Of the accrual of the lien as of the date the rent is
unpaid and due.
2. That property stored in the leased space may be sold
to satisfy the lien or otherwise disposed of if the occupant is in
default.
3. That any insurance protecting the personal property
stored within the storage space against fire, theft or damage must
be provided by the occupant.
4. That a late fee may be charged by the operator for
each month that the occupant does not pay rent when due. The
rental agreement shall state the date on which rent is due and the
date on which the late fee accrues.
C. The rental agreement shall contain a provision
requiring the occupant to disclose the following:
1. any lienholders or secured parties who have an
interest in property that is or will be stored in the
self‑service storage facility.
2. Whether any protected property is or will be stored
in the leased space.
D. The operator may impose a reasonable late fee on the
occupant for each month the occupant does not pay rent when due.
For purposes of this section, a reasonable late fee may be
computed as the greater of ten dollars per month or twenty per
cent of the amount of monthly rent. Any late fee imposed by
the operator pursuant to this section is in addition to any other
remedy provided by law or contract.
E. The operator shall provide adequate notice to the
occupant before a late fee is imposed. Adequate notice is
provided if the rental agreement complies with subsection B or if
a notice is sent to the occupant by verified mail that notifies
the occupant that a late fee may be charged in any month in which
the occupant does not pay rent when due. END_STATUTE
Sec. 4. Section 33-1704, Arizona Revised Statutes, is
amended to read:
START_STATUTE33-1704. Enforcement of lien
A. If the occupant is in default for a period of more
than thirty days, the operator may foreclose the lien by selling
the property stored in the leased space at a public sale, for
cash, or if the property is protected property, by disposing of
the property pursuant to this section. Proceeds shall then
be applied as provided in subsection E G of this section.
If the contents of the leased space include a vehicle, section
28‑4839 does not apply.
B. Before conducting a sale under subsection A of this
section, the operator shall:
1. Send notice of the default by verified mail or
electronic mail to the occupant at the occupant's last known
address.
2. Send a second notice of default by first class mail
not less than seven days after the mailing date of the first
notice to the occupant at the occupant's last known address that
includes:
(a) A statement that the contents of the occupant's
leased space are subject to the operator's lien.
(b) A statement of the operator's claim, indicating the
charges due on the date of the notice and any other charges that
may accrue.
(c) A demand for payment of the charges due within a
specified time, not less than fourteen days after the mailing date
of the second notice or thirty additional days if the address of
the occupant is outside of the continental United States.
(d) A statement that unless the claim is paid within the
time stated the contents of the leased space will be sold at a
specified time and place, or in the case of protected property,
otherwise disposed of at a specified time and place.
(e) The name, street address and telephone number of the
operator, or the operator's designated agent, whom the occupant
may contact to respond to the notice.
3. If the contents of the leased space include a
vehicle:
(a) At the time the notice is sent pursuant to paragraph
1 of this subsection, send a notice of default by verified mail to
the registered owner at the registered owner's most recent address
as shown in the records of the department.
(b) At the time the notice is sent pursuant to paragraph
2 of this subsection, send a notice of default by first class mail
to the registered owner at the registered owner's most recent
address as shown in the records of the department.
(c) The operator is not required to send a notice
pursuant to this paragraph if ownership information for a vehicle
is unavailable.
(d) In any notice that is sent, include a description of
the vehicle and its vehicle identification number.
4. At least ten days before the sale, send notice by
verified mail to any record lienholder or secured party who has an
interest in the property to be sold, of whom the operator has
actual or constructive knowledge either through the disclosure
provision of the rental agreement or through any other written or
recorded notice of the sale, that any prior record lienor or
secured party may at any time before the sale recover possession
of the item of personal property to which the record lien or
security interest attaches.
C. At any time before a sale under this section or
before the disposal of protected property, whichever occurs first,
the occupant may pay the amount necessary to satisfy the lien and
redeem the occupant's personal property.
D. If the personal property includes a vehicle, any
person listed as a registered owner or lienholder on the records
of the department may pay the amount necessary to satisfy the
lien, redeem the vehicle and recover possession of the vehicle.
The operator is not liable to the occupant or any other person who
claims an interest in the vehicle if the operator releases the
vehicle to a person listed as a registered owner or lienholder
pursuant to this subsection.
E. If the personal property is subject to a restitution
lien, any person listed as the holder of the restitution lien in
the public records may pay the amount necessary to satisfy the
lien, redeem the personal property and recover possession of the
personal property. The operator is not liable to the
occupant or any other person who claims an interest in the
personal property if the operator releases the personal property
to a person listed as a restitution lienholder pursuant to this
subsection.
F. If the leased space contains protected property and
the operator has actual knowledge of the protected property, the
protected property shall not be sold but is subject to disposal by
the operator. The operator is not liable to the occupant or
to any other person who claims an interest in protected property
if the operator disposes of the protected property pursuant to
this section. Proper disposal methods include destruction of
the protected property or surrendering the protected property to
appropriate state or federal authorities if those appropriate
state or federal authorities accept the protected property.
E. G. If a sale is held under this section, the
operator shall distribute the proceeds in the following manner:
1. To pay all reasonable costs of sale.
2. To satisfy the valid claims of any lienholder or
secured party not otherwise subordinated pursuant to section
33‑1703, subsection A.
3. To satisfy the operator's lien.
4. To satisfy the valid claims of any record lienholder
or secured party subordinated pursuant to section 33‑1703,
subsection A.
5. To the occupant on demand.
6. If the occupant does not claim the balance due to the
occupant within ninety days of the sale, the operator shall pay
the balance to the department of revenue. If the occupant,
at any time within two years from the date of payment to the
department of revenue, establishes the occupant's right to the
money to the satisfaction of the director of the department of
administration, it shall be paid to the occupant. After two
years, all unclaimed monies shall be deposited in the permanent
state school fund.
F. H. If five or more bidders who are unrelated to
the operator are in attendance at a sale held under this section,
the sale and its proceeds are deemed to be commercially
reasonable.
G. I. A purchaser in good faith of any personal
property sold under this article:
1. Does not acquire ownership of protected property
contained in the leased space and shall return to the operator any
protected property that is found in the leased space.
2. Except for protected property prescribed in paragraph
1 of this subsection, takes the property free and clear of any
rights of any party.
H. J. If the operator complies with this article,
the operator's liability arising from the sale:
1. To the occupant is limited to the net proceeds
received from the sale of the personal property.
2. To other lienholders or a secured party is limited to
the net proceeds received from the sale of any personal property
covered by that other lien.
I. K. If an occupant is in default, the operator
may deny the occupant access to the leased space.
J. L. Unless the rental agreement specifically
provides otherwise and until a lien sale under this article, the
exclusive care, custody and control of all personal property
stored in the leased space remain vested in the occupant. If
the occupant is in default for a period of more than thirty days
and until the time of sale, the operator, in addition to denying
the occupant access to the personal property, may transfer the
personal property to a place of safekeeping. END_STATUTE
Sec. 5. Section 33-1705, Arizona Revised Statutes, is
amended to read:
START_STATUTE33-1705. Notice posted in the office
Each operator acting pursuant to this article shall at all
times keep posted in a prominent place in his the operator's
office or on the premises of the self‑service storage
facility, a notice which shall read that reads as follows:
"All Articles stored pursuant to a rental agreement will
may be sold to pay or disposed of if any storage charges are
overdue for more than thirty days." END_STATUTE
33-1701. Definitions; exception
A. In this article, unless the context otherwise requires:
1. "Default" means the failure to perform on time any
obligation or duty set forth in the rental agreement.
2. "Department" means the Arizona game and fish
department in the case of motorized watercraft and the
department of transportation in the case of all other vehicles.
3. "Last known address" means that address provided by
the occupant in the rental agreement or the address
provided by the occupant in a subsequent written notice of a
change of address.
4. "Late fee" means a reasonable fee or charge that is
assessed by the operator for the failure of the occupant to
pay rent when due pursuant to section 33-1703, subsection D.
5. "Leased space" means the individual storage space at
the self-service storage facility which is rented to an
occupant pursuant to a rental agreement.
6. "Net proceeds" means the total proceeds received from
the lien sale less the total amount of the lien.
7. "Occupant" means a person or his sublessee, successor
or assign, entitled to the use of a leased space at a
self-service storage facility under a rental agreement, to the
exclusion of others.
8. "Operator" means the owner, operator, lessor or
sublessor of a self-service storage facility, an agent or any
other person authorized to manage the facility.
9. "Personal property" means movable property that is
not affixed to land and includes but is not limited to
goods, wares, merchandise, household items and furnishings and
vehicles.
10. "Registered owner" means an owner of a vehicle as
stated in the official records of the department.
11. "Rental agreement" means any written agreement
provided to the occupant which establishes or modifies
the terms, conditions or rules concerning the use and occupancy of
a self-service storage facility.
12. "Self-service storage facility" means any real
property used for renting or leasing individual storage spaces
in which the occupants themselves customarily store and remove
their own personal property on a self-service
basis.
13. "Vehicle" means a motor vehicle, a trailer or a
semitrailer as defined in section 28-101 and a motorized
watercraft as defined in section 5-301.
B. This article does not apply to a warehouseman unless the
warehouseman issues a warehouse receipt, bill of
lading or other document of title for the personal property
stored.
33-1702. Residential use; prohibition
A. An operator shall not knowingly permit a leased space at a
self-service storage facility to be used for
residential purposes.
B. An occupant shall not use a leased space for residential
purposes.
33-1703. Lien; rental agreement; contents; late fees
A. The operator of a self-service storage facility has a
possessory lien from the date the rent is unpaid and due
on all personal property stored within each leased space for rent,
late fees, labor or other charges, and for
expenses reasonably incurred in its sale, as provided in this
article. The lien shall not impair any other lien or
security interest at the time the storage was commenced, unless
the lienor or secured party knows and consents
to the storage of the personal property.
B. The rental agreement shall contain a statement, in at least ten
point bold-faced type, advising the occupant:
1. Of the accrual of the lien as of the date the rent is unpaid
and due.
2. That property stored in the leased space may be sold to satisfy
the lien if the occupant is in default.
3. That any insurance protecting the personal property stored
within the storage space against fire, theft or
damage must be provided by the occupant.
4. That a late fee may be charged by the operator for each month
that the occupant does not pay rent when due.
The rental agreement shall state the date on which rent is due and
the date on which the late fee accrues.
C. The rental agreement shall contain a provision requiring the
occupant to disclose any lienholders or secured
parties who have an interest in property that is or will be stored
in the self-service storage facility.
D. The operator may impose a reasonable late fee on the occupant
for each month the occupant does not pay
rent when due. For purposes of this section, a reasonable late fee
may be computed as the greater of ten dollars
per month or twenty per cent of the amount of monthly rent. Any
late fee imposed by the operator pursuant to
this section is in addition to any other remedy provided by law or
contract.
E. The operator shall provide adequate notice to the occupant
before a late fee is imposed. Adequate notice is
provided if the rental agreement complies with subsection B or if
a notice is sent to the occupant by certified
mail that notifies the occupant that a late fee may be charged in
any month in which the occupant does not pay
rent
when due.
33-1704. Enforcement of lien
A. If the occupant is in default for a period of more than thirty
days, the operator may foreclose the lien by
selling the property stored in the leased space at a public sale,
for cash. Proceeds shall then be applied as
provided in subsection E of this section. If the contents of the
occupant's space include a vehicle, the provisions
of section 28-4839 do not apply.
B. Before conducting a sale under subsection A of this section,
the operator shall:
1. Notify the occupant of the default by certified mail, return
receipt requested, at the occupant's last known
address.
2. Send a second notice of default by regular mail not less than
seven days after the mailing date of the first
notice to the occupant at the occupant's last known address which
includes:
(a) A statement that the contents of the occupant's leased space
are subject to the operator's lien.
(b) A statement of the operator's claim, indicating the charges
due on the date of the notice and any other
charges that may accrue.
(c) A demand for payment of the charges due within a specified
time, not less than fourteen days after the
mailing date of the second notice or thirty additional days if the
address of the occupant is outside of the
continental United States.
(d) A statement that unless the claim is paid within the time
stated the contents of the occupant's space will be
sold at a specified time and place.
(e) The name, street address and telephone number of the operator,
or his designated agent, whom the occupant
may contact to respond to the notice.
3. If the contents of the occupant's space include a vehicle:
(a) At the time the notice is sent pursuant to paragraph 1 of this
subsection, send a notice of default by certified
mail, return receipt requested, to the registered owner at the
registered owner's most recent address as shown in
the records of the department.
(b) At the time the notice is sent pursuant to paragraph 2 of this
subsection, send a notice of default by regular
mail to the registered owner at the registered owner's most recent
address as shown in the records of the
department.
(c) The operator is not required to send a notice pursuant to this
paragraph if ownership information for a
vehicle is unavailable.
(d) In any notice that is sent, include a description of the
vehicle and its vehicle identification number.
4. At least ten days prior to the sale, notify by certified mail,
return receipt requested any record lienholder or
secured party who has an interest in the property to be sold, of
whom the operator has actual or constructive
knowledge either through the disclosure provision of the rental
agreement or through any other written or
recorded notice of the sale, that any prior record lienor or
secured party may at any time prior to the sale recover
possession of the item of personal property to which the record
lien or security interest attaches.
5. At the time the operator sends the second notice to the
occupant, publish a notice indicating the date, time
and place of the sale and a description of the property to be
sold. This notice shall be published once a week for
two consecutive weeks in a newspaper of general circulation in the
county where the self-service storage facility
is located. If there is no newspaper of general circulation in the
county where the self-service storage facility is
located, the notice shall be posted at least ten days before the
date of the sale in not less than six conspicuous
places in the neighborhood where the self-service storage facility
is located.
C. At any time before a sale under this section, the occupant may
pay the amount necessary to satisfy the lien
and redeem the occupant's personal property.
D. If the personal property includes a vehicle, any person listed
as a registered owner or lienholder on the
records of the department may pay the amount necessary to satisfy
the lien, redeem the vehicle and recover
possession of the vehicle. The operator is not liable to the
occupant or any other person who claims an interest
in the vehicle if the operator releases the vehicle to a person
listed as a registered owner or lienholder pursuant
to this subsection.
E. If a sale is held under this section, the operator shall
distribute the proceeds in the following manner:
1. To pay all reasonable costs of sale.
2. To satisfy the valid claims of any lienholder or secured party
not otherwise subordinated pursuant to section
33-1703, subsection A.
3. To satisfy the operator's lien.
4. To satisfy the valid claims of any record lienholder or secured
party subordinated pursuant to section 33-
1703, subsection A.
5. To the occupant on demand.
6. If the occupant does not claim the balance due to him within
ninety days of the sale, the operator shall pay the
balance to the department of revenue. If the occupant, at any time
within two years from the date of payment to
the department of revenue, establishes his right to the money to
the satisfaction of the director of the
department of administration, it shall be paid to him. After two
years, all unclaimed monies shall be deposited
in the permanent state school fund.
F. A purchaser in good faith of any personal property sold under
this article takes the property free and clear of
any rights of any party.
G. If the operator complies with this article, the operator's
liability arising from the sale:
1. To the occupant is limited to the net proceeds received from
the sale of the personal property.
2. To other lienholders or a secured party is limited to the net
proceeds received from the sale of any personal
property covered by that other lien.
H. If an occupant is in default, the operator may deny the
occupant access to the leased space.
I. Unless the rental agreement specifically provides otherwise and
until a lien sale under this article, the
exclusive care, custody and control of all personal property
stored in the leased self-service storage space
remain vested in the occupant. If the occupant is in default for a
period of more than thirty days and until the
time of sale, the operator may, in addition to denying the
occupant access to the personal property, transfer the
personal property to a place of safekeeping.
33-1705. Notice posted in the office
Each operator acting pursuant to this article shall at all times
keep posted in a prominent place in his office or
on the premises of the self-service storage facility, a notice
which shall read as follows:
"All articles stored pursuant to a rental agreement will be
sold to pay any storage charges overdue for more than
thirty days."
33-1706. Failure to comply; penalty
Any person aggrieved by a violation of any provision of this
article may bring a civil action. In any civil action
brought for a violation of this article, in addition to any award
for damages, the court may impose a civil penalty
not to exceed five hundred dollars and may award reasonable
attorney's fees and court costs.
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