704.90(4)
(4) Care and custody. Except as provided in the rental agreement and in this section, a lessee has exclusive care, custody and control of personal property stored in the lessee's leased space.
704.90(4b)(a)(a) The operator may charge a reasonable late fee for each month a lessee does not pay rent by 5 weekdays after the rent is due if the amount of the late fee is contained in the rental agreement.
704.90(4b)(b)
(b) A late fee of $20 or 20 percent of the monthly rental amount, whichever is greater, is presumed reasonable. An operator may charge a higher late fee but has the burden of proof that the higher late fee is reasonable.
704.90(4g)
(4g) Default or failure to pay after termination. A lessee who defaults or fails to pay rent for the storage of personal property abandoned after the termination of the rental agreement is subject to the procedures and remedies in
subs. (4r) to
(9) and
(12).
704.90(4r)
(4r) Denial of access; removal and storage. 704.90(4r)(a)(a) If a lessee defaults, an operator may deny the lessee access to the personal property until the lessee redeems the personal property under
sub. (5) (a).
704.90(4r)(b)
(b) After the termination, by expiration or otherwise, of a rental agreement for the use of a leased space by a lessee, an operator may remove personal property remaining in the leased space and store the personal property at another site or within or outside the self-service storage facility or move the self-service storage unit to another site, or the operator may continue to store the personal property in the leased space, and the operator may deny the former lessee access to the personal property until the lessee redeems the personal property under
sub. (5) (a). The operator may charge a reasonable rent for storage of the personal property, whether at another site or in the leased space. A former lessee who fails to pay the rent is subject to all procedures and remedies set forth in this section for default.
704.90(5)
(5) Redemption and notice of opportunity to redeem. 704.90(5)(a)(a) At any time prior to disposal under
sub. (5m) or sale under
sub. (6), a lessee may redeem personal property by paying the operator any rent and other charges due. Upon receipt of such payment, the operator shall return the personal property, and thereafter the operator shall have no liability to any person with respect to such personal property.
704.90(5)(b)
(b) An operator may not dispose of personal property under
sub. (5m) or sell personal property under
sub. (6) unless the operator first delivers the following 2 notices:
704.90(5)(b)1.
1. A first notice sent by regular mail to the last-known address of the lessee and the person, if any, specified in the rental agreement under
sub. (2m) containing all of the following:
704.90(5)(b)1.a.
a. Notification that the lessee is in default or has failed to pay rent for the storage of personal property abandoned after the termination of the rental agreement or both.
704.90(5)(b)1.b.
b. A brief and general description of the personal property subject to the lien that is reasonably adequate to permit the lessee to identify it, except that any container including, but not limited to, a trunk, valise or box that is locked, fastened, sealed or tied in a manner which deters immediate access to its contents may be described as such without describing its contents.
704.90(5)(b)1.c.
c. A notice of denial of access to the personal property if such denial is permitted under the terms of the rental agreement or under
sub. (4r).
704.90(5)(b)1.d.
d. The name, street address and telephone number of the operator whom the lessee may contact to redeem the personal property by paying the rent and other charges due.
704.90(5)(b)2.
2. A 2nd notice sent by certified mail or 1st class mail with a certificate of mailing to the last-known address of the lessee containing all of the following:
704.90(5)(b)2.a.
a. A statement that the operator has a lien on personal property stored in a leased space.
704.90(5)(b)2.ag.
ag. A brief and general description of the personal property subject to the lien that is reasonably adequate to permit the lessee to identify it, except that any container including, but not limited to, a trunk, valise or box that is locked, fastened, sealed or tied in a manner which deters immediate access to its contents may be described as such without describing its contents.
704.90(5)(b)2.am.
am. A notice of denial of access to the personal property if such denial is permitted under the terms of the rental agreement or under
sub. (4r).
704.90(5)(b)2.b.
b. An itemized statement of the operator's claim for rent and other charges due as of the date of the notice and of additional rent and other charges that will become due prior to sale and the dates when they will become due.
704.90(5)(b)2.c.
c. A demand for payment of the rent and other charges due within a time period not sooner than 14 days after the date of the notice.
704.90(5)(b)2.d.
d. A statement that unless the rent and other charges are paid within the time period under
subd. 2. c., the personal property may be disposed of if the fair market value of the property is less than $100 or will be sold, a specification of the date, time and place of the sale and a statement that if the property is sold the operator shall apply the proceeds of the sale first to satisfy the lien and shall report and deliver any balance to the state treasurer as provided under
ch. 177.
704.90(5)(b)2.e.
e. The name, street address and telephone number of the operator whom the lessee may contact to redeem the personal property by paying the rent and other charges due.
704.90(5m)
(5m) Disposal of certain property. If the fair market value of the personal property that was stored in the lessee's leased space is less than $100, an operator may do any of the following:
704.90(5m)(a)
(a) Donate the personal property to an organization described in section
501 (c) (3) of the Internal Revenue Code that is exempt from federal income tax under s. 501 (a) of the Internal Revenue Code.
704.90(5m)(b)
(b) Dispose of the personal property in a solid waste facility.
704.90(5m)(d)
(d) Dispose of the personal property in another manner that is reasonable under the circumstances.
704.90(6)
(6) Sale, advertisement of sale and proceeds of sale. 704.90(6)(a)(a) After the expiration of the time period given in the 2nd notice under
sub. (5) (b) 2. c., an operator may sell personal property that was stored in a lessee's leased space to satisfy the lien under
sub. (3) (a) in the manner set forth in
pars. (b) and
(c) if all of the following conditions are met:
704.90(6)(a)4.
4. An advertisement of the sale is published once a week for 2 consecutive weeks in a newspaper of general circulation where the self-service storage facility or unit is located.
704.90(6)(a)5.
5. The advertisement under
subd. 4. contains all of the following:
704.90(6)(a)5.a.
a. A brief and general description of the personal property reasonably adequate to permit its identification, as provided in the notices under
sub. (5) (b).
704.90(6)(a)5.b.
b. The address of the self-service storage facility or of the operator of the self-service storage unit and the name of the lessee.
704.90(6)(a)6.
6. The sale takes place not sooner than 15 days after the first publication under
subd. 4.
704.90(6)(a)7.
7. The sale conforms to the terms of the notices under
sub. (5) (b) and to any of the following:
704.90(6)(a)7.a.
a. The personal property is offered either as a single parcel or multiple parcels at a public sale attended by 3 or more bidders.
704.90(6)(a)7.b.
b. The personal property has been offered to at least 3 persons who deal in the type of personal property offered for sale and is sold in a private transaction.
704.90(6)(a)7.c.
c. The personal property is sold in another manner that is commercially reasonable.
704.90(6)(a)8.
8. The sale is held at the self-service storage facility, at the self-service storage unit, or at the nearest suitable place to the place where the personal property is stored.
704.90(6)(b)
(b) The operator shall apply the proceeds of the sale first to satisfy the lien under
sub. (3) (a). The operator shall report and deliver any balance to the state treasurer as provided under
ch. 177.
704.90(6)(c)
(c) A purchaser in good faith of personal property sold takes the personal property free and clear of any rights of any person against whom the lien under
sub. (3) (a) was valid and any rights of any other lienholder, regardless of any noncompliance with the requirements of this section by any person.
704.90(7)
(7) Notice; presumption of delivery. Notice by mailing under
sub. (5) (b) is presumed delivered if deposited with the U.S. postal service, properly addressed to the last-known address of the lessee or person specified in the rental agreement under
sub. (2m) with postage prepaid.
704.90(8)
(8) Supplemental nature of section. This section does not impair or affect in any way the right of parties to create liens by special contract or agreement, nor does it impair or affect any lien not arising under this section, whether the other lien is statutory or of any other nature.
704.90(9)
(9) Rules. The department of agriculture, trade and consumer protection may promulgate rules necessary to carry out the purposes of this section.
704.90(10)(a)(a) Except as provided in
par. (b), any person who violates this section or any rule promulgated under this section may be required to forfeit not more than $1,000 for the first offense and may be required to forfeit not more than $3,000 for the 2nd or any later offense within a year. Each day of continued violation constitutes a separate offense. The period shall be measured by using the dates of the offenses which resulted in convictions.
704.90(10)(b)
(b) Paragraph (a) does not apply to a lessee who violates
sub. (4g) or
(4r) (b) because he or she defaults or fails to pay rent for the storage of personal property abandoned after the termination of the rental agreement.
704.90(10)(c)
(c) Forfeitures under
par. (a) shall be enforced by action on behalf of the state by the department of justice or by the district attorney of the county where the violation occurs.
704.90(11)
(11) Duties of the department of agriculture, trade and consumer protection. 704.90(11)(a)(a) Except as provided in
par. (c), the department of agriculture, trade and consumer protection shall investigate alleged violations of this section and rules promulgated under
sub. (9). To facilitate its investigations, the department may subpoena persons and records and may enforce compliance with the subpoenas as provided in
s. 885.12.
704.90(11)(b)
(b) Except as provided in
par. (a), the department may, on behalf of the state, bring an action for temporary or permanent injunctive or other relief in any court of competent jurisdiction for any violation of this section or any rule promulgated under
sub. (9).
704.90(11)(c)
(c) This subsection does not apply to a lessee who violates
sub. (4g) or
(4r) (b) because he or she defaults or fails to pay rent for the storage of personal property abandoned after the termination of the rental agreement.
704.90(12)
(12) Right to action for violation. In addition to the remedies otherwise provided by law, a lessee injured by a violation of this section or any rule promulgated under
sub. (9) may bring a civil action to recover damages together with costs, disbursements and reasonable attorney fees, notwithstanding
s. 814.04 (1), and any equitable relief as may be determined by the court.
704.90 Annotation
"Any person injured" in sub. (12) is not limited to a "lessee" as defined in sub. (1) (c). This section protects the interests in personal property of persons who are authorized to store their property in a leased space pursuant to the rental agreement, whether or not they are lessees. Cook v. Public Storage, Inc.
2008 WI App 155,
314 Wis. 2d 426,
761 N.W.2d 645,
07-2077.
704.90 Annotation
To construe "the address provided by a lessee to an operator in the most recent rental agreement" in sub. (1) (am), to mean the correct address actually provided by a lessee in an information form is more reasonable than to construe it to mean the incorrect address that the operator transferred to the rental agreement. It is more reasonable to place the responsibility on the operator to accurately transfer the address to the rental agreement than on the lessee to catch the operator's mistake. Cook v. Public Storage, Inc.
2008 WI App 155,
314 Wis. 2d 426,
761 N.W.2d 645,
07-2077.
704.90 Annotation
"Provided by a lessee" in the definition of "last-known address" in sub. (1) (am), does not expressly require that the lessee provide the address in person. It is more reasonable to construe "the address provided by a lessee" to include an address provided by a person acting on behalf of the lessee who the operator knows is acting on the lessee's behalf than it is to restrict it to the lessee himself or herself. Cook v. Public Storage, Inc.
2008 WI App 155,
314 Wis. 2d 426,
761 N.W.2d 645,
07-2077.
704.90 Annotation
While excess proceeds from sales under sub. (6) are presumed abandoned, nothing in ch. 177 suggests that this presumption may not be overcome. Nothing suggests that the holder may continue to hold the excess proceeds even if the person whose property was sold presents himself or herself in person to the holder or otherwise contacts the holder. Cook v. Public Storage, Inc.
2008 WI App 155,
314 Wis. 2d 426,
761 N.W.2d 645,
07-2077.
704.90 Annotation
The attorney fees provision in sub. (12) is the incentive for private parties to bring actions to enforce this section. It is unreasonable to read this section to permit a contract provision to eliminate or reduce reasonable attorney fees. The same conclusion applies with respect to compensatory damages. A contract provision preventing punitive damages was against public policy. Cook v. Public Storage, Inc.
2008 WI App 155,
314 Wis. 2d 426,
761 N.W.2d 645,
07-2077.
704.95
704.95
Practices regulated by the department of agriculture, trade and consumer protection. Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under
s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under
s. 100.20 that changes any right or duty arising under this chapter.
704.95 History
History: 2011 a. 143.
