It was not that long ago that operators were required to send lien notices to tenants by certified mail. The industry has shifted in some states to allow operators to send notices to tenants by verified mail to the tenant’s last known address. This shift relieved the operators of the burden of having to prove that the notice was delivered, instead only requiring the operator to show that notice was sent to the tenant. It also resulted in a significant cost savings to facility operators. Now, most states allow operators to email their lien notices to tenants, though many have a caveat which requires the operator to send notice to the tenant by verified mail if the operator does not receive delivery confirmation for the emailed lien notice.
While many facilities have moved away from mailing lien notices to tenants and towards emailing the notices, there are still many operators who mail out lien notices to tenants. Additionally, operators must remain familiar with verified mailing if the state law requires it when the operator does not receive delivery confirmation for the emailed lien notice.
However, many operators are rightfully confused as to what exactly is “verified mail” since it is not something you can go to your local post office and ask for without getting some bewildered looks. The answer is found in the self-storage act of each state, as each state that requires verified mail defines the term in its self-storage laws. As such, the meaning of verified mail can be different from state to state, but it is usually defined as “any method of mailing that is offered by the United States Postal Service that provides evidence of mailing”. This is a fairly broad definition that allows operators to avoid having to use certified mail and thus lessens costs when they do have to mail out notices.
The United States Postal Service offers different forms that provide a certificate of mailing, which is simply evidence of when you mailed an item. It is important to note that the US Postal Service does not keep receipts of Certificates of Mailing. As such, it is imperative that operators keep such receipts in the event that a sale is ever challenged by a former tenant for failure to provide notice. The US Postal Service offers different certificates of mailing that provide evidence that an item was mailed. They include PS Form 3817 and PS Form 3665. PS Form 3817 is used when the shipment contains one or two items. PS Form 3665 is used when the shipment contains three or more items. The PS Forms most likely to be used by self-storage operators are PS Form 3817 and PS Form 3665 to go with notices sent by first class mail. It is also important to note that a certificate of mailing can be used with the following classes of mail service: First-Class Mail, First-Class Package Service-Commercial (except for parcels mailed at commercial plus prices), Priority Mail, USPS Retail Ground, Bound Printed Matter, Library Mail, and Media Mail.
It is important to remember that for each state that includes verified mail as an option, the method used to send notices by verified mail will be dependent on how the state self-storage laws define verified mail. First class mail along with one of the aforementioned Postal Service Forms generally meets the statutory requirement, but it is important that you verify that your method of sending meets the required standard under your state law.
Ashley Oblinger is an attorney in the law firm of Weissmann Zucker Euster Morochnik & Garber P.C. in Atlanta, Georgia. Ashley specializes in business law and self-storage law, advising self storage facilities throughout the country on all legal matters, including lease preparation, lien enforcement, tenant issues, tenant claims defense, and employment policies. Ashley can be reached at 404-760-7434 or at Ashley@wzlegal.com.
This article was originally published by J.Ashley Oblinger, October 2021