Dear Legal Help Desk

QCan a check box be used to enter into a storage agreement rather than a signature?

A(Australian Members):

A signature is required to enter into an agreement. We do not recommend allowing individual storers to enter into an agreement with a Facility without a signature and without viewing an ID and confirming that the person entering into the agreement is the same as the person on the ID.

Agreements that have been formed without a signature and without proof of ID are not necessarily invalid. However, a Facility does open itself up to risk. If a dispute arises, it becomes difficult for the Facility to establish that: l the storer accepted the terms and conditions of the contract; l that the person entering into the

Agreement was indeed the storer; and l the storer had authority to enter into an agreement and to be bound by it.

Where a storer is signing on behalf of themselves (i.e. not on behalf of a company), an electronic or digital signature can be provided. It is however important to ensure that the identity of the person signing is verified to avoid any fraud. This can be done for example, by comparing the electronic signature to the signature on the ID collected

We do not recommend that Facilities allow companies to sign up to agreements with electronic or digital signatures. The Electronic Transactions Act 1999 excludes from its operation the Corporations Act 1989 and Corporations Law. As a result, there remains considerable contention in legal circles as to whether an electronic signature is valid when a company signs a document.

As such we recommend that a handwritten signature always be obtained from a company entering into a storage agreement to ensure that it is a valid company execution under the Corporations Act 1989.

It is mandatory for Facilities to check the ID of the person signing up to the Agreement (a licence is sufficient) and make a copy of the ID for the file. The Facility needs to ensure that it knows the identity and contact details of the storer who is entering into an Agreement with them.

In the event of default, if you don’t have any contact details or you have incorrect or incomplete details, the default can become very difficult to enforce, and the facility is placed at risk.

An electronic checkbox can be used to confirm that a storer has accepted a quote or accepted terms and conditions (and has had the opportunity to read them).

We do however recommend that an autoresponder email to the storer is also sent confirming the acceptance or attaching an electronic copy of the terms and conditions to ensure that the storer has a copy of the confirmation of terms and conditions.

It is our recommendation that a Facility always requests a signature from storers when entering into an Agreement. qualify as “electronic signatures”) can be used for storage agreements – for both individuals and companies. As with Australia, electronic signatures do pose some risks to Facilities. These risks need to be weighed against the commercial benefits of modern technology which allow electronic sign up systems. If used, processes should be put in place to mitigate the risks. Electronic signatures are electronic methods of identifying a person and indicating their acceptance of a contract e.g. pasting an image of your handwritten signature into a document, typing your name by keyboard in place of a signature, signing your name with a stylus, clicking ‘I Accept’ etc. These methods generally do not have the same integrity as handwritten signatures, but they still operate to indicate acceptance of a contract. Of course, even handwritten signatures can be forged. The main points to keep in mind when using these forms of electronic signatures for storage agreements are: Facilities still need to check the ID of the person signing the storage agreement and follow the usual identification processes. By identifying the storer / signatory – preferably in person – risks are managed as it is far harder for a person to deny they have signed a storage agreement when they have then presented themselves in person. Your processes could extend to verifying with the individual that he or she is the person who signed online. Do not pre-tick the boxes and make

A(NZ Members): it very clear that the tick/click operates The position is a bit different in as acceptance of the terms. New Zealand. In New Zealand, a tick Best practice is to ensure that box or an “I Accept” button (these customers cannot click ‘accept’ or tick

the box until they have scrolled through all the terms – rather than just ticking the box but only seeing a few lines of the terms and conditions.

The Storer should always be sent a copy of the agreement it has signed (whether by hand or electronically). We also recommend they are sent copies of any policies they are required to comply with e.g. Facility code of conduct, health and safety.

Another form of electronic signature is to require the customer to sign their name with a stylus or to type their name in a signature panel. This has the added benefit of identifying the person who has accepted the terms.

We recommend you get legal advice if you are considering using electronic signatures.

QFamily members of the deceased Storers believe the will is in the storage unit and seek to obtain an access. The ACP has keys but not unit number or the PIN for the unit.

A(Australian Members):

deceased and access the storage unit on behalf of the deceased’s estate. On the death of a Storer, only the executor/administrator of the estate is legally entitled to deal with goods in the storage unit. The executor/ administrator may or may not be a family member. We recommend a Facility: 1. request a copy of the storer’s death certificate; 2. to assist the ACP in obtaining access to the storage unit to search for the will under the supervision of someone from the Facility and the ACP cannot remove any items from the storage unit; Once the search is undertaken the storage unit is to be locked. When a copy of the will is provided to the Facility, the Facility can then liaise with the executor. In the event that a will is not found, the deceased’s family will have to apply for letters of administration to have an administrator appointed. That person can stand in the shoes of the

A(NZ Members):

The position in NZ is essentially the same as for Australia. The approach suggested for Australia to allow the ACP access to search for a will is an option that a facility could permit. The facility should exercise care in doing so to avoid assisting someone to get access who may not be entitled to access. The identification of the person claiming to be ACP should be checked, and it would be prudent to get the request from the ACP in writing. You may wish to consider requiring a letter from the deceased’s lawyer to back up the request. Of course, the ACP, and not the facility should unlock and relock the storage unit as you do not have access to the unit.

QStorer ‘s goods have water damage and the Storer has no insurance. Storer made a complaint with Consumer & Business Services. One of their representatives advised that the terms of the Standard Agreement may be in breach of s 151(1)(m) of the ACL. Question: Can you please advise if there is any standing with this or any precedence on record with the association for this being the case.

A(Australian Members):

by law”. The Standard Self Storage Agreement is not misleading nor deceptive in the exclusion or existence of certain guarantees. Section 151(1)(m) of the Australian Consumer Law prohibits the making of a false or misleading representation about the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. The Standard Self Storage Agreement is not in breach of this provision. The Agreement specifically outlines that the Facility’s services “come with non-excludable guarantees under consumer protection law” and only excludes any liability of the Facility “to the extent permitted

A(NZ Members):

A similar situation applies in New Zealand. If the Storer is a consumer, certain guarantees and rights under New Zealand consumer law (i.e. the Fair Trading Act and the Consumer Guarantees Act) automatically apply regardless of what the storage agreement says. However, the New Zealand storage agreements do not (and cannot) exclude these nonexcludable guarantees and rights. Whether the facility has breached the consumer’s rights is a question that would turn on the facts of what has caused the damage.

QIf we do not offer insurance at our facility can we amend the insurance section of the Agreement?

A(Australian Members):

There is no obligation on the Facility to offer insurance. As such, the Facility may amend the Agreement to remove ‘Option 1’ which would then read as follows: “INSURANCE: (SELECT ONE BY CROSSING OUT OTHERS) 1. I have adequately insured the value of the Goods with my own insurance company or broker who is…………………………………………………. 2. I have not insured the value of the Goods with any insurance broker or insurance company. I elect to self-insure and take the risk of loss or damage to the goods stored. Storer’s Signature: __________ __________________________”

A(NZ Members):

Likewise, there is no obligation in New Zealand for Facilities to offer insurance. Facilities can make a similar amendment to the one suggested in the Australian response above. l

Disclaimer: The information contained in these answers is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances. Please refer to the SSAA’s website for more information on the SSAA’s Legal Help Desk.