Dear Legal Help Desk

QWe have lost contact with a storer. His sister has come forward wanting to pay for his overdue storage fees. Can we accept her payment?

We have explained she doesn’t have access as she is not a contact, have the keys or the code. She said she can pay for it until we hopefully find him.

A(Australian Members):

If the storer’s sister is willing to pay the storage fees for the unit, the facility can choose to continue to store the goods on this basis. As the sister is not a party to the agreement, you will not, however, be able to provide her access to the storage unit or release any of the goods to her.

You can inform the sister that the facility will continue to store the goods, while storage fees are being met, until either: l She finds the storer and he can remove the goods from the unit; or l She obtains a power of attorney for the storer.

A(New Zealand Members):

The storer’s sister is able to continue to pay fees for and on behalf of her brother. Similar to the response for Australian members, you should clearly explain that you cannot provide the sister with access to the unit, and that paying for the storage unit gives her no entitlement to the goods.

If you are able to contact the ACP, another option would be to terminate the agreement (for breach if the storer is more than 42 days in arrears, or by notice, if the fixed period has ended) – and then if you are still unable to contact the storer the ACP can clear the unit under the terms of the agreement.

QWhat is the recommended amount to charge for late fees?

A(Australian Members):

A late payment fee is a one-off charge meant to cover the cost of chasing the late payment, such as the cost of postage, telephone calls and stationery. Late payment fees are legally permissible if they are a genuine pre-estimate of the loss likely to be suffered by the Facility. Late payment fees cannot: l Be out of all proportion to the loss likely to be suffered; or l Be so high that they act to punish storers for failing to make payments on time.

Ultimately, the facility will need to be able to justify any amount being charged as a late payment fee. You should ensure that only one late payment is charged for any overdue invoice.

A(New Zealand Members):

The answer for New Zealand members is similar to the answer for Australian members – late payment fees cannot be a punishment; they must be set at a rate that is intended to cover the costs and losses the facility incurs as a result of the late payment. These could be administrative charges or costs of contacting the storer. The actual amount of the late payment fee is something for each facility to assess for itself – the SSAA is unable to set or recommend a fee due to competition laws.

Members can only charge a late payment fee if the ‘Late Payment Fee’ line of the Storage Costs section of the Schedule has been completed – this lets the Storer know how much the fee will be and when it will be charged. Before charging a late payment fee, we recommend you double check the storer’s agreement to see if this section has been completed.

QHow do we deal with a storer that is challenging a late fee charge of $25.00?

A(Australian Members):

Under clause 4(c) of the Agreement, the Facility is entitled to charge a late fee.

However, whether the $25 late fee charged by the facility is enforceable is also a question of whether the amount of the late fee is ‘unfair’ in accordance with the Australian Consumer Law. If the late fee is so high that it is considered a ‘penalty’, then it will not be enforceable based on contravening Australian Consumer Law.

The recommended practice is that the late fee should reflect the actual costs incurred by the Facility as a result of the Storer’s lateness in paying the storage fee. For example, the actual costs may be the reasonable administrative costs in following up and processing the late payment.

Because your facility had to organise staff to speak to the Storer (i.e. incurring administrative costs), we do not believe that the $25 late fee is so unreasonable or disproportionate that it would be considered punitive.

A(New Zealand Members):

A similar position applies in New Zealand. We also note that late payment fees can only be charged if the ‘Late Payment Fee’ section in the Schedule has been completed with the amount of the Fee and when it will be applied – this puts the storer on notice that a Late Payment Fee may be charged.

QOn the Agreement under storage costs can I add in ‘Remote Controls’ and have a fee associated with a lost or broken remote control?

A(Australian Members):

The Facility can customise the Storage Costs section on the front of the agreement. The Facility can insert the additional fee details in the blank spaces on the first page of the Agreement, under ‘Storage Costs’. Additionally, Clause 5 of the Standard Self Storage Agreement sets out the fees which the Storer must pay to the Facility, including any fees specified in the Fees Schedule under clause 5(d). Therefore, the Facility should attach to the Agreement a document titled ‘Fee Schedule per clause 5(d)’, outlining any additional fees that will apply and draw this to the attention of the Storer.

A(New Zealand Members):

The new Standard and Managed Self Storage Agreements for New Zealand, which are now available online from the SSAA, include blank lines in the ‘Storage Costs’ section of the Schedule. You are able to add specific additional fees in these sections. You should clearly explain to the storer when you sign them up what the fees are for, and when you will charge them. To be clearer, you should add the wording ‘Replacement Remote Control’ in the blank field, rather than simply ‘Remote Control’.

QOn the Agreement what happens if someone crosses out ‘Consent to a Credit Check and Reporting Consent?’ Does this just mean I can’t do a credit check on them?

A(Australian Members):

The Facility cannot do a Credit Check unless consent is given but it may refuse storage if a Storer does not provide their consent. The facility may prefer that all new storers are subject to a Credit Check to reduce the likelihood of signing up a new storer who, for example, has a history of being in default or missing payments. Accordingly, refusing storage to a new storer who does not consent to a Credit Check helps to avoid a risk to the facility.

A(New Zealand Members):

The answer for New Zealand members is the same as for Australian members.

QDoes the SSAA Privacy Disclosure Statement need to be updated to allow for QR Code technology?

A(Australian Members):

It is not necessary to amend the Agreement or the Privacy Disclosure Statement to cater for the use of QR Codes.

Both the privacy clauses in the Agreement and the Privacy Disclosure Statement are broadly drafted and do not differentiate between whether personal information is collected and stored electronically or in hard copy. For example, clause 34(a) of the Agreement states that the FO: ‘…may collect information about the Storer, including the Storer’s Personal Information (as defined in the Privacy Act 1988 (Cth)) (Personal Information), to assist in the provision of storage to the Storer, maintaining the Storer’s account, and the FO’s enforcement of this Agreement in any way.’

Therefore, no amendment is required to cater for the use of QR Code technology. Facilities will, however, still have obligations to ensure that any personal information collected via QR codes is securely stored.

A(New Zealand Members):

The New Zealand Privacy Policy does not specify the means of collection of personal information –although it does not specifically refer to QR codes, you are able to use QR codes to collect information, provided that the personal information you are collecting is consistent with the types of personal information you are permitted to collect under the Privacy Policy. Of course, you are required to ensure that the information is securely stored.

We note that where visitor information is collected via a Ministry of Health Covid-19 QR code, this information is not collected by the Facility, but by the Ministry of Health – so no obligations arise here. 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.