(A) If no written rental agreement exists between the owner and occupant and the oral rental agreement was entered into prior to the effective date of this chapter, an owner may enforce collection of rent due by distress in the manner prescribed by this section if the occupant has been in default continuously for thirty days. Any magistrate having jurisdiction over the district in which the self-service storage facility is located may issue, upon receipt of an affidavit of the owner or his agent setting forth the amount of rent due, a notice directed to the occupant stating the alleged amount of rent due, including any cost, and fixing a time and place for a predistress hearing to be held not earlier than five days after the service of the notice. The notice, together with a copy of the affidavit, must be delivered to (a) any regular constable, (b) such special constable as the magistrate may appoint, or (c) the sheriff of the county for enforcement. The officer shall serve a copy of the notice and affidavit on the occupant by personal service by any method provided by law.
(B) The purpose of the predistress hearing is to protect the occupant's use and possession of property from arbitrary encroachment and to prevent unfair or mistaken deprivation of property. If the magistrate shall, after conducting the hearing, find that the owner's right to distress is valid and the occupant has no overriding right to continue in possession of the property subject to distress, then the magistrate may issue his distress warrant naming the amount of rent due, with costs, and the warrant shall be delivered to an officer as set forth in subsection (A).
(C) The officer to whom a distress warrant is delivered after the predistress hearing shall demand of the occupant payment of the rent with costs as enumerated in the distress warrant. If the amount is paid the officer shall return the warrant with the amount collected to the magistrate who shall settle with the owner. If the tenant fails or refuses to pay the rent with costs, the officer shall distrain sufficient other property upon the rented premises to pay the amount by delivering or mailing to the occupant at his last known address a list in writing of the property distrained together with a copy of the distress warrant.
(D) If any property distrained is not the property of the occupant, the occupant immediately shall name the owner of the property and inform the officer of the ownership and the officer shall distrain sufficient other property of the occupant to pay the rent and costs. The property of the occupant must be first applied to payments of the rent and costs. All property in the self-service storage facility is subject to distress as provided in this section.
(E) Any property belonging to the occupant removed from the self-service storage facility must, if found, be subject to distraint and sale, provided the distraint be made within thirty days after the removal.
(F) Within five days after the distraint, the occupant may free the property from the lien of the distraint by giving a bond payable to the owner in double the amount claimed, with sufficient surety or sureties approved by the court, and the issues thus joined must be tried by the court. The owner has the right to except to the surety or sureties and the surety or sureties shall justify before the magistrate as provided for justification for sureties in claim and delivery actions.
(G) If the occupant fails to give bond as prescribed in subsection (F) then the officer may sell the property at public auction to the highest bidder for cash at a designated place of sale after posting a notice of the sale for five days upon the premises and two other public places in the county stating the time and place of the sale.
(H) The purchaser at a sale of chattels seized under a distress warrant takes the property subject to any other perfected and recorded liens on the property.
(I) If the property distrained brings more than the rent with costs at the sale the surplus must be paid to the occupant and the rent must be paid to the owner.
HISTORY: 1986 Act No. 460, Section 1, eff 30 days after approval by the Governor (Approved June 2, 1986); 2014 Act No. 136 (H.3563), Section 1, eff March 13, 2014.
Editor's Note
1986 Act No. 460, Section 2, provides as follows:
"All rental agreements entered into before the effective date of this act, and not extended or renewed after that date, and the rights and duties and interests flowing from them remain valid and may be enforced or terminated in accordance with their terms or as permitted by any other statute or law of this State."
2014 Act No. 136, Section 2, provides as follows:
"SECTION 2. All rental agreements entered into before the effective date of this act, and not extended or renewed after that date, and the rights, duties, and interests flowing from them remain valid and may be enforced or terminated in accordance with their terms or as permitted by any other statute or law of this State."
Effect of Amendment
2014 Act No. 136, Section 1, in subsection (C), substituted "sufficient other property" for "sufficient of the property".