Chapter 704

704.90(5r)(a)3. 3. Before the operator sent the 2nd notice under sub. (5) (b) 2., the lessee had failed to pay rent or other charges due under the rental agreement for more than 60 consecutive days after the due date under the rental agreement.

704.90(5r)(a)4. 4. The lessee has failed to redeem the personal property under sub. (5) (a) within the time specified in the notice under sub. (5) (b) 2. c.

704.90(5r)(b) (b) The operator shall be immune from civil liability for any damage to or loss of the vehicle arising from or related to the removal and towing of the vehicle.

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)2. 2. The operator has complied with the notice requirements under subs. (5) (b) and (7) (b).

704.90(6)(a)3. 3. The lessee has failed to redeem the personal property under sub. (5) (a) within the time period specified in the notice under sub. (5) (b) 2. c.

704.90(6)(a)4. 4. An advertisement of the sale is published once 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.

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 publication under subd. 4.

704.90(6)(a)7. 7. Except as provided in par. (am), 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, including by means of the Internet.

704.90(6)(a)8. 8. The sale is conducted at an Internet site that is reasonably expected to attract bidders or, if conducted at a physical location, 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)(am) (am) If the sale is advertised to be a public sale at a physical location, notwithstanding the date and time specified in the notice under sub. (5) (b) 2. d. for the sale, the operator may postpone the sale for up to 14 days due to inclement weather on the day of the sale. If the sale is postponed, the operator shall provide notice of the new date, time, and place of the sale in an advertisement that satisfies the requirements under par. (a) 5. and that provides the original date of the sale, that explains that the original sale was postponed, and that provides the reason for the postponement. The advertisement under this paragraph may be published in the manner provided in par. (a) 4. and the sale on the new date may be conducted as provided in par. (a) 8. The operator shall also send notice at least 5 days before the new date of the sale, by regular mail to the last-known address of the lessee or by electronic mail to the last-known electronic mail address of the lessee, stating that the sale was postponed and providing the new date, time, and place of the sale.

704.90(6)(b) (b) The operator first shall apply the proceeds of the sale to satisfy the lien under sub. (3) (a). The operator then shall return any balance of the proceeds to the lessee or, if the operator cannot with due diligence locate the lessee, report and deliver any balance to the secretary of revenue 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; use of electronic mail.

704.90(7)(a) (a) 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(7)(b) (b) A notice under sub. (5) (b) 1. or 2. or (6) (am) may be sent by electronic mail only if the operator uses a service that provides confirmation of the receipt of electronic mail and the operator receives confirmation that the notice was received. If the operator does not use such a service or if receipt is not confirmed, the operator must send the notice by regular or verified mail, whichever is applicable.

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) (10) Penalties.

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 History History: 1987 a. 23; 1991 a. 39; 1995 a. 27; 2005 a. 461; 2009 a. 380; 2011 a. 260 s. 80; 2013 a. 20; 2017 a. 325.

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 s. 704.28 or 704.44 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; 2013 a. 76.

704.95 Annotation This section prohibits the Department of Agriculture, Trade and Consumer Protection from making different any right or duty originating from this chapter. Regarding security deposits, those rights or duties in s. 704.28 pertain only to the incurred costs a landlord can lawfully withhold from a tenant’s security deposit and the time within which a landlord must return that deposit. Any obligation of a landlord to provide a withholdings statement to a tenant arises only under s. ATCP 134.06 (4), Wis. Adm. Code. Given that this chapter is silent on the topic of withholdings statements, nothing in s. ATCP 134.06 (4), Wis. Adm. Code, regarding withholdings statements “alters” or “makes different” anything originating from this chapter. This section thus has no bearing on the department’s rulemaking authority over that subject matter. State v. Lasecki, 2020 WI App 36, 392 Wis. 2d 807, 946 N.W.2d 137, 18-2340.