Apartment lease mentions posting reviews online?

[lundi]

I live in an apartment complex in San Antonio, Texas. Short summary: A family of raccoons moved into the apartment's attic space. I informed the office and they hired a pest control guy who came out and set up a trap for five days and caught nothing. So I put my own cage up there and caught a raccoon. I informed the apartment office, who called pest control again but the raccoon apparently "escaped" before the pest guy came. I'm skeptical since I wasn't there, but nothing I can really do. The women who work in the office basically called me a liar to my face and are refusing to call pest control services anymore for me. They also informed me that I'm violating the terms of my lease agreement by being in the attic though I have read my lease agreement several times and see no mention of attic on there anywhere.

I'm forced now to hire an outside pest control guy, costing me several hundred dollars. I will take video and photos next time it's caught. My real dilemma is that I want to post an honest, non slanderous review of my experience. My lease agreement says the following:

"You also agree that any complaints or criticisms of our business operation will be sent to us directly...and shall not be posted on an internet site. You agree that the posting of information critical to us on the internet site without the benefit of a reply will cause us and our reputation damage which are impossible to calculate and that we shall be entitled to liquidated damages in the amount of $500 for each individual posting on the internet site."

Does this mean that I cannot post a review online at all? Even if it sticks to the facts? Or is it saying that as long as I make obvious efforts to contact the management and complain, and give them a chance to respond, then I am free to post a review. I really hate my apartment complex. They are being SO cheap about everything and are refusing to contact pest control for me anymore even though I told them I caught a raccoon.

 

[quincy]

I live in an apartment complex in San Antonio, Texas. Short summary: A family of raccoons moved into the apartment's attic space. ... My lease agreement says the following:

"You also agree that any complaints or criticisms of our business operation will be sent to us directly...and shall not be posted on an internet site. You agree that the posting of information critical to us on the internet site without the benefit of a reply will cause us and our reputation damage which are impossible to calculate and that we shall be entitled to liquidated damages in the amount of $500 for each individual posting on the internet site."

Does this mean that I cannot post a review online at all? Even if it sticks to the facts? Or is it saying that as long as I make obvious efforts to contact the management and complain, and give them a chance to respond, then I am free to post a review. I really hate my apartment complex. They are being SO cheap about everything and are refusing to contact pest control for me anymore even though I told them I caught a raccoon.

The clause in the lease agreement does not mean you cannot post a negative review about the business operation. Your speech cannot be restrained in that way. What the clause in the lease agreement DOES mean is that you may find yourself having to pay $500 for each individual posting you make online that can be viewed as critical of the apartment complex. There is a slight difference.

This type of "no negative reviews" clause included in business and professional agreements has become more common in recent years. It is a reaction to the proliferation of online review sites, where a lot of negative reviews are posted. These negative reviews can cause demonstrable harm to business and professional reputations. In fact, a Harvard study completed a few years ago showed that for every negative review of a business there is a corresponding economic loss suffered by the business (if I have time, I will try to locate a link to the study, although I believe I have posted it somewhere else on this site before).

Ultimately, it is up to you to decide if you want to challenge the clause in your lease by relating to others on a review site your complaints about the apartment complex. However, if you do post a negative review, you could face not only a breach of contract suit for violating the terms of your lease, but you could face a defamation suit as well, if the review is not carefully drafted to eliminate all false facts, embellishments and generalizations.

The type of clause in your lease that you are questioning, by the way, has been questioned in courts in the past and they have been found enforceable in some of the courts that have had to address their legality. I can't tell you whether your apartment complex would be successful in a suit against you, or whether you would, should you be adamant about telling the world your story of the racoons in the attic. This is something you will want to go over with an attorney in your area before you consider publishing a negative review.

It is important to remember that you AGREED to abide by all terms of the lease when you signed it. If you didn't like this particular clause in the lease, you could have shopped around for another apartment to rent.

Good luck.

 

[mrsjohnson]

Piggyback Complaints

I was reading an article on defamation lawsuits recently and the attorney that wrote it said your defamation suit stood a much better chance if there was an additional complaint attached to it and Breach of Contract was one of those mentioned. Wish I had bookmarked the article someother place than my head but I didn't.

Should I start another thread to ask if this clause in a contract is a good or bad idea? Because I'm seriously thinking about adding this to my own terms and conditions.
Trying not to hijack but this is an interesting topic of discussion!

 

[LdiJ]

I was reading an article on defamation lawsuits recently and the attorney that wrote it said your defamation suit stood a much better chance if there was an additional complaint attached to it and Breach of Contract was one of those mentioned. Wish I had bookmarked the article someother place than my head but I didn't.

Should I start another thread to ask if this clause in a contract is a good or bad idea? Because I'm seriously thinking about adding this to my own terms and conditions.
Trying not to hijack but this is an interesting topic of discussion!

If someone presented me a contract with that clause in it I would decline to do business with them. I am not the type of person who does that, but it would signal to me that the company had received enough bad reviews that I probably shouldn't be doing business with them...even if that was not actually the case.

 

[quincy]

I was reading an article on defamation lawsuits recently and the attorney that wrote it said your defamation suit stood a much better chance if there was an additional complaint attached to it and Breach of Contract was one of those mentioned. Wish I had bookmarked the article someother place than my head but I didn't.

Should I start another thread to ask if this clause in a contract is a good or bad idea? Because I'm seriously thinking about adding this to my own terms and conditions.
Trying not to hijack but this is an interesting topic of discussion!

I am not surprised that you were reading up on defamation lawsuits, mrsjohnson.

You can add to your own thread any question you have about "negative review" clauses and whether this type of clause would be good for your business. I will be adding to your thread soon, too.

Most businesses who have tried to limit negative reviews with these clauses have found a consumer "backlash." Consumers are not fond of being told they cannot complain about poor service or a poor product. This backlash could possibly be worse for a business than any negative review might have been.

Although I can understand such clauses from a business standpoint, I personally think they are a bad idea.

 

[quincy]

This is going to be a rather quick update, to include a link to the Harvard Business paper by Michael Luca that I promised lundi I would include, and also to post links to the text of the "Consumer Review Freedom Act" introduced in Congress and a link to its status.

California enacted a law that provides civil penalties for those companies that include, and try to enforce, a "non-disparagement" clause in their contracts. The Consumer Review Freedom Act also works to outlaw clauses that prohibit consumers from speaking out negatively about a company and its products or services.

From The Harvard Business School, and article with link to Michael Luca's "Reviews, Reputation, and Revenue: The Case of Yelp.com:"
http://hbswk.hbs.edu/item/the-yelp-factor-are-consumer-reviews-good-for-business

From The Library of Congress, S.2044 - Consumer Review Freedom Act, Actions: https://www.congress.gov/bill/114th-congress/senate-bill/2044/actions

From the Senate Commerce Committee, The Consumer Review Freedom Act: http://www.commerce.senate.gov/public/_cache/files/182837c8-cdc6-4eba-8c1f-fce3df22a26f/863E0F2A79287FB92CDF9975761E6C64.consumer-review-freedom-act.pdf

The laws are based on the fact that, if a review is defamatory, there are legal actions available for the defamed to take. Although defamatory reviews are posted, this should not prevent others from posting honest negative reviews. The US likes its freedom of speech.

I will include these same links in your thread, mrsjohnson, since you inquired about non-disparagement clauses.