Q: I own a large apartment complex. I’m worried about the effect of an online message board on my business. Hosted by a large Internet service provider, the message board solicits input from tenants about housing issues, and there’s currently a string of messages concerning my complex, complaining about the rent, security-deposit return practices, and general management. Two posters have written rambling, flaming rants about our employees and business practices. This is very damaging stuff if it’s read by prospective tenants. Is there any way I can get the service provider to give me the identities of these message writers? –Jerry Y.
A: Regular folks with access to the Internet can become the equivalent of a town crier or a pamphleteer, and they can do so anonymously. The First Amendment’s protection of free speech extends to them as it did to their paper-bound forebears, and that includes an author’s decision to remain anonymous. However, that protection isn’t without limitation — the law has long recognized that when speech becomes defamatory, obscene, or likely to incite a breach of the peace, the author’s right to continue to sound off will be cut off. Because the Internet affords such easy and unregulated posting, it opens the door to abuses like these.
Your complaint seems to be that these messages defame management and possibly interfere with your ability to do business. One response might be to simply join the group — post your own messages, calmly and professionally countering the allegations and inviting posters to engage in a dialogue. A newcomer to the board will see that you are a rational businessperson who’s taking the matter seriously. The difference in tone alone might lead readers to heavily discount the negative postings.
If you’re bent on learning the identities of your detractors, you’re facing an uphill battle. Most Web sites’ "terms of use" agreements include a statement that the provider will disclose posters’ identities when legally required. This won’t happen until a judge has ordered the site to divulge the information. A judge means a lawsuit — you’ll have to sue these unknown posters, then serve the service provider with a subpoena to cough up the names. The provider will notify the poster that unless the poster objects, the provider will comply; the poster will object (anonymously, of course), and the judge will balance the alleged damage to you versus the harm caused by interfering with the poster’s First Amendment rights. First, however, most courts will require you to show them sufficient evidence that defamation and harm to your business have actually occurred.
Getting past this hurdle may prove difficult for you. Defamation is the publishing of false statements of fact that result in injury to another. Defamation does not include opinions, and if the postings on the message board are, as you describe, illogical rants, they may not qualify as false statements of fact. Though crude, childish and offensive, they are protected speech as long as they don’t include false statements of fact or allude to undisclosed, false facts that would confirm the poster’s opinion.
Q: When roof repairs were scheduled for our apartment complex, we received a notice telling us that that our vehicles had to be moved from the parking lot by 8 a.m. The notice said to use "street parking," but did not mention anything about parking restrictions for the street on which the complex is located. Many tenants, including myself, parked overnight on this street. We got parking citations, because this street prohibits parking from midnight to 5 a.m. The landlady says she will talk with the city to see if the fines can be waived. If the city won’t do it, is the landlady responsible for paying our fines? –Catherine A.
A: You may have a hard time coming up with a legal reason compelling your landlady to pay your parking tickets. Although she advised you to use street parking, she did not warrant that it would be OK to park on the street you used. You’re responsible for checking the "No Parking" signs along the curb, and choosing a street that permits overnight stays. The outcome might be different had she urged you to "park right outside, opposite the building" or something similar, because in that case you could argue that she had represented that the street was available, despite what the parking signs might say (it would still be a stretch to say that you could reasonably believe she could trump the city’s parking rules). But, she didn’t say that. Like you, she probably didn’t even think of parking restrictions when she advised you to move your cars from the apartment lot.
All is not necessarily lost, however. Your landlady now has a building full of annoyed tenants, which is a situation no careful owner wants to continue for very long. If she is unable to get the city to rescind the tickets (a long shot, to be sure), she may still be willing to subsidize your fines a bit. If she’s wise, she’ll chalk up the expense to marketing, figuring that appeasing her tenants (who should be the source of future good tenants) is well worth the expense. Needless to say, your chances of prevailing here will depend on whether you are good, stable tenants whom the owner wants to retain.
Q: We own and manage a rent-controlled apartment building. Our ordinance requires tenants to live in the unit more than six months in every year in order to keep the unit under rent control. One of our tenants has been given a new job assignment that takes him to another city for long periods of time. He’s asked us to accept more rent in exchange for overlooking the fact that for the next few years he will no longer be here the required six months. Is this a good idea? –Jane P.
A: You must really want to keep this tenant, otherwise there would be no reason for you to pass up an opportunity to de-regulate his apartment and rent it out to someone new at higher, market rates. It’s usually a fine idea to work with good tenants to find ways to accommodate their reasonable requests and keep them on the property. For example, though no law requires you to allow the tenant to paint the living room beige, the two of you can agree that the tenant may do so and you’ll pay for the paint and the hourly labor. If you don’t pay as promised, your tenant could even take you to small claims court, where a judge would enforce the agreement.
Your tenant’s proposal, however, is significantly different than the scenario described above because you and your tenant would be circumventing a rent-control rule. The cops won’t come to arrest you for this maneuver, but a judge will probably not enforce your agreement if you end up arguing about it in court. Rent-control rules, like usury laws and child labor laws, generally cannot be waived, even when both sides know exactly what they’re doing.
You can probably see where this is going — because your "agreement" is not enforceable, you could disregard it at any time, knowing that the tenant’s last recourse (taking you to court) will end with a judge voiding the agreement. Suppose, in a year or so, you decide that the officially allowed rent, plus the under-the-table bonus, isn’t enough in light of the increased market value of the apartment, and your tenant refuses to pay more? Willing to take your chances with a new resident, you initiate eviction proceedings based on the six months’ rule. Your tenant’s defense — the agreement — will do him no good when a judge invalidates it, and he’ll be out. You get to choose a new tenant at high, market rates — nice.
Of course, such shenanigans don’t go down well with judges, who don’t like seeing landlords manipulate tenants and rent-control ordinances. You’d probably be ordered to return all the extra rent you collected. And depending on how offended the judge is, you might find yourself with a vacant but still regulated apartment, leaving you with the risk of finding a new tenant but without the consolation of being able to charge market rates.
Whether this arrangement is a "good idea" depends, first, on how likely it is that you will be satisfied with it for several years. Second, if relations sour, think about how willing you are to be drawn into court, where you will "win" and get your apartment back, but possibly pay dearly for your out-of-bounds play.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.
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