Access Gates and Liability Reduction
Cut Down on the Access Gate Madness
Access gates have become a common amenity at apartment communities and are very common at condominiums and properties within homeowner's associations. While property managers know that access gates are not security devices, the mere presence of the gate creates an illusion and expectation of security. If these gates are working properly, there is no real issue to be discussed, but the problems begin when the gates are inoperable or cause vehicle damage. Gates become inoperable due to defects, wear and tear, and most commonly when they are struck by vehicles. Often the gates cannot be repaired immediately or continually break and are inoperable. Can a Tenant withhold rent because this amenity is not being provided? Can a Tenant or others hold your company liable for vehicle damage due to a break-in on the property while the gate was inoperable? Could the Tenant terminate the lease because the gate is inoperable? Some judges think so but with proper procedures and a sufficient Access Gate Addendum, you can minimize the legal problems and liability. If you have an access gate, you will have problems with it. If you are thinking about having one installed, be prepared. Use the Addendum.
It’s Not A Security Device
While the seasoned manager knows that an access gate is not a true security device, a prospect or Tenant may feel otherwise. It is crucial to train your leasing staff to never imply to any prospect or Tenant that the access gate is in any way a security device, or that it will assure that your community is somehow safer because of the gate, gate codes, changes in gate codes or procedures. Train your staff, especially anyone involved with leasing, to never imply that you are providing a "gated community" or that the gate makes the property more secure in any way. Almost every property that has an access gate uses a photo of its main entrance showing the gate in their advertising. This causes an unreasonable expectation that you may never be able to live up to.
Damage to Vehicles
While damage to the access gate due to vehicles will be a common occurrence, there will be times when the Tenant or guest of the Tenant claims that the access gate malfunctioned, resulting in some sort of vehicle damage. The gate may have malfunctioned, or, more commonly, the Tenant or guest was trailing behind another vehicle when the gate closed, resulting in vehicle damage. This damage will possibly lead to litigation, including attempts by the Tenant to withhold rent or terminate the lease. It would be difficult to disprove that your gate caused the damage to a Tenant's vehicle unless you had surveillance systems in place, so this must be considered.
Surveillance at the Access Gate
If you have an access gate or are considering the installation of one or more on the premises, having a video surveillance system in place will be well worth the cost, as it will dramatically cut down on those cases when it is difficult to prove why vehicle damage resulted, and can also often be used to prove when a Tenant or other person causes damage to the gate. As it is almost a 100% certainty that you will have claims of vehicle damage and also have gate damage, surveillance cameras are crucial. Again, the cameras are for your use only, and should never be touted as any type of security device or system. If there is a sign indicating surveillance, that sign should simply say that surveillance camera(s) may be in use. You are under no legal obligation to disclose that there are or are not surveillance cameras in use, as there is no expectation of privacy at the gate areas.
Pedestrian Dangers
Access gates can cause serious personal injury and have actually been responsible for deaths. It is crucial that the gates are inspected by the installers, that your maintenance techs are trained properly if they are to work on them, and that the company responsible for the access gate installation and maintenance is fully insured for any malfunction which could cause injury, death or property damage. Often in retrofit situations, the pedestrian areas have not been designed to fully protect an individual who may be walking or riding a bike near the gate. Proper signage is important, and most importantly, safe ingress and egress for pedestrians or bicycle riders must be provided.
Incident Reports
Anytime you have a Tenant or other person claim personal injury or vehicle damage due to the access gate, immediately have that person fill out an Incident Report. As we all know, the initial demand for $500 can rapidly grow to $2000 when the person demanding the money goes to an attorney or meets resistance by your company. By using an Incident Report, it helps to somewhat lock in the amount demanded while the matter can possibly be settled, and in the event of litigation, the Incident Report can be used to show the individual changed the demand from the initial amount.
Tip: Get the Incident Report filled out immediately. It helps lock in the initial demand before it grows.
Access Gate Addendum
If you have a preexisting access gate or will have one installed, it is imperative that you have renewing or new Tenants sign an Access Gate Addendum. This Addendum achieves many goals and helps to minimize liability. The main purpose of the Access Gate Addendum is to make it clear that the gate is an amenity, and that it can and will fail. When you provide a Tenant an apartment, you are responsible for maintaining that apartment, and in the event there are certain failures, damages or problems suffered by a Tenant, it is sometimes possible for the Tenant to withhold rent, break the lease or sue for breach of contract. The Access Gate Addendum is an agreement by the Tenant from the beginning of the tenancy not to use any problems with the access gate or arising from the access gate as a means to hold you liable. A classic situation arises when cars are broken into on the property at a time when the access gate is inoperable. There will usually be claims by a Tenant to try to be compensated, with the Tenant stating that the break-in would not have occurred had the access gate been operable. Cases like this often are decided against the apartment community by a judge.
The Access Gate Addendum clearly states that the gate is not a security device and that the access gate is subject to malfunction. It further explains that the failure of the access gate cannot be used by the Tenant as a basis to claim any breach of obligations by the apartment community. The car break-in situation would potentially be covered by the wording of the Addendum. While no Addendum can completely relieve an apartment community or management of liability, the Access Gate Addendum can go a long way in educating the Tenant and reducing liability.
Have your attorney review and tailor any addendum before you use it.
ACCESS GATE ADDENDUM – SAMPLE WORDING
Owner and Management does not promise, warrant, or guarantee the safety or security of Tenant or his/her personal property against the criminal actions of other Tenants or third parties. Each Tenant has the responsibility to protect himself/herself and to maintain appropriate insurance to protect his/her belongings. Tenant should contact an insurance agent to arrange appropriate fire and theft insurance for their vehicles and other personal property.
No security system, courtesy patrol, or access gate can guarantee protection against crime. Access gates are frequently subject to mechanical malfunction, tampering, and damage and can be defeated or avoided.
If access gates are employed at this community, no representation is being made that they will be effective to prevent injury, theft or vandalism or even be operational. Therefore, Management does not warrant that any access gates will discourage or prevent breaches of security, intrusions, thefts or incidents of violent crime. Further, Management reserves the right to reduce, modify or eliminate any access gates at any time. Tenant agrees that such action shall not be a breach of any obligation or warranty on the part of Management.
ACKNOWLEDGMENT BY TENANT
I have read, understand and agree with the above notice. I have received no representations or warranties, either expressed or implied, as to any access gates, or guarantee that the apartment community was or will be free from crime. The responsibility for protecting me, my property, my family, guests and invitees from acts of crime is the sole responsibility of myself and law enforcement agencies.
I agree to release and hold harmless Management from claims arising out of criminal acts of other Tenants and third parties. I agree that Management shall not be liable to me based upon any claim that security was not provided or access gates failed. I agree that under no circumstances will I be entitled to withhold rent or receive any rent abatement in the event any access gate is not functional or fails. I acknowledge that the foregoing shall also be binding upon my heirs, successors and assigns.
This document contains the entire agreement with respect to its subject matter. Management representatives have no authority, except when in writing and signed, to make changes or modifications in the terms of this document.
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Questions? Email us at info@evict.com or call the Law Offices of Heist, Weisse & Wolk at 1-800-253-8428.
