AMENITIES AND LIABILITY TO THE RESIDENT

Many apartment communities today have fitness centers, business centers, pools, gas barbeque grills, tennis courts and other amenities for their residents to enjoy. These amenities are often a great draw in attracting residents to a particular community. In most cases, the amenities, most of which are advertised in print, are available for the use of the resident, operable and in existence at the time of move-in. However, a problem arises when an amenity is not available to the resident for some reason. That wonderful amenity that you advertised becomes a nightmare.

The Amenity Failure

In the case of a pool, a leak may require major work to be done to rectify the problem. There have been many cases where the pool is emptied and the high ground water table has literally pushed the pool up out of the ground, causing a major repair necessity. A pool does not just pop back into the ground!! Fitness centers are often completely equipped with state of the art exercise bikes, treadmills and other mechanically and electrically operated devices. These devices fail in time and need expensive repair. Business centers for the resident’s use are often set up with a number of computers and are subject to viruses or power surges which completely disable the equipment. At some time, some amenity on the property shall fail, and the residents will rise up.

Repairs to the Amenity

Repairs of a particular amenity are often done quickly, and the resident experiences little to no inconvenience. In other cases, repairs take a significantly longer period of time, sometimes at great expense to the apartment community. Some owners who are under severe financial burdens right now are choosing to push off some repairs almost indefinitely. An owner who is considering selling may not wish to invest any further money, as the return on sale may not be there. There are times, as in the pool case, when a simple repair could result in a major multi-month project in which the pool is completely inoperable. Since most properties only have one pool, the problem is obvious.

The Resident’s Expectation

Florida law does not state that a resident has a right to a working pool, exercise bike or business center. This is all governed by contract. While the lease agreement may not specifically state anything about a pool, fitness center or business center, other than in the rules and regulations, these amenities are advertised to the prospective resident as being part of the “package”. The applicant who becomes the resident has a reasonable expectation that the amenities that are advertised or which he or she observes while on the property tour will be available for use throughout the tenancy. These expectations are by no means unreasonable. The question then arises as to whether the amenities advertised are in fact the “basis of the bargain”, or stated differently, did the resident decide to rent at this particular apartment community because of the existence of a certain amenity advertised or observed. It is extremely easy for the resident to make the case that the fitness center, pool or business center was indeed the “reason” why he or she chose the particular apartment community. A health conscious resident may have chosen your apartment community due to its state of the art fitness center. A resident in physical therapy may have been drawn to the community because of the pool. A person without a computer may have been sold on the business center. This creates a serious obligation on the part of the apartment community to make sure the amenity is in fact working at all times, or at least most times.

Amenity Failure Actions

Fortunately, most residents do not even use the pool, fitness center or business center, so a breakdown will not inconvenience most of the residents, but for the residents who do use them, you have a problem on your hands. Since Florida law does not address amenities or compensation, a resident may or may not be entitled to a credit in the event of an amenity failure; the management or owners must come up with something to keep the resident from taking the matter further and potentially suing in a court of law. The first step will be to rectify the problem immediately, if possible, but unfortunately, this may not always be a viable solution. Each situation needs to be dealt with on a case by case basis, but it is crucial to show that the manager is taking reasonable steps to mitigate the problem and make the resident whole again.

Pool Solutions

In the case of an extended pool problem, the apartment community may enter into an agreement with a neighboring apartment community for the temporary use of its pool for some compensation by the apartment community. Residents may be given vouchers to use a community pool, if one is in fact available, or temporary membership to a local gym may be an appropriate option. Finding a contractor and paying more money to get the job done quicker could prevent lawsuits.

Fitness Center Solutions

In the case of a minor fitness center issue, such as an inoperable piece of equipment, we recommend that a replacement piece of equipment is rented immediately until the repair can be effectuated. Many companies are in the business of renting commercial grade exercise equipment. In the case of a serious fitness center problem, such as when the fitness center is completely unusable by the resident, an agreement could be worked up with a nearby gym to provide low cost temporary memberships to residents who may wish to use the gym. Many gyms will jump on this opportunity to get people in the door, in the hopes that they will join permanently in the future.

Business Centers

Most business center problems can be rectified with the expenditure of a relatively small sum of money. If the issue is simply internet access by a resident who already has a computer, a basic internet account can be purchased for the resident to be used in his or her unit, or at a bare minimum, at least one PC should be set up with internet access and a basic printer until further repairs can be made.

Potential Legal Ramifications

A resident who is not receiving all that was bargained for in a deal can sue for breach of contract, and in the event certain things were advertised, false advertising. The resident can also attempt to withhold rent or even break the lease agreement and walk. A property manager may be tempted to compensate one resident for her inconvenience, but this could unleash a floodgate of residents asking for the same compensation. This is when prompt contact with your attorney can potentially avoid a major blow-up on the property. In the worst case scenario, a resident can hire an attorney who will institute a class action lawsuit against the property. While this is rare, class actions are not uncommon in consumer situations, so YOU HAVE BEEN WARNED!

The Amenities Addendum Solution

A simple addendum signed by all residents can significantly minimize the manager’s risk in the event of an amenity loss or malfunction. We cannot forget that the main thing that a resident is renting is an APARTMENT. The amenities are indeed a bonus to the deal, but part and parcel to the deal are the resident’s expectations and your responsibilities. By using the addendum below, you MAY be able to significantly decrease your risk of problems in the event of an amenity problem. Remember, nothing is guaranteed. Please read it carefully.

AMENITIES AND CONSTRUCTION ADDENDUM

It is agreed and understood by all Residents(s) that all amenities on the premises IF ANY EXIST NOW AND IN THE FUTURE including but not limited to balconies, patio(s), pool(s), hot tub(s), fitness center(s), gas grill(s), business center(s), tennis court(s), activities center(s), clubhouse(s), playground(s), playground equipment(s) or any other as specified herein for Resident(s)’ use may be altered, may become inoperable, unusable or out of service for the purposes of repairs, damage by storms or acts of God or man, rendered unusable or removed at any time without notice and without consent of the Resident(s). Resident(s) agree to hold owners, their agents and assigns, harmless for any liability arising from the alteration, removal or failure to be able to use any and all amenities. It is understood by all parties that this agreement has been entered into with good consideration and that it has been read in its entirety.

Amenities for the purpose of this addendum may also include and are not limited to:

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Resident(s) understand that repairs or upgrades to the premises may possibly be made and agree to hold the owners, management, agents, employees and assigns harmless for the absence of or the delay in the availability of any amenities which may have been advertised, appear on any advertising materials, existed at the time of move-in or represented to by any of the staff. Resident(s) agree to hold the owners, management, agents, employees and assigns harmless for any inconveniences, including but not limited to noise, construction traffic, dust, construction equipment, temporary utility outages, etc., and agree that they cannot break their lease, withhold rent or receive a rent abatement because of any construction problem and/or the lack of amenities unless otherwise agreed to in writing.

SIGNATURE AND DATE AREA FOR MANAGEMENT AND RESIDENTS