It’s The Law – A review of holiday related legal issues.

LET’S PARTY!

A review of holiday-related issues.

A holiday poem by Howard M. Bookstaff, HAA General Counsel

Twas the night before Halloween, when all through the night, Residents were stirring, ready to take flight;

Some were waiting with a great deal of care In hopes that friends soon would be there;

Family and guests were also coming to have fun; You begin to worry about what might be done.

Making memories and celebrating will ease their pain, From the COVID pandemic which drove them insane.

Resident parties, parking problems, package deliveries could all bring you down, Complaints about ugly, bright, loud decorations can also make you frown.

And don’t forget about crime, it’s here to stay This time of year, crime could pay.

So what can be done, you have many needs, You need advice to put your mind at ease.

THE HOLIDAYS ARE HERE! It’s the most wonderful time of the year! Yeah, right!

The holidays may be great for your residents, but what about you? While residents party, eat excessively and showoff holiday decorations, you just want to survive the holidays without damage, destruction or liability. There are a number of issues to consider. Let’s discuss a few.

Resident Parties

Residents have been cooped up for almost two years waiting to get out and have fun. Residents want to party. There will be a number of guests and an excessive amount of noise and traffic from and around various apartment units. How can you control the crazy atmosphere?

Pursuant to the standard lease, there are a number of party-like activities that are prohibited including: • behaving in a loud or obnoxious manner; • disturbing or threatening the rights, comfort, health, safety, or convenience of others (including you) in and near the apartment community; • disrupting your business operations.

A resident is required to follow the rules of the property with respect to their conduct and the conduct of their guests. If a resident's party causes problems for other residents, that resident might be deemed to be in default of his or her lease and action could be taken.

Since once the party is over, the damage would have already been done, it may be a good idea under certain circumstances to send a letter to residents, who you know are planning a party, advising them of the requirements under the lease and that the residents are responsible for the actions of their guests. This may minimize potential problems and, if problems do arise, you have given fair warning to the resident that action would be taken.

Excessive Traffic

There are a number of issues you may face regarding parking problems during the holidays. Family, friends and delivery trucks may all contribute to the problem. Some people stay for an extended period time and need a place to park.

Can you adopt or change parking rules during the holidays?

The Texas Property Code provides that if an owner changes the vehicle towing or parking rules or policies during the term of the lease, the owner must provide written notice of the change to the residents before the residents are required to comply with the rule or policy change.

If a rule or policy change is made during the term of the lease, the change must apply to all residents and must be based on necessity, safety or security of residents, reasonable requirements for construction on the premises, or respect for other residents’ parking rights. Alternatively, the change could be adopted with the resident’s written consent. The change may not be effective before the 14th day after the date notice of the change is delivered to the resident unless the change is the result of a construction or utility emergency.

Keep in mind that, while you are allowed to tow vehicles in certain situations, any tow must be done in compliance with the Texas Towing and Booting Act. Although there are multiple circumstances under which you would have the right to tow, the most common approach is to post signage that is in compliance with the towing law. Signage can be posted to restrict the entire lot, certain areas of the lot or individual spaces.

People get upset when you tow their vehicle! Be careful before towing, especially during the holidays.

Holiday Decorations

A number of issues may arise as a result of holiday decorations. Decorations might be unsightly, bright, loud, cluttered or create a fire hazard.

Can you avoid ugly, loud, cluttered decorations?

If you allow decorations that are lit, but do not have any rules regarding the hours that the decorations can glow, you may run into problems from residents claiming that the lights shine in their units causing a disturbance. Disturbances may also occur if holiday decorations have sound capability and create excessive noise. Flammable holiday decorations cluttered in a closed-in area such as a balcony or patio could create a fire hazard and be a potential safety issue for the entire property.

Disturbing decorations aren’t the only issues you may see. Any time you adopt a rule that could be offensive to any resident, you might be subject to a fair housing complaint. Any time you enforce a rule unequally or inconsistently, a fair housing complaint could also arise. If you have a decoration contest, you run the risk of offending persons who do not celebrate the holidays. Even a lighting contest can turn into a fair housing issue. If you have a contest, be careful to label it as a “holiday” contest, not a “Christmas” contest. If you don’t mind the risk, encourage all residents to participate in any contest, not just those who may celebrate a holiday during the last week of December.

You may want to adopt special decoration rules for the holidays. If you use the standard lease, you may make reasonable changes to written rules, effective immediately, if they are distributed and applicable to all units in the apartment community and do not change dollar amounts on pages 1 or 2 of the lease. If you are allowing decorative arrangements on patios and balconies during the holidays that aren’t allowed during the rest of the year, you can adopt rules that apply on a temporary basis. Pursuant to the lease, you would need to distribute a copy of the rules to all units and the rules would have to be applied property wide.

Package Deliveries

There’s nothing like getting a package over the holidays. It’s a wonderful feeling to get a surprise in the mail. The problem is, it’s equally frustrating when a package that was supposed to be delivered is damaged or missing.

What do you do when Santa (Amazon) delivers toys to the management office?

Many communities accept packages as a service to residents. Many package policies have been abated or changed during COVID19. While a package acceptance policy is a necessity at any time of the year, the issues become especially important during the holidays.

If you accept packages, you and the resident will likely be considered to have a bailee (you)/bailor (the resident) relationship. If the bailment is one of mutual benefit, you, as bailee, will have a duty to exercise ordinary care over the property delivered into your possession. This means that you will have some responsibility to keep the property safe, undamaged, and secure while you have it.

In order to proceed with a case, all the resident has to show is that the property was delivered and either that the property was damaged while in the possession of the bailee or failed to be returned by the bailee at all. If the resident can prove these things, the bailee can still defend the case by showing that the loss was not due to the bailee’s negligence.

You want to be able to show that you exercised care at every step of the way. Was the property locked up? Was the property out of the elements? Were there safeguards in place to assure the property was given to the right party?

The decision of whether to accept packages is up to you. There is no obligation under the law to do so. If you choose not to accept packages, it would be beneficial to explain to your residents that you do not accept packages and that they should have packages delivered directly to their unit. If you accept packages, it would be beneficial to adopt a policy regarding the acceptance of packages and any limitations to the types or sizes of packages you will accept. If you adopt a policy, the policy should be in writing and agreed to in advance by residents.

Holiday Crimes

With residents out of school or work during the holidays, there will be more people on your property during all hours of the day and night. This means potential victims of crime as well as well as more opportunities for people to get into trouble. People often have valuables on hand during the holidays, which may also lead to issues.

Don’t forget…crime can flourish during the holidays!

Depending upon your resources, you may want to talk to police personnel to provide residents with security tips for the holidays. Although these tips may be useful during any time of year, due to the special circumstances of the holidays, police may have valuable information that can be shared with your residents. This also would confirm your position with respect to security issues. Remember, you are the messenger when it comes to security issues, not the provider of security-related services.

The holidays can be stressful for a lot of reasons. In the apartment industry, stress for management and ownership is directly related to the various resident activities during the holidays. To avoid these issues, you may want to plan ahead.

Good luck and happy holidays!