The rise of social media had made it easier than ever to rant about bad customer experience. Just look at what happened a few years ago when a United passenger filmed another passenger, Dr. David Dao, being dragged off a plane by airline staff due to an overbooked flight. The video went viral, and United was forced to issue a public apology (followed by what we can only assume was a hefty settlement). In this case, the public outrage was undoubtedly justified. However, what if it hadn’t been? What if a video went viral that did not accurately represent the facts of the case?
This is something landlords, and property managers are increasingly confronted with through online forums like Yelp, Reddit and apartment review sites like ApartmentRatings.com, Apartments.com, and Rent.com. Frustrated tenants post to these sites to vent about their landlords or building conditions.
Andreas Papaliolios did just that. Papaliolios was a resident of 1360 Jones Street in Nob Hill, one of San Francisco’s most expensive neighborhoods. He had been living in the building for a year when Bently Nob Hill L.P. acquired the building. Christopher Bently, owner and managing partner of the L.P., moved into the building’s penthouse with his wife shortly after that. The relationship between Papaliolios and Bently was a contentious one. Bently even went so far as trying to evict Papaliolios, albeit unsuccessfully. Papaliolios eventually moved out voluntarily in 2008, but the bad blood didn’t end there.
Papaliolios created an online alias, “Sal R.,” to post scathing reviews about his former building on Yelp. He described Bently as a “sociopathic narcissist – who celebrates make the lives of tenants hell.” He said several long-term tenants had been forced out due to the new owners’ noise, intrusions and other abhorrent behaviors. Papaliolios topped it off by saying Bently “likely contributed to the death of three tenants (Pat, Mary & John) and the departure of eight more (units 1001, 902, 802, 801, 702, 702, 502) in very short order.”
Bently reported the reviews to Yelp and the website responded by deleting the posts. However, every time a review was deleted, “Sal R.” would post another. Eventually, Bently decided he had no other option than to sue Papaliolios for libel. Papaliolios asserted that the online reviews were protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law. He claimed Internet forums such as Yelp are designed as a place for “strongly worded opinions rather than objective facts” and therefore should be discounted accordingly by readers.
The court agreed with Papaliolios, saying that many Internet critiques are “nothing more than ranting opinions that cannot be taken seriously,” but said this does not give Papaliolios a free pass for commentary that could be read or interpreted as containing factual assertions. After all, Papaliolios based his reviews on first-hand experience with the building owners and said he had personally experienced the landlords’ bad behaviors. Therefore, it is reasonable to expect some people would have read his reviews as factual. Ultimately, the court sided with Bently.
The court’s decision in Bently Reserve L.P. v. Andreas G. Papaliolios set new precedent regarding the degree to which online statements are protected. “The mere fact speech is broadcast across the Internet by an anonymous speaker does not ipso facto make it non-actionable opinion and immune from defamation law,” Justice Kathleen Banke wrote for the three-member panel of the California Court of Appeal’s First Appellate District. Instead, courts must evaluate the context in which the statement was made to determine whether it could be interpreted as mere opinions, jokes or rants versus harmful factual assertions. If the latter, it very well may warrant legal action.
This begs the question: at what point should landlords or property management companies sue tenants over reputation-damaging online reviews? No clear line in the sand has been drawn. Some landlords or property managers are willing to turn a blind eye to negative review if the property is otherwise performing well. “Profit forgives all sins: The rental market is doing so well now that a bad review or two won’t make much of a dent in demand,” writes Linsey Isaacs in the Multifamily Executive.
In our experience, we find that owners must balance the costs associated with legal action with the expenses incurred by the negative online reviews. It may require a court injunction to find out who is behind the post, and an injunction order can lead to steep legal bills.
If and when an owner can identify the source of the review, it’s worth trying to remedy the situation offline (no pun intended!) before heading to court. If the case makes its way before a judge, the owner will need to prove the statement could be interpreted as fact instead of merely opinion –something that can be difficult to prove. Now, there are some circumstances in which a landlord or property manager should take action over a negative online review.
For instance, Patrick Pettitt, a Hampton, Virginia-based attorney describes a case in which a former tenant alleged that she was sexually assaulted and harassed by a member of her building’s maintenance team. She took to various online forums to share her story, a story that was determined to be patently false. The management team took swift action. Pettitt sent out a formal demand letter asking her to take down the posts before filing a lawsuit. She responded in kind, and the management company agreed not to sue for damages.
Not all tenants are as cooperative. Many interpret their reviews as protected under free speech. However, as we learned in Bently v. Papaliolios, that is not always the case. In the event of a particular allegation, if a resolution cannot first be reached with the tenant, landlords and property managers may want to pursue relief through the courts. “Filing a lawsuit is not always your first choice,” Pettitt says, but “it is valuable and can be effective.”