For landlords and managers, the perils of hitting “send”

Text messages about repairs, illegal sublets can be used against property owners in court

New York /
Jun.June 27, 2014 01:45 PM

As texting becomes an increasingly popular way for landlords to conduct their business with tenants, there are certain SMS howlers that will have your L&T attorney writing “SMH.”

When it comes to the law, state courts have already ruled that in certain cases emails can constitute the “meeting of the minds” required for a binding contract. And while a lease for longer than a year still needs a good-old-fashioned signature, there are a few areas of digital jurisprudence where some of the city’s top landlord/tenant attorneys advise property managers to exercise caution.

“Digital communication is making people much more careless about how they approach the written word,” said Mitchell Zingman of Stern and Zingman. “People are more likely to toss something off because they’re so busy multi-tasking and end up doing something they don’t really mean to do.”

Zingman said landlords should pay particular attention to texts they receive from tenants, such as those regarding repairs. Such messages can be used to prove the property manager had prior notice.

“If you get a text that puts you on notice about a problem with the building, you have to be careful about it, even if the lease says you have to be notified by certified mail,” Zingman said. “The fact is, for a landlord that’s pretty serious business.”

Although real estate attorney Adam Leitman Bailey said landlords can also use electronic communications to back up their side of a dispute,  he advises clients to wean themselves off texting.

“I tell our landlords that they should not be texting with their clients. They should be emailing because you can keep better records of that,” he said, explaining emails are easier to collect when a disagreement becomes a case of he said, she said. “I’m not a big fan of texting as far as collecting evidence, but it’s better than word-of-mouth.”

Attorney David Brody from the firm Borah Goldstein said landlords should still stick to the letter of the lease when communicating with tenants, such as when telling them to rectify an illegal sublet.

“The lease says it has to be some combination of regular and certified mail. So if you send a text that says, ‘This is a notice to cure, you’re illegally subletting,’ that wouldn’t be an effective notice,” he explained.

Brody said he has some old-school advice for his clients.

“Know what you’re doing,” he said. “If it’s something you don’t want to see come back to you, don’t put it in writing.”


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