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I am in the middle of my current fixed-term lease and have always had a mechanical key-based lock on my apartment door. My landlord has announced that the doors of all apartments will shortly be converted to electronic "smart locks". The smart-lock maker's website says that any use of their product constitutes agreement to their terms of service.

Is the landlord allowed to install this new type of lock? How does responsibility divide among myself, the landlord, and the smart-lock maker? My concerns are:

  1. Smart locks raise new reliability, security, and privacy risks versus mechanical locks. When I agreed to rent the apartment, mechanical locks were in use and no indication was given that they would be replaced. See this article on tenants who have objected to installation of smart locks.

  2. When the smart lock is installed, I will have no choice but to use it in order to access my apartment for the remainder of my lease. It seems unfair for me to be bound by the smart-lock maker's terms of service when my use of their product is non-consensual. If the terms of service are viewed as a contract, I see a few possible arguments:

    A. There is no meeting of the minds because I have no desire to use their product.

    B. The obligations imposed on me (and limitations on their liability) in the terms of service are void for lack of consideration because the ability to access my apartment, which the lock provides, is something I am already entitled to by my lease, i.e., it is being used to fulfill an existing obligation of the landlord.

    C. The landlord cannot require me to take on additional obligations to a third party in order to continue the enjoyment of the apartment promised by my already-signed lease, so the landlord must indemnify me from any such obligations.

What are my rights and how can I assert them? If I cannot prevent the smart-lock installation, can I somehow establish that I am not bound by the terms of service despite what the smart-lock maker's website says? Would I simply wait until such time (if ever) that I have a dispute with the smart-lock maker, and then use my non-consent to argue that the terms neither protect them nor bind me? How strong would that argument be, and what if anything should I do now to document that non-consent?

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  • Are you being asked to sign something or otherwise indicate agreement to these terms? Or does the website just proclaim use of the product constitutes agreement? – Matt Apr 20 at 12:14
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    I would expect that "any use of their product constitutes agreement to their terms of service" would apply to the owner of the product, not to every person that uses it. (E.g. imagine a similar condition on an automated opening door on a supermarket.) – Ray Butterworth Apr 20 at 12:26
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    What exactly are the terms of service that you object to? (Or is this an objection in principle?) – Ray Butterworth Apr 20 at 12:26
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    @user37812 Concerning fears of the lock being hackable, consider that physical locks are hackable too. Its called "lockpicking" and its quite easy on most residential locks, yet it is very uncommon for criminals to actually pick a lock. – Matt Apr 20 at 13:43
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    @user37812 I believe this is still covered by the answer. Your landlord has obligations according to the lease and he cant make new requirements of you including transfering the lock's TOS onto you. – Matt Apr 20 at 22:03
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Your lease states what your rights and obligations are: you cannot unilaterally change those terms, nor can the landlord. Providing a functioning lock on the door is a statutory obligation of the landlord, and the landlord gets to say what kind of lock is installed as long as the device functions, and isn't impossible for the tenant to operate. If the landlord replaces the lock with a no-security $10 entry door knob that yields to a screwdriver, they probably failed in their obligation to provide entry security. Failing such a concern, you don't have a legal right to refuse the landlord's choice of lock. You also do not take on the obligation to acquire the tools needed for installation, and so on. In short, you don't have a choice.

Since you have no choice and you are not a party in this transaction (the landlord is not acting as your agent, he is satisfying a legal obligation that he has), the question of "agreeing" to someone else's transaction and contract is irrelevant. The landlord, as purchaser, must comply with the terms of the contract since he is a party to the contract. The seller might impose an obligation on the buyer and the landlord might hope to pass those terms on to the tenant via a lease term, but that can't be done unilaterally in the middle of a lease.

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  • I think you are saying I can ignore the smart-lock maker's assertion, that their terms apply to me by virtue of my using the lock. And this would be tested only if and when I get into a dispute with them. Is that right? What about "what if anything should I do now to document that non-consent?" Presumably the maker would try to find and use any sign that I "voluntarily acceded" to the installation or didn't object properly at the time, so how do I avoid that? – user37812 Apr 20 at 17:04
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    Can you use the lock without actually using an app or anything? Will there still be a key or swipe card that you can use when you don't have access to their platform? – bdb484 Apr 20 at 20:26
  • I don't understand how you could get into a dispute with a lock manufacturer. When you buy a conventional lock, there are no "agreements" other than the implicit "I'll give you $19.99 if you give me that lock". They may be able to disclaim liability if the buyer installs the item negligently, but you aren't buying anything and you are not installing anything. It's hard to say more without some indication of what you purportedly "agreed" to. If for example you cannot open the door without installing software on your phone, then you are sort of in uncharted legal territory. – user6726 Apr 20 at 20:32
  • Perhaps your landlord has to provide you with a burner phone that he has pre-installed the software on. I just think you should fill in some missing details. – user6726 Apr 20 at 20:33
  • @bdb484 As I said in a comment, "my current understanding is that I don't have to create an account if I only use a keycard." But the terms say they apply even if I don't create an account. – user37812 Apr 20 at 21:43
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I am in the middle of my current fixed-term lease and have always had a mechanical key-based lock on my apartment door. My landlord has announced that the doors of all apartments will shortly be converted to electronic "smart locks". The smart-lock maker's website says that any use of their product constitutes agreement to their terms of service.

Is the landlord allowed to install this new type of lock? How does responsibility divide among myself, the landlord, and the smart-lock maker?

A lease determines the respective rights of the parties, and in the absence of an express allocation of rights and responsibilities, default rules of law, the intent of the parties, custom, and the course of deals of the parties controls.

Typically, in a residential lease, the landlord is responsible for maintaining the structural, mechanical and plumbing parts of the premises, in a manner that may include upgrading them, and the tenant is responsible for keeping the place clean and not violating lease terms.

Normally, the landlord would have the authority to maintain, repair and replace exterior doors and locks to the premises, including changing the style of lock, with reasonable notice to you, and providing you with the means to use any new lock with a different key or access means, but not requiring your permission.

The landlord, by buying the lock, agrees to the TOS. You are a third-party beneficiary of the TOS between the landlord and the lock company, who probably has standing to enforce TOS against the lock company.

But, you are bound by the landlord's actions, because you are "in privity" with the landlord since you have a contract related to the premises including the door and its lock, with the landlord. Since the structural features of the apartment are delegated to the landlord under the lease, the landlord can act. This is similar to, but not quite identical, irrevocably designating the landlord as your agent with respect to these matters under the lease (and in some leases, the landlord would be expressly designated to be your agent with respect to some or all matters).

In the same way, the landlord decides without your input, what kind of carpet to use in the hallway, what kind of lock to put on the front door to the building, and what kind of roofing singles to use. In many multi-family buildings, the landlord even decides what the internal temperature of the building will be and there is not an individually controlled thermostat for each unit.

What are my rights and how can I assert them?

Since the landlord is vested with discretion to carry out this part of the lease, the landlord has a duty to exercise this discretion in a manner consistent with the landlord's duty of good faith and fair dealings, and to comply with all applicable federal, state and local laws and the "hard terms" of the lease in doing so. But, unless the lease expressly provides that door locks are the tenant's responsibility or that you have a right to a particular kind of door lock, the landlord has the authority to change the door lock type even though it is accompanied by a TOS.

If I cannot prevent the smart-lock installation, can I somehow establish that I am not bound by the terms of service despite what the smart-lock maker's website says? Would I simply wait until such time (if ever) that I have a dispute with the smart-lock maker, and then use my non-consent to argue that the terms neither protect them nor bind me?

You cannot prevent the smart-lock installation.

While you are discussing the TOS in the abstract, it isn't obvious what specific prevision of the TOS you are concerned about and the issue would depend in part on what term was at issue and how it presents.

You probably do not have liability to pay a service fee on a contract that the landlord entered into and you did not, in addition to your rent, and if you were bound for some reason to do so (e.g. the landlord didn't pay and the smart-lock firm locked you out until you paid), you could probably deduct that payment from your rent with notice to the landlord that you were doing so.

Realistically, the main parts of the TOS probably waive the smart-lock company's liability for wrongful entry to the property or for harm caused by its malfunction, to the full extent permitted by law, and probably contains some privacy waivers. The waivers of liability to the smart-lock company don't relieve the landlord from liability to you for defects or problems with a product installed by the landlord.

The privacy waivers probably do bind you, and are basically comparable to a lobby security camera or a doorman level of privacy invasion, so you probably have no remedy there.

How strong would that argument be, and what if anything should I do now to document that non-consent?

As noted above, you don't have a very strong position, although you aren't entirely without rights. It wouldn't hurt for you to at least ask the landlord, in writing, to hold off on replacing your lock until your lease ends and to outline your concerns. You can't insist, but nothing prevents you from asking, and this would also show a lack of voluntary consent on your part. There is really nothing to be gained from communicating directly with the smart-lock company (unless the TOS or a California privacy law gives you an express right to opt out of data collection by affirmatively doing something). You could also read the TOS to see if there are other options you can elect, but there probably aren't.

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    According to thus news story a suit caused the management to install mechanical keys as an alternative. But that was a settlement, not a court decision, and may have depended on a specific New York law. – David Siegel Apr 21 at 20:17
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That's not how contracts work.

Essentially, all of your arguments are correct. A company can't impose terms on you by just throwing them up on a website and saying telling you that you agree to them. You haven't agreed to anything, they haven't given you anything that you didn't already have, and your landlord can't rope you into the contract, either.

If you want an actual determination of your rights and obligations with respect to the manufacturer, you may be able to seek a declaratory judgment.

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