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This one caught my eye today and I thought it would be a good topic for a question. Click here for the full story.

Summary

City Park Apartments in Salt Lake City, Utah put a lease addendum on everyone's door ordering them to

  1. Friend them on Facebook or be in violation of the lease
  2. Agree that they and their guests agree to be photographed
  3. Agree not to post negative information about City Park

Questions

I am highly suspect that this is enforceable after the fact; meaning there's already a signed lease agreement there's not much they can do. But what about renewal time?

  • What could City Park do if I didn't have a Facebook account (I don't).
  • Would the agreement to be photographed be limited to outside or could they theoretically take pictures of tenants and guests inside the apartment (hidden cameras?)
  • How enforceable would this gag order be?

Disclaimer: I am not, nor have I ever been a tenant at City Park in SLC or any of their other properties. In fact, I am more than 4,000 miles away. This is purely academic in nature

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    I assume there's a "quiet enjoyment" clause in the leases, and someone may be able to fight (at the very least) the photography part of this addendum based on that. Also, I'm told there are some religious sects that refuse to have their picture taken, and this may constitute as prejudice. Also, they aren't "requiring" according to the article: "City Park has not implemented the addendum nor is it requiring its residents to execute it." – silencedmessage Jun 1 '16 at 2:19
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    That literally updated in the time since I posted the question. I'll re-post to the original article. I am sure they changed their mind because of the negative publicity, but I am still curious. – Allan Jun 1 '16 at 2:29
  • These ideas sound like something the Coneheads would come up with. They are clearly attempting to go forth and live undetected on Earth amongst the Bluntskulls. Tenants might consider remunerating the rent with metallic tender disks. – Mowzer Jun 1 '16 at 6:48
  • I would be interested in this from the standpoint that the lease is then requiring tenants to agree to separate, third party, terms of use (Facebook) over which neither the tenant nor leasing company has any control over. I won't use Facebook, period. Clearly I'd move, or not rent there. But if I'm already there, under an existing lease..... wouldn't this amount to a forced eviction? – Scott Jun 1 '16 at 7:33
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It is a general premise of contract law that parties can agree to do (or not do) whatever they like provided that it is not illegal.

  1. Friending someone on Facebook is not illegal. In the context of a contract it could even be considered to be part of the consideration provided. If you chose to enter such a contract you would be required to have/create a Facebook account and Fried the other party.
  2. Questions on photography have been done to death here: Is it legal to post a photograph that I captured of a stranger in the street?, Model release for image without faces, How do laws affect photography of non-humans in public when people may be in the frame?, and What are the legal repercussions of taking a stranger's picture in public?. In summary, you do not have a right not to be photographed unless you have a reasonable expectation of privacy (e.g. in the bathroom, in your own home with the curtains drawn). People do not have a right to use your photograph in a commercial manner without permission - posting them on Facebook on the unit blocks page is not commercial use. So, they don't need a contract to do this; they want a contract so people don't misunderstand the law and create disputes.
  3. It is not illegal to have a non-disparagement clause in a contract.
  • I would assume that the addendum for the lease came with some blessing of legal counsel so...can a contract force me to enter into a contract with another party (i.e Facebook's ToS) and if the topic of photos is pretty much universally known, why would they need an agreement for it other than going beyond what's already generally accepted? – Allan Jun 1 '16 at 2:51
  • 1. There is no question of "force", contracts are freely entered into; you can always live somewhere else. They can probably require you to friend if you are/become a member: requiring you to join is probably third-line forcing and may be illegal. 2. I don't think it is universally known: there wouldn't be so many questions here if it was – Dale M Jun 1 '16 at 3:18
  • The one thing missing to this answer is that these requirements are being presented in the form of a lease addendum. You generally can't unilaterally modify an existing contract. – Justin Lardinois Jun 1 '16 at 14:37
  • @JustinLardinois the OP indicated that this was understood and was specifically asking about renewal – Dale M Jun 1 '16 at 21:12
  • @DaleM FYI, your point 3 was probably true when you wrote the answer, but it actually is illegal now - see the law I cite in my answer. – D M Apr 28 '18 at 4:18
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I agree with DaleM's analysis. But I will also add the following.

  1. Legality. Legal challenges to the contract (addendum) could be brought on anti-descrimination grounds. Specifically, protected classes such as elderly and disabled people could successfully argue discrimination on the basis of not having, or not having access to, the ablility to create a Facebook account. One could also imagine a religious discrimination claim as well. Say, if a tenant had some religious objection to using Facebook. Some fundamentalists of many religions, for example, might hold such an objection.

  2. Enforceability. Are the Facebook addendum terms warranties or conditions to the original lease? If they are warranties, then the landlord could be entitled to collect damages in the case of breach. But what would the damages be? Perhaps, quite minimal? If they are a condition of the lease, it's possible that claim could be successfully challenged in court. It's hard to imagine a judge ordering the eviction of a family from their home if the rent is paid up but they didn't "like" the landlord on Facebook.

As a side matter, it's also worth noting that in the court of public opinion, the apartment complex appears to be in the process of being ripped to shreds by the public and the press.

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How enforceable would this gag order be?

If this was done today, it would not be enforceable at all. A federal law (passed several months after the question was asked) actually makes the third provision not only void, but illegal. According to 15 U.S. Code § 45b (less-relevant parts omitted, bold mine):

The term “covered communication” means a written, oral, or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by an individual who is party to a form contract with respect to which such person is also a party.

Except as provided... the term “form contract” means a contract with standardized terms—
(i) used by a person in the course of selling or leasing the person’s goods or services; and
(ii) imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms.

(b) Except as provided... a provision of a form contract is void from the inception of such contract if such provision prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication...

It shall be unlawful for a person to offer a form contract containing a provision described as void in subsection (b).

Given that the contract was put on everyone's door instead of negotiated, it appears to be a "form contract" under this law, and negative reviews would count as a "covered communication". The FTC could start enforcement proceedings against the apartment company, if the company did this sort of thing now.

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