Fred A. Bernstein

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Rate Your Landlord; Get Sued

But there's protection for tenants or former tenants

Published in The New York Times, April 10, 2005

Parsippany, N.J.

TENANTS who rate their landlords online don't expect to wind up as defendants.

But the owners of one apartment complex here reached the boiling point when tenants - or perhaps competitors posing as tenants - compared them to Nazis and rated the apartments "horrible disgusting filthy."

Now the owners of Troy Hills Village are suing the anonymous reviewers - identified in court papers as John Doe and Jane Doe - claiming that the negative comments are hurting business.

The purpose of the suit was to force the removal of "fraudulent and scurrilous" comments, according to papers filed in state court. Carl J. Soranno, a lawyer for the partnership that owns the complex, said he believed the nasty comments had been posted by competitors "trying to gain an unfair economic advantage" over Troy Hills Village, rather than by tenants.

Some tenants are inclined to agree. "From what I saw on the site, the apartment complex is definitely getting a bum rap," said Ken Kaplan, a commercial real estate broker who has lived in Troy Hills Village for 10 years.

But since the comments are posted anonymously, the owners are first trying to force the Web site to identify the authors. Mr. Soranno said he is in the process of retaining Texas counsel to serve a subpoena on the Web site,, which is based in Austin.

Jeremy Bencken, who owns and runs the site with his wife, Katie, said that he would follow "industry standard process" in response to a subpoena. He said he would send e-mail messages to the anonymous users, who could decide whether to remove their postings or defend themselves in court.

Mr. Bencken said that this isn't the first time he has been subpoenaed - it has happened in three other cases brought by landlords - but that, so far, he has not been named as a defendant. The 1996 Communications Decency Act, he said, protects him from liability for comments posted by third parties. Eugene Volokh, a professor of constitutional law at U.C.L.A. School of Law, said that courts have "overwhelmingly" supported Mr. Bencken's view.

To discourage lawsuits, Mr. Bencken posts the Communications Decency Act on a section of the site reserved for landlords.

The Benckens had the idea for the site while they were living in an apartment complex in Silicon Valley in the 1990's. One day, Mr. Bencken recalls, a woman stopped them in the parking lot. She was thinking of moving in, and she had a lot of questions.

"We were both working for software companies at the time," Mr. Bencken said, "and we thought the Internet would be a better place for information than a parking lot." There are now some 235,000 reviews on the site.

"Our goal," Mr. Bencken said, "is to help consumers make better decisions." The site accepts advertising, but not from apartment owners. "That would be a conflict of interest," he said. Advertisers include moving companies, roommate services and sellers of renters' insurance.

The site, based in the couple's house, is "profitable, but not extravagantly so," he said. Earlier this year, Mr. Bencken added a new feature to the site: rent data for more than 100,000 apartments. Mr. Bencken said he has been accumulating the financial data for years - visitors to the site are asked the size of their units, how much they pay each month and how much of a deposit the landlord requested. Making the data available, he said, gives prospective renters an opportunity to compare the rent they're being asked to pay with that of current tenants.

Tenants aren't the only beneficiaries. "If I were a landlord, I would really be looking closely at what competing properties are charging," Mr. Bencken said.

The information, he said, should also be useful to investors who are looking for details on the rental income produced by various properties. There is no way to confirm the rent data, but Mr. Bencken said he couldn't think of any reason that tenants would lie in providing the information on rents.

Some companies like the publicity they get from the site. The building manager at Augusta Apartments in Oklahoma City, Tara Tomiska, said, "It helps us out tremendously, because we have awesome ratings." Her complex is recommended by 71 percent of those who posted.

By contrast, Troy Hills gets a 28 percent approval rating. There are 83 ratings as of last Wednesday, some with titles like "nasty management" and "very rude."

But during an unscientific sampling of Troy Hills residents, six out of seven said it was a good or great place to live, and the seventh said, "It isn't bad." Mr. Kaplan, the long-time tenant, said: "If I had problem, I would have left years ago. Nothing is perfect, but they honestly do a pretty good job here."

Nancy and James Curry, who have lived in the complex for six years, were eager to show a reporter their apartment. They had high praise for management - which lets them plant their own vegetables and organizes events like an annual Halloween decoration contest. "How many landlords do that?" Mr. Curry asked. deletes postings that are known to violate its rules - for example, by infringing a copyright or trademark.

Posters are also told not to "impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity." That could be relevant in the Troy Hills case, but Mr. Bencken said that he has no way to verify that someone who posts a comment lives in the complex, any more than can verify that someone who posted a review read the book. The online community, he said, is by nature self-regulating. Managers, he said, have opportunities to post responsive comments on the site.

He said that the site occasionally receives requests to remove postings but has not received any requests from Troy Hills Village.

According to Mr. Soranno, that is because his client is not looking to suppress legitimate opinion. "The goal is not to chill free speech, or restrict it in any way," he said. "All my client wants is make sure the people who are posting comments are tenants or former tenants."

He said, "It's unfair that people who don't live there can post opinions, and it is costing my client thousands of dollars to find out who they are."