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Wednesday, December 07, 2022
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Legal experts analyze Air Buffalo contract as delay continues

Students told they can move in ‘by Nov. 4,’ mull over legal action

<p>This photo, taken on Oct. 12, shows the construction progress of the Air Buffalo student housing development. Management had initially delayed the move-in date to "at least" Oct. 15.&nbsp;</p>

This photo, taken on Oct. 12, shows the construction progress of the Air Buffalo student housing development. Management had initially delayed the move-in date to "at least" Oct. 15. 

Editors’ note: The Spectrum spoke on-the-record to one student who requested to remain anonymous out of fear of backlash from Air Buffalo. The Spectrum doesn’t usually grant anonymity to sources unless they “may face danger, retribution or other harm,” as enumerated in the SPJ Code of Ethics, but has made the decision to do so here in order to protect this person’s identity. The anonymous student will be referred to by the pseudonym of Chelsea Jones throughout this story.

Students bound to a lease agreement with Air Buffalo face an uphill legal battle as they continue to wait for their apartments.

The Air Buffalo apartments blindsided students when they informed tenants that their living spaces would not be ready in time for them to move in  ahead of the semester on Aug. 25.

Citing “construction delays,” tenants slated to move in “on the 1st to 4th floor[s] of the building” were told they would not be able to move in until “at least Oct. 15.”

But the apartment complex remains closed. Several tenants have since been told that they would be able to move in by Nov. 4 after the site’s “final inspection process was not passed,” according to an email obtained by The Spectrum.

With the situation persisting, several university and community legal experts sat down with The Spectrum to evaluate the Air Buffalo contract and discuss potential roadblocks and avenues for legal action.

Contract ‘coercion’

“The language is clear,” Grace Andriette, Deputy Director and Supervising Attorney of the Housing Unit at Neighborhood Legal Services, Inc. said. “It is written in a way that protects the landlord.”

Andriette took note of indications in the contract that the ongoing delay was anticipated.

“Paragraph six, which talks about possession, was drafted in a way to protect the landlord in the event that this situation occurred,” Andriette said.

The possession clause stipulates that “if actual commencement of occupancy of the Unit is delayed, either by construction, repair, make ready or holdover by prior Tenant, Landlord shall not be liable for damages by reason of such delay.” It also states that “such delay will not affect any of the other terms of this lease,” according to a copy of the contract obtained by The Spectrum.

It further reserves “the right, but not the obligation, to provide temporary housing if it is available.” If tenants do not move in once “the Lease Premises are ready,” Air Buffalo reserves the right to “sue for damages, including attorneys’ fees, and may apply any deposits or monies of Tenant in possession of Landlord to Tenant’s outstanding balance.”

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“They have identified temporary housing as being housed at the hotel and if the tenant doesn’t move in once the leased premises are ready, then the landlord may sue for damages,” Adriette said. “So it still binds the tenant even if there’s a delay caused by construction, repair or so forth.”

But the provision would not hold up if the landlord played a role in the delay, according to Andriette.

“If the delay is caused by the fault of the landlord, then I think it changes how you look at that paragraph,” she said. “Otherwise, that provision was perfectly drafted for this sort of situation.”

Another potential line of attack lies in paragraph ten, the relocation clause, which says Air Buffalo has the right to relocate its tenants while “redeveloping or making improvements to the Community” but that the size of the unit of relocation “must be of similar size and configuration” as the tenants’ initial unit.

“That is sort of something that could be used as a foothold for the tenants,” Andriette said. “There’s a significant difference between living in a hotel for what ended up being about two and a half months and living in an apartment with considerably more space and an area to make food.”

But finding a single flawed paragraph or conflict between clauses might not be enough to invalidate the lease in its entirety.

“The problem with the New York State law that governs lease agreements is that if there is a paragraph or a section of the lease that is problematic, or violates state law, or is unconscionable, it does not make the entire lease invalid,” Andriette said. “It’s just that provision, which can’t be enforced.”

The contract also contains language meant to circumvent the viability of potential legal action altogether, in the form of an arbitration clause and a class action waiver clause. 

In tandem, the clauses establish that tenants must “choose arbitration” — an out-of-court procedure to privately resolve disputes — “instead of litigation” and that they are forbidden to “participate as a representative or a member of any class of claimants” in a class-action lawsuit.

Christine Bartholomew, a professor in law and faculty expert in consumer protection and class-action lawsuits, was crestfallen — but unsurprised — when she came across the two clauses.

“Shoot. One of the first things I always look for in these types of contracts is if there is an arbitration clause,” Bartholomew said. “It’s now often the case that these enterprises insert arbitration clauses or class-action waivers… and in this situation, there’s not really much that can be done from a legal standpoint.”

The practice has grown rampant among businesses following a 2011 Supreme Court decision in AT&T Mobility LLC v. Concepcion that says states could no longer prevent private companies from prohibiting contracts with arbitration clauses or class-action bans, according to Bartholomew.

“The stance of the Supreme Court today is that if you don’t like the contract, then don’t sign that. But as you and I know,that’s absurd. It’s a privileged point of view,” Bartholomew said. 

Bartholomew says the ruling disproportionately affects the disadvantaged, restricting access to vital services and staples such as employment, personal banking and access to medical care.

“It’s coercive,” Bartholomew said. “If you try going to the doctor’s office and not signing any of their contracts, more often than not, you’ll be denied service. It’s bleak, but that’s the reality we live in: those writing the contracts hold all the power in the relationship. I’m not surprised that these kids wouldn’t want to speak up.”

A veteran civil rights attorney and housing advocacy expert, Andriette says it is “not unusual” to see landlords have a leg up over tenants because of the disparity in access to legal services.

“Most lease agreements are drafted by professionals. This lease reaches over 20 pages in length to get through all the rules and regulations and such. It’s long and complicated,” Andriette said. “The reality is that tenants often find themselves in situations where they need to sign a contract in a limited amount of time and finding an attorney to review the lease is either not practical or not affordable.”

Andriette says an overhaul is due to subvert the current power dynamic putting financially disadvantaged tenants — especially college students — at risk.

“A fair law would require more standardization of lease terms, and would require that leases be in plain language,” Andriette said. “That’s not what we have right now.” 

She lamented the current legal landscape and the circumstances coming to a head at a specially difficult moment in the housing sector.

“Housing’s at a premium right now, so this is a very difficult time to be faced with a situation where you’re looking for new housing when you thought that you had already taken care of that,” Andriette said.

Growing murmurs and a shot in the dark

Opening negotiations, possibly with legal counsel, remains one of the only viable legal options on the table for Air Buffalo tenants, according to Andriette.

The attorney hopes that students will find a way to speak out and safely navigate a reprieve from their circumstances.

“Speaking with one voice, asking for things that are reasonable, pointing out the fact that Buffalo is a small community and reputation is important here — all of that will be crucial,” Andriette said.

Having been informed of another setback to Nov. 4, nearing halfway through the semester, irate students and parents alike are beginning to examine those options with real agency according to Chelsea Jones*, who spoke with The Spectrum on the phone Oct. 7.

“Everyone’s upset,” Jones said. “And I think everyone is willing to file a lawsuit or do something like that. A lot of people are really upset  and it doesn’t just fall on the shoulders of the leasing manager. It's the fault of the corporate management, DMG Investments.”

Jones has her fingers crossed for a legal breakthrough to hold the managing firm to account for its negligence.

“I’m hoping that there will be legal action taken against the company, even if I don’t get any compensation out of it,” Jones said. “They shouldn’t be able to lease apartments anymore.”

Still living out of the temporary arrangements set out by DMG Investments LLC, Jones has tried to spend as much of each day on campus as possible.

“I have to get my work done there because I can’t really do it at home,” Jones said. “But I mean, you can get used to anything. I always tell myself it could be worse. It’s a clean place where I can sleep… I’m surviving.”

But the cost of surviving is taking its toll. Jones continues to fret over making ends meet as she continues to try to balance her academics and work life to compensate for added expenses.

“I have to buy so much food and that stresses me out,” Jones said. “I hate having to spend so much money on food when I actually enjoy cooking.” 

Bartholomew offered words of sympathy for both students and parents navigating the situation.

“I really feel for these kids,” she said. “I can only hope that they find a way to cut their way out of this situation and avoid this enterprise going forward. It’s unsustainable and does not have its customer’s best interests in mind. 

“I say this not as a lawyer, but as a mom — it’s situations like these when I think about sending my kids off to college that makes me fearful.”

For Jones, the playbook is the same as it was throughout September: wait and hope for the best.

“The only thing that we can do is kind of stay here and deal with it,” Jones said. “It sucks but Nov. 4 doesn't really change anything for me. I’m still here, and it’s only two weeks more.” 

“But I’m really hoping that’s going to be the last change… I can’t be sure.”

Kyle Nguyen is a senior news/features editor and can be reached at kyle.nguyen@ubspectrum.com


KYLE NGUYEN
IMG_7041.jpg

Kyle Nguyen is a senior news/features editor at The Spectrum.

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