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“What We Got Here Is A Failure To Communicate”

“What We Got Here Is A Failure To Communicate”

Paul Newman uttered that famous line as Cool Hand Luke at the end of the 1967 classic, mocking the prison warden just before he is killed after his escape from jail. I often think about this quote when I am working out disagreements between parties. How often are these disagreements between contracting parties caused by a simple lack of communication? More often than the clients would like to admit, for sure.

We have been working on a problem for a tenant client with his commercial lease. He has been experiencing roof leaks for almost the entire time he has been in the building. Many of the air conditioning units have failed and the property manager has been non-responsive. There have been other smaller issues that have become bigger issues because of the lack of attention to the on-going roof and HVAC issues.

After numerous complaints following major afternoon thunderstorms, a roof contractor was finally dispatched. Some patch work was done, but the problem has never been totally resolved. Some of the HVAC units have been replaced while others have continued to deteriorate and ultimately failed. And, it appears, that the way the units are mounted on the roof have caused many of the leaks. The AC contractor and the roof contractor agree on this, yet the property manager has not authorized either to fix the problem.

Getting no satisfaction from the property manager, we made demand on the Landlord. Landlord made its own demands due to the smaller lease issues. It became apparent through this exchange of demands and subsequent conversations with Landlord’s attorney that Landlord was missing key information and, perhaps, so was Tenant. Landlord was not aware of the number of times Tenant had complained about the leaky roof or that the AC and roof contractors had agreed that the installation of the HVAC units were causing some of the leaks. Nor was Landlord aware that Tenant was fulfilling its own obligations under the lease to keep the HVAC units in good repair up to a maximum dollar limit. Tenant was unaware of the efforts Landlord was taking to resolve other issues Tenant had raised. Neither party was communicating with the other directly. Nor was either party giving the other complete information of the various issues and resolutions. Part of the problem was that the property manager, the go between, was withholding information. We aren’t exactly sure why. Perhaps property manager was protecting itself and its contract. Or maybe the property manager is just not competent. Regardless, the lack of communication has caused Tenant and Landlord to posture to the point of dueling demand letters with threats of litigation seeking damages and potential injunctive relief.

This is not the result either party wants. But, when it’s raining in your offices and you don’t feel as if you are getting the attention you require, I suppose it is hard to keep a level head. We are hopeful that the lines of communication are being restored and repairs will begin promptly. After all, it didn’t end well for Cool Hand Luke.

David Blattner

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