February 24, 2012

 

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You've most likely had this issue before. One spouse [in residential setting] or one business partner [in commercial setting] asks you to change the password and not share it with the other spouse or partner. Perhaps only the caller signed the contract but just as likely both did or the other one did. How do you respond to this type of inquiry or demand?

Well of course your first reaction is going to be, how did I get stuck in the middle of this mess, why should I do anything, what should I do, what consequences will there be re my decision, and finally, maybe if I ignore this it will go away. It won't, and yes there are consequences. You'd like to preserve the account but you don't want to get dragged into the dispute. In the case below you 'll see that the issue is one of Preservation of the property as opposed to Management of the property. Joint property owners can take unilateral action to preserve the property but must act jointly to manage the property. Here the Court remanded the case back to the lower court to determine if the alarm was for preservation or management. As you read the excerpts below or the decision in full, I wonder if you consider something that occurred t me. Here the co-owner sued the alarm company claiming that the alarm kept the co- owner from the property. Why didn't the co-owner simply go to the property and enter, setting off the alarm? Police could have been called in advance. The alarm certainly is not the same as elaborate locks, which could be circumvented or removed, or armed guards that prevented access, Point is, this issue is not as easy to deal with as you may have first thought.

As the case below illustrates, judges struggle with the issue too. Here are some facts taken directly from the case.

"Rosalee owns a fifty-percent undivided interest in a house in Donaldsonville, Louisiana. The other co-owner of the house is Peter T. Lemann.1 In January 2010, Mr. Lemann and All Safe entered into a contract for the installation and activation of an alarm system at the house, apparently without Rosalee's knowledge or consent. In October 2010, Rosalee notified All Safe that it was a co-owner of the property and that it had not consented to the installation of the alarm. Rosalee further advised All Safe that Mr. Lemann had not shared the password or access code with Rosalee. Rosalee stated that it would hold All Safe legally responsible if it was denied access to its property as a result of the allegedly unauthorized alarm system. Despite this notice, All Safe continued to maintain the alarm on the house, allegedly preventing Rosalee from accessing its property.

Rosalee subsequently filed suit against All Safe, contending that All Safe had willfully and intentionally maintained the alarm system on the house, thus preventing Rosalee from using its property."

The appeal court's decision, which you can read on my web site under Reported Cases, Louisiana, Rosalee v All Safe Alarms, deals with technical procedural issues, but does discuss the law, at least in Louisiana.

The Court found:

"According to Rosalee's petition and the documents attached to it,2 All Safe entered into a contract with Mr. Lemann for the installation of an alarm system at the house co-owned by Rosalee and Mr. Lemann, without Rosalee's knowledge or consent. The petition further alleges that, when Rosalee notified All Safe several months later that Mr. Lemann had entered into the contract without its consent and had refused to share the password and access code with Rosalee, All Safe failed and refused to remove the alarm. According to the petition, All Safe has willfully and intentionally maintained the alarm since that time, thus preventing Rosalee from accessing its property."

The Court goes on to find:

" All Safe contended that Rosalee had no cause of action against it because, pursuant to LSA-C.C. art. 800, Mr. Lemann as a co-owner may unilaterally and "without the concurrence of any other co-owner take necessary steps for the preservation of the thing that is held in indivision." This is in contrast to an act of management, which, pursuant to LSA-C.C. art. 801, requires the agreement of all the co-owners. According to All Safe, the installation of an alarm in the house is an activity that typifies preservation, as it is a security measure designed to prevent theft and/or unlawful intrusion. However, All Safe has cited no authority for the proposition that the installation of an alarm system is an act of preservation as a matter of law. Moreover, the question of whether the installation of the alarm system in the house is an act of preservation or an act of management is one of fact."

Thanks to Brad Shipp for bringing this case to my attention.