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Subscriber has dementia / another attorney assessment / tenant using system January 17, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Subscriber has dementia / another attorney assessment / tenant using system
January 17, 2018

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Subscriber has dementia

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Ken

            I wanted to ask what we should do with a client who, unfortunately, has dementia.  We are currently using the Residential All in One contract. 

            He and his wife are both suffering from it.  He calls our office daily, forgetting the alarm code or issues with how to use the alarm, which we do not mind.  However, yesterday and today he has called saying he does not have service or wants to cancel  service and was sending a certified letter. 

            Should we cancel or hold him to the contract?

            I don’t know how to get in touch with his kids and if I did and they want to cancel should I ask them to send me the letter? What if they do not have power of attorney, is it still legal if there is an issue?

            Feel free to post this, just make it,

anonymous. 

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Response

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            Technically you do not have to let this subscriber out of the contract.  [If this was a PERS contract then you would have to let them out].  But it seems like this subscriber is becoming more of a burden to you and, especially since they are asking to to terminate the service, I suggest you allow them to terminate without penalty.  This is not a subscriber that received a "free" alarm system based on continued RMR services.  You do have to get written confirmation that they want to cancel, and then you should terminate service.  You can send a final letter once you terminate service advising that the services have terminated. 

            By the way, you're not a psychiatrist and should not be offering a diagnosis.  Let's just treat this as a subscriber who wants to cancel and you are agreeing to that cancellation.        

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another attorney assessment

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Ken

            I had an attorney client who said "long detailed contracts are waste of time, I'm litigator and litigate out anything."  Sales puffery indeed.  The exculpatory clauses seem to be pretty durable, even in gross negligence.

Best Regards,

Bob Long

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Response

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            This attorney is probably relying on the legal principle that "ignorance is nine tenth of the law".  Did I get that right?  When I started representing alarm company I could say with confidence that most lawyers and most judges didn't think the "protective" provisions would be enforced, and today many still think that.  But not many lawyers practice in the alarm - security field, and few are trained litigation or contract lawyers.  Alarm law has evolved over the years and the protective provisions have received, and continue to receive, favorable outcome; the Standard Form Agreements are enforced, and you need to be using them.  Your attorney client will find out fast enough that the contracts are enforceable, despite his litigation skills [especially if my office is his adversary on the case].

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tenant using system

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Ken

            I have a customer that signed your contracts that now rents out his building and has changed the name of the business and contact list to be the new tenants.  The building owner signed the contract and is still responsible for the bills.  Do I need a contract with the new tenant even though he is not responsible for the billing?

            Thanks in advance.

John Mathis

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Response

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            You have a subscriber who signed a contract.  You mention that this subscriber "changed the name of the business"?  What does that mean?  If a subscriber changes it's name you have to be careful because either

  • the change in name is just that, but it's the same entity, or
  • the entity has changed, and that's why it's a new name

            If it's the same entity with a changed name then you don't need a new contract.  If it's a new entity, then you need a new contract.  No exceptions.

            The tenant taking occupancy in the building is another matter.  The answer depends on the type of alarm system and the involvement of the tenant.  What do I mean?

            Let's say it's a fire alarm system for the building contracted by the owner.  The tenant has no involvement; doesn't pay for the alarm; doesn't turn it on or off; doesn't call for service; hasn't asked for any additional coverage.  In this case, the tenant is not a necessary party to a contract because your customer is the owner.

            By if it's an intrusion or other security system and the tenant is "using it"; turning it on or off; using the cameras; has the passcode; calls in for service; can tell the central station that it's a false alarm or that it needs system on test.  This tenant is using the system; relying on the system; expects the system to work and protect the interests of the tenant.  This tenant, or its insurance company, is likely to sue you if there is a loss.  This tenant must sign a contract, even if the owner is paying you [and the owner needs to have signed a contract too].  Again, no exceptions.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com