Complaints

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• Initial Complaint

  Date:02/22/2023

  Type:Service or Repair Issues
  Status:

  AnsweredMore info

  Complaint statuses

  Resolved:

  The complainant verified the issue was resolved to their satisfaction.

  Unresolved:

  The business responded to the dispute but failed to make a good faith effort to resolve it.

  Answered:

  The business addressed the issues within the complaint, but the consumer either a) did not accept the response, OR b) did not notify BBB as to their satisfaction.

  Unanswered:

  The business failed to respond to the dispute.

  Unpursuable:

  BBB is unable to locate the business.

  I am filing a Better Business Bureau complaint in regard to the pipe burst that occurred on December 26, 2022, in the food kiosk I am renting from Brinkman Properties. As per our lease agreement, under Section 7.01 and 7.02, the responsibility for the repairs and maintenance of the building, including the HVAC and plumbing, falls solely on the landlord (excluding Operating Costs). Sections 10.01 and 10.03 state that the landlord's insurance should pay for damage to my personal property and any damage caused by plumbing or utility systems, and if not covered, the landlord is responsible for paying damages. Furthermore, Section 11 specifies that if the premises are partially damaged by 'the elements', the landlord should repair it promptly, and the tenant's obligation to pay rent shall be abated based on the portion of the Premises able to be used for the intended use. Given the lease agreement, the obligation for repairs falls solely on the landlord, and I cannot be held responsible for the burst pipe or the resulting damage to the kiosk. However, Brinkman Real Estate, the Landlord, has been trying to bill my company for charges I am not responsible for, including the repair work and rent while the kiosk was damaged, which, per our lease, should have been abated until repairs were complete and the kiosk was usable again as a restaurant without violating the Colorado Retail Food Establishment Rules & Regulations (Section 5). I have requested that all repairs be carried out immediately by the landlord and that any costs associated with the repairs be covered by the landlord as per the lease agreement. The rent for the kiosk should be abated until the repairs are complete as I am unable to operate my business out of the damaged space. The landlord continues to insist that I pay them for repairs and rent they are not legally owed. Thank you for your prompt attention to this matter.

  Business Response

  Date: 03/01/2023

  Please accept this response to the Complaint
  submitted by *** ********** (Complaint #********).  

  
  
  

   

  
  
  

  I have attached a copy of the relevant
  Lease.  Brinkman Real Estate is the Property Manager for this
  property.  The applicable Lease is between ****** ************ ***.
  and ** ******** *********** ***, (collectively the "Landlord"), and
  ***** ****** *** ***** **, a Colorado limited liability company, *** **********, individually, and ***** ******, individually (collectively,
  “Tenant”).  The Tenant leased a kiosk located at Old Town Square (the
  "Premises").  

  
  
  

   

  
  
  

  The Tenant is correct that a pipe burst was discovered
  on or around December 26, 2022 in the upper level of the food kiosk.  The
  Premises also contains a lower level used for storage.  Attached are
  pictures of the line running to the sink which burst.  This is located
  within the kiosk, not the lower level storage.  

  
  
  

  Under Section 7.02 of the Lease, Landlord is obligated to perform
  repairs and/or maintenance to the following items:

  
  
  

  A. The structural parts of the Building, which
  structural parts include only: foundations; bearing and exterior walls,
  excluding glass; doors; subflooring; and roofs;

  
  
  

   

  
  
  

  B. The unexposed electrical, plumbing, and
  sewage systems, including without limitation, those portions of the systems
  lying outside the Building or Premises;

  
  
  

   

  
  
  

  C. Window frames, gutters and down spouts on the
  Building;

  
  
  

   

  
  
  

  D. All common areas and HVAC units in the
  building.

  
  
  

  In the Lease, the
  “Building” refers to the Old Town Square building(s).  The “Premises”
  refers to Yampa Valley Ice Cream’s specific unit, Unit H. 

  
  
  

   Section 7.03 of
  the Lease states as follows:

  
  
  

  Tenant, at Tenant’s sole expense, shall keep and maintain the
  entire Premises and all equipment, facilities
  and fixtures therein contained in good order, condition and repair, in a neat,
  sanitary and safe condition, and in accordance with all applicable laws,
  ordinances and regulations of any governmental authority having jurisdiction,
  including, but not limited to, mirrors, light fixtures, ceilings, doors, floor
  coverings, plumbing and sewage facilities, electrical equipment, signs and
  nonstructural walls. Tenant shall permit no waste, damage or injury to the
  Premises, Property or the Building. Tenant shall maintain and repair all parts
  of the Premises, including Tenant's improvements and fixtures, not required to
  be maintained or repaired by Landlord. Tenant improvements includes any work
  done or additions added by previous tenants. Tenant shall be solely
  responsible for all costs of repairing any damage to the items set forth in
  Section 7.02 caused by the intentional act or negligence of Tenant or its
  licensees, invitees, customers, guests, agents, employees, or other representatives,
  which costs shall be considered additional rent.

  
  
  

  As set forth in the Lease, Tenant was responsible for keeping and
  maintaining in good order, condition and repair, the entire Premises including
  plumbing located within the Premises.  Landlord’s obligation for
  maintenance and repair was limited to the unexposed plumbing, including those
  portions lying outside of the Building or Premises.  The pipe at issue was
  a pipe running to the sink, was exposed, was within the Premises and thus
  Tenant’s responsibility to maintain.  

  
  
  

  Tenant ceased operating in the Premises in early November and has
  not operated in the Premises since that date.  Despite ceasing operations in
  the Premises, Tenant failed to turn off the water supply or flush the sink
  lines in the kiosk during the winter months.  In addition, Tenant failed
  to use a space heater located within the kiosk to maintain adequate temperature
  to prevent pipes inside the kiosk from freezing.

  
  
  

  Under the terms of the Lease, it was Tenant's obligation to
  maintain the Premises and it failed to do so.  Even if it was Landlord's
  obligation to maintain the pipes at issue, Tenant is still responsible for any damage
  resulting from Tenant's own negligence.  Vacating the Premises, failing to
  turn off the water or flush lines, and/or failing to maintain heat in the
  premises during the winter months constitutes Tenant negligence which resulted
  in the sink line bursting.  

  
  
  

  Turning to the issue of Landlord insurance under Sections 10.01
  and 10.03, under both Sections Landlord is not liable to
  Tenant for any property damage unless there is negligence on the part of
  Landlord.  As set forth above, Landlord was not responsible for
  maintaining the lines to the sink located in the Premises – that obligation
  fell on Tenant and there was no negligence on the part of
  Landlord.  Any damages to Tenant’s property should be submitted
  through Tenant’s own insurance.  

  
  
  

  Finally, with respect to Section 11 and Tenant’s request for
  abatement of rent, the upper level of the Premises is available and ready for
  operation immediately.  Tenant has made no attempt to resume
  operations in the Premises, having shut the space down in
  November.  Landlord has not prevented Tenant from using the Premises
  for its intended use and it is currently available for Tenant’s use. The only
  portion of the Premises needing additional clean up and repair is the storage
  area on the lower level. The damage within the lower level does not prevent
  Tenant from utilizing the Premises for the intended use.  As a result, Tenant is not entitled to an
  abatement of any rent under the terms of the Lease.  Further, Section
  11 states that the terms of this provision shall not apply if the damage is a
  result of negligence or improper conduct by the Tenant.  Again, as we
  discussed above, the damage in this matter was the result of Tenant negligence
  and failure to properly maintain the Premises. 

  Based on the items discussed above, Tenant is: (1) obligated to pay for the repairs and damage, and (2) not entitled to a rent abatement.  

  We appreicate your assistance in this matter. If you need any additional information, please let us know.  

  
  
  

   

  
  
  

   

  Customer Answer

  Date: 03/10/2023

  Better Business Bureau,
  
  We received Mr. G******** letter in response to our complaint. We must respectfully disagree with his analysis.
  
  The landlord is manufacturing new facts as is convenient and has now apparently changed their claim from being partial (and, likely made in error), to acting in bad faith by trying to charge us for the full repair. The landlord previously claimed the incident was filed with their insurance company, in accordance with section 10.09 of the lease, yet insisted we were, for some reason, still responsible for moving, storing, and cleaning at our own expense. Now, it seems they are insisting that tenant negligence caused the incident in its entirety.
  
  The landlord's newly-revised claim that the incident occurred due to tenant negligence is baseless and without merit. We are engaging with attorneys to explore options and verify our rights under Colorado law.
  
  If it would put an end to their ongoing campaign of harassment and intimidation, we would reluctantly be willing to forfeit the $3,400.00 security and vacate the premises immediately, in exchange for indemnification against their claims. Otherwise, the landlord is only owed rent through 12/27/22, when the incident occurred, and when the plumbing they are responsible for in combination with the extreme, extraordinary weather of the day caused that incident to occur. The incident was not caused by tenant negligence, and we are not responsible for the repairs to their building.
  
  Thank you for your consideration of this matter.
  
  Respectfully,
  *** **********
  ***** ****** *** ***** **.
  

  Business Response

  Date: 03/23/2023

  We received the Tenant Response dated March 10.
  Please accept this as a follow up response.  

  
  
  

  Landlord's position remains:

  
  
  

  1. Tenant was responsible for maintaining the
  interior sink lines that burst under the clear terms of the Lease.

  
  
  

  2.  Even assuming maintenance was
  Landlord's responsibility, Tenant was negligent and therefore responsible
  because it failed to maintain the Premises in a reasonable manner, including
  fully vacating the Premises during the winter months without turning off the
  water, draining the lines, or ensuring the space heater in the Premises was
  turned on given that it left the water on.  

  
  
  

  At the time Landlord submitted the original repair amount to Tenant, this was a partial amount that did not include repairs to the downstairs area (including damage to the drywall. 
  Concurrently, Landlord also submitted an insurance claim.  Landlord did
  not originally charge the Tenant for the full repairs because it hoped to
  address the repairs through insurance.  That insurance claim has been
  denied without payment.  When asked, the insurance company stated the
  basis of denial was due to tenant negligence.  Per the insurance company:
  "There was a note on the door from October for past rents and there was
  nothing done to mitigate the loss.  The space heater was not in
  operation.  There was neglect in not keeping any heat on to avoid the
  lines freezing."  The note placed on the door from October remained on the door in January when the insurance adjsuter conducted its investigation, providing further evidence that Tenant had vacated the space, not returned, and taken no action whatsoever to mitigate against this potential loss.  

  
  
  

  Despite the clear negligence of Tenant in
  vacating the property since apparently October without no action done to
  maintain the Premises, Landlord still attempt to resolve this issue by reaching
  out to Tenant with a settlement offer on 3/16.  To date, Landlord has received
  no response.