New confidentiality clauses can influence vacation rental reviews

Look who's trying to doctor those online reviews! / Photo by I Scott-Flickr
Tom and Terri Dorow didn’t like their recent vacation rental in Scottsdale, Ariz.

Their online review is clear about that. It’s a laundry list of complaints about equipment, appliances and even the appearance of a house they felt didn’t meet the expectations of a $3,500 price tag for five nights.

But don’t go looking for the Dorows’ opinion on the Web. Within a few days of posting it, they received a letter from their vacation rental agency.

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“It has come to our attention that you have written an unauthorized review regarding your stay at a home managed by Progressive Management Concepts,” it said. “If this review is published by, you will be in violation of the confidentiality clause of the rental contract you agreed to when you made your reservation.”

When the Dorows refused to remove the review from, the site through which they’d found the rental, Progressive Management promptly charged $500 to their credit card.

Progressive is among a small but apparently growing group of vacation rental owners and management companies adding non-disparagement clauses to their contracts. The agreement that Tom Dorow, an engineer based in Sacramento, signed stipulates that he will not “discuss or disclose the occupancy of the subject property with any entity not bound by the terms of this agreement without the expressed written authorization of the homeowner and the property agent representing the homeowner.” Any violation will result in a $500 fine, it notes.

Dorow thinks this is unfair. “We did not receive any contract language, terms and conditions or details until two weeks after we paid for the rental,” he said. By then, he says, it was too late to back out of the rental. Progressive says that it’s impossible to make an online reservation without checking a box acknowledging that you’ve read its terms and conditions, which include the contract, but Dorow says that he couldn’t find the contract online. He says that he posted the review without having read the terms of the contract and was surprised by the credit card charge.

After a month of negotiations, the couple agreed to delete the review and got their $500 back, plus an additional $200 refund from Progressive. But they aren’t happy with that resolution.

“We feel that we should be able to post an accurate accounting of what we experienced, which did not match what they advertised on the VRBO site,” Dorow says. “If other people are renting this house based on the information in the advertisement, then they need to know what they can expect.”

Progressive begs to differ. Chris Barski, an attorney for the company, said that the Dorows contacted Progressive after their rental, demanding a $350 refund (Dorow says he asked for $375). When the company rejected their request, the couple published an unflattering review of the home, which prompted Progressive to invoke its contract. (The Dorows say that they’d always planned to write the review, whether or not they received a refund.)

Barski also disputes the suggestion that Progressive’s rental contract is designed to squelch negative publicity. Rather, he says, it spells out the channels for addressing a dispute between a renter and an owner.

“The company requests that occupants resolve any complaints with management prior to publication with third-party Web sites, which are more often used to extract unwarranted concessions from small businesses to avoid negative publicity,” he says.

The vacation rental industry may be warming to rental contracts such as Progressive’s. Several property owners echoed the sentiments of Barski, saying that non-disparagement language is the only way owners can protect themselves from negative reviews. “Just a small comment can slide a slight negative sentiment to a disaster like, ‘Avoid this house,’ and boom! You could lose everything and go into foreclosure, simply because of that one review,” says Ken Silverman, a principal for a land development company based in New York who owns a vacation rental property at a New Hampshire ski resort. “It would have to be offset by tens or hundreds of positives to not make a difference.”

Not all the bad reviews are motivated by a negative experience, he adds. Renters who don’t get their entire deposit back sometimes threaten to publish a bad review. “The problem is, it’s hard to document that fact, as often guests will not admit that as the reason” for the negative review, he says.

Silverman recently revised his rental contract, adding what he called “a gag order on unsolicited reviews that comes with a stiff penalty if breached of up to $10,000.”

Other vacation rental owners are contemplating similar action. Jane Rosen, who runs a New York biotechnology company and owns a vacation rental in Palm Beach, Fla., says that she may add non-disparagement language to her contract next year. But she also worries that the clause could make renters suspicious. “Renters may walk away from the deal, as they might feel that the owner is hiding something,” she says.

Another worry: A contract that stops a review from being posted would be difficult to enforce. Rental owners and small management companies don’t have the resources to sue a guest who breaches a contract. “Also,” Rosen adds, “there would be nothing stopping a person who rented from having a friend who did not sign the contract write the false negative review.”

The dust-up over non-disparagement clauses is focusing attention on the inherent problems of user-generated reviews. Online write-ups are difficult to verify and can be rigged by savvy online reputation-management operatives, who seed posts with favorable comments for their clients while slamming their competitors.

Preventing a damaging false review from being published may be as difficult as putting the kibosh on gag clauses. Carl Shepherd, the co-founder of HomeAway, which owns VRBO, says that property managers sometimes slip non-disparagement clauses into their vacation rental agreements. But since VRBO only connects homeowners with renters, it doesn’t have the power to prevent them from doing so.

He recommends that rental customers read their paperwork carefully. “If that clause exists, I would move on to another property and patronize one of the hundreds of thousands of other vacation-home owners and managers who welcome my feedback as a guest,” he says.

The Vacation Rental Managers Association, the trade organization for the vacation rental industry, also takes a dim view of rental agreements that prevent customers from reviewing a property. Steve Trover, the group’s president, said that clamping down on bad reviews runs contrary to the industry’s values. “We encourage vacation rental managers to have open lines of communication with guests, and online reviews are an important part of that process,” he told me.

At its last convention, the association organized two sessions to help members make the most of guest-generated reviews. Trover says that online ratings and the recommendations of friends and family can help travelers “feel confident about their vacation rental stays.”

At the same time, it’s not hard to understand why a property manager would want to include a confidentiality clause. Renters may inadvertently reveal sensitive details about a property, such as lock combinations, safety problems, ways to get around homeowner association rules and even the property’s street address. Those, in turn, could make the rental unit vulnerable to theft.

A closer reading of the Dorows’ review suggests that they didn’t disclose anything about the property that might have put it in jeopardy.

“The notion that as a traveler you have to worry about being fined by your hotel or rental property if you did not enjoy your stay shows just how bad things have become in the world of online review sites,” says Travis Katz, the chief executive of Gogobot, an online application that collects travel recommendations from friends. “The Internet is supposed to be a marketplace of free ideas and free expression. However, it is increasingly becoming a place where businesses are trying to bully people — or even companies — into censoring ideas that could put the business in the wrong light.”

How can you avoid being ensnared by a contract that limits your free speech? Read it carefully before you agree to a rental and before you pay for it. And if you see something you don’t like, move on.

90 thoughts on “New confidentiality clauses can influence vacation rental reviews

      1.  Ate it? More like inhaled it.

        Might as well just hand these knuckleheads a jar of Vaseline.  If we’re going to get screwed, might as well be in some comfort.

        1. Well, the simplest thing is to fight back — don’t rent from anybody with this provision, or strike it out.  Look, if they don’t want public feedback, then there’s something wrong.  Most businesses don’t like negative feedback but do understand that it’s an opportunity to address issues that they may not have noticed.

          And, just publish the review under a false name and state that the contract prohibits ‘true and correct’ reviews.

    1. Free speech only applies to government action, I can squelch you all I want if you agree. The constitution does not apply to me or you. That said, I think timing is important here. They agreed to not disparage and they did not until after the contract was over. There is one obvious defense unless the contract has some other language.

      1. Thanks for educating me. I learned something new this morning. Looks like I need to change my name to ANONYMOUS.

        1. Yeah Tony – if you actually read the Constitution it says pretty clearly that CONGRESS shall make no law interfering with freedom of expression . . .  last time I checked private businesses are not Congress which is why most private employers can spy on you, video you, search your desk, emails and anything else because it belongs to the company – not to you.

        1. Unless the contract was written by the lousiest attorney in the history of the practice of law, the contract should, at a minimum, define the term “disparaging”. It also likely spells out who determines whether or not a specific communication is “disparaging”. 

          1. New Homeaway themesong lyrics…

            where seldom is heard a disparaging word and the skies are not cloudy all day

          2. Actually in this situation I would only use the word disparaging and NOT define it – gives me the ability to argue pretty much anything- right?

          3. most times – but what does that mean here?  Disparaging has some meaning – if someone writes a negative review of the subject property on a publicly viewable forum whats ambiguous about ‘disparaging’ under those facts? I would say that is a fairly simple case so thats not a winning argument.

          4. But, by your own admission, you would not define “disparaging” in order to be able to present any definition of it. You can’t have it both ways.

          5. I’m not – I sue for a disparaging remark within the meaning of disparage in Webster’s dictionary – what the defense?  You don’t have one –  sorry – but if words are not defined they have their normal meaning that people give them . . 

  1. Isn’t there something in contract law that says you cannot require someone to sign away rights?  Wouldn’t these clauses violate that principle by requiring someone to sign away their 1st Amendment right to free speech?

    But as was mentioned in the story here, if you have one of those clauses, just have someone else post the review for you.

    1. Before I begin, I’d like to state that this is an utterly ridiculous, and likely completely non-enforceable, contract term.  (Under a literal reading of the clause, you would have to shut up like a clam when your mom asks you on the phone “How was your vacation?”)  This particular clause, when included in a boilerplate rental contract, would almost certainly be judged “Contrary to the Public Interest” in a lawsuit.


      You absolutely CAN sign away your rights.  Such wordings are utterly routine in legal agreements of all kinds.

      – A settlement agreement for a dispute will of course contain an clause stating you cannot sue.  (Without it, you haven’t reached a settlement at all!)
      – A severence agreement at the close of a job will often contain a non-disparagement clause.
      – A guilty plea means you are waiving your rights to a jury trial and any appeals of your case.
      – Alas, mandatory arbitration clauses are also utterly routine and enforceable.

      The 1st amendment regulates what the government can and cannot make you do; the IRS, for instance, can’t make you promise not to say bad things about the IRS in return for giving you a break on your taxes.  But the 1st puts no limits on agreements private parties make with each other.

      That doesn’t mean that this particular contract is valid or enforceable (there are all sorts of problems with it), but the very idea of a non-disparagement clause does not conflict with the 1st amendment.

      The part of contract law you are thinking of is probably the part where you cannot write a contract giving somebody “permission” to commit a crime. For instance, you cannot sign an enforceable contract to sell one of your kidneys. (The law prohibits payment for the donation of an organ.)

  2. Just wait until the airlines catch on to this idea! Being able to complain to online sites like this one is a small way in which consumers can strike (or more accurately, pillow-fight) back against travel abuses. When non-disparagement gets added to those one-way “contracts” that pervade the travel business, consumers will do better to just stay home the rest of their lives.

  3. Absolutely ridiculous. I would NEVER rent a property that forces me to give away my rights. If I have a bad experience, I want to be able to tell people about it, especially if management ignores my concerns.

    I just fear that other travel entities may pick up on this nonsense about “non-disclosure.” Could you imagine? Spirit decides to charge you $10 to file a complaint…

    Story time, since it’s Saturday morning…

    A few years ago, my GF had to attend a conference at “The Inn of the Hills” in Kerrville, Texas. On the web, it looks reasonable. However, upon arrival, she said it looked more like a 70s-era HoJo. Her room came with a broken mattress, mold growing on the lampshades, and the kicker–a broken deadbolt. I should add, a broken deadbolt in a motel with exterior corridors! The hotel wouldn’t move her; they claimed they were “full” so she asked for them to fix the deadbolt that night. The front desk said they didn’t have any maintenance people around at that hour (8pm??!) and it was “a safe area.” 

    She told them she was checking out and they tried to bill her for the entire three day stay. I immediately put a hold on the credit card to do a charge back and she found a better room at a Hampton Inn about 15 minutes away.

    The next day, she had to return to The Inn of the Hills for the conference. Why the charity she volunteers for picked this place that one year, everyone still questions. Anyway, she told the other conference planners about the trouble and they said others were having similar problems. The planners were supposed to meet with the manager and since my GF was on that committee, she sat in on the meeting.

    The manager seemed to care less. He accused my GF of “running out on a good rate.” To which she replied that the Hampton was cheaper and she didn’t have to worry about her door not locking. He claimed that was a “lie.” So, she whipped out her phone and showed the jerk a picture of the broken lock she had also showed the front desk.

    Bottom line: the place was a dump, and despite the conference and my GF (and other individuals) writing letters to the management about this problem, nothing was ever done. We received her money back from Discover, but not a peep out of the hotel. Negative reviews were posted to TripAdvisor, but mysteriously disappeared…

    1. TA still has pics from welkikitty showing busted boxsprings, moldy chair, and broken dead bolt. That place really looks dumpy.

      1. Strangely, that one reads very close to her complaints, but it isn’t hers. She stayed there in the fall of 2009 and did not really “stay.” After seeing the room, getting no help from the desk with the broken lock, she left.

        I’m surprised that one got through because the level of snark is on par with what my GF can dish out.

        1. It’s possible they deleted her posts because she never actually stayed at the property. I’m guessing TA has rules that you must actually be a guest. This could be a technicality since your GF checked out early. 

    2. Re: TripAdvisor.  There are several very negative reviews for this place from the mid-2000s at TA.  Further, submitted reviews do not mysteriously disappear.  If they do not meet content requirements posted on the site, then the reviewer is notified by email. There are protocols to prevent competitors from posting fake reviews on TA bashing a property.  

      1. Well, hers and the other ladies in the group wrote reviews that kept “disappearing.” She was most definitely not notified by email, either.

    3. Thanks for warning me about the “Inn of the Hills”, was thinking about staying there on a motorcycle trip to the hill country.

  4. VRBO should have a simple statement at the top of its site and each subsequent page:

    “VRBO only connects renters with owners and professional management companies.  We take no responsibility for your stay.  You rent at your own risk.  Their are no warranties about condition of rental, accuracy of ad or contract terms.”

    VRBO is merely a fancier craig’s list.  It’s own “carefree rental guarantee” is a sham. There is nothing carefree about it.  Get this, to invoke the guarantee about “material misrepresentation” a vacationing family in a strange community with no “Plan B” must:  within two (2) hours of first entering the subject property on the first day of the lease or rental term, the Protected Traveler leaves the rental property and refuses to occupy the rental property due to the Material Non-Compliance (as defined below) of the rental property with the description made in the listing on the HomeAway Site.

    How sad.  What a complete utter unmitigated sham.  Try telling three kids you must leave the condo with the pool to go motel shopping all day.

    As for the contract, where was the credit card company?  I cannot imagine my Amex allowing a post-stay charge of this type.  At some point the management company will rent to a lawyer who will void this and all contracts like it.  Perhaps, a class action suit against a management company would quiet them for good.  

    Further, when is it “by owner” when a professional management company is actually listing the ad, taking the money, writing the contract and enforcing it?  More false advertising by VRBO.

    These Elliott columns about VRBO are a great learning experience for those who are tempted, or tempt others, to rent from this site.

    1. I’m really beginning to wonder about vrbo. We’ve used that site at least a dozen times in the last 10 or so years and never had a problem with any of the places we’ve stayed and several were pretty great. I will say that the last time I used the site was last summer and there were soooo many places to wade through before selecting a property to rent. It is really sad if this site has become impossible to use because it has been much more enjoyable to rent a house than it is to stay in a hotel for a week. I hate that I will think twice about going through vrbo the next time I’m planning a family trip.

  5. OOPS

    I work for a couple of lawyers who are “cowboys” and I guess their zeal when I read this rubbed off.

    1. While this particular contract clause is wholly unenforceable, it’s not for any of the reasons you mentioned except the first:

      2. Nope. Your 1st amendment rights prohibit the government from putting limits on your speech.  They have nothing whatsoever to do with agreements private parties may choose to reach with each other.
      3. The truth is not a good defense to violating a non-disparagement clause.
      4. It’s not criminal theft (or even civil fraud) if they had a reasonable belief the transaction was authorized.

      And no, you probably would probably not own the house after suing over the situation; at worst, you could claim treble damages (doubtful), in this case leading to a payment of $1500.  In practice, a suit would likely lead to the return of the $500.  (Plus costs if the small-claims judge is feeling generous.)

      If this were to reach the level of a suit, the clause would certainly be thrown out as “Contrary to the Public Interest” (among other reasons) because they made it part of the pre-rental contract.  If this was part of a dispute settlement, (i.e. “We will give you a full refund and $200 in cash to not say anything to anyone else about your stay.” Which is exactly what the eventual outcome of this case was) it would likely be completely enforceable.

    2. You might work in the legal services industry but its pretty clear you are not a lawyer . . . .because:

      1.  You agreed to the terms in order to book – thus not seeing it is not important.  You waived that right when you clicked through to make the reservation; 
      2.  There are no First Amendment rights between private parties;
      3.  Truth has nothing to do with non-disparagement – truth is only a defense to defamation claims;
      4.  The contract states the ‘fine is $500’ and it also likely has a clause allowing them to charge you for damages and fees – so its not theft or criminal – such a clause is standard in most hotel and car rental contracts where they can back charge you;
      5.  You are simply wrong here.   You seem to disagree with what happened but what they did is perfectly allowable under the contract terms . . . now whether those terms are actually enforceable as a matter of public policy remains to be seen – 

  6. I’d bet they’d violated THEIR agreement with the credit card company by placing what they see as fraudulent charges not explicitly authorized on the credit card.   Mastercard or Visa would NOT be happy and would CERTAINLY side with the cardholder.

  7. Okay, I’m of two minds on this.

    On the one – yeah, it’s scummy to not allow people to complain, especially if they have legitimate complaints.  That is without question.

    On the other – you see the type of people that complain to Chris Elliott.  It’s even addressed in the article:  People are going to go to the Internet and bitch about your property or service until they get what they want.  Even if that want is utterly outrageous, and the description of how the person feels they were wronged is full of hyperbole.  (My recent favorite – )

    There are times when a well-written criticism is totally valid – in this case, if the property was clearly and grossly misrepresented, then other potential renters should know about it.  But even the best property owners can have a bad week, or miss damage caused by previous renters if they have back-to-back parties.

    There are some people who just go to the Internet and don’t let owners or companies even attempt to make good or mediate.  Or they think anything less than a complete refund of their entire trip – plus cash for another one and perhaps paying for the college education of their children while they’re at it – is unreasonable, and they will spew venom all over the Internet.

    And then there’s the whole cottage industry about manufacturing reviews – I have a friend whose business was seriously damaged through Yelp’s rather oblique practices.  (30 glowing reviews disappeared, only to be replaced by a dozen incredibly malignant ones that didn’t match up to any customer experience she could remember – particularly galling was when one review claimed to have bought a poor quality item at her business that she didn’t even sell.)

    There has to be a way to protect responsible property owners from irresponsible renters.  Some people simply cannot be pleased unless you pay them for the privilege of using your service.  Perhaps there need to be clauses about mediation, slander or libel instead of a flat disparagement item.

  8. I would NEVER rent from a company that is so afraid of customer reviews they write language into their contract to censor them.

    It sounds like SOP from now on is to call and request a copy of the contract before booking.  If the company won’t do this, just say “thank you” and hang up. 

    BTW, I went looking for this company’s web-site. I didn’t find it, but I did find several other complaints.

  9. I’m curious if the owners allowed other reviews to be posted to VRBO. If so, and they’re positive reviews, then they should be able to produce written evidence that they gave permission to post the review (since the contract stated “discuss or disclose the occupancy of the subject property with any entity not bound by the terms of this agreement without the expressed written authorization of the homeowner and the property agent representing the homeowner.”) I doubt that they follow their own contract. It seems clear to me that they don’t care about reviews as long as the reviews are positive.

    I rented through VRBO once, and I recall that the owners needed to verify that you were, in fact, a renter before the review was posted. However, I don’t think that they could read the review before it was posted. Since the OP had already contacted the rental company with complaints, I’m surprised the owners allowed the review to be posted at all.

    Regardless, the owners have an opportunity to reply to any post, so they could explain how the review was not fair if that was the case. As long as they are professional and detailed in their response about how the review was inaccurate, I think that would go a long way to minimize damage by an unfair review (i.e., DON’T write responses like the owner of the rental cabin in the post a few days ago wrote — she seemed like a piece of work!)

    It’s a shame that the renters backed down because that review would help to inform and protect other renters of this property.

      1. Chris. Are you allowed to post the full language of the non-disparagement clause of the OP’s rental agreement?  Seems there might be a loophole.  The clause may only cover negative reviews of the property itself.  There may be no language banning negative reviews of the management company.

      2. Alright Chris, but I think you need to check this complaint out.

        It seems like the same [or similarly name] company is involved. The renter said:

        so far I have dealt with VRBO (whose policy appears to be NOT to include negative reviews), Progressive Management Concepts Arizona, Sunbelt Vacations, and – as best I can determine the owner of the property – High Quality Water of Phoenix. I have posted this complaint on VRBO and another travel review site. Within one day I have received an email from “John” threatening legal action for breach of contract – a section where I was not to post a derogatory albeit honest opinion of their property. Perusing the internet it seems the best recourse is to file a complaint with the BBB in Phoenix and with the Office of the Attorney General in Arizona. Both will be done.

        Sounds familiar?

        1. Hmmm….  Reading this, a thought came to mind. By saying someone can’t post negative reviews, they are requiring you to give up your ability to seek compensation if the property owner fails to met their end of the agreement.  You couldn’t post a negative account to the credit card company to contest the charge without violating the contract.  Filing a complaint with the BBB could be a violation also.  Is this a new way for property owners to not have to provide what they agree to?

      3. Here is the review that was sent to VRBO.  The bottom line was this property was presented (verbal and in pictures) as an upscale property and fell short on too many points to ignore.  We do not want to list the property ID.
        “We, along with two other couples rented the house for the week of Thanksgiving, 2011. We were underwhelmed. Of primary concern was the fact that many things did not work the way they were supposed to. We arrived on a Mon. to find the wireless internet inaccessible. Although we had the password, it was inoperative. One of our group is considered a major “techie” & he couldn’t figure it out. We followed all the instructions in the manual and called the internet provider (Quest) who told us to call the cable company (Cox). They were unable to help us. We then called the rental company (left a message- never a human on the other end) and also sent an email (via someone’s iPhone). Nobody got back to us on Tuesday. On Wednesday we got an email saying he had tried to call us but he transposed the area code numbers. We called back on Thursday (Thanksgiving) and didn’t hear back before we left on Saturday afternoon. In addition, turning on the TV was like being in Vegas. We had to take bets on how long it would take for us to figure it out. Sometimes there was a picture but generally it was snow until we somehow found the secret to getting a picture. Again- even the techie couldn’t figure it out. The sliding glass doors in the master bedroom and living room didn’t close properly. The dishwasher had to be slammed or jammed with a knife to close tight enough to wash dishes. The bathtub in one of the guest baths did not drain properly. The pool fountain didn’t work. The jacuzzi did not stay heated if the bubbles were on. Website says new linens. Maybe in 2008. Jacuzzi and patio furniture pictured are not the ones we had. Only four patio chairs for a house that sleeps eight…and they were dirty! Pool towels were small, thin, and ragged. All of this, despite the fact that we had to pay an additional $2.50 a degree to turn the pool up higher than 70. We were there in Nov. and the pool was not covered when we arrived so of course it was cool. Beautiful days but cool nights so the pool was cold. And, to use the propane BBQ we had to pay $35! We were already paying almost $3,500 for the five nights and then this on top? On the plus side, kitchen and refrigerator were large. Bedrooms /bathrooms were okay-the house was definitely not decorated by a designer (unless she works for TJ Maxx) but it was okay. We enjoyed the outside table and playing pool. Backyard was mostly quiet. Location is great. Scottsdale is beautiful w/ many places to stay. Don’t stay here!”

        1. Thanks for posting this. Now it is obvious why the rental company wanted your comments squelched. You simply wanted to state the facts.

  10. Progressive is not trying to squelch negative feedback but merely “spell[ing] out the channels for addressing a dispute between a renter and an owner.”  Progressive’s statement is an insult to anyone with the intelligence of a baboon and something only a lawyer could say with a straight face.  Now that I know about this trend, I will check for such “non-disparagement clauses” and move on if I find one.  Should I accidentally find myself in the position of the Dorows, I’ll post the following review:  I regret that my rental contract with ABC Resort prohibits me from publishing any reviews of my stay at the resort in June 2012 without first having that review approved by the Resort.”  If this doesn’t scare everyone off, I don’t know what will–at least until I am required to sign a clause that prohibits me from mentioning that I signed a non-disparagement clause.     By the way, this trend is bigger than the travel industry.  Many on-line vendors, doctors and others are using non-disparagement clauses or taking other measures to prevent negative feedback from the public.  And my guess is that you can contract away your rights if you have other options,i.e., you can select another rental company or doctor.

  11. How the **** could what happened to the OP be lawful?!

    Quite apart from the whole general issue of whether a gag-order is even legal… let me offer a free lesson in the law to Progressive: you don’t give customers terms and conditions AFTER they put money down, you dimwits!  Honestly, it sounds like Progressive’s lawyers found their J.D.’s inside a cereal box.  The fact that the OP eventually got his money back and then some, shows that a Progressive grown-up must have finally entered the room.  Somebody evidently realized that DUH, we can get the pants sued off us if we do this!

    I’m so glad you published this, Chris.  If Progressive doesn’t want its customers telling the world how stinky their rentals are, you can do it for them–perhaps even more effectively.  Until, of course, they also start including YOU by name in their sketchy gag-order T&C’s…

  12. I think this is great.  Now if I want to rent a place, I can just look at the contract, if it forbids me from disparaging comments then I know I can’t trust any of the reviews posted or the property owner.  Now if they could just post this bit of information more publicly…

    Idiots!  Yea, there are some people who will write negative reviews or threaten negative reviews if they don’t get something in return, but if your going to live in fear of that then maybe you’re in the wrong business.

  13. Chris, perhaps the way to protect the interests of both parties would be for rental review sites to require documentation, in the form of photos, before posting a negative review.  If I were staying in a place wihch was dirty or bug-infested, I’d sure take some pics to back up my claims.

  14. The easiest thing here is to read the contracts and then contact the owner and tell the owner that you will not rent from them if they refuse to allow you to post a review of their property.  

    “Dear XYZ – I would have loved to have booked your property for [period] but your contract contains a gag clause.  If I am renting your property and have a positive or negative experience I want to be able to work that out with you and tell others if that does not happen.  These clauses give you zero reason to work out a problem with your customers and make me distrust your representations about the condition and quality of your accommodations.”

    I think a non-disparagement clause in a commercial context is probably not enforceable – and the $500 fee is just another way to coerce you since it is really just liquidated damages and prob not enforceable since it does not state that it is liquidated damages.  

    however – don’t bother complaining to a BBB – there is no point to it.

    Run, Don’t Walk !
    The practice should stop when enough renters refuse to sign contracts with onerous requisites.  This is similar to the clauses in many agreements that require any disputes to enter arbitration rather than small claims court; in other words, relinquishing one’s right to sue.
    Bottom line:  read the small print (terms and conditions).

  16. This is one of the most amazing “abuses of power” I’ve ever read about.  If property owners know they don’t have to present their property honestly and don’t have to keep it up because they can’t be faulted by the renters, the whole system will crash.  Whether I rent a hotel room or an apartment, I read all the real-people reviews I can find.  A spiteful whiner review based on a couple of negative but unimportant things is usally easy to spot.  And often people are negative about aspects that I don’t care about.  The review system is a good one and should not be stifled by a bunch of lawyers with nothing else to do. 

    For example, the last Paris apartment I rented had two windows – one on a very small courtyard and the other on an air shaft.  In order to get some air into the apartment, I left the courtyard window open at night.  The noise of people yelling, singing, tromping on the stairs reverberated up the 5 floors and  was nearly unbearable.  If I had been able to read an honest review of the place, I would have avoided a fairly unpleasant week … not that any time in Paris could be considered unpleasant! 

    This last Christmas we spent 5 lovely days at the Turtle Bay Resort on Oahu.  Lots of the reviews were quite bad, but they seemed quite picky and negative about things that we don’t even notice. The lobby was under total reconstruction, but it did not affect our comfort at all; what’s the big deal about walking through a construction area?   Besides, it was the only resort up on the North Shore,  so we booked it.  We enjoyed every minute and were glad to have taken the chance. 

    Honest reviews of hotels and apartments/villas are a very important part of travel planning.  I’d hate to see thm stifled.

  17. I can see both angles. What we did one time when things were bad, we called the owner directly, while there & explained the problem. (In a very calm manner)
    Owner who was depending on an agent was shocked & gave us a partial refund. Came back following year with a “special rate” & problems repaired AND new rental agency.

  18. VRBO could stop this practice in an instant if they wanted to. I’m really sick of them playing dumb. Are they Craigslist or are they VRBO?

    Don’t believe me? OK, let’s say VRBO decided to enhance their review screen so that properties that have rental agreements that include non-disparagement clauses have the following text in bright red: “Guests of this property are required to sign a non-disparagement clause as a condition of their rental. As a result, no negative reviews may be posted here because guests will be fined up to $10,000.00 if they discuss their negative experience with anyone.”

    What do you want to bet that clause gets dropped in 12.6 seconds?

  19. “Several property owners echoed the sentiments of Barski, saying that non-disparagement language is the only way owners can protect themselves from negative reviews.”
    Um, no…  They could do a better job of helping their renters enjoy their experience more.  That would ALSO prevent bad reviews.

    However, not everyone’s going to have the best time ever at someone’s vacation rental.  There’s always going to be “that guy” who, no matter what you do, will be unhappy.

    I don’t see this as a free speech issue as much as I see it as an attempt to defraud the public.  If only good reviews are permitted to be posted on the internet, this means problems will never be addressed because there’s no reason or pressure to do so.

  20. Chris, just an on-the-side question.
    I noticed that there are so many for-rent properties in these websites.
    I can’t help but think this has to do with the bad economy and how many speculated in real estate and cannot unload them.

    My concern or question is how does Homeaway and VRBO protect you if:
    – the home you are renting is in foreclosure, or,
    – the rental company you are dealing with goes bankrupt.

  21. Hmmm…Im just surprised more people DON’T read reviews!  I won’t even touch a vacation rental without ANY reviews…that just isn’t smart.  Usually if there is one negative, I’ll read the others…i don’t let one negative review color my opinion…I always look for trends….one person’s Shangri La may be another person’s Vacation Disaster.  I think I would move on too if I saw a contract like this one…there are plenty of other good rentals and honest peole out there.

    1. @twitter-227412534:disqus  – good observation! Personal opinions are very personal, one single review can damage the business but smart business owners should be pro-active and promote good reviews. A couple of bad reviews is a good indication that there is a room to improve. The key here is reviews should be genuine, in case of homeaway/vrbo or tripadvisor there is no proof the person even stayed at this place – so both travelers and owners are unprotected. If reviews are transactional then it’s harder to fake them. Some sites like only publish verified reviews, meaning you must buy the product in order to rate it. In this sense both owner and the guest have a right of free speech. 

  22. The fix is simple.  Simply video/photograph all the problematic issues without comment.  Post what you paid for the rental.  It would then not be a review or a disparaging comment, since you aren’t showing an opinion one way or another.

  23. VRBO doesn’t allow anyone to post who hasn’t stayed in or rented the house, so there can’t be posts from family and friends slamming the owner. Trust me on this – I tried to post about problems with an owner and it was always dismissed. I read the fine print on most rental agreements, but this one is pretty sneaky. As a renter I rely on the reviews from other renters to ‘sell’ the place; owners may be dazzled by their property and not realize things like ‘it smells like mothballs’ ‘the matresses were leftover from Salvation Army’ or ‘the stairs are quite steep’. Those are the kinds of things to could make or break a vacation stay. It’s an opportunity for the owners to correct a problem and note that they acknowledged and corrected it. Property management companies like this one should be ashamed of themselves. Business is a two-way street; if I have to trust your advertisement, you should trust my review. Except for one bad situation, I’ve always been able to contact the management or owner with a personal letter of review before I publish my thoughts. Most have been glowing, honest reviews; most owners and management want your stay to be wonderful. If the trend moves to organizations like Progressive, I shall have to move my vacation stays in another direction.

  24. If the contract states the owner will provide X for $X,XXX and the renter agrees to not disclose anything about the rental.  Then the renter arrives and are provided with Y, when they rented X? (X-Y could be missing third bedroom, non-cleaned unit, no working kitchen, lied about location, etc.). Than wouldn’t the owner already be in breach of the contract?  So if the owner breached the contact by not providing the negotiated services, what’s the problem with the renter publishing a bad review?  How can only the part of the contract that benefits the owner be enforceable?

  25. I see what appear to be a lot of comments that make sense to me as a layman regarding the contract issues.  What I’m wondering is where are the comments from Carver Clark Farrow II, who always seems to weigh in on legal matters.

  26. I suspect that if the renters took them to small claims court to get the money back that was imposed on them for publishing reviews, that a judge would deem a rental contract that basically imposed a ‘gag order’, illegal.

  27. While I understand that a vacation rental owner might want an non-disparagement clause, I would be quite reluctant to rent a vacation property that disclosed up-front that I would lose my deposit if I posted a negative online review.  To me, it would be a “red flag” that the owner had deservedly received frank, but negative, comments from past renters.  And if the anti-disparagement clause were “buried” somewhere in the “fine print” where I would be unlikely to find it, I’d be mad as hell if the owner “fined” me after I posted a negative review.

    I think that savvy consumers know how to assess reviews of products and services.  A handful of reviews, positive or negative, makes it difficult to judge whether you are likely to be satisfied with whatever it is you are buying.  If there are say 20 or more reviews, you can toss out the extremely negative or positive comments, and then carefully read those that are more moderate in tone, before making up your mind whether to rent that property. 

    I think Steve Trover of the Vacation Rental Managers Association and Travis Katz (whom I met last Tuesday at a Gogobot event in San Francisco), CEO of Gogobot (for whom I’ve been a paid blogger), have the correct attitude about communication between property owners and renters:  “Lux sit” (“Let there be light”, the motto of my alma matter, the University of Washington).

  28. Wow, how shortsighted is this? This is a situation just screaming for the ACLU to swoop in. Also, since IANAL maybe one of our resident attorney commenters can answer this: if the wording of the clause and any subsequent lawsuit isn’t carefully done, wouldn’t this open up the property owner / manager / VRBO to charges that they’re filing SLAPP suits? Or does SLAPP only apply to the public sector?

    In any case, this is a dumb move that’s likely to backfire. We’ve already seen physicians who’ve tried to squelch poor reviews (in my state, no less) change their tune after facing some vociferous opposition. I can’t imagine that the same would happen with this situation.

  29. How many times to you download an app, program, purchase a product, or what ever is done. over the internet, and then checked the box agreeing to the sale of your 1st born? It could be in there! We do so automatically without ever really reading the 20 pages of legalese. I would bet that there was a box to check and he did so, so keeo your thoughts to yourself. Now, why not write about a property that you recently stayed at in Scottsdale that is locoted near….and offer to respond via phone or e-mail with more explicit information.

  30. Ridiculous. I would never stay at a property that prohibited me from reviewing it. And I have huge problems with the lame rationalizations of the industry reps quoted in this article.

    First of all, no business has the right to protect themselves from negative reviews in general – *dishonest* negative reviews, sure, but the people quoted in the article seem to think that their business has a God-given right never to have to answer to any criticism at all.

    Second, IMHO it’s absurd to think that someone should deal with the business directly instead of writing a negative review. Personally, I write a few reviews a year on TripAdvisor for hotels I’ve stayed at, and if there was a problem I mention it whether or not the hotel resolved it to my satisfaction. (To be clear, I mention the resolution also – in fact, a couple of hotels I’ve recommended were hotels where I had a problem and it was fixed quickly and with an attitude that made me feel like the hotel cared about their guests). What some of the rental property owners seem to be suggesting is that all of their problems should be swept under the rug.

    Also, there are problems that aren’t worth complaining to the hotel about but are worth noting in a review. If I can hear the freeway noise outside my room, I doubt complaining to management is going to make them relocate the hotel – but future guests deserve to know about it. I imagine there could be similar things to note about a vacation rental.

  31. Certain cities fobid renting by the week.  Privacy should be agreed to in those cases.  Furthermore,  most negative reviews ARE motivated by not receiving all of the security back as the renters are often messier than they think.  That said, one negative review can damage a well run house tremendously. Becasue people are like negative sheep and believe everything bad, they dont want to take any chances. So, no review is better than one negative and ten positive.  Reviews should not be allowed to be posted, when that kind of ill-motivated power exists.  The landlord has EVERY right to prefer agreements only with people agreeing that the tyransaction shall remain private.  After all, the homeowner is not reviewing the renter – asking that the renter be banned from all private homes in the future, so why should the renter have that power?  Especially when it has been shown by independent research that negative reviews are not generally posted without alterior motives and positive reviews are almost never posted, as the customer does not have the time to deal with reviews for the most part.

  32. More sepcifically, upscale homes often require privacy in their rentals and the renters agree because they too want privacy.  Along with that comes the agreement not to be reviewed either positively or negatively.  MANY people are in agreement to that on both sides. and in this FREE country of ours,  a homeowner and a tenant have a right to agree to a private transaction.  The homeowner gives up the possibility of a positive review in excahnage he is guaranteed not to have any nonesense on the part of the renter as well.

  33. We rented 3 houses at Lake Burton and two were through VRBO and had a great experience and the third house was directly through the owner and here’s the story!  We had a terrible experience at
    this lake house located at Lake Burton, Georgia. We rented the home for a
    destination wedding. After receiving our final installment (full payment) the
    property owner told me to avoid excess showers and dishwashing during the day
    if the neighboring house was occupied by vacationers, because the water
    pressure from the well could suffer! Ohhhh Kayyy! Of course, this was after she
    had our money and we weren’t eligible for a refund. At the time, I wasn’t
    concerned because I didn’t anticipate any excessive water usage like she described.
    I couldn’t have been more wrong in my decision to rent this place. The water
    completely stopped running after 2 showers were taken the first night we
    arrived. Saturday morning, we were able to squeeze out 2 more showers and that
    was it. We had ZERO water for the next 2 days. Fortunately we had 2 other homes
    rented, so our guests at this particular house had somewhere else they could go
    to shower. We melted ice in the oven and hauled buckets of water up from the
    lake, so we could have water to flush the toilets. To say this was and an
    embarrassing situation for us is an understatement. Imagine this happening to
    you, your friends and family on your wedding day and for the remainder of your
    stay! To make matters worse, the owner accused us of having excessive water
    usage and did nothing to help us. Later she admitted to having a mechanical
    problem with the well, but blamed that on her neighbors and suggested that we
    ask her neighbors for a refund, because it wasn’t her fault! DO NOT RENT 1025
    Perrin Cove Road in Tiger, GA. This property is also called Sunset Point. I’ve
    never written a negative review in my life, but I’ve never experienced a
    property or property owner like this either. Consider yourself warned!


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