Litigation and Disputes Between Hotel Owners and Operators are on the Rise? Why?
By Jim Butler, Chairman, JMBM’s Global Hospitality Group
Some disputes advance into litigation with the filing of a complaint, and others go to arbitration. The choice between litigation and arbitration is normally determined by the terms of the management agreement. Operators seem to prefer arbitration and they have pushed to create a trend to arbitrate. The arbitrations are "private" and tend to be missed by the press and are conducted in secrecy.
But the number of owner-operator battles has really escalated over the past few years. This is not just a matter of these disputes getting more media attention. There are a lot more disputes. What you see in the press is just the tip of the iceberg. The root cause of owner-operator disputes
While each dispute has a specific cause or issue, at the heart of the matter you will find the belief that the operator is not operating the hotel in a satisfactory manner and is treating the owner unfairly.
Operators don't want to give up their lucrative management agreements and many of them can't or won't change their actions to satisfy owners who bear all the financial risk of the hotel investment. In times like these, owners may find themselves dipping heavily into other funds to meet negative operating cash flows or mortgage payments. Many face foreclosure – and loss of their entire investment – with the operator's sub-par performance. They feel cheated when operators continue to take all their money "off the top" (from gross revenues) and the operators won't cooperate to improve the situation. The role of the economy
Clearly, bad economic times create a lot more friction between hotel owners and operators. When everyone is making lots of money, most people don't feel desperate to correct every wrong. When hotel operations hit the skids, and owners have to write checks to keep the doors open, they want fast and responsive cooperation on critical issues.
Our current economic "recovery" is one of the slowest in history. Recovery in the hotel industry has been very uneven depending on the hotel's location, property type, market and other factors. Where hotels are performing better, friction between hotel owners and operators tends to ease. But for many, the improvement is neither big enough nor fast enough to quell the owner's dissatisfaction over operator shortcomings. As a result, we see the trend of hotel management agreement disputes continuing and increasing for quite a while.
Operator as fiduciary
Some owner-operator lawsuits pivot on the fiduciary responsibility of the operator. This is an important legal concept for hotel owners to grasp. Jason Freed's article included a sidebar I wrote on this very topic and I will share it with you in my next blog post.
You will find a lot more valuable information related to this topic on the Hotel Law Blog under the topic "Hotel Management and Franchise agreements", including a classic article on the 5 biggest mistakes a hotel owner can make.
JMBM's Global Hospitality Group® provides business and legal advice to hotel owners, developers and investors, based on practical experience gained from more than $71 billion of hotel transactions, 1,000 hotel management agreements, 1,000 franchise agreements, and 3,800 properties worldwide. The Chinese Investment Group™ within the practice is a dedicated team of hotel and real estate lawyers that provide a gateway for Chinese investment in the United States. The Group and its network of reliable professional resources help Chinese investors identify, analyze, evaluate, validate, acquire, finance and manage hotel and real estate opportunities. We have closed more than $1.5 billion of EB-5 financing for our developer clients and sourced more than half of that.