GUEST OR TRESPASSER?
While terms and conditions restricting gym members from bringing in guests are legally enforceable in general, the question is whether someone is a guest or an unwelcome trespasser, said Mr Jonathan Tan, senior legal associate of Wither KhattarWong’s dispute resolution team.
If the person has trespassed or is a tailgater unknown to the member, it is difficult to agree that members should have a legal obligation to prevent such people from entering the gym premises, Mr Tan added.
“This is tantamount to expecting gym members to be a security guard for the gym. We also have to consider the safety risk to gym members if they are expected to confront the trespasser or tailgater.”
Mr Mark Teng, executive director of That.Legal LLC, said such contractual terms “should not be drafted just to protect one party” or it will become “a recipe for unhappiness down the road”.
He noted that this will happen when – rather than if – the other party finds out they agreed to something they felt was not right.
Mr Nicolas Tang, managing director of Farallon Law, said the legal enforceability of such terms and conditions also depends on whether they are in the membership contract, or are merely imposed on members after they join the club.
Alan was referred to Anytime Fitness’ membership policies when he disputed his tailgating fee. These terms would not be enforceable against him if he did not sign the policies or they did not form part of the membership contract, Mr Tang added.
NOT MEMBERS’ RESPONSIBILITY TO DETER TAILGATING
All three lawyers agreed that under the gym chain’s terms and conditions, it can only justly impose a tailgating fee if Alan intentionally allowed someone to enter using his key fob.
Mr Teng said it appeared that the gym member could legitimately argue that he neither brought the tailgater in nor allowed anyone else to use his key.
“Nowhere in the terms does it say in so many words that it is Alan’s responsibility to ensure that no other person should be permitted to tailgate him. If these terms were provided for, then a ‘tailgating fee’ might then have been justified,” Mr Teng pointed out.
“Perhaps, from a customer relations standpoint, it would have been better if Anytime Fitness had sought Alan’s input first before imposing the ‘tailgating fee’ blindly.
“From a legal agreement drafting perspective, Anytime Fitness could have been more customer-centric with its policies,” Mr Teng added.
Mr Tan said the tailgating fee imposed by Anytime Fitness is unlikely to be legally enforceable if it was not stipulated in any relevant contractual documents. Penalty clauses in contracts – which are clauses that disproportionately punish a breach of contract – are generally not enforceable in Singapore either.
He noted that if a court had to rule on this issue, it likely has to consider some factors like whether the relevant terms of the contract are unfair to the gym member – including whether the Unfair Contract Terms Act 1977 applies.
This legislation primarily protects consumers who may suffer prejudice by virtue of their weaker bargaining positions.
A court would also consider whether the gym has a duty or obligation to protect the security or integrity of its premises, like installing a turnstile at the entrance.
“If a gym wants to take a harsh position in relation to trespassers or tailgaters, and yet decides to adopt a certain business model (such as being open 24 hours without any attendants), then it might be reasonable to expect that the gym should take certain precautions to safeguard its own interests and the security of the gym premises and gym members,” Mr Tan added.
Another factor for a court to consider is whether such terms have been specifically agreed by or highlighted to the customer or member, Mr Tan said.
He raised the legal principle called the “red hand rule”, which states that an unfair or onerous clause must be brought fairly and reasonably to the attention of the other party before it can be enforced – for example, with a hand symbol printed in red ink pointing to an onerous term.
