HOTEL BUSINESS REVIEW
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Hotels and Residences: Considerations for Living Together

By Wendy Hansen Counsel, Eversheds Sutherland | March 2024

While there has been a long history of permanent residents living in hotels and even residential apartments within hotels, in the late 1990s, a new trend among hotel operators began to take off - the concept of branded residences. Branded residences are for-sale residential units (as opposed to serviced rental units) that are licensed under a trademark and typically managed by the associated brand. Until relatively recently, the branded residences would almost always be adjacent to, or integrated with, a hotel operated under the same brand name. (Brand operators now also have standalone residential projects, which are not co-located with a hotel. This product line is not the subject of this article.)

Today, almost every new luxury hotel development includes a branded residential component. (While most branded residences are in the luxury category, they are pushing down the chain scale and into upper upscale.) Why are branded residences so popular? There are multiple factors at play. For city locations, urban planning encourages higher density and multi-use developments. Having a residential component with permanent residents creates a level of activity and life around a project that is desirable. From the developer's perspective, branded residences are known to sell at a premium over non-branded residences. In addition, for-sale residences can be an important component to financing the overall project as proceeds from the sales help pay down the construction loan upon completion.

The brands are enthusiastic about residential not only for the additional revenue stream it creates in licensing and management fees but also for the additional consumer touchpoints. Consumers, for their part, appreciate the extended services, including such amenities as in-room dining and spa, as well as the sense of community - with the brand becoming a part of their identity and broader lifestyle. (The proposition of a brand as a lifestyle is perhaps best illustrated by the entry of some luxury and lifestyle brands outside of the hotel industry into the hotel and/or residential space, for example, Nobu Hotels and Residences and Aston Martin Residences.) In resort locations, the residential units often have an opportunity to participate in a rental program, giving the hotel additional product and residential owners the ability to generate income when they are not using the unit.

Given the prevalence of branded residences in many new hotel developments, this article will highlight some legal considerations of such mixed-use throughout the lifecycle of a project - initial development, ongoing operations, and termination.

I. Development - Establishing the Legal Relationship Between the Components

There is no single legal structure that defines the relationship between the residences and the hotel. It will depend on multiple factors, including jurisdictional requirements and physical aspects of the project. The hotel and residences may be part of a condominium or strata structure, or there may be a Reciprocal Easement Agreement (REA) that sets out the hotel owner's and residential owners' rights to use portions of the real property. Depending on the jurisdiction, there may or may not be a formal homeowners association that represents the residence owners' interest in the project.

Many projects designate common areas and facilities, such as shared lobbies, parking garages and central plant equipment, as jointly owned by the hotel and residences, with costs allocated to each user. Alternatively, some projects designate the hotel as owner of such areas and facilities - based on the rationale that the hotel should have greater control over the spaces to ensure they are maintained to a standard consistent with the brand and quality of the hotel - and a portion of the maintenance costs are then charged back to the residence owners. This later structure, however, has come under legal scrutiny. (See IconBrickell Condominium No. Three Association, Inc., et al. v. New Media Consulting, LLC, 310 So. 3rd 477, (Fla. App. 3 Dist. 2020); Central Carillon Beach Condominium Associating, Inc. et al. v. Carillon Hotel, LLC and Z Capital Partners, No. 2016-011172-CA-01 (Fla. 11th Cir. Ct. Jan. 30, 2023).

The legal documents governing the structure of the project are complex, and it is important to consider carefully where maintenance obligations rest, when approvals are required, and how costs are allocated. Certainly, the brand will look for adequate rights of the hotel owner to maintain the overall project to a standard consistent with their brand. The developer will look to manage common area assessments so that residential ownership costs are competitive in the market. In some instances, the developer may even agree to subsidize common charges in the first year to make pricing more attractive.

The hotel owner and hotel manager will also want to understand what legal rights the residence owners will have to use the hotel. In some projects, the residence owners' rights to use the hotel - for example, use of the hotel pool - are granted in the condominium declaration or REA and run with the land. In other projects, portions of the hotel are made available through amenity agreements, which are contractual arrangements that can be more easily modified or terminated.

Typically, the residences will be managed by the same entity that manages the hotel or its affiliate. Management is also typically pursuant to a property management agreement that is separate from the hotel management agreement. However, sometimes the management services are provided by the hotel owner, who then delegates them to the hotel manager. The scope of the base property management services may vary for different reasons. In some jurisdictions, a special license may be required to operate the homeowners association or some other aspect of the property that the brand manager is unable to obtain. Other services may be offered à la carte, which helps to manage common charges. The residences may have their own dedicated staff, or the hotel staff may provide services to the residences.

Setting up the legal framework at the outset of the project is critical for the proper operation of the project upon opening. However, it is also essential (and legally required) to clearly disclose the framework to potential purchasers of the residences as well as the material terms of the branding and management. Brand managers underscore these disclosure requirements by requiring each purchaser to sign an acknowledgment that the purchaser understands the terms of the licensing and the risk that branding and management may terminate at any time.

2. Operations - Common Issues that Arise

By and large the most common issue that arises between branded residences and a hotel in a mixed-use development relates to assessments. Relative to unbranded residences, common area charges and assessments at a branded property are high due to elevated service offerings. Over time, residents may no longer want a full-service offering or seek a lower staffing ratio. The brand, however, will want to maintain its standards and a consistent product across its portfolio. Disputes over expenses may also be complicated by allocations, which may see charges divided equally between the hotel and residences, based on square footage or according to approximate use. If residential owners do not feel the manager is delivering on the brand promise or perceive allocations as unfair, tempers can flair.

Other challenges include meeting service expectations and addressing complaints of the residence owners, who often take a proprietary view of both the hotel and the staff. Occasionally, a residential owner or a real estate agent will inappropriately use the brand trademarks or logo and will receive a reminder of the residence owner's limited rights from the brand. Typically, only the building is permitted to display the trademark or brand logo; residence owners can only refer to the name of the brand in reference to the location of their unit and cannot use the trademark or logo.

3. Termination - What Happens When One Party or the Other Decides to Part Ways?

There are many scenarios under which the branding and management of the Residences may terminate. Of course, the residential agreements may expire at the end of their term. However, there are other circumstances that may give rise to an earlier termination. From the brand side, while the terms of the agreements will always vary, it is not uncommon for the residences manager to have a right to terminate the residential agreements in the event the hotel management agreements terminate, which could happen (1) upon sale of the hotel, (2) due to poor hotel performance, or (3) following an event of default by either the hotel owner or the hotel manager. (Hotel management agreements typically do not terminate if residences branding or management terminates.)

In some cases, the termination of the residential agreements may occur automatically upon termination of the hotel agreements, but sometimes termination may be at the option of the manager. Increasingly, hotel brands are building out their standalone residences business, and the brand may wish to continue operating the residences, even if it is no longer operating the hotel. On the flip side, of course, the incoming hotel manager may not be pleased to have a competing brand managing the residences, especially if the project is highly integrated.

If the branding derives from a management and/or license agreement with the residential manager, the residential owners would certainly have a right to terminate following an event of default by the residential manager. In some jurisdictions, there are also statutory rights for the residential owners to terminate property management agreements, which statutes may provide a right to terminate after one year or at any time upon 60 days' notice. A few jurisdictions impose maximum term lengths. As a result, the residential agreements may have shorter terms than the hotel management agreements, or they may be styled with a longer term but contain periodic termination rights (e.g., every five years) to comply with local law.

Upon termination, the logos and marks of the brand will be removed from the residential building together with any operating supplies or equipment that contain the same. The license agreement may also explicitly require that the building make no further reference to the property as a brand property or even as a former brand property. Provided that the nature of the branding rights and the associated loss upon termination has been adequately disclosed - for example, in the offering plan as required by law and individual purchaser acknowledgments typically required by the brand - the residential owners will not have any valid claims against the brand or hotel owner for loss of the branding.

However, there is at least one case where purchasers of residences were able to rescind their purchase agreements where the developer failed to adequately disclose the relationship with the brand. (See Nahigian v. Juno-Loudoun, LLC, 677 F.3d 579 (4th Cir. 2012). Thus, it is very important that the developer engage experienced counsel to ensure these disclosure requirements have been met at the outset of the project.

Conclusion

Branded residences are likely to remain a popular concept given the appeal to each stakeholder - consumers, developers and brands. When part of a mixed-use development, they are not simple structures to create, and due care must be given to establishing a proper legal framework, disclosing the nature and material terms of the relationship with the brand, allocating costs appropriately, and providing for an appropriate unwinding of the relationships if necessary. Engaging experienced counsel can help a developer and the brand navigate the process at the outset, avoiding potential issues during operation and delivering the brand promise.

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In the event that you have chosen to have your membership automatically rebilled, unless and until you notify HotelExecutive that you wish to cancel or terminate your membership to HotelExecutive, you hereby agree and authorize HotelExecutive's Internet Payment Service Provider to automatically renew your membership to HotelExecutive on a continuing basis and to charge your credit card (or other payment means you have selected) to pay for the ongoing cost of your membership. You hereby further authorize HotelExecutive's Internet Payment Service Provider to charge your credit card (or other approved payment means you have selected) for any and all purchases of products, services and entertainment provided to in, at, through or in association with HotelExecutive.

13. PRIVACY POLICY

The following is the Privacy Policy for HotelExecutive

We can be reached via telephone, email, or online at our contact page. When you visit our site we do not log any information regarding your domain or email address. Information Sharing: We do not share user information with any third parties other than via press release distribution as described below.

Hotel Newswire is a newswire service that distributes press releases on behalf of our users. If you decide to submit a press release for distribution through our system we will transmit your entire press release including any personal information therein contained to our media contacts and online distribution points including search engines. This is the only redistribution of your information that we engage in. Your submission of press releases through our system indicates consent with this policy. The information we collect during your registration process is used to notify users about updates to our service and inform users of any special events hosted by Hotel Newswire. This information is not shared with other organizations for commercial or non-commercial purposes.

Cookies: Our system requires the use of cookies to enable the user to log back into our website to access information from the newswire, without having to log in each time using the required username and password.

If you do not want to receive email from us in the future, please let us know by following instructions included in our communication with you. Users who supply us with telephone numbers online may receive telephone contact from us regarding their account, or informing them of new products and services available on the HotelExecutive website. If you do not wish to receive such telephone calls, please edit your account and remove your phone number from your account profile. This can be done from your user account menu.

Ad Servers: We do not partner with or have any relationship with any ad server companies. From time to time, we may use customer information for new uses not previously disclosed in our privacy notice. If our information practices change at any time, we will post the policy changes to our website to notify you of these changes and provide you with the ability to opt out of these new uses. If you are concerned about how your information is used, you should check back at our website periodically.

Upon request we provide site visitors with access to all information (including proprietary information) that we maintain about them. Users can access this information by logging in to their account.

Security: We always use industry-standard encryption technologies while transferring and receiving user data exchanged with our site. We have appropriate security measures in place in our physical facilities to protect against the loss, misuse, or alteration of information that we have collected from you on our site. We do not store credit card information in our systems.

If you feel that this site is not following its stated information policy, you may contact us.

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