You Do Need A Legitimate Non-Discriminatory Reason For Non-Renewing A Tenant
Frequently, landlords and managers have just enough information to be dangerous. One of the most dangerous statements in the business is the "I heard that under Colorado law I do not need a reason to non-renew a tenant". Is this a true statement? Yes, under Colorado landlord tenant law, you do not need a reason to non-renew a tenant. However, under federal and Colorado Fair Housing Laws, you may only non-renew tenants for legitimate non-discriminatory business reasons. While you don't need a reason to non-renew, landlords renew good tenants.
Landlords only non-renew bad tenants for specific reasons. Thus, while under Colorado Landlord-Tenant Law, you do not need to have a reason to win an eviction case or end the relationship with a tenant, you have reasons for non-renewing. If the Colorado Civil Rights Division comes knocking on your door with a discrimination complaint, you will have to provide these reasons for non-renewal. To avoid fair housing liability, your non-renewal reasons must be nondiscriminatory, i.e. based on a legitimate nondiscriminatory business reasons. Accordingly, every non-renewal decision should be thought through in advance to ensure that it is based upon a legitimate non-discriminatory business reason. If you fail to think through the situation and just fall back on the old "I don't need a reason" rationale because you just want a tenant out, you may have a difficult time responding to a discrimination complaint.
If you can't articulate the reasons at the time the notice of non-renewal goes out, how are you going to articulate them under pressure from the Colorado Civil Rights Division? Finally, your non-renewal decisions should be consistent. Even if your non-renewal decision is based on a legitimate business reason, you may still have a problem if you renewed other similarly situated tenants. Disparate treatment of similarly situated tenants is strong circumstantial evidence of discriminatory intent.
Posted On : 01/03/2013
Companion Animals of Guests
You run a no-pet community. Can the guest of a non-disabled tenant bring a a companion animal onto your property? Unfortunately, the law is not clear on this issue. Under fair housing laws, only disabled residents and prospects are entitled to make requests for reasonable accommodations. A guest is not a tenant, and therefore not entitled to a reasonable accommodation (an exception) to your no-pet policy. Landlords who do not want to allow the tenant's guest to bring a companion animal onto the property frequently cite this rule. Yes, this is a correct statement of the law. However, it is a shortsighted analysis. The fair housing act also provides that it is illegal to discriminate in connection with the leasing of a property because of the disability of any person associated with the tenant.
Thus, even though the guest is not entitled to a reasonable accommodation, the tenant would argue that the landlord is discriminating against the tenant (not allowing him to have certain types of guests) because of the disability of his guest. Again, no court has decided this issue, or at least published an opinion on this issue. However, if a landlord denied a tenant the right to have a guest because of the race or national origin of the guest, the landlord would be without dispute discriminating under fair housing laws. Thus, the better reasoned position is that you should allow tenants with disabled guests to bring their companion animals onto your community even if you are a no pet community. If the guest’s disability is not obvious or the need for the companion animal is not obvious, similar to a reasonable accommodation request, you can ask for appropriate documentation regarding the disability of the guest and the guest’s need for the companion animal.
Posted On : 12/19/2012
THS Comments on New Marijuana Law
With the approval of Amendment 64 by Colorado voters, Colorado has legalized the recreational use and possession of small amounts of marijuana. We have already received numerous inquiries as to how this will affect individual clients and landlord tenant relationships in Colorado. We are now comprehensively analyzing how the new law will affect you, leases, and your relationship with residents. We will publish our analysis to all Firm clients in the next month. Probably, in the Landlord News, the Firm's monthly newsletter. Remember that this new law is not yet in effect and until it is everything is the same.
If you have specific questions regarding our Crime and Drug Free Addendum and/or Lease that refers to Colorado Law regarding drugs please submit them to THS so that we can include them in our analysis of all of the nuances of the impact of this new law. The question of whether you can prohibit the smoking of pot on your property will be addressed in our analysis so you do not need to submit questions regarding this particular issue. But we will be happy to review and respond to all other questions you may have regarding the marijuana issue.
We will make sure that you receive all updates that we have on this issue. In the interim, we welcome and encourage submission of your specific questions regarding the legalization of marijuana in Colorado so that they may be included in our analysis. Feel free to use the Contact link on the website to submit your questions, or email Michael Gardner at firstname.lastname@example.org.
Posted On : 11/09/2012
Know Your Landscape
What? An attorney writing about landscaping? Not so fast. The landscape to which we refer is that of your relationship with your residents.
It is not uncommon for clients to promote new managers and/or hire new personnel. This “changing of the guard” usually prompts questions from these new employees regarding their rights and obligations to their residents. And, we will invariably refer them to their lease as a perfect starting point to understand these rights and obligations.
One of the most common questions asked relate to the laws regarding the landlord-tenant relationship. And while the laws may exist, they are limited in scope and leave much (if not most) of the landlord-tenant relationship to the individual parties. This then leaves you, as the landlord, free to define that relationship with an effective, comprehensive lease.
So, why is this important to know? Because the more educated you and your employees are regarding what your lease does and/or does not address, the better equipped you will be when residents come asking, when you call us for assistance, or more importantly, when you are expected to enforce that lease because someone has violated its terms.
Your lease is a critical component in your relationship with your tenants. At its most basic, without a lease you cannot collect rent. Without a lease in place, any payments received are not legally considered “rent” and your legal rights are at risk of being severely compromised.
Know everything you can about the most important document you work with as a manager/owner of rental properties. It will prove beneficial in many immeasurable ways.
Posted On : 10/17/2012
Effective Documentation Means Victory For The Landlord
All landlords can describe situations where they just knew a problem tenant situation was brewing, as the hours and days of effort to address the matter accumulated. Yet, when they look back at the tenant file, they see little (if any) documentation of their efforts to address the problem – a situation that may very well hamper their ability to obtain a positive resolution.
We realize that documentation takes time and energy, which can be in short supply for property managers tasked with handling all the issues that can arise in a multi-unit complex. Nonetheless, effective documentation means victory when a landlord is faced with the need to take legal action against a problem tenant.
Maintaining the correct documentation need not be vexing and time-consuming. Below are some examples of effective documentation that you can easily put into practice:
• First, procedurally, every communication sent should contain the date it was sent, how it was sent, and the writer’s name typed underneath his or her actual signature.
• Second, a copy of each signed communication should be saved to the tenant file.
• Lastly, each communication should substantively address the problem and the landlord’s position in a way that a third party with no background or information about the situation (like a judge) could understand exactly what was happening and what the landlord was doing about it.
Contact us if you have questions about what documentation is necessary to address a problem tenant matter, and how to ensure that documentation effectively protects your legal rights.
Posted On : 10/03/2012
Attorneys Fees Frequently Factor the Most in Landlord Tenant Litigation
Landlord tenant litigation often involves small sums of money. We are not saying $500 is chump change, but in litigation world it is not a significant amount. One of the reasons $500 is not considered to be a significant amount is because of attorney’s fees. Attorneys charge by the hour, and at today’s rates, $500 is less than three hours of an associate attorneys’ time. When you consider an attorneys’ hourly rate, and the amount of time it takes to litigate a landlord tenant matter, attorneys’ fees almost always exceed the amount in controversy. The type of landlord tenant case has no bearing on this issue. Whether it is a security deposit dispute, a warranty of habitability claim, or an eviction case, attorneys’ fees almost always exceed the amount in controversy.
Attorneys’ fees have an even bigger impact in landlord tenant litigation because frequently the loser has to pay the other sides costs. So before you go all in the next time over that $500 your tenant owes, stop and ask yourself some questions. One, what are my fees going to be? Two, what are the risks that I’m going to have to both my attorney and the tenant’s? Obviously, if there is a substantial risk you might pay $5000 in attorneys fees over $500, you will need to adjust your strategy and settlement posture accordingly.
Posted On : 09/19/2012
Resident hoarding can cause significant health and safety problems, both in the hoarder’s unit and in neighboring units. Hoarding can create pest infestations, mold problems, increased fire risk, interfere with entrance or exit of the unit, or exceed maximum load bearing floor capacity. Hoarding is rarely self-reported by the hoarder. Instead, it is often discovered by maintenance staff making a repair in the hoarder’s unit, or in a neighboring unit. Hoarding can create a problem for surrounding units, such as water intrusion, mold, or a pest invasion in a neighboring unit.
Hoarding is not just a matter of poor housekeeping. Hoarding is believed to be a form of anxiety disorder and/or obsessive/compulsive disorder (OCD). Depression can also be a component. When dealing with a hoarding situation, the focus should be only on solving legitimate health and safety issues rather than attempting to achieve ideal housekeeping habits. Even if health and safety issues are initially resolved, a hoarding resident may “slip” and re-hoard again the future.
No two situations are alike. Each hoarding situation requires analysis based on the facts of the particular case. It is advisable to seek legal advice and call us before taking any action to terminate a tenancy if compulsive hoarding may be involved.
Posted On : 09/19/2012
Assessing Whether Tenant Threats Qualify For Eviction
One reason a landlord can serve a Notice to Quit for Substantial Violation is when a tenant’s conduct “endangers the person of another”. The short definition of a substantial violation is any act that occurs on or near the property and endangers either a person or property. Endangerment does not necessarily require actual physical harm. The threat of physical harm (whether it be verbal or by gesture) can sometimes be enough. For example, a tenant that genuinely makes a manager or other resident afraid for their safety has committed a statutory substantial violation and can be served with a 3-day Notice to Quit. If a tenant doesn’t cause physical harm and the manager, staff, or resident is not actually threatened; you can serve a notice to quit for a substantial violation but may not (probably will not) prevail in court if the tenant contests the eviction. Even if a tenant’s behavior is not sufficiently serious to satisfy the statutory requirement for a “substantial violation”, the behavior may meet your lease requirements if you have crime free language (addendum in most cases), and almost always will support serving a three-day demand for compliance or possession. Any unlawful behavior is a violation of most leases and most unlawful behavior (and police response to it) represents an unreasonable disturbance of neighbors.
Posted On : 09/06/2012
Collecting Money After You Take Over
After running a property for several years, it’s easy to know if a tenant owes you money. However, often the situation is not as clear when you take over a property. You aren’t familiar with the prior management company or owner’s lease documents, so this may result in incorrect SODAs, overcharges and other problems. In addition, if the tenant fights any collection lawsuit, you have to be prepared to prove your case. After taking over a property, this may be difficult. Specifically, many of the key witness may be gone or moved on to other properties or even left the city. The bottom line - after you’ve taken over a property, you should carefully examine every file that you are turning over for collection for potential problems.
Posted On : 08/29/2012
Service Animal Behavior
Just because the tenant is disabled and is housing a service animal does not necessarily excuse the animal from abiding by normal behavioral rules. There may be situations where the tenant's disability prevents the tenant from causing the dog to behave well (a blind tenant cannot pick up after the dog - a deaf tenant may not be able to hear the dog barking) and reasonable accommodations may have to be made. However, absent those types of accommodations, a service animal can be fully expected to comply with normal pet rules at your property.
Posted On : 08/08/2012
Accepting Section 8 Tenants
Landlords are not legally obligated to accept tenants with section 8 vouchers. While the vouchers represent a guaranteed stream of income, there are a number of negative aspects to being in the program. Some of the notable negative aspects include a limitation on the amount of rent that can be charged, no governmental promise that the apartment will be safe from damage, severe limitations on being able to collect money owed and damages directly from the tenant, limitations on the ability to get out of the program once in, and government subsidized attorneys to fight with the landlord.
Posted On : 07/31/2012
Entry After a Tenant Death
After a tenant death, a landlord can only let authorized persons into the deceased tenant’s unit. If the landlord allows unauthorized persons to enter, the landlord is potentiallyliable for missing property. Proper authorization includes Letters Testamentary, a Small Estate Affidavit, a Power of Attorney, or the tenant’s lease identifies the person as an emergency contact (an important reason to always make sure that tenants provide emergency contacts and they are updated). In the case of an emergency contact, the lease must also specifically authorize the tenant’s emergency contact to obtain a key upon death. Because in many instances, a tenant’s next of kin won’t have proper authority as discussed here, you should always contact THS if you are not sure what to do.
Posted On : 07/26/2012
Don’t Limit Your Options-Promptly Evaluate And Respond To Tenant Security Deposit Demand Letters
Under Colorado landlord tenant law, the landlord has to account for a tenant's security deposit when the tenant moves out. In apartment world, landlord's accounting is commonly referred to as a SODA (statement of deposit account). If the tenant disagrees, a tenant has a right to dispute landlord's SODA and sue the landlord for three times the amount of the deposit (treble damages) that the tenant contends landlord wrongfully withheld. However, before a court will award a tenant treble damages in a security deposit lawsuit, the tenant has to give the landlord one last chance to return the deposit within seven days.
Tenants frequently send landlords seven day security deposit demand letters. Upon receipt of a tenant security deposit demand letter, landlords should immediately evaluate the landlord's legal options prior to the expiration of the seven-day demand. If a landlord fails to promptly evaluate options after receiving a tenant security deposit demand, the landlord has severely limited his options and given the tenant significantly more leverage in the dispute. Because liability for treble damages and attorneys fees kicks in after the expiration of the seven-day demand letter, difficult tenants can now hold the landlord's feet to the fire for three times the amount of the deposit.
Clients frequently forward tenant security deposit demand letters to us for review and evaluation. Unfortunately, all too often the letters are sent to us after the expiration of the seven-day demand.
Posted On : 07/04/2012
Photocopy of Military Identification Cards Is A No-No!
Federal regulations prohibit non-medical commercial establishments (which includes landlords) from photocopying military identification cards. The regulations are found in Title 18, Part 1, Chapter 33, Section 701 in the Federal Registry. The purpose of the regulation is to prevent the forgery of military identification cards. Some properties require the copying a photo ID for tenants and applicants. Since some military tenants and applicants use their military IDs as their photo IDs, occasionally the issue comes up where a landlord would like to make a photocopy of a Military ID. Regardless of the circumstances, copying a military ID is forbidden. However, there is nothing wrong with requiring that the applicant produce the military ID for inspection or that the landlord require an alternative photo ID to be copied if the landlord requires a copy of a photo ID.
Posted On : 04/23/2012
Eviction Confusion Can Cost Time & Money
Evictions are not always cut and dry. Almost every eviction has to be supported by either a contractual or statutory notices. Unfortunately, failure to analyze when and what type of notice needs to be served can cost you time and money. For example, if you are required to give a thirty-day notice, serving a defective notice will cost you an additional thirty days at minimum. If you have extremely bad timing, serving an arguably defective thirty-day notice may cost you nearly ninety days. Just like poker, we can only play the hand you deal us. When clients come to us with problematic notices, clients have to choose between two less than ideal alternatives. Clients can decide to risk going all in on a problematic notice, or clients can take the safest route and reserve an air-tight notice. Going all in on a problematic notice means getting the tenant out much quicker if you win, but it also means the tenant gets much more time if you lose. If you lose, the tenant always gets more time than you would have given them by re-serving a questionable notice. Fortunately, THS clients don't have to be put between a rock and a hard place. All existing THS clients know that we are always available to evaluate eviction notices and scenarios for existing clients at no charge.
Posted On : 04/23/2012
Being Nice Can Cost You Money
Trying to be a nice person AND a landlord is not always the best policy. A problem normally arises when the nice person part of you convinces the landlord part of you to give a tenant a break and not collect late fees or eviction attorney fees when the tenant comes in to deliver their rent. Often times the practical part of you says why not take the rent money when it’s the majority of the balance . . . I can always collect the late fees and attorney fees later or keep more of their deposit when they move out.
Unfortunately, there is a legal doctrine called waiver that can really mess with your plans to collect these extra fees later. Waiver is defined in legalese as a knowing relinquishment of a right. What it means to you is that when you have a right under your lease to collect late fees and attorney fees, but do not enforce these provisions throughout, you may have waived your right to collect these charges. Letting a large balance of fees accrue throughout the tenancy or adding a large amount of unpaid fees to the ledger at the end of the tenancy are common indicators of waiver by the landlord.
Posted On : 03/06/2012
Who Let The Dogs Out?
(Handling Assistance Animal Requests In An HOA)
Some communities have covenants or other rules that ban all pets or certain types of animals, breeds, or animals over a certain weight. Yet, many disabled homeowners or residents ask for exceptions to such covenants, rules, or policies, stating that they need an animal, not as a pet, but, rather, as an assistance animal. All too often, these requests are for "companion animals." Such requests are for a reasonable accommodation under federal and state Fair Housing laws.
This Fair Housing Focus examines what an association and/or community manager's responsibilities are for responding to reasonable accommodation requests for assistance animals. Using the U.S. Department of Justice ("DOJ") and U.S. Department of Housing and Urban Development's ("HUD") Joint Guidelines on reasonable accommodations, this article will explain how to respond to any request for an assistance animal.
First off, an association and its management company must respond to all requests for reasonable accommodations and/or modifications. Saying "no" right out of the gate to such a request is the wrong move. The HUD/DOJ Guidelines require associations to engage in an interactive dialogue with any homeowner or resident concerning a request for a reasonable accommodation or modification. The same is true for any request concerning an assistance animal. A request for an assistance animal is often a request for an exception to either a no-pet, breed-restriction, or animal weigh-restriction rule. Such a request requires the proper evaluation and response.
Posted On : 03/06/2012
One Difficulty In Collecting HOA Assessments
When a homeowner stops paying assessments, the next logical step is sending the balance to collections. But what happens to collection efforts if the homeowner resides out of state?
When a homeowner lives outside of Colorado, continuing collection efforts can become expensive and complicated. Some states allow out-of-state collectors to make phone calls and send letters, but many do not. But phone calls and letters are often less effective than collecting using legal means such as garnishments after judgment.
Unfortunately, judgments issued by a Colorado Court can only garnish money or lien property contained within the borders of this state. Other states must recognize Colorado judgments, but a Colorado judgment is not valid in another state until it is filed with that state’s court and made into an order through a process called domestication. Also, the legal collection tools available to attorneys vary by state. We are lucky in Colorado to be able to garnish wages, garnish bank accounts, lien real property, and even execute against non-exempt personal property. Many other states severely limit legal collection efforts. For example, in Texas, attorneys cannot garnish wages. An attorney in Texas can garnish bank accounts, but the bank can charge up to $1500 to process the garnishment.
Unfortunately, you cannot stop a purchase in your community by an out-of-state resident. However, knowing your collection limitations can prevent you from incurring unnecessary fees proceeding with futile collection efforts.
Posted On : 03/06/2012
The Confusion Of Normal Wear And Tear
Normal wear and tear is an illusive concept. One person’s wear and tear is another person’s damage. Colorado statute defines normal wear and tear as “deterioration which occurs, based upon the use for which the rental unit is intended, without negligence, carelessness, accident, or abuse of the premises or equipment or chattels by the tenant or members of his household, or their invitees or guests.” Unfortunately, the statute does very little to clarify a landlord’s dilemma, and there is very little case law interpreting this definition. So if there is no hard and fast rule, how can a landlord avoid court challenges and tenant disputes about normal wear and tear?
The best way to make sure that both the landlord and the tenant know what constitutes normal wear and tear is to define the concept as specifically as reasonable in a lease clause or a charge list addendum.
Posted On : 03/06/2012
Drop-Box Thefts—Whose Money Was Taken
Thieves steal rent from rent drop boxes. When they do, clients call us with a host of questions. Did the resident pay their rent by depositing it into the drop box? Can I post the resident with a demand for rent or possession if the resident does not replace the stolen money order? Who bears the risk of loss for money orders stolen from the community’s drop box? Should I address this issue in my lease? If I can’t post the resident for non-payment of rent, do I have any other legal rights to recover the stolen rent?
When rent is stolen from a drop box, some managers argue that the resident hasn’t paid the rent because the manager never received it. Unfortunately, the law does not support this position. Residents pay rent with checks or money orders. Checks and money orders are negotiable instruments. A resident delivers the rent (check/money order) when they voluntarily transfer possession to you by placing it in your drop box. Simultaneously, you receive delivery of the check when it comes into your possession, i.e. when it is placed in your drop box. The commentary to the law specifically states that a negotiable instrument is delivered “when it is put into the payee's mailbox.” In our experience, almost every judge will hold that a resident has delivered and paid the rent when they place the payment in the drop box.
Posted On : 03/06/2012