2014 LEGAL HANDBOOK This Legal Handbook is an overview of Colorado Landlord/Tenant Law. It is the copyrighted property of the Colorado Apartment Association (CAA) and the local associations listed below. It may not be reprinted or copied without the prior written permission of the Colorado Apartment Association.
Apartment Association of Metro Denver 7100 E. Belleview Ave., Ste. 305 Greenwood Village, CO 80111
Northern Colorado Rental Housing Association P.O. Box 1075 Ft. Collins, CO 80522
Apartment Association of Southern Colorado 2790 N. Academy Blvd., Ste. 227 Colorado Springs, CO 80917
Weld County Apartment Association P.O. Box 1418 Greeley, CO 80632
This handbook is the summary of the relevant law and is not intended to replace the advice of a property owner or managerâ€™s attorney or other professional advisor. The statutes which appear in the handbook are copyrighted by and reprinted with the permission of West Group Publishing. We are grateful for their permission. The Colorado Apartment Association would like to thank the author of the 2014 Legal Handbook:
Andrew C. Hamrick Tschetter Hamrick Sulzer, P.C. 3600 S. Yosemite, Ste. 828 Denver, CO 80237 (303) 699-3484 www.thslawfirm.com
Colorado Apartment Association
7100 E. Belleview Ave., Suite 305 • Greenwood Village, CO 80111 • (303) 329-3300
TABLE OF CONTENTS
3 ÂŠ2014 Colorado Apartment Association. No part of this document may be reprinted or copied without prior written permission of the Colorado Apartment Association.
CREDIT AND CRIMINAL SCREENING To a large extent the successful operation and management of a residential rental property depends upon effective tenant screening. Effective screening can be time consuming and expensive. However, it is far less time consuming and expensive than forcibly removing the tenant once the tenant has possession of the unit. Screening procedures have great potential for impact on fair housing claims. By definition, the process of screening is to eliminate some prospective tenants so that others can be accepted. Therefore, the landlord must be very careful that none of the landlord’s criteria is based on any of the protected classifications under federal, state or local fair housing laws. There is always the reasonable possibility that the landlord will, at some point, be forced to attempt to prove that the landlord’s decision not to rent to a prospective tenant was not a form of discrimination. Therefore, the landlord’s criteria and screening process should be detailed and reduced to writing so it can be proven. A landlord has the right to inquire into a prospective tenant’s ability to meet the financial obligations required by the lease, not disturb or endanger the landlord, other tenants or those in the surrounding community and not damage the landlord’s property. If criteria are established in an attempt to determine these factors and the criteria is not unequally applied, the landlord’s screening policy should be found to be fair and legal. In an attempt both to reduce the liability associated with tenant screening and also to defer the practice to an organization with some expertise, many landlords turn this function over to some third-party provider under a service contract. This may be a cost effective strategy. However, it does defer much of the landlord’s discretion to a third party.
FAIR CREDIT REPORTING ACT A landlord’s screening process may include requesting a credit report from a credit reporting Agency. If so, the landlord must be careful to obtain a written authorization from the prospective tenant and to follow the procedures and notice requirements of the Federal Fair Debt Reporting Act as modified by The Fair Credit Reporting Act. The landlord’s criteria for analyzing such reports should be specific and quantifiable. While it’s true the landlord may simply know a bad credit report when the landlord sees it, this standard will provide little defense to a claim of discrimination.
USING CONSUMER REPORTS Landlords may use consumer reports to evaluate rental applications - as long as they follow the provisions of the Fair Credit Reporting Act (FCRA). FCRA was designed to protect the privacy of consumer report information and to guarantee that the information supplied by consumer reporting agencies (Agencies) is as accurate as possible. FCRA requires landlords who deny a lease based on information in the applicant's consumer report to provide the applicant with an "adverse action notice."
DEFINITION OF A CONSUMER REPORT A consumer report contains information about a person's credit characteristics, character, general reputation, and lifestyle. A report also may include information about someone's rental history, such as information from previous landlords or from public records like court or eviction files. To be covered by FCRA, a report must be prepared by an Agency - a business that assembles such reports for other businesses. The most common type of Agency is the credit bureau. Landlords often use consumer reports to help them evaluate rental applications. These reports include: •
A credit report from a credit bureau, such as Trans Union, Experian, and Equifax or an affiliate company;
A report from a tenant-screening service that describes the applicant's rental history based on reports from previous landlords or court records;
A report from a tenant-screening service that describes the applicant's rental history, and also includes a credit report the service got from a credit bureau;
A report from a tenant-screening service that is limited to a credit report the service got from a credit bureau; and
A report from a reference-checking service that contacts previous landlords or other parties listed on the rental application on behalf of the rental property owner.
Landlords often ask applicants to give personal, employment and previous landlord references on their rental applications. Whether verifying such references is covered by FCRA depends on who does the verification. A reference verified by the landlord's employee is not covered by the Act; a reference verified by an Agency hired by the landlord to do the verification is covered.
DEFINITION OF AN ADVERSE ACTION An adverse action is any action by a landlord that is unfavorable to the interests of a rental applicant. Common adverse actions by landlords include: •
Denying the application;
Requiring a co-signer on the lease;
Requiring a deposit that would not be required for another applicant;
Requiring a larger deposit than might be required for another applicant; and
Raising the rent to a higher amount than for another applicant.
THE CONTENT OF THE ADVERSE ACTION NOTICE When an adverse action is taken that is based solely or partly on information in a consumer report, FCRA requires a landlord to provide a notice of the adverse action to the consumer. The notice must include: •
the name, address and telephone number of the Agency that supplied the consumer report, including a toll-free telephone number for Agencies that maintain files nationwide;
a statement that the Agency that supplied the report did not make the decision to take the adverse action and cannot give the specific reasons for it; and
a notice of the individual's right to dispute the accuracy or completeness of any information the Agency furnished, and the consumer's right to a free report from the Agency upon request within 60 days.
Disclosure of this information is important because some consumer reports contain errors. The adverse action notice is required even if information in the consumer report was not the main reason for the denial, the increase in security deposit or rent or other adverse action. In fact, even if the information in the report plays only a small part in the overall decision, the applicant still must be notified. The adverse action notice must name the Agency that provided the report to the landlord, even if the information came from another Agency. For example, a report from XYZ TenantScreen includes a credit report from ABC Credit Bureau. The credit report includes negative information that prompts the landlord to turn down the rental application. The adverse action notice should name XYZ TenantScreen as the Agency because XYZ TenantScreen actually
provided the report to the landlord. The notice also can explain that XYZ TenantScreen got the credit information from ABC Credit Bureau, but that is not required under FCRA. While oral adverse action notices are allowed, written notices provide proof of FCRA compliance.
NON-COMPLIANCE Landlords who fail to provide required disclosure notices face legal consequences. FCRA allows individuals to sue landlords for damages in federal court. A person who successfully sues is entitled to recover court costs and reasonable legal fees. The law also allows individuals to seek punitive damages for deliberate violations of FCRA. In addition, the Federal Trade Commission (FTC), other federal agencies and the states may sue landlords for non-compliance and collect civil penalties. However, a landlord who inadvertently fails to provide a required notice in an isolated case has legal protections, so long as the landlord can demonstrate "that at the time of the . . . violation he maintained reasonable procedures to assure compliance" with FCRA.
CRIMINAL BACKGROUND CHECKS Criminal background checks are also critical sources of information on applicants. Criminal background checks can be obtained either through third-party screening organizations or directly through the Colorado Bureau of Investigations. Criminal background checks are prudent for a number of reasons. As more and more landlords request these checks, a landlord who does not will tend to appear deficient in the landlordâ€™s attempt to protect other tenants from criminals. Under general negligence theories any alleged deficiency can by the basis for a claim of liability. Since the removal of many tenants will be based on behavioral reasons rather than monetary reasons, the background check provides the landlord with potential cost saving information as well. Additionally, many localities have enacted nuisance ordinances that either require the landlord to conduct criminal background checks or cause the landlord to lose the landlordâ€™s defenses to a nuisance abatement action if the landlord does not.
CRIMINAL SCREENING POLICIES Just as with the more traditional areas of screening standards, if a landlord is going to reject applicants based on criminal history, the landlord should have a specific policy on what is and is not acceptable criminal background. Otherwise, it may be difficult to defend a charge that the landlord is using a criminal history as an excuse for refusing to lease to minorities. When adopting a screening policy for criminal history, the landlord will be forced to try to articulate the difference between acceptable and unacceptable crime. A standard that simply
makes any criminal arrest or conviction grounds for denial of an application is too broad. Virtually everyone has some criminal history, even if it is just a traffic ticket. There are several variables to consider while trying to describe different levels of seriousness of criminal activity. The first one is length of time from the offense. A recent criminal violation is more of a concern than one from long ago. Consequently, providing a cut off date before which criminal activity will not be considered may be an appropriate element of the screening policy. A common cut-off date is 10 years. It is typical to differentiate between felonies and less serious misdemeanors or petty offenses. A landlord may also want to consider highlighting some specific crimes for harsher treatment. Some crimes may be very serious felonies, but not particularly relevant to a landlord’s assessment of the applicant’s risk. A bank robber may not pose any greater risk to his neighbors or the property than a non-criminal. Conversely, it is well documented that sex offenders have higher levels of repeat offenses then many other crimes. This might be an appropriate crime to treat more harshly than others. Criminal Policies often distinguish between convictions and arrests. Contrary to popular belief, a landlord is not required to limit leasing decisions only to convictions. An arrest without a conviction may not be legally relevant enough to be admitted as evidence in a court of law, but it may be very relevant in making a leasing decision. Where there is smoke, there is often fire. Just because the government has been unsuccessful in convicting someone does not necessarily mean that person did not commit the crime. The following is a criminal screening policy, as a starting point for consideration: Landlord may cause a criminal background check to be conducted upon all tenant applicants and other occupants. Any of the following may be the basis of rejection of an application: •
Any conviction, deferred adjudication, or unresolved charge of a felony which involved allegations of misconduct with a child or sexual misconduct.
Any conviction, deferred adjudication, or unresolved charge of any felony within the last 10 years.
Any combination of multiple arrests for felonies or misdemeanors within the last 5 years.
Any single arrest for a felony or misdemeanor within the last 2 years.
Landlord’s right to run a criminal background check is for the benefit of Landlord only. Landlord does not warrant that Landlord will conduct criminal background checks on any or all tenants and does not warrant that such background checks, if conducted, will reveal past criminal activity.
A landlord may desire a policy that is more or less strict. Remember, the more strict the policy, the more often the landlord will be obligated to enforce it and the more susceptible the landlord will therefore be to claims of unlawful discrimination. Regardless of what policy is adopted, the landlord should write the policy down to document it and then strictly abide by it. By adhering strictly to such a policy the landlord will treat minority criminals no more harshly than others and should be safe from adverse Fair Housing rulings.
LEASE DOCUMENTATION ASSIGNMENT AND SUBLEASES WRITTEN AGREEMENTS When a judge attempts to decide a contract dispute, including one that involves landlords and tenants, the judge generally attempts to ascertain the intention of the parties. There are some things that the law prohibits the parties from agreeing to or mandates the imposition of a particular responsibility upon the landlord or the tenant. A landlordâ€™s maintenance obligations under the Warranty of Habitability or the prohibition against contractual fines or penalties are good examples. However, by and large, a landlord and tenant are free to negotiate and agree to the terms of their transaction. Verbal lease agreements are perfectly acceptable in Colorado (provided they are not longer than one year). However, a landlord would be foolish to allow a tenant to occupy a property based on a verbal agreement for several reasons. First, the terms of the verbal agreement may not be understood in the same way by both parties, leading to disputes. Second, a landlord will have a difficult time proving the terms of the agreement, if called upon to do so. Third, and perhaps the biggest reason to have a written lease, a typical leaseâ€™s terms are much more advantageous to a landlord than would be the legal presumptions a court would make without a lease. All lease arrangements should be documented by a written lease. No tenant should ever be given keys to or possession of a rented unit unless the full lease package is first completely executed by all tenants.
MULTISTATE LEASES Landlord-tenant law is primarily a creature of state statute. It can vary greatly between one state and another. Consequently, leases acquired from various multistate sources like the Internet and office supply companies are typically very deficient documents and lead to unanticipated legal results. When using a multistate lease, an addendum to modify the lease for Colorado specific laws will almost certainly be required. The Colorado Apartment Association lease has been specifically drafted to comply with and take advantage of Colorado specific laws.
BASIC RULES OF CONTRACT INTERPRETATION There are numerous rules that a judge uses when interpreting or “constructing” a contract. Several of the rules frequently applied in landlord-tenant disputes are discussed below. One rule of construction is that handwritten comments have greater authority than their type written counterparts. Similarly, type-written words have greater authority than their preprinted counterparts. Consequently, extreme care must be taken in filling out all blanks in the lease and typing in additional provisions. Mistakes in these areas not only count, they take precedence over the rest of the lease contract. Another major rule of construction is that if the meaning of a contract is ambiguous, the meaning will be resolved in the way most favorable to the party that did not draft the contract. Since the landlord is usually the party found to have drafted the lease, ambiguities in the lease will be resolved in the tenant's favor. Therefore, the landlord must be very careful not to create ambiguities in lease documents. Ambiguities usually stem from one provision in the lease conflicting with another provision in the lease. These ambiguities that come from conflicting language can be reduced or avoided by not repeating oneself and not dealing with the same subject matter at different times and in different places in the lease.
LEASE ADDENDA One place an ambiguity based on conflicting language may arise is through the use of lease addenda. A lease addendum is a document that modifies the lease. An addendum can be useful to change a standard lease by adding a new lease term (until the next time the full body of the lease agreement is updated). It is also useful to document provisions that are unique to a particular unit but not to all units. Having a garage addendum for those few apartments with garages rather than having the garage provision within the terms of the basic lease can make a great deal of sense. However, many companies’ lease packages have grown overly large through the use of addenda. If an addendum is used with every lease package for an extended period of time, the landlord should seriously consider changing the main body of the lease to incorporate the terms of the addendum. This will reduce the chance of inconsistent language and ease the process of completing the lease package properly. Great care should be taken to use the defined terms contained within the lease agreement consistently whenever an addendum is used. If the landlord is referred to as “Agent\Owner” in the lease, the landlord should be referred to as “Agent\Owner” in the addendum. Typical defined terms in the lease agreement include the names of the parties, the leased premises, the
amount of rent, and the security deposits. Inconsistently defined terms between the documents cause ambiguities and unanticipated interpretations. An Addendum should always make clear that it is “attached to and made a part of” the underlying lease and not a separate agreement. Typically it is desirable to point out that to the extent there is a conflict between the terms of the addendum and the terms of the lease, the terms of the addendum take priority and control the dispute.
MISTAKES Mistakes happen. Since a judge’s primary rule in trying to interpret a contract is to ascertain the intent of the parties, if both parties agree that the document contains a mistake, the mistake will be ignored. However, when a mistake is in favor of a tenant, the tenant will rarely admit the mistake. Rather, the tenant will claim there was no mistake as far as the tenant is concerned. A mistake by the landlord but not the tenant, is a “unilateral” mistake and the contract will be enforced as written. Leases are important documents. They typically cover the required rent payment of more than $10,000.00 and may likely convey possession of a unit that may be worth more than $100,000.00. Consequently, document preparation mistakes are expensive. Mistakes in leases simply cannot be allowed to go unseen and uncorrected. Every office involved in completing leases must have a process whereby lease documentation is thoroughly reviewed and proofed. Having multiple people look at the document package before it is signed is always a good idea. When a mistake is found and corrected, with modern word processing systems, it is almost always foolish to do anything other than reprint the corrected document. When this is not possible, the mistake should never be obscured (as with white out). Rather, the mistake should be crossed through, the corrected term should be written close to the crossed out term and the correction should be initial by all parties. Modifying the contract by any other method opens the door for a tenant’s claim that correction of the document was made unilaterally by the landlord and without the tenant's consent or agreement.
ASSIGNMENT AND SUBLEASE An assignment of a lease occurs when the original tenant makes a leased property available to a replacement tenant and the replacement tenant signs documents or otherwise becomes directly obligated to the landlord for the obligations of the lease. Depending upon the agreement of the parties (including the landlord) an assignment may or may not include the release of the original tenant from liability. A sublease occurs when the original tenant makes a leased property available to a replacement tenant and the replacement tenant signs documents or otherwise becomes obligated only to the original tenant. The original tenant remains liable to the landlord, but the subtenant takes on no direct liability to the landlord.
LANDLORD CONSENT Absent a clause or provision in the lease to the contrary, the tenant may sublease or assign his interest in the leased property without the landlord's consent. However, most leases prohibit subletting or assignment of the lease without the landlord's permission. Similarly a landlord may sell or assign his ownership interest in the property without the knowledge or consent of the tenant. The new owner will be bound by the terms of the lease, if the new owner knew of the lease at the time of purchase or if the lease was recorded in the office of the county clerk and recorder.
NEW LEASE Most landlords choose to document replacement tenants with new leases, rather than with assignments of previous leases. This practice allows the landlord to maintain better records of the status of the property and keep track of which party the security deposit is owed. Regardless of how it is documented, the agreement should be signed by all tenants, old and new, and specifically address who has claim to the security deposit, who will no longer have rights to occupy the unit, and who will continue to be responsible for charges due under the lease.
MONTH-TO MONTH TENANCIES Most leases provide that, if the tenant holds over after the expiration of the lease, all the terms and conditions of the lease continue to apply on a month-to-month basis. Even if the lease does not contain this provision, a month-to-month tenancy is presumed by the law if payments are made monthly. Consequently, if it is acceptable to the landlord that the existing arrangement continue on a month-to-month basis, there is no need to execute a replacement lease. However, if the landlord desires to change the transaction (including raise the rent) or if the landlord desires to establish a new long-term relationship, the landlord and tenant must execute a new lease or other documentation to effectuate that change.
LANDLORD'S ENTRY RIGHTS COMMON LAW Historically there was a legal presumption that all rights of possession of a property were transferred to the tenant when a landlord leased that property to the tenant. Consequently, without a contrary agreement by the parties, a landlord retained no right to enter the property while it was leased. Some states have modified this historical legal presumption (or common law) by adopting a statutory framework describing when a landlord may or may not enter a leased property. These state statutes attempt to take on the difficult job of describing in detail the appropriate circumstances and notice for each landlord entry in that state. Colorado has no such statutory framework. One only needs to read the partiesâ€™ lease agreement to analyze a landlordâ€™s entry rights in Colorado. The landlord has no right of entry unless the lease provides for the right to enter. Conversely, there are no limits to the entry rights that can be retained by the landlord under the terms of a lease agreement. In some situations it may be desirable for a landlord to retain full use of the leased property at all times. Taking on a roommate or boarder is an example of a landlord/tenant relationship that would require a landlord to retain full possessory rights.
REASONABLE PURPOSES Even without retaining complete rights of entry, a landlord will typically wish to retain the right to enter a leased property during reasonable hours for various reasonable purposes. Those reasonable purposes typically include: making repairs, pest control, inspecting the property (both for determining whether repairs are necessary and also analyzing the tenantâ€™s compliance with the lease), showing the property (to prospective tenants, buyers, lenders, and government representatives), and cooperating with law enforcement officials. Most landlords find it desirable to have the right to allow law enforcement representative to enter the apartment without having to insist on the production of a warrant or other court order.
PRIOR NOTICE Many tenants mistakenly believe that they are entitled (by law) to prior notice before a landlord may enter. They recite various periods of time (typically 24, 48, or 72 hours) for the required prior notice. Some leases may create an obligation to give prior notice. However, the requirement to give prior notice does not exist unless the parties’ lease agreement creates the obligation. Whether a landlord agrees to give prior notice of entry in the lease is largely a business decision. Undoubtedly there are some tenants who would refuse to lease an apartment without greater rights of privacy. However, situations where the tenant is breaching the lease and hiding the breach from the landlord (unauthorized occupants and pets, commercial operations and unlawful activity), refusing to cooperate with landlord's attempts to make repairs, or causing damage to the leased premises can be impossible to manage without the right to enter without prior notice to the tenant.
CAA LEASE PROVISION The CAA Lease provision dealing with entry gives broad rights to the landlord to enter without prior notice as follows: If Resident or any guest or occupant is present, then Resident shall allow repairers, servicers, or Landlord’s representatives to peacefully enter the Apartment at reasonable times for the purposes listed in (2) below. If nobody is in the Apartment, then repairers, servicers, or Landlord’s representatives may enter peacefully and at reasonable times by duplicate or master key (or by breaking a window or other means if locks have been changed in violation of this Lease Contract) if: (1) written notice of the entry is left in a conspicuous place in the Apartment immediately after the entry; and (2) entry is for: any reasonable business purpose including, responding to Resident’s request; repairs; estimating repair or refurbishing costs; pest control; preventative maintenance; filter changes; testing or replacing smoke-detector batteries; retrieving tools or appliances; preventing waste of utilities; delivering, installing, reconnecting, or replacing appliances, furniture, equipment, or security devices; removing or rekeying unauthorized security devices; stopping excessive noise or other disturbances; removing health or safety hazards (including hazardous materials); retrieving property owned or leased by former residents; inspections; entry by a law-enforcement officer with or without a search or arrest warrant or in hot pursuit; showing the Apartment to prospective Residents (after move-out or vacate notice has been given); or showing the Apartment to government inspectors, fire marshals, lenders, appraisers, prospective buyers, or insurance agents.
(CAA Lease Samples printed later in this book)
REFUSAL OF ENTRY If a tenant refuses to allow a landlord the entry rights granted to landlord in the lease (by changing the locks, threats, presence of animals, etc.) the landlord does not have the right to force his or her way into the apartment. Rather, the tenantâ€™s failure to provide entry is a breach of the lease and (like any other breach of the lease) requires the landlord to serve a Demand for Compliance or Possession, giving the tenant three days to cure the default (by ceasing to deny entry). If the problem continues after the three day cure period, the landlord is then free to initiate an eviction action, thereby gaining not only the right to enter, but full exclusive possession of the leased property.
WARRANTY OF HABITABILITY AND DUTY TO REPAIR COMMON LAW The starting place for any analysis of a landlord and tenant’s obligations regarding maintenance of a rented property is the common law. Common law is the law that existed before Colorado became a state (1876) and is presumed to still be in effect, except where modified by Colorado Statute. Common law includes many legal presumptions that were made about parties’ contractual relationships. Under common law, the tenant was presumed to have all responsibility for maintenance and repair of a rented property. This presumption logically flowed from another common law presumption that the landlord had no right to enter the property. The rented premises were presumed to be delivered in an “as is” condition. The tenant was obligated to return the premises in the same condition received, other than deterioration based on ordinary wear and tear. While the tenant was obligated to return the property in the condition received, there was no obligation to keep the property in any particular condition during the lease (only to fix it back up in time for the return).
LEASE OBLIGATIONS These common law obligations could be modified by the parties’ lease agreement. In recent times, most leases have made the tenant obligated for the cost of repairs associated with tenant misuse or neglect and have made the landlord obligated for the cost of maintenance associated with most other issues. The contractual obligations of a landlord regarding maintenance are still enforceable even after the adoption of the Warranty of Habitability Act. A landlord can contractually promise to do more than the Warranty requires and those promises are legally enforceable. Consequently, any attempt to assess the landlord's responsibility for maintenance must include a review of the lease agreement. However, a lease agreement cannot provide that the landlord will do less than the statue requires. Since lease language concerning maintenance can only increase landlord responsibility, many leases purposely avoid discussing maintenance obligations at all.
WARRANTY OF HABITABILITY Colorado adopted a comprehensive Warranty of Habitability in 2008 (CRS 38-12-501 et. al). The Warranty effectively prohibits landlords and tenants from contractually agreeing that the tenant will be responsible for much of the maintenance associated with a rented premises. The statute mandates that the landlord will be responsible for certain maintenance obligations and prohibits or severely limits the ability of the lease contract to provide otherwise. Not all maintenance issues rise to the level of a Warranty of Habitability issue. In order for a tenant to demonstrate that the landlord has breached the Warranty of Habitability, a number of statutory elements must be met.
SERIOUSNESS OF THE CONDITION To trigger the application of the Warranty, the alleged condition must make the unit “unfit for human habitation” or “materially dangerous or hazardous to the tenant’s life, health or safety.” (CRS 38-12-503(2)(b)) A great deal of alleged maintenance deficiencies will not be serious enough to meet either of these strict standards.
ONLY SOME ITEMS ARE COVERED In addition to meeting the relatively steep standard associated with the seriousness of the condition, the alleged deficiency must be a condition specifically listed in 38-12-505, which includes the following: a) Waterproofing and weather protection of roof and exterior walls and unbroken doors and windows. b) Plumbing and gas maintained in good working order. c) Running water, reasonable amounts of hot water and fixtures connected to a sewage disposal system. d) Functioning heating facilities in good working order. e) Electrical lighting in good working order. f) Common areas kept reasonably clean and sanitary and an appropriate response to infestations. g) Appropriate extermination response to rodents or vermin in the premises.
h) Adequate number of garbage receptacles in good repair. i) Floors, stairways and railings in good repair. j) Locks on all exterior doors and opening exterior windows in good working order. k) Compliance with applicable local codes. Being on this statutory list of items that may be covered by the Warranty of Habitability is not enough. The condition must be on this list and also pass the “seriousness” test by making the premises unfit for human habitation or being materially dangerous or hazardous to the tenant’s life, health or safety. Noticeably missing from the list is any obligation to provide air conditioning.
WRITTEN NOTIFICATION The landlord must have received written notice of the condition (CRS 38-12-503(2)(c)). This is perhaps the landlord’s biggest protection found in the statute. Verbal notice is not sufficient. Claimed actual knowledge by the landlord or the assertion that the landlord reasonably should have known are legally irrelevant. Fictitious tenant claims of having given notice don’t satisfy the statutes requirement that the landlord “receive” the notice. The requirement of receipt of written notice greatly cuts down on the number of false claims for a breach of the Warranty of Habitability.
REASONABLE TIME TO CORRECT Before the deficient condition becomes a violation of the Warranty of Habitability, the landlord must fail to correct the condition within a reasonable amount of time. “Reasonable amount of time” is one of those loose legal standards that doesn't provide a great deal of guidance to a landlord as to precisely how quickly the landlord must respond. As always, when dealing with loosely defined concepts, one runs the risk that what might appear as “reasonable” to one person may seem unreasonable to another. However, the looseness of this terminology generally benefits a landlord more than a tenant. It allows a landlord to bring to a judge's attention the numerous practical problems and hurdles that have made a repair take more time than might seem typical.
NOT A GUARANTEE THAT THINGS WON’T BREAK The reasonable period of time to fix the problem mandated by the statute is another very important element of the Warranty of Habitability.
Nowhere in the Warranty (or most lease language dealing with maintenance obligations for that matter) does the landlord guarantee the tenant that things will not go wrong at the premises. Rather, the landlord's guarantee is to respond within a reasonable period of time when things do go wrong. A landlord's legal liability arises only after a reasonable period of time has come and gone with inaction by the landlord. Many tenants miss this fundamental point and wrongly believe the landlord is obligated to make sure things donâ€™t break. Many tenant claims for compensation have no legal merit because the claims are for damages incurred before that landlord had a reasonable period of time to respond.
TENANT REMEDIES If, following written notice of the problem, the landlord fails to fix it in a reasonable period of time, the problem is one on the statutory list, and the condition is materially dangerous or hazardous to the tenantâ€™s life, health or safety, the landlord has violated the Warranty of Habitability. When a landlord has violated the Warranty of Habitability, the tenant is given several possible remedies. Each remedy has different procedural requirements and some protections.
MOVING OUT The tenant is authorized to move out of the unit without being held responsible for any charges for the early termination of the lease, such as future rent or lease break fees. However, before the tenant exercises this remedy, the tenant must give the landlord a second written notice. This notice gives the landlord five days to fix the problem (a second cure period) and informs the landlord that, if not fixed, the tenant will move between 10 and 30 days from the notice.
INJUNCTION Injunctive relief is the process of a court ordering a party to accomplish a specific task rather than simply awarding monetary damages for the cost associated with the partyâ€™s failure to perform that task. It is an extremely rare remedy, not only under the Warranty of Habitability, but in all American law. Courts generally resolve legal disputes by having one party pay the other for the amount of damage they caused. Only when money cannot remedy the situation (a very rare occurrence indeed) does a civil court have the power to compel a person to physically do something or refrain from doing something.
In Colorado, only the District Court has jurisdiction to grant injunctive relief. Since very few landlord-tenant disputes are brought in District Court, injunctive relief is especially rare in a landlord/tenant dispute. In a case where the defendant is requesting injunctive relief, the landlord may insist on the court first determining the amount of monetary damages and giving the option to the landlord to pay those damages, rather than comply with any court ordered repair.
WITHHOLDING RENT AND REPAIR AND DEDUCT The statute does not allow tenants to make their own repairs to the property and deduct the cost of those repairs from the rent or to withhold rent as a remedy for a landlord's breach of the Warranty of Habitability. Provisions in the original act that would have given tenants these remedies were stricken by the state legislature, as the provisions did not have enough political support to be passed. However, there remains language in the statute that provides that if the tenant is going to use a Warranty of Habitability defense against a nonpayment of rent case â€“ the tenant must deposit the amount of rent (less any money spent repairing the alleged defect) with the court. Because of this requirement to deposit the money with the court, many courts allow a withholding of rents remedy as somehow implied by the statute. Provided the bond is paid, many courts will allow tenants to argue Warranty of Habitability defenses in a monetary eviction action.
FAIR RENTAL REDUCTION The statute gives the courts the authority (when appropriate) to adjust the rent down to a lower actual fair market value, based on the breach of the Warranty of Habitability. This is an extremely difficult measure of damages to predict because of the obvious ambiguity in trying to figure out what lower rental value is appropriate based on the defect.
LANDLORD DEFENSES The primary landlord defense to a Warranty of Habitability claim is that all the elements of a breach have not been met (written notice, reasonable period of time to cure, condition is materially dangerous or hazardous, and the condition is not on the statutory list). However, the statute also provides some other additional important defenses. A tenant cannot hold the landlord responsible for Warranty breaches that were caused by the tenant. Additionally the tenant can't prevent the landlord from curing the breach. This issue typically comes up in the relatively common situation where a tenant making complaints about the condition of the unit also refuses to grant entry to the landlord to fix the problem.
Only authorized residents can assert a breach of Warranty claim. The tenant can't claim a warranty of habitability defense to an eviction for nonmonetary reasons (tenant behavioral issues).
RETALIATION Historically, Colorado has not recognized any concept of retaliatory eviction. When a lease expires, a landlord is free to refuse to do business with the tenant - in the same way that a tenant is not obligated to sign a new lease and continue to do business with the landlord. A landlord's only legal obligation in refusing to do business with a tenant is being able to demonstrate that the refusal to do business had nothing to do with a protective classification. Refusing to do business with a person because of a protected classification would be housing discrimination. However, the Warranty of Habitability has made it unlawful for a landlord to “retaliate” by terminating the lease, increasing rent or decreasing services based on the tenant’s complaints about the landlord’s breaches of the Warranty of Habitability. (CRS 38-12-509) There are a number of important landlord protections in the section. The tenant’s complaints must have been made in “good faith.” Additionally, in an action against the landlord, the tenant must prove that an actual Warranty of Habitability violation occurred. Therefore, a tenant making false claims about the condition of the premises to prevent a landlord from terminating a lease has some legal hurdles.
OPT OUT PROVISIONS The Warranty makes a very limited exception that allows a landlord to negotiate a lease transaction whereby the tenant agrees to be responsible for some of the statutorily required maintenance. (38-12-507). However, agreements for a tenant to provide for specific repair or maintenance tasks are acceptable if supported by a separate written agreement (in addition to the lease), adequate consideration, and the tenant has the necessary skills to perform the task. The exception can never apply to a subsidized unit. Additionally, in a multifamily unit, the ability to transfer maintenance responsibility to a tenant is severely limited to maintenance items that don’t affect other tenants.
LEAD-BASED PAINT DISCLOSURE TO PROSPECTIVE TENANTS Effective September 6, 1996, Environmental Protection Agency (EPA) and Department of Housing and Urban Development regulations went into effect requiring notification and disclosure concerning lead-based paint. These regulations apply only to properties built prior to 1978. Under these regulations, the landlord is required to provide information to prospective residents before they become obligated under the lease. The required disclosures include providing the prospective tenant with a copy of the EPA pamphlet, Protect Your Family From Lead in Your Home (Form A), a copy of the EPA form, Disclosure of Information on Lead-Based Paint and Lead-Based Paint Hazards (Exhibit A), as well as a complete copy of the results of any study or testing done of the property regarding lead-based paint. Testing is sometimes done when purchasing a property and the results are often found in higher level environmental due diligence studies. If a Phase III Hazardous Materials Study has been completed, there will likely be an analysis of lead paint, requiring the production of the study. The regulations do allow a summary or compilation to be provided (in lieu of the entire study). However, the compilation must be prepared by a person with the same professional qualifications as the person that drafted the original study. Any known existence of lead based paint must be disclosed. More information about this topic and to download copies of the EPA pamphlets can be found on the EPA website (www.epa.gov/lead).
SIGNED RECEIPT The landlord must secure a signed acknowledgment from the tenant that the tenant has received the required information. The EPA form, Disclosure of Information on Lead-Based Paint and Lead-Based Paint Hazards also serves as the required receipt. The disclosure should be made and the signed acknowledgment should be obtained before the applicant becomes contractually obligated under the terms of the lease. The acknowledgments must be kept for at least three years.
FORM : DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT AND LEAD-BASED PAINT HAZARDS
RENOVATIONS First effective June 1, 1999, and extensively modified effective April 29, 2010, landlords became required to notify tenants of any renovation activity in pre-1978 housing that is likely to disturb painted surfaces. The requirements do not apply to interior minor repair or maintenance that disturbs 6 or less square feet of painted surface per room or exterior work that disturbs 20 square feet or less.
TRAINING AND CERTIFICATION Any person engaged in covered work must be trained and EPA-certified in lead-safe work practices. Lead-safe work practices primarily focus on work-area containment of dust, prohibition of certain work techniques and power tools, and guidelines for thorough clean up.
PRE-RENOVATION NOTIFICATION The occupant must be provided with a copy of the EPA pamphlet, The Lead-Safe Certified Guide to Renovate Right prior to any renovation in pre-1978 housing. This pamphlet is different from, and in addition to, the Protect Your Family From Lead in Your Home pamphlet given to the tenant at the time of the application. The pre-renovation pamphlet must be given to the tenant in person or left under the door of the unit, if the tenant is unavailable before the work begins. The pamphlet can also be sent by certified mail to the tenant if it is done at least 7 days before the work begins. The prerenovation pamphlet cannot be given more than 60 days before the work begins. Records of the delivery of the renovation pamphlets must be maintained for 3 years and the EPA publishes a Sample Pre-Renovation Form for that purpose, which is included in The Lead-Safe Certified Guide to Renovate Right pamphlet.
COMMON AREAS Notice requirements are somewhat relaxed for work in common areas. The tenants can be notified through the same delivery methods of the pre-renovation pamphlet discussed above. However, the regulation also allows notification through signage. The signs must describe the renovation and include the location, timing and scope of the renovation occurring, and copies of the pre-renovation pamphlet or instructions to the tenants on how to obtain a copy of the pamphlet.
EXCEPTIONS In addition to the exception for small jobs discussed above, there are other exceptions, which can affect the obligations associated with notification and certification. If the components being renovated have been certified as free of lead-based paint by an EPA certified inspector or risk assessor, any repairs or maintenance to those components are not covered by the notification requirements or the certification requirements. If the work activities are â€œemergency renovations,â€? the pre-renovation notice requirements are waived (but not the worker certification and work method portions of the regulations). The regulatory definition of emergency renovations are activities that were not planned, but result from a sudden, unexpected event (such as non-routine failures of equipment) and, if not immediately attended to, present a safety hazard or threaten equipment and/or property with significant damage.
PENALTIES Failure to comply with EPA regulations is very serious business. The fines are extremely high and may be replicated numerous times based on the number of units and tenants affected. Additionally, the regulations authorize private parties to bring suits and obtain attorney fee awards.
CONTRACTOR OBLIGATIONS Technically, if a contractor performs the work, the contractor is responsible for the notification and record keeping. However, a prudent landlord would also want to keep copies of the notification documentation. If responding to an EPA audit, the landlord would not want to be dependent on a third-party to provide documentation to protect the landlord from liability. Any contract with a vendor that deals with lead-based paint renovation should require the vendor to represent that the workers are currently trained and certified. The contract should require the vendor to be responsible for all EPA compliance issues. The contract should include the obligation of the vendor to indemnify and hold the landlord harmless from compliance related claims and should require sufficient insurance to make sure the vendor is financially capable of backing up those promises.
Protect Your Family From Lead In Your Home United States Environmental Protection Agency United States Consumer Product Safety Commission United States Department of Housing and Urban Development
EXHIBIT A: PROTECT YOUR FAMILY FROM LEAD IN YOUR HOME (EPA PAMPHLET)
EXHIBIT B: THE LEAD-SAFE CERTIFIED GUIDE TO RENOVATE RIGHT (EPA PAMPHLET)
REAL ESTATE COMMISSION COMPLIANCE OVERVIEW The Colorado Real Estate Commission is the state administrative agency that is responsible for regulating the behavior of licensed real estate brokers. It has broad powers to punish licensing violations including suspending licenses and issuing orders to cease and desist business operations. Consequently operating outside of the regulations promulgated by the Commission can have very negative financial consequences.
WHEN A LICENSE IS NECESSARY A real estate license is necessary when a person is being compensated for conducting a real estate transaction for another person. Over the years the definition of a real estate transaction has been expanded until any imaginable transfer of title or possession is covered. Conveying possession of real estate through a lease is clearly part of the definition of a covered real estate transaction. Consequently, if a landlord is to win the argument that a real estate license is not required for their business operation, the landlord must do so by demonstrating that the landlord is not leasing someone else’s property. Leasing one’s own property does not require a license. The problem is that rental properties are rarely owned by an individual. Typically, a rental property is owned by some type of entity like a limited liability company, partnership or corporation. This is done to insulate the individuals indirectly owning the property from liability and in many cases is a requirement of the lender. The person or persons engaged in leasing the property are typically owners or employees of the ownership entity. If the person doing the leasing is an actual owner of at least 20% of the ownership entity, the exception to the licensing requirement is pretty clean. CRS 12-61-101 (2) (b)(VII) and (IX) exempts the activity of these owners. However, when the leasing is done by a regularly salaried employee of the ownership entity (who doesn’t own a part of the company), finding an exemption to rely on is not as clear cut. CRS 1261-101 (2) (b)(XII) exempts regularly salaried employees engaged as an “on-site manager”. The Commission has adopted Rule C-24 to further clarify the role of the on-site manager. The rule requires that the manager report directly to the owner, be regularly salaried and not engage in any activity which requires a license. In many cases lenders require that a rental property be owned by a separate entity from those that own other properties. Generally a separate company is created to manage these various “single asset entities” that hold title to the various complexes in the management company’s portfolio.
Commission Rule C-24 allows for management entities. However, the affiliate entity must be under common ownership and control of the ownership entity. The rule does not define what constitutes a controlling interest. Assuming the landlord does require a broker’s license, there are several major areas of regulatory compliance issues that then need to be addressed. Those areas include: disclosure of brokerage relationships, use of non-Commission approved forms, trust account maintenance, creation of a written Office Policy Manual, creation of a written Management Contract and appropriate supervision of non-licensed employees.
DISCLOSURE OF AGENCY RELATIONSHIPS In the traditional sale of real estate, the broker’s role can be difficult for a consumer to judge. Generally, brokers work for either the buyer or the seller. Which party the broker is working for is a critical issue because it dictates whose interest the broker is obligated to look out for, who the broker is obligated to share confidential information with and who is obligated to pay for the broker’s services. The classic confusion of roles came from the interaction of the “listing” broker and the “selling” broker. The listing broker is the person who signs a contract with the seller to put the house on the market as available for sale. It is pretty apparent to everyone involved that the listing broker is working for and represents the seller. The selling broker is the person who brings the buyer’s offer to the transaction. Thinking casually about the interaction, the selling broker would appear to be the buyer’s representative (or agent) in the transaction. However, the selling broker is typically compensated directly by the listing broker with a portion of the listing broker’s commission. This has the legal effect (based on principal/agency laws) of making the selling broker an agent of the listing broker. As the listing broker represents (serves as agent for) the seller, the selling broker as agent for the listing broker becomes a subagent to the seller and legally responsible to the seller. This situation of the selling broker appearing to represent the buyer, but really representing the seller, created reoccurring situations of buyers telling brokers things they shouldn’t and expecting broker loyalty that legally didn’t exist. The buyer was typically left unrepresented in a real estate transaction, even though it was the buyer who was bringing all the money to the table to make the transaction possible. In a typical apartment leasing situation, these sub-agency problems have no practical bearing. When an applicant walks into a leasing office and deals with a leasing representative, there is no implication or question that the agent might be representing the applicant. It is obvious to all involved that the landlord’s staff represents the landlord (in the same way it’s obvious that a grocery clerk represents the store not the shopper).
Nevertheless, as a result of the reoccurring confusion from sub-agency the requirement of a written disclosure of a broker’s role in a transaction as well as the other types of broker relationships that are available to the parties has developed. Brokers conducting leasing services must have Brokerage Disclosures executed by applicants and retain the forms to satisfy audit requirements. The Commission has created approved forms for disclosing the various potential relationships available. The form most applicable for use by licensees serving as property managers is the BDT20-5-09 Brokerage Disclosure to Tenant form (attached). This disclosure form alters the traditional terminology describing agency from the realm of buyer/seller to that of landlord/tenant. The form creates the possibility for the broker to work as the Landlord’s Agent, the Tenant’s Agent or a Transaction Broker. The Landlord’s and Tenant’s Agent roles are largely self-explanatory. A Transaction Broker simply works to close the transaction with limited duty or liability to either of the parties. In most transactions covered by this Handbook, the broker would be serving as the employee of the landlord and a Landlord’s Agent.
COMMISSION APPROVED FORMS Drafting documents is the primary line that separates what real estate brokers and attorneys are allowed to do under their licenses. Under Commission Rule F, brokers are not allowed to draft documents, only fill out the blanks on Colorado Real Estate Commission Approved forms. Over the years the Commission has approved a significant library of forms related to the sale of residential real estate. Most of the documents necessary to sell or buy a home are available as Commission approved forms. However, the Commission has very limited forms related to property management. There is no Colorado Real Estate Commission approved lease, property management agreement, rental application, any of the common addenda or communication documents utilized in dealing with residents. Therefore a licensed broker engaged in property management must be very careful not to inadvertently violate Rule F. One way to comply with rule while not using Commission Approved forms is to make sure all the forms used have been drafted by one of the parties or their attorney. When a broker is using a form that is not Real Estate Commission approved, the form should always contain the language “This form is not approved by the Colorado Real Estate Commission.” To the extent the broker is relying on the exception for attorney drafted forms, it is prudent to have the form contain language similar to: “This form has been drafted by the Owner’s attorney.”
SECURITY DEPOSITS There is no requirement that landlords hold security deposits in a trust account or otherwise separate the deposits from general operating funds. However, licensed brokers are required to place all “money belonging to others” in separate trust accounts (pursuant to C.R.S. 12-61-113 (l) (g.5)) that comply with all the requirements of Commission Rule E-1 and E-16. From the broker’s perspective, a security deposit may belong to the tenant or may belong to the owner. The party that has legal claim to the security deposit may change during the time the broker is involved with the property. However, the deposit will always belong to someone other than the broker. Consequently, a security deposit always represents money belonging to others and, when held by a licensed broker, must be place in a trust account. Maintaining a separate account for security deposits has an administrative expense in the form of additional accounting, bank charges and forgone interest. Consequently, property managers who are licensed brokers sometimes desire to structure their transactions to avoid the need for keeping deposits in a trust account. The easiest method to avoid the requirement of keeping the deposit in a trust account is to have the owner hold the deposit. Having the owner hold the deposit works best when the leases are also written in the name of the owner. When the lease is written in the name of the owner and the owner holds the deposit, the lease doesn’t create liability for broker for the return of the deposit. Consequently, the liability for the deposit is linked to the same party that is holding the deposit and has the ability to return it (the owner). When the lease is written in the name of the broker (as property manager) but the owner holds the security deposit, documentation becomes a bit more complex. The lease must disclose the name and address of the owner, contain a clear disclosure that the owner is holding the deposit and an acknowledgement that the resident will look only to the owner for the return security deposit. Additionally, the management agreement should include a provision whereby the owner indemnifies a holds the broker harmless from claims associated with the return of the security deposit. Otherwise, brokers can find themselves in the difficult position of being sued for the return of the deposit without actually having the deposit to return. When money is held in a trust account, the broker is never entitled to the interest earned without a specific written agreement reciting that right. When an agreement is silent on the issue of who is entitled to the interest between the owner and the resident, the Commission takes the position that interest is presumed to belong to the landlord (Commission Position Statement - 4). When a security deposit is held by a broker and then transferred to either the owner or a successor broker, formal notification of the resident is required in order to terminate the broker’s responsibility for the deposit. The resident must be given written notification of the transfer, the contact information for the transferee and the transferee must agree to be legally responsible for the return of the deposit (Commission Position Statement -5).
MANAGEMENT AGREEMENT When the broker’s activity involves the sale of real estate, a listing agreement is the document that covers the rights and obligations of the seller and broker. The Commission publishes a number of different listing agreements, each with highly customizable terms to reflect the specific covered transaction. When the broker’s activity involves managing an apartment complex, the rights and obligations of the owner and broker are typically found in a management agreement. The Commission does not publish an approved management agreement. Nevertheless, the Commission requires a management contract and at Commission Position Statement -27 specifies that it should be in writing and outline the duties and responsibilities of both parties. The Commission recites that the management contract should, at the very minimum, address the: •
Duration of the contract;
Identities of the parties;
Address of the property to be managed;
Fees for the manager’s services, including disclosure of any mark-ups;
Disclosure of broker’s ownership interest in any company which will be providing maintenance or related services;
Identity of the entity responsible for the holding of the security deposit, and if interest is earned on security deposit escrow accounts, who benefits from such interest;
Process to be followed in any subsequent transfer of owner’s monies, security deposits, keys and documents; and,
Requirement that the owner receive regular monthly accounting of all funds received and disbursed.
OPERATING MANUAL Commission Position Statement 21 discusses a brokers obligation to supervise by maintaining an Office Policy Manual. An Office Policy Manual must be created and a copy kept in each leasing office. There is no Commission approved form that serves as an Office Policy Manual. However, the position statement “suggests” that the Office Policy Manual contain procedures for “at least” the following:
1. typical real estate transactions a. review of contracts b.
handling of earnest money deposits, including the release thereof
c. back-up contracts d. closings 2. non-qualifying assumptions and owner financing 3. guaranteed buyouts 4. investor purchases 5. identifying brokerage relationships offered to public 6. procedures for designation of brokers who are to work with a seller, landlord, buyer or tenant, individually or in teams 7. identify and provide adequate means and procedures for the maintenance and protection of confidential information 8. licenseeâ€™s purchase and sale of property 9. 9) monitoring of license renewals and transfers 10. delegation of authority 11. property management 12. property listing procedures, including release of listings 13. training a. dissemination of information b. staff meetings 14. use of personal assistants 15. fair housing/affirmative action marketing Some of these topics have little or nothing to do with a property management business. As one of the primary purposes of the manual is to satisfy a Commission compliance audit, each of the 15 identified topics should be included in the Office Policy Manual, even if the only entry under the heading is â€œNot Applicableâ€?.
Additionally a number of topics relevant to property management are not included in the list. The Office Policy Manual is the appropriate place to spell out the authority delegated non-licensed leasing representatives. Special attention should be paid to make it clear that non-licensees are not to create illegal brokerage practices by engaging in prohibited activity such as drafting legal documents or offering opinions and advice on those documents. The Office Policy Manual is a very good place to recite instruction to the non-licensed staff on exactly what is permissible to be place in the blanks of the companies lease documents. The Office Policy Manual should also include specific prohibitions on interpreting or advising as to the effect of legal documents.
BONUSES TO NON-LICENSEES Colorado Statute (CRS 12-61-113(1)(j)) forbids a broker from paying “a commission or valuable consideration, for performing brokerage functions, to any person who is not licensed as a real estate broker.” It is common practice in the apartment industry to pay non-licensed leasing personnel bonuses based on performance. Consequently, a frequent question arises as to whether a bonus program constitutes payment of a prohibited commission. One method of attempting to avoiding the prohibition is to make the bonus payment have as little appearance of a traditional commission as possible. Separating the bonus payment from the time of the closing of the lease, not having the bonus calculated based on the monetary value of the lease, having other performance requirements in addition to the closing of the lease and calculating bonus payments to teams rather than individuals are all ways of making a bonus look less like a commission. However, under the statute all “consideration”, not just a commission, is prohibited from being paid to non-licensees for performing brokerage functions. Consequently, it is more important to focus on making sure non-licensee work duties do not include “brokerage functions” and that there is adequate broker supervision of non-licensees. Work duties that are areas of high Commission concern include independent drafting of legal documents and offering opinion and advice on the meaning of those documents. By having adequate supervision in place and preventing non-licensees from engaging in brokerage functions, the broker is likely to avoid scrutiny over the method of calculating the compensation due non-licensees.
The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (BDT20-5-09) (Mandatory 7-09) DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE LANDLORD AGENCY, TENANT AGENCY OR TRANSACTION-BROKERAGE.
BROKERAGE DISCLOSURE TO TENANT DEFINITIONS OF WORKING RELATIONSHIPS For purposes of this document, landlord includes sublandlord and tenant includes subtenant. Landlord’s Agent: A landlord’s agent works solely on behalf of the landlord to promote the interests of the landlord with the utmost good faith, loyalty and fidelity. The agent negotiates on behalf of and acts as an advocate for the landlord. The landlord’s agent must disclose to potential tenants all adverse material facts actually known by the landlord’s agent about the property. A separate written listing agreement is required which sets forth the duties and obligations of the broker and the landlord. Tenant’s Agent: A tenant’s agent works solely on behalf of the tenant to promote the interests of the tenant with the utmost good faith, loyalty and fidelity. The agent negotiates on behalf of and acts as an advocate for the tenant. The tenant’s agent must disclose to potential landlords all adverse material facts actually known by the tenant’s agent, including the tenant’s financial ability to perform the terms of the transaction and, if a residential property, whether the tenant intends to occupy the property. A separate written tenant agency agreement is required which sets forth the duties and obligations of the broker and the tenant. Transaction-Broker: A transaction-broker assists the tenant or landlord or both throughout a real estate transaction by performing terms of any written or oral agreement, fully informing the parties, presenting all offers and assisting the parties with any contracts, including the closing of the transaction, without being an agent or advocate for any of the parties. A transaction-broker must use reasonable skill and care in the performance of any oral or written agreement, and must make the same disclosures as agents about all adverse material facts actually known by the transaction-broker concerning a property or a tenant’s financial ability to perform the terms of a transaction and, if a residential property, whether the tenant intends to occupy the property. No written agreement is required. Customer: A customer is a party to a real estate transaction with whom the broker has no brokerage relationship because such party has not engaged or employed the broker, either as the party’s agent or as the party’s transaction-broker.
RELATIONSHIP BETWEEN BROKER AND TENANT Broker and Tenant referenced below have NOT entered into a tenant agency agreement. The working relationship specified below is for a specific property described as: _________________________________________________________________________________________ or real estate which substantially meets the following requirements: _______________________________________________ ___________________________________________________ _______________________________________________________________________________. Tenant understands that Tenant shall not be liable for Broker’s acts or omissions that have not been approved, directed, or ratified by Tenant. CHECK ONE BOX ONLY: Multiple-Person Firm. Broker, referenced below, is designated by Brokerage Firm to serve as Broker. If more than one individual is so designated, then references in this document to Broker shall include all persons so designated, including substitute or additional brokers. The brokerage relationship exists only with Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed or engaged by Brokerage Firm who are not so designated.
BDT20-5-09. BROKERAGE DISCLOSURE TO TENANT
Page 1 of 2
BROKERAGE DISCLOSURE TO TENANT DEFINITIONS OF WORKING RELATIONSHIPS
FIRE AND CARBON MONOXIDE ALARMS FIRE ALARMS There is no statewide statute that mandates fire alarms. However, local building codes require fire alarms in multifamily units for new construction. Fire alarms are also required by typical insurance policies and lender documents. Regardless of any statutory requirement (or lack thereof), fire alarms are so standard in the industry and fires are so common in the multi-family living environment that it is legally imprudent for any landlord to deliver a leased premises without a functioning fire alarm system. It is beneficial to have clear lease language that ongoing monitoring and inspection of the fire alarm system and the replacement of batteries is the responsibility of tenant. The lease should also require the tenant to provide written notice of any malfunction or need for maintenance of the fire alarm.
CARBON MONOXIDE ALARMS Carbon monoxide detectors are mandated by state statute (C.R.S. 38-45-101) in any dwelling unit that has either a fuel-fired appliance or an attached garage or parking structure. Fuel-fired appliances include furnaces, dryers, water heaters as well as gas fireplaces. The statute authorizes the use of all types of detectors (hardwired, plug-in, battery operated) but all detectors must have battery backup. Detectors must be located within 15 feet of every â€œlawfulâ€? sleeping area. This broad definition of a bedroom leaves most rooms open for argument to be cover by the statute. There's an argument to be made that the statute only requires the detectors if the fuel-fired appliance is actually inside the leased premises (not in a situation where there is a common boiler). However, a prudent landlord should install detectors even in situations where there is not a fuel-fired appliance within the rented apartment. There is the risk of carbon monoxide intrusion from ducts or plumbing openings even from appliances located outside of the apartment. Additionally, there is risk of carbon monoxide generated from tenant sources such as barbeque and portable heating equipment. There is legal risk to a landlord under traditional negligence theories even without a statutory violation. A property owner who had experienced the death of or injury to a tenant at a rented property would not want to be forced to rely obscure rules of sentence construction as the only basis for not having an alarm in the unit. Additionally, the statute provides immunity to a landlord for claims associated with carbon monoxide alarms if an alarm is installed in accordance with the manufactures instructions. Consequently, landlords should install carbon monoxide alarms in all rented units.
MARIJUANA AND SMOKING OVERVIEW Because of Colorado’s legalization of marijuana, managing the possession, growth, distribution and use of marijuana and disputes regarding smoking in general have become common problems that landlords have to deal with. Most multifamily living situations put people in close enough proximity with each other that the smell of smoke and grow operations are discernable from one unit to the next. Emotions run high regarding second hand smoke and the perceived “right” to smoke cigarettes and marijuana. Consequently, there are reoccurring situations where parties to a dispute have little tolerance for each other. Additionally, smoke can cause a lingering impact on the rented unit that increases the cost of restoring the unit after the termination of the lease. A prudent landlord needs tools to protect the property and deal with these disputes.
LANDLORD’S BAN ON MARIJUANA AND/OR SMOKING With the limitation of some situations that arguably require a reasonable accommodation to a disability discussed below, a landlord is free to regulate the smoking of marijuana or tobacco (or both) in the common areas or the rented unit itself. This regulation can include an outright ban on smoking (cigarettes and/or marijuana) anywhere in the complex including the rented unit. However, a landlord who desires to regulate or ban smoking must have that prohibition included in the lease package. If the lease is silent on the issue, the law will presume that a rented apartment can be used for all normal and legal residential purposes, which includes cigarette smoking and (now in Colorado) marijuana smoking. Smoking and marijuana use limitations in the common areas can typically be handled with changes to the community policies without the need to wait for the underlying leases to expire and be renegotiated to include a ban on smoking. More and more complexes are becoming non-smoking facilities or have non-smoking buildings located within the complex. If a landlord desires to create a non-smoking building or property, the landlord should be careful not to guarantee the non-smoking status. Residents may violate the smoking ban from time to time. If a resident smokes in an apartment where smoking is not permitted, the landlord will be free to serve a Demand for Compliance or Possession and evict the resident. However, as the process can take up to six weeks, the landlord needs to make sure the landlord isn’t legally responsible to other residents because of the resident’s breach.
A landlord must also be aware of the economic impact of an outright ban on smoking. According to compilations by the State, approximately 23% of the adult population smokes. The percentage of marijuana smokers has not been published. However, casual observation indicate that this percentage is relatively large as well and seems to be growing. These are very large shares of the market for a landlord to intentionally elect not to do business with. Even a landlords who would otherwise prefer to ban cigarettes and marijuana may find themselves unable to afford that policy.
CONFLICT WITH FEDERAL LAW The possession or use of any amount of marijuana remains a criminal violation of federal law. The first offense is punishable by a year in prison and $1,000 fine. The second offense carries a mandatory 15-day and up to two year prison sentence. Selling less than 50 kg is punishable by a $250,000 fine and five years in prison. Selling between 50 and 100 kg is punishable by 20 years in prison and a $1 million fine (21 U.S.C.A. Sec. 811). The validity of these federal laws and their preeminence over state laws has been upheld by United States Supreme Court decision, Gonzales V. Raich (2005).
LIMITING MARIJUANA USE AS AN ILLEGAL ACTIVITY Virtually all leases prohibit “unlawful activity” at or near the leased premises. No lease provides that the resident will comply with Colorado law, but, may freely violate federal law. Consequently, the use or possession of marijuana by a resident is a violation of the marijuana user’s lease. A landlord still has the option of demanding the cessation of marijuana smoking as prohibited “unlawful activity” even though Colorado criminal laws do not prohibit the activity. However, one can easily see the ambiguity presented by enforcing an unlawful activity lease clause once the behavior is specifically legalized under state law. Consequently, if the landlord desires to prohibit marijuana use, a better practice is to specifically spell out a prohibition against marijuana use in the lease package. Colorado's statute on smoking in public also has some impact on multifamily housing. Smoking is prohibited in any interior public space and within 15 feet of the front door of a building. Smoking in breezeways can be problematic as they are not technically interior hallways and the “front door” portion of the statute does not apply to the individual apartment doors. Thus, the landlord that wants to further limit smoking in common areas should specifically address smoking in and around buildings in the lease or community policies.
LIMITING SMOKING AND MARIJUANA USE AS AN UNREASONABLE DISTURBANCE
Most leases also prohibit “unreasonable disturbances” at or near the leased premises. Smoking in such quantity or manner as to cause neighbors to complain is arguably an unreasonable disturbance. Occasionally a landlord will prevail in bringing an eviction action against a smoker (even when smoking is not prohibited in the unit) based on an unreasonable disturbances claim. The legal theory is that even though smoking is permissible - smoking in a way so that the smoking is perceived by the neighbors is unreasonable. This is a tough distinction to draw and judges opinions vary widely based on their own perceptions about smoking. A landlord will be more successful if the landlord can show there is something uniquely problematic about how or where the resident is smoking. Unreasonableness is often in the eye of the beholder. The vagueness of when behavior is considered unreasonable (particularly behavior which is not explicitly prohibited by the lease) can be difficult to predict. Consequently, if the landlord desires to prohibit marijuana or smoking when it disturbs other residents, a better practice is to specifically spell out a prohibition against smoking or marijuana use in the lease package.
DEFINING TOLERABLE SMOKING AND MARIJUANA USE Even in a lease where smoking or marijuana consumption is allowed in the apartment, it is prudent to provide that the resident will not smoke in a way that disturbs others. The line that most landlords use to define when smoking or marijuana consumption becomes a lease violation is when neighbors complain about it. A typical smoking clause that defines acceptable and prohibited behavior is as follows: Resident shall not smoke in any common area in the community unless it has been designated by landlord as smoking area. Marijuana smoking is prohibited in all common areas including designated smoking areas. Resident may smoke or consume marijuana in the apartment only if done in a manner that is not perceived by others. Resident shall be responsible for all cost associated with repairing, replacing and cleaning required to eliminate smoking and marijuana smells and residue.
REASONABLE ACCOMMODATION TO A DISABILITY Under federal and state fair housing laws, a landlord is obligated to make reasonable accommodations for a disabled resident. Circumstances can arise under which a resident claims the need to consume marijuana as a reasonable accommodation to a disability.
COLORADO’S DUAL MARIJUANA LEGALIZATIONS
By citizen’s initiative, Colorado modified its Constitution to legalize marijuana use, possession and sale for most recreational purposes effective January 1, 2014. This legalization was in addition to (not in replacement of) Colorado’s previous citizen’s initiative that legalized marijuana, but only if claimed to be used for medical reasons. One might suspect that the distinction between “recreational” marijuana and “medical” marijuana would quickly become obsolete. However, recreational marijuana is subject to sales and excise taxes and medical marijuana is exempt from taxation. Consequently, there will continue to be significant economic incentive for marijuana users to attempt to categorize their use as medically necessary and therefor free from taxation. A person claiming to use marijuana for medical reasons can give rise to claims that their use must be tolerated as a reasonable accommodation to a disability. Consequently, knowledge of the elements of the requirements for medical marijuana can become relevant to a landlord.
RELEVANT MEDICAL CONDITIONS To be classified as medical marijuana under Colorado law, the marijuana must be for an alleged medical purpose. The Constitution provides specific medical conditions for which marijuana may be appropriate. Those conditions are: •
Seizures (Including Epilepsy)
Persistent Muscle Spasms (Including Multiple Sclerosis)
LEGALIZED USE The Constitutional Article authorizes the possession of a relatively large amount of medical marijuana. Two ounces of usable marijuana (roughly a sandwich baggie) may be held. Six total plants, three of which are mature flowering plants producing usable marijuana may be
possessed. Greater amounts can be possessed, if the health care provider certifies greater amounts are medically necessary.
PRIMARY CARE GIVER The Constitutional Article also creates a defined “Primary Caregiver.” This person must be over 18 and have “significant responsibility for managing the wellbeing” of the marijuana user. The primary caregiver can also possess, administer and use the marijuana as well.
ANALYZING A REASONABLE ACCOMMODATION CLAIM In order to validate the medical need for the use of medical marijuana, the medical marijuana user must obtain a medical marijuana card issued by the Colorado Department of Revenue after having the medical need for the marijuana attested to by a health care professional. At the time of the writing of this article there are approximately 130,000 medical marijuana cards outstanding. The vast majority of these cards (approximately 80%) have been issued to males. A disproportionate number of these cardholders are young. As this demographic is statistically healthier than the population as a whole, from this demographic variance and the shear number of issued cards, one can reasonably conclude that the majority of medical marijuana cards are held by persons using the marijuana for traditional recreational purposes, rather than as a treatment for a medical condition. If a claim is made that tolerating marijuana use is a reasonable accommodation to a disability, the first issue to determine is whether the cardholder is “disabled” pursuant to fair housing laws. Disability is defined as: A physical or mental impairment that substantially limits one or more major life activity; a record of such an impairment; or the resident is regarded as having such an impairment. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction, and alcoholism. This definition doesn't include any individual who is a drug addict and is currently using illegal drugs or an alcoholic who poses a direct threat to property or safety because of alcohol use. [24 CFR Part 8.3, and HUD Handbook 4350.3 (Exh. 2-2)].
This status is something more than simply qualifying for a medical marijuana card under Colorado's lax program for authorizing medical marijuana use. It's hard to say what percentage of cardholders might also meet the higher standard for disability. However, more often than not, a landlord can forbid marijuana use after a request
for certification of disability and finding that the resident does not meet the threshold definition of disability even though the resident may hold a valid medical marijuana card. If the resident is disabled, the analysis switches to whether the toleration of marijuana smoking is a reasonable accommodation based on that disability. The landlord is only required to make accommodations that are necessary to accommodate the disability and only to the extent the accommodation is reasonable. It is logical to argue that it is not reasonable for a landlord to have to tolerate a violation of federal law in the leased premises. It’s hard to imagine a medical condition for which no other legal over-the-counter or prescription medication could solve the resident’s medical problem. Even if marijuana was the resident’s only treatment option, it's hard to imagine a scenario where an edible form of marijuana could not satisfy the resident’s need. For each of the reasons, depending upon the facts of a particular case, a landlord will likely be able to legally prohibit use of marijuana even when the user holds a valid medical marijuana card.
LANDLORD OBLIGATION TO SUPPLY INFORMATION TO CENSUS BUREAU EMPLOYEES A landlord is required to provide some level of cooperation with employees hired to collect federal census information and may be assessed a $5,000.00 fine for failing to provide the necessary access and information. The required cooperation is twofold: •
First, the landlord must provide access to the building or complex. However, the landlord can demand proper identification from the official (they carry a badge with their name on it).
Second, the landlord must provide the names of all known occupants in the apartment (including minors and others not on the lease). The Act doesn’t specifically say so, but it is implied that the Landlord must pair the names of the occupants with the specific unit occupied.
A landlord can and should refuse to give information beyond names and apartment numbers and should demand identification from the individual collecting the information. Census workers have been known to exaggerate the assistance requirements and the information which is required to be provided by the landlord. To aid in the potential debate with any census worker demanding excessive assistance, the legal citation to the United States Code is Section 223 of Title 13, which provides as follows: Whoever, being the owner, proprietor, manager, superintendent, or agent of any hotel, apartment house, boarding or lodging house, tenement, or other building, refuses or willfully neglects, . . . to furnish the names of the occupants of such premises, or to give free ingress thereto and egress therefrom to any duly accredited representative of such Department [Commerce] or bureau [Census], so as to permit the collection of statistics with respect to any census provided for in [this law], including, when relevant to the census or survey being taken or made, the proper and correct Census enumeration of all persons having their usual place of abode in such premises, shall be fined not more than $5,000.00
UTILITIES ALLOCATION OF COST Landlords and tenants are free to decide between themselves who will be responsible for the payment of utilities and the mathematical formula for allocating those costs. In some properties utilities are separately metered and billed by the utility provider to each unit and the tenant contracts with and pays the utility provider directly. In these scenarios documenting who is responsible for paying utilities is as simple as reciting the utilities to be paid by the landlord and the utilities paid by the tenant. However, in many properties, the units may either not be separately metered or may share a common source of the utility (common boiler or water tap are typical examples). Historically in these properties, these common utility charges were included in the rent charge. However, as utility expenses have become more significant and as people have recognized that flat rate billing encourages tenants to be wasteful, there has been an industry wide move to breaking utility charges out from rent and billing based on an allocation method.
LEASE PROVISIONS REGARDING UTILITIES If the landlord is in the position of being billed for any utility in bulk and desires to bill a tenant for a portion of that utility, the contract between the landlord and tenant must not only indicate that the tenant is responsible for paying for the utility, but, also what the allocation formula will be. Common formulas include: dividing cost equally by the total number of units, unit square footage compared to the total square footage in the complex, number of plumbing fixtures in the unit compared to the total number of plumbing fixtures in the complex, number of persons in the unit compared to the total number of persons living in the complex. Because of the great variety of allocation formulas and because historically the utilities may have simply been included in the rent, many standardized leases do not adequately describe the agreement between the landlord and the tenant as to how utility charges will be calculated. If the lease doesnâ€™t clearly state both that the tenant will pay the utility and the formula for calculating the payment, the landlord does not have the necessary legal tools for successful collection of unpaid utilities. Landlords frequently hire third-party vendors to calculate and bill allocated utility charges (commonly called RUBs or RUBed utilities). If a landlord intends to pass the cost of a thirdparty vendor on to the tenant, the landlord needs to have a clause in the lease authorizing the landlord to bill for the fee as well as specifying the formula being used to allocate the utility.
CUTTING SERVICE Landlords do not have the right to discontinue gas, electricity or water service based on nonpayment of rent or nonpayment of the utilities. Doing so without a court order represents an attempt at a self-help eviction and subjects the landlord to a claim for damages under the legal theories of wrongful eviction or constructive eviction and Colorado’s statutory Warranty of Habitability (C.R.S. 38-12-510). A landlord’s only legal remedy for nonpayment of utilities is to proceed through court to obtain an order for possession of the property.
SUBMETERING Some properties purchase utilities in bulk from a public utility and then in turn submeter their tenant’s use and bill the tenants for the tenants’ portion of the bill. Unfortunately, this behavior constitutes acting as a Public Utility and subjects the landlord to complying with all Colorado Public Utilities Commission regulations relating to Public Utilities. This regulatory requirement is little known and rarely complied with.
EXEMPTION FROM REGULATION However, Colorado statute (C.R.S. 40-1-103.5) and Colorado Public Utilities Commission regulation (Rule 33(c)(1)) authorize a landlord to apply for exemption from such regulation as a “Master Meter Operator.” The requirement that the landlord apply for exemption applies only to gas and electricity. It does not apply to any other utility. The requirement that the landlord apply for exemption also applies only to allocation by submeter. It does not apply to any other allocation method or formula.
APPLICATION FOR EXEMPTION In order to be granted the exemption by Colorado Public Utilities Commission, the landlord must file an application for exemption and certify that: •
The landlord does not charge its tenants, as part of its billing for utility service, for any costs in addition to the actual cost billed to the landlord by the serving utility.
The sum of landlord's billings to tenants does not exceed the amount billed to the landlord by the serving utility.
The landlord passes on to the tenants any refunds, rebates, rate reductions or similar adjustments it receives from the serving utility.
The landlord notifies its current tenants, either by first class mail with a certificate of mailing or by inclusion in a regular monthly communication, of any refunds, rebate, rate
reduction or similar adjustments from its serving utility and informs tenants that they may claim the said adjustments within 90 days after receipt of the notice. •
With respect to those who are not current tenants, but were tenants during a previous period covered by any refunds, rebate, rate reduction or similar adjustments from the serving utility, the landlord sends notice by first class mail to the tenants last known address, advising them that they may claim said adjustments within 90 days after receipt of the notice.
Upon the expiration of the 90 day period, the landlord contributes unclaimed adjustments, if the aggregate amount exceeds one hundred dollars, to the fund established by the Legislative Commission on Low Income Energy Assistance.
The landlord must also conspicuously post the property with notice of the landlord’s application. Once the application is approved, the landlord is exempt from regulation, provided the landlord continues to comply with the above representations.
WATER The practice of charging for water creates other issues. There is no state statutory exemption available for submetering water. According to an Environmental Protection Agency (Guidance Memo, issued March 13, 1998), the federal Safe Drinking Water Act provides that a landlord who charges for water, even if the landlord is just passing on a bill from the water company through a submetering system, is a “Public Water System” and is responsible for complying with the all monitoring and reporting requirements imposed by federal law on Public Water Systems. The Association knows of no landlord who is complying with these EPA water monitoring and reporting requirements and is aware of no attempt by any state or federal agency to enforce them. However, at least in theory, landlords who submeter water and pass charges along to tenants, without complying with the monitoring and reporting requirements of the federal Safe Drinking Water Act, do so in violation of the law.
AURORA WATER REGULATIONS The City of Aurora has enacted a City Ordinance (Aurora City Code Part II, Chapter 138, Section 160) which mandates that a landlord not mark-up the cost of water and that the tenant be notified of the allocation formula (specifically to include a disclosure of whether water for the common area is included in the tenant’s bill) and any billing or administrative fee. The ordinance only calls for a landlord to provide “notice” of these charges and formulas to the tenants. However, if a landlord wants to create a legally enforceable obligation for the tenant to pay these charges, these disclosures must be included in the lease package and agreed to by the tenant.
The aurora ordinance also requires that the landlord maintain records of the water calculations so that billing practices can be audited.
SATELLITE DISHES FCC REGULATIONS The Federal Communications Commission (FCC) issued rules in 1999 (Rule 98-273) that allows tenants to install satellite dishes on their patios and balconies or inside their apartments. However, the rule doesn't give tenants the right to install dishes wherever and however they see fit. A landlord may impose reasonable rules on installation to ensure that satellite dishes don't create a safety risk or damage the landlord’s property.
LIMITATIONS AUTHORIZED UNDER THE RULE The FCC Rule provides that a tenant can install satellite dishes inside the tenant’s apartment and on patios and balconies that are part of the tenant’s apartment. Tenants cannot: •
Install satellite dishes larger than one meter (three feet, three inches) in diameter;
Install satellite dishes on exterior walls;
Install satellite dishes in common areas, including roofs, exterior walls and trees;
Install multiple dishes; or
drill a hole in any exterior surface.
IMPLIED LIMITATIONS The FCC rule also provides that landlords may not impose restrictions that "unreasonably delay or prevent installation." This implies that landlords may impose restrictions that don’t unreasonably delay or prevent installation. Reasonable restrictions would logically include barring tenants from installing satellite dishes in a manner that would result in damage to the building or in an unsafe manner. Some additional requirements that landlords have successfully maintained are reasonable include: the requirement that dishes must be professionally installed; that no portion of the dish may extend beyond the edge of the patio or balcony railing; that the tenant will be liable for any damage to persons or property caused by their dishes; and that the tenant must maintain liability insurance.
FAIR HOUSING - DISCRIMINATION OVERVIEW There are state and federal laws that prohibit discrimination in housing based on race, creed, color, religion, national origin, ancestry, sex, marital status, handicap, familial status and sexual orientation (“protected classifications”). Some local governments (Boulder, Denver, Aspen, Crested Butte and Telluride) also have mandated additional protected classifications. Discrimination in housing is not illegal in and of itself. It is only illegal to discriminate based on the protected classifications. It is lawful to utilize objective criteria, which are not based on a protected classification, to make business decisions. Making rental decisions based on established financial criteria that are applied to everyone is "discrimination," but it is not "illegal discrimination." In general, a landlord cannot undertake any act that discriminates, or has the result of discriminating, even if the intent is non-discriminatory.
The examples of unlawful discrimination generally published by HUD include: •
Refusing to show, rent or accept an application from one person and not another.
Advertising availability but not renting to or accepting applications from certain applicants.
Advertising any discriminatory preference.
Using different rules for different tenants.
Treating applicants or tenants differently in negotiations or in termination of tenancies.
Quoting different rents or deposits.
Charging different tenants different rents or deposits.
Using different standards in the application process.
Advertising "no children" or "adult only" unless expressly exempted by the law.
Occupancy standards which unreasonably restrict families with children.
Aiding or abetting a discriminatory practice.
Harassing or intimidating someone because they exercise their fair housing rights or file discrimination charges.
Refusing to permit a handicapped person to make modifications of existing housing, at the handicapped person's expense, or refusing to make reasonable accommodations for handicapped persons.
BASIC STRATEGY A landlord must always be prepared to prove that any business decision made by it does not represent housing discrimination. A landlord does this by establishing written procedures, diligently following those procedures, documenting any legitimate business purposes which cause a landlord to depart from those procedures and meticulously retaining all records associated with all tenancies.
DISPLAY POSTERS A landlord must permanently post or display a Colorado and Federal Fair Housing poster. These must be posted in a location where tenants and prospective tenants would easily see them and in places where leases are executed. The currently published versions of the posters are Exhibits C and D (next page). Posters are available at www.hud.gov/fairhousing or www.dora.state.co.us/civil-rights.
HANDICAPPED TENANTS DEFINITION : A person is "Handicapped or Disabled" if the person has a physical or mental impairment which substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus (HIV) infection, mental retardation, emotional illness, drug addiction, and alcoholism. This definition doesn't include any individual who is a drug addict and is currently using illegal drugs or an alcoholic who poses a direct threat to property or safety because of alcohol use. Landlords are required to make reasonable accommodations and allow reasonable modifications for disabled tenants (discussed in detail in the next section). Landlords are also obligated not to discriminate against disabled persons, giving the Disabled protected classification tradition Fair Housing causes of action as well.
EXHIBIT C: FEDERAL FAIR HOUSING POSTER
Div ision of Civ il Righ t s St ev en Ch av ez, Di r ect or John W. Hickenlooper Governor
Barbara J. Kelley Executive Director
This Establishment Complies with the Colorado Anti-Discrimination Laws Discrimination based on the following factors is illegal in the areas of: ►
Employment Race, color, religion, creed, national origin, ancestry, sex, age, sexual orientation (incl. transgender status), physical or mental disability, marriage to a co-worker and retaliation for engaging in protected activity (opposing a discriminatory practice or participating in an employment discrimination proceeding)
Housing Race, color, religion, creed, national origin, ancestry, sex, sexual orientation (incl. transgender status), physical or mental disability, marital status, families with children under the age of 18, and retaliation for engaging in protected activity (opposing a discriminatory practice or participating in a housing discrimination proceeding)
Public Accommodation Race, color, religion, creed, national origin, ancestry, sex, physical or mental disability, sexual orientation (incl. transgender status), marital status, and retaliation for engaging in protected activity (opposing a discriminatory practice or participating in a public accommodations discrimination proceeding)
REGULATIONS PROMULGATED BY THE COLORADO CIVIL RIGHTS COMMISSION Rule 20.1 - Every employer, employment agency, labor organization, and place of public accommodation, amusement and resort shall post and maintain at its establishment a notice furnished by the Commission which contains the provisions of Parts 3 through 7 of Article 34 of Title 24, C.R.S. The Commission will not charge for the notices. (A)
With respect to employers and employment agencies, such notices must be posted conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment, and at or near each location where employees' services are performed.
With respect to labor organizations, such notices must be posted conspicuously in easily accessible and welllighted places customarily frequented by members and applicants for membership.
With respect to places of public accommodation, amusement and resort, such notices must be posted conspicuously in easily accessible and well-lighted places customarily frequented by people seeking accommodation, amusement, recreation, or other services offered to the general public.
Rule 20.2 - Pursuant to § 24-34-501, C.R.S., et seq., real estate brokers or agents, home builders, home mortgage lenders and all other persons who transfer, rent, or finance real estate shall obtain one or more printed nondiscrimination notices from the Commission and post the notices in all places where real estate transfers, rentals and loans are executed. The Commission will not charge for the notices. The notices shall be posted and maintained in conspicuous, well-lighted and easily accessible places ordinarily frequented by prospective buyers, renters, borrowers, and the general public. Rule 20.3 - No employer, employment agency, or labor organization as defined in § 24-34-401, C.R.S., shall suggest or require that applicants submit their photographs prior to their employment or placement, unless the requirement is based upon a bona fide occupational qualification. Rule 20.4 - No person shall post or permit to be posted in any place of public accommodation any sign which states or implies the following: WE RESERVE THE RIGHT TO REFUSE SERVICE TO ANYONE Rule 20.5 - Preservation of Records (A) Retention of Records During Processing of Charge or Complaint. In situations where a charge or complaint of discrimination is filed pursuant to Parts 3 through 7 of Article 34 of Title 24, C.R.S. (1988), all relevant records shall be kept until final disposition. Relevant records include personnel or employment records relating to the charging party or complainant and to all employees holding similar positions to the one the charging party or complainant held or sought, as well as application forms or test papers of all candidates for the positions, registration records, offers, leases, contracts, correspondence, business records, etc. Final disposition of the charge or complaint occurs when the statutory time periods for all appeals have expired. (B) The failure to comply with this regulation shall create a refutable presumption, either by the Commission, or the hearing examiner, that the records contained information adverse to the interests of the party.
www.dora.state.co.us/civil-rights Denver: 1560 Broadway, Suite 1050, Denver, Colorado 80202, 303.894.2997 Fax 303.894.7830, Toll Free 800.262.4845 V/TDD 711 Pueblo: 200 West “B” Street, Pueblo, CO 81003, 719.542.1298 Fax 303.869.0498 Grand Junction: 222 South 6th Street, Suite 301, Grand Junction, CO 81501, 970.248.7304 Fax 970.242.1262 1/11
EXHIBIT D - COLORADO ANTI-DISCRIMINATION POSTER
FAMILIAL STATUS AND OCCUPANCY STANDARDS DEFINITION â€œFamilial Status" means one or more individuals (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individual or individuals; or the designee of such parent or another person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.
BLIND TO CHILDREN A landlord may only distinguish children from adults when a legitimate reason exists, which does not have illegally discriminatory intent or effect. The circumstances in which this may be allowed are very limited and generally must be based on legitimate safety considerations.
RULES Rules establishing age limits for the use of facilities, such as pools or exercise equipment, are allowed but are suspect. The general rule is the lower the age requirement, the less likely it is to violate Fair Housing laws, but in all situations, there must be a rational basis for both the restriction and the age the landlord has established. The landlord cannot have separate swimming hours for children. The landlord cannot establish rules which have the result, regardless of intent, of making it prohibitively difficult for children to play somewhere on the property.
NO ADDITIONAL RENT A landlord may not charge additional rent or collect an additional security deposit for units rented to families or otherwise charge different amounts to similarly situated persons. Charging per person rent or security deposits will generally be considered an indication of discrimination against families with children.
RETIREMENT COMMUNITY A landlord may exclude children from a retirement type of community, if the community is exempt from the law. The exempt housing must be 1) intended solely for persons of 62 years of age or older or 2) verified that at least 80% of the units must have at least one person 55 years of age or older and it is conveyed to the public that this is housing for older persons.
OCCUPANCY STANDARDS By enforcing an overly restrictive occupancy standard (say one person per bedroom) a landlord might create the effect of prohibiting most families. Unfortunately, the definition of an appropriate occupancy standard is not easy to ascertain. Many landlords use the standard of no more than 2 persons per bedroom. In most situations this will be an acceptable nondiscriminatory standard. However, there are situations where it will not be acceptable. If the size of the subject unit or its bedrooms are unusually large, there are of rooms not designated as bedrooms, but could be used for sleeping purposes, or the children are young are factors which could change the reasonableness of the 2 person per bedroom standard. None of these factors are well defined and each are analyzed on a case by case basis. Because infants are considered reasonably likely to occupy a parentâ€™s bedroom, it is prudent not to count a child of less that one year as a person when calculation occupancy.
DISCRIMINATION COMPLAINTS When defending a discrimination claim, the burden of proof is on the landlord. Consequently a landlord's best defense in any alleged discrimination case is an extensive record keeping system. A landlord's files should include every piece of paper that concerns the tenant or prospective tenant. This should include the application and all documents and information gathered during the application process, every notice, every demand, every lease renewal/termination letter, work requests, lease violation notices, any and all correspondence from or to every tenant. Every concession given or accommodation made for or requested by a tenant should be documented, including the type of concession or accommodation, when it was requested and when it was granted. In an ideal situation, the tenant file should contain a written summary of every conversation with the tenant. Owners and managers should review their liability insurance policies. Many insurance companies offer insurance for property managers and their agents, and also offer insurance against discrimination awards. However, as with all insurance policies, it is the exclusions from coverage that are so important. If the landlord or the landlord's insurance agent believes that the policy excludes coverage or defense of housing discrimination complaints, the landlord should request such coverage in writing, and an explanation of what coverage is excluded in language that the landlord understands. If a housing discrimination complaint is filed, it will generally include the person allegedly doing the discriminating, the management company and the owner, even if they are all different. Consequently, coverage for persons other than simply the owner is desirable.
OVERVIEW OF THE INVESTIGATION PROCESS
Discrimination complaints may be filed with the Department of Housing and Urban Development (HUD) or the Colorado Civil Rights Division (CCRD) or both. Typically cases filed with HUD are referred to CCRD for investigation. Once a complaint is filed, the persons alleged to have unlawfully discriminated (respondents) will be given a notice of the charge and the right to respond. The possible penalties in such cases include fines of $10,000 or more, damages, and injunctions. Even what appears to be a spurious complaint must be investigated by CCRD and should be responded to vigorously by the landlord. Once the notice of the charge is received, the respondents should consult with counsel who regularly practices fair housing law. The respondents often include the on-site personnel, the property manager or management company, and the owners of the property. Many times, this can create a conflict of interest for an attorney attempting to represent more than one party. Depending on the various positions of the named respondents, a separate attorney for each individual may be required. Once the landlord has consulted with and/or retained counsel, the next step is to notify the insurance company of the claim. The insurance company may "deny" coverage, and even "deny" defense of the complaint. However, the insurance company should be notified, both orally and in writing, immediately so that in the event of an order to pay damages, a case for recovery against the insurance company has been preserved. The landlord should respond timely to CCRD, fully outlining the landlord's position. The main point of the answer should be to explain that there was a legitimate business decision or policy for the action and that the alleged action was not based upon an illegally discriminatory basis. The response should include all documents and witness statements necessary to support the landlord’s position. The response should also inform CCRD of the name, address and phone number of the appropriate contact person. Some choose to only file a brief initial response and await request for information from CCRD before incurring the expense of fully documenting the landlord’s position. However, discrimination complaints are very serious business. Once a complaint is made, it assumes a life of its own, and the results can be devastating if not handled properly. Getting the landlord’s version of the facts in front of the CCRD representative quickly and persuasively may save a great deal of expense later. To prepare the response, the tenant file should be reviewed to see what may be in the file to provide defenses or give a basis for the claim. If, upon review of the facts, the landlord and/or the landlord’s attorney believe that the landlord has violated the law, it may well be in the landlord’s best defense to make the admission, enter into an agreement, and learn from the error. With such an admission, there may be less likelihood that more severe punishments will be sought.
SETTLEMENT Usually, after the investigation is started, the respondent will be contacted in an attempt to "conciliate" the complaint without a full-blown investigation. Conciliation is a process whereby a representative of CCRD will ask the complaining party what the party requires to have the case settled without further investigation. Usually, but not always, money is requested. CCRD will then ask the landlord whether the landlord is willing to agree to the demand. Although the process may appear like blackmail, especially in cases that the landlord believes have no merit, an early monetary settlement may be the best financial alternative, even when dealing with a spurious complaint. The conciliation process is voluntary. There is no withdrawal of the complaint, finding of wrongdoing, or vindication of the parties' positions by participating in conciliation negotiations. The landlord may agree to the settlement, counter-offer the demand, or just reject the offer. If the matter is conciliated, the landlord will be required to sign an agreement that will probably call for far more than just payment of a sum of money. For example, the respondent may be willing to agree to pay the complainant $100 because the cost of the investigation is so high that this is a good business decision. However, the conciliation agreement may also require the landlord to maintain records of certain activities, file monthly, quarterly or annual reports with CCRD, attend fair housing training, and a number of other conditions. Therefore, before consenting to a conciliation agreement the landlord should carefully review the full terms of the proposed conciliation agreement. Conciliation and settlement agreements are usually open to the public, and a violation of any term of these agreements may be grounds for the U.S. or Colorado Attorney General to bring a separate civil suit for violation of the agreement. The published agreement may be a source of embarrassment to the landlord. Settlements do not necessarily have to be part of a conciliation agreement. By negotiating directly with the complaining party the case may be "withdrawn." With a withdrawal, the complaint is not further investigated and there are no on-going requirements. Rather it is as if the case never existed. However, CCRD will generally not suggest or advocate a withdrawal of a complaint. The parties generally must suggest, negotiate, draft and obtain the signatures for withdrawals on their own. There is, at least in theory, the ability for CCRD to reject the withdrawal. Consequently, any payment or other concession made by the landlord under the terms of the withdrawal should be contingent upon CCRDâ€™s acceptance of the withdrawal.
If the withdrawal and/or conciliation does not resolve the case, CCRD will investigate all aspects of the allegations. In many cases, once the investigation starts, the tenant will add allegations. There may be additional allegations that the landlord has to defend.
SCOPE OF INVESTIGATION The landlord may be notified by CCRD that its representatives wish to meet with certain people, review certain files, policies and documents and visit the property. Such investigations can be very burdensome. The landlord must make reasonable efforts to provide the information, and regardless of the landlord's feeling about the case and the burden it creates, work with the investigator. Investigations are supposed to be completed within 100 days from the date the complaint is filed. The law allows that time to be extended if it is not feasible to complete the investigation within the 100 days. As a practical matter, many investigations take more time to complete than 100 days.
DETERMINATION Once the investigation is complete, the file will be reviewed by the CCRD hierarchy and its counsel. There will then be a determination letter which will either be a Finding of No Probable/Reasonable Cause, or a Finding of Probable/Reasonable Cause. If there is a No Probable Cause determination, the complainant can appeal the finding, and the complainant is still able to sue privately. However, usually a No Probable Cause determination letter will end the matter and the complaint will be dismissed. If there is a finding of Probable Cause, there will be a requirement that the parties attempt to mediate the matter, giving the parties one last chance to settle the case. If the parties can settle, the respondent will enter into a written Settlement Agreement which will outline the respondent's duties and obligations. If the Probable Cause determination is made and not settled, formal charges will be made. The landlord will receive this formal charge. The formal charge is not limited to the claims or the parties made in the original complaint. Any discriminatory practice found in the course of the investigation may be included in the charge. The formal charge will then start the process which eventually leads to a hearing by an Administrative Law Judge (ALJ) or, at the election of either party, a District Court Judge. The case will then proceed like most lawsuits. Unfortunately, the complainant will have free legal counsel and does not have to pay the associated costs. It will be the government, and its resources, against the landlord. Much consideration should be given to electing to have either an ALJ or a Court action. There are risks and benefits to each decision. An ALJ usually has greater familiarity with these types of cases. There is no possibility for a jury in front of an ALJ. The expense of defending oneself is usually considerably less in front of an ALJ. ALJâ€™s can impose fines and damages to compensate,
but cannot award punitive damages. Federal courts can impose compensatory and punitive damages, but not fines. A state court can impose fines, plus compensatory and punitive damages. All these factors can make one forum much more desirable than the other, depending on the facts of the specific case.
REQUEST FOR REASONABLE ACCOMMODATIONS AND MODIFICATIONS BY DISABLED TENANTS OVERVIEW In most Fair Housing disputes, the landlord’s goal is to prove that the landlord did not treat a member of a protected classification differently based on that protected classification. Sticking to strict business policies, consistently applying those polices to all persons, and documenting the landlord’s decisions are the main tools in defending a Fair Housing complaint. However, a landlord is specifically required in some circumstances to treat a disabled tenant or applicant differently from others. This attempt to reasonably “accommodate” a tenant’s disability is difficult for some landlords to analyze because it is so foreign to traditional Fair Housing requirements and the legal standards that govern these accommodations are muddled. In certain circumstances, landlords must allow a handicapped tenant to make modifications to the apartment or building at the tenant’s expense. In some cases a landlord must pay for the modifications directly. In some cases the landlord must bear the expense of changing normal policies and practices to better allow the disabled tenant to use the rented premises. These obligations vary depending upon the modification in question, the modification’s location, the age of the building, and whether the property is in a project based subsidy program.
AMERICANS WITH DISABILITIES ACT - FAIR HOUSING ACT When many people talk about legal obligations to the disabled they refer to all such obligations as falling under the Americans with Disabilities Act or “ADA.” In reality, the ADA has very limited impact on housing providers. Most of a landlord’s obligations to a disabled tenant arise under the Fair Housing Act (specifically Title VII of the Act). There are important differences between the ADA and the Fair Housing Act. The ADA, unlike the Fair Housing Act, only applies to areas open to the public. It does not apply to the units in apartment buildings, unless they have been built “by or on behalf of” a local government.
PUBLIC AREAS ONLY
While the Fair Housing Act has no requirement for retrofitting, the ADA does. Even existing structures must have their public areas made accessible as quickly as is “reasonably practical.” The less significant the change necessary to provide accessibility, the greater the expectation for speed in making the change. Generally, any substantial remodel of the public areas of an older building will necessitate efforts to make the public areas accessible.
COMMON AREAS ARE NOT THE SAME AS PUBLIC AREAS Not all common areas in a complex are considered public areas. Those common areas that are only for the use of tenants are not public areas subject to the rules. Clubhouses, pools, and playgrounds do not come under the requirements of the ADA, if they are used only by residents and residents’ guests, and not rented out to the public. However, the rental office, the parking lot that serves the office, the route from the parking lot to the office, and the bathroom (if the office has one for the public) are all open to the public at large and are, therefore, subject to the provisions of the ADA. These are the “Public Areas” which have to be retroactively made accessible.
PHYSICAL MODIFICATIONS TO NONPUBLIC AREAS BY LANDLORD OLDER BUILDINGS (PUT INTO FIRST SERVICE BEFORE MARCH 13, 1991) Under the Fair Housing Act there is no requirement that the landlord remodel the building to make it more accessible at the owner's expense (other than requirements under the Americans with Disabilities Act regarding public areas).
NEW BUILDINGS: (PUT INTO FIRST SERVICE AFTER MARCH 13, 1991) Buildings with four or more units must have all the units accessible if the building has an elevator. All the ground floor units must be accessible in buildings without an elevator. There are lengthy design standards published by HUD that define “accessibility.” An owner of new building that does not meet the accessibility requirements can be held financially responsible for retrofitting. With the adoption by HUD of its design guidelines for accessibility standards in new construction, litigation by disabled advocacy groups over what is and what is not accessible in new buildings has been greatly reduced.
PHYSICAL MODIFICATIONS BY TENANT If a tenant desires reasonable modifications for accessibility over and above what was required at the time of construction, the tenant must be allowed to make the modifications, but at his expense. The landlord must allow the tenant to make modifications to the building or the unit at the tenant's expense, if the modification can be done safely and if it would assist the disabled tenant to have “full enjoyment of the premises.” These types of requests often cover items like roll-in showers, ramps (both to the apartment door or at other stairs in the common areas), and removed or repositioned cabinetry. A landlord may require reasonable assurances that the work will be paid for, competently constructed in a good and workman like manner, in accordance with building codes, and by appropriately licensed and insured personnel.
TENANT TO RESTORE The landlord may force the tenant to restore the unit when the tenant moves out, only if the modifications have been made to the interior of the unit and are ones that would interfere with the use by a subsequent tenant who is not disabled. A landlord may not require restoration of modifications for handicap accessibility that have been made to the exterior of the unit. These modifications are considered beneficial to future disabled tenants and visitors. Because the tenant is required to pay for physical modifications there is a strong economic incentive for a disabled tenant to only request physical modifications the tenant actually needs. Consequently, legal disputes and Fair Housing claims over physical modification issues are relatively few.
REASONABLE ACCOMMODATIONS In addition to requirements regarding the physical building and unit, landlords are required to make reasonable accommodations in policies and procedures for disabled tenants and applicants. Unlike physical modifications, the costs of these “reasonable accommodations” are born by the landlord. These accommodations and the cost associated with them can include tolerating a host of behavioral problems and disturbances, broad demands for parking privileges and requests for service and animals.
Because there is no economic disincentive to prevent unrealistic tenant requests for accommodations, this is the area where litigation and Fair Housing complaints most typically arise.
BEHAVIORAL ISSUES A landlord may not discriminate against a prospective handicapped tenant solely on the basis that the tenant has a history of disruptive, abusive or dangerous behavior related to the handicap. A tenant engaged in behavior that is an objective violation of the lease, or even the law, may still require the landlord to make reasonable accommodations if the behavior is based on a disability. Great care should be taken in these cases to document all the behavioral problems and the times that the landlord has made an exception and tolerated behavior that violates the terms of the lease. Ultimately, when the landlord does take action against the tenant for the behavioral issues (usually by initiating an eviction action) the landlord wants to be able to demonstrate that the landlord has been reasonable and cannot be reasonably expected to tolerate more.
SERVICE ANIMALS A landlord must allow disabled persons to have a service animal on the premises. The definition of service has been expanded to the point that it has little practical meaning. Even if the only service the animal provides is companionship (a service every pet provides to every pet owner) it is enough of a service to qualify the animal as a service animal. The landlord must allow a service animal even if there is a “no pet” policy. The landlord may not charge a pet deposit or extra rent for a service animal even if the landlord usually charges a deposit or extra rent for animals (see the Pet section for an expanded discussion of service animal issues).
CHANGES OF RULES AND PROCEDURES A landlord must make reasonable accommodations to the landlord’s usual rules, practices, policies or services, as necessary, to give a person with a disability an equal opportunity to use and enjoy the unit and premises. For example, if the usual policy is that all parking is "first come, first served," without any reserved parking, the landlord should still provide, upon request, a parking space reserved for the tenant with a mobility handicap. If a tenant requests that a lease, or newsletters, or the like be made in enlarged print, the landlord should make that accommodation (by simply magnifying the document on a copy machine). Even accommodations which have much higher costs (like hiring a third-party translator for the deaf) need to be paid by the landlord. The Act only allows the landlord to avoid an accommodation expense if the expense would produce an “undue hardship” for the landlord. This is a very high economic threshold.
CERTIFICATION OF DISABILITY AND NEED A landlord is only obligated to make accommodations to a tenant with a disability. When a tenant makes a request for an accommodation the landlord may require certification that the tenant is in fact disabled pursuant to the federal definition. Furthermore, the landlord may require that this certification be made by someone competent to render the finding and familiar with the tenant. A landlord may also require certification that the accommodation being requested by the tenant is reasonably related to the disability. If there is no connection or nexus between the disability and the item requested, it is not a reasonable to grant the accommodation. However, a landlord is prohibited from inquiring into the â€œnature of the disability.â€? In the process of trying to verify that a tenant is indeed disabled and understand why, based on the disability, the tenant needs the accommodation requested - it can be extremely difficult not to cross the line into an inquiry as to the nature of a disability. Of course, the tenant or the tenantâ€™s doctor can freely offer as much information as they may care to, but, the landlord must be very careful about what is asked. Many management companies have developed preprinted packages to serve as requests for reasonable accommodations, certification of disability and need. These packages can make the process of dealing with accommodation requests much more convenient for both the allegedly disabled tenant and staff.
PETS AND SERVICE ANIMALS PET PROHIBITION IS ALLOWED A landlord is free to prohibit some or all pets in a leased premises. When faced with the potential problems created by a tenantâ€™s pet, including damage to the property, disturbances of other residents and the potential safety hazards created by poorly behaved animals, many landlords choose to do exactly that. Of course, by prohibiting pets, a landlord limits the market to exclude those pet owners who may otherwise be conscientious and profitable tenants. The trend in recent years has been to allow pets in increasing numbers of leased properties.
PETS ARE PRESUMED TO BE ALLOWED If a landlord chooses to exclude any or all pets, the landlord must include a provision excluding the pets in the lease. If the lease is silent on the issue, the tenant will be presumed allowed to keep traditional house pets. The landlordâ€™s pet policy should be explicit as to what pets are and are not permitted and the Landlord should not deviate from those policies.
PET RENT AND DEPOSITS Because the potential for damage (particularly to carpeting) is significant, Landlords who allow pets sometimes require significant additional security deposits as a condition of allowing a pet. A landlord is also free to require that a tenant pay pet rent and/or pet fees that are agreed to in the lease or pet addendum. Great care must be taken in the lease language regarding any pet deposit. The language must be coordinated with the discussion of the security deposit contained in the lease so that it is clear whether the pet deposit is in addition to or a part of the basic security deposit. The landlord does not want to be in a position that the tenant can claim the tenant paid more in combined deposits than the tenant actually paid.
PET RULES If a landlord is going to allow pets in a leased premises, it is important to include reasonable rules regarding the petsâ€™ behavior in either the lease, the rules and regulations for the complex or a pet addendum. Pet addenda are particularly handy because the document can be easily drafted to deal with the rules and also pet deposits, pet rents and breed restrictions. Typical rules for pets include requirements that the pet be on a leash when outside the apartment, not be allowed to bark or disturb others, not be left unattended in the common areas, balconies or patios, be licensed and vaccinated, and that the tenant will pick-up after and appropriately dispose of pet waste.
SERVICE ANIMALS Pursuant to Federal Fair Housing Regulations a landlord is obligated to make reasonable accommodations to a tenant with a disability. When a tenant’s disability requires the services of an animal, the landlord must allow a disabled tenant to keep a service animal in the leased premises. The landlord is obligated to allow the service animal without the charge of additional rent or additional security deposit. This is true even if the landlord typically allows pets, but, only with the payment of additional rent or an additional security deposit. The issues regarding service animals are relatively straight forward when involving a traditional and obvious disability such as blindness and a traditional and obvious service animal such as a seeing eye dog. However, the definitions of both a disability and a service animal are broader than many might suppose. Deciding whether to consent to a tenant’s demand for a free pet when either the disability or the status of the pet as a service animal are less obvious is more complex. Some literature and analysis draws a distinction between a “service” animal and a “companion” animal. The distinction is not particularly helpful in analyzing the tenant’s right to keep the animal and can largely be ignored. A better way to think of the analysis is that the only service provided by some service animals is companionship. If the tenant’s disability somehow necessitates companionship, the landlord may be required to accommodate a service animal that doesn’t provide any more service than any traditional pet (companionship).
FALSE CLAIMS The issue of analyzing a claim for the need of a service animal is made more complex by a relatively large number of tenants who make false claims of disability status for themselves and service animal status for their pet. Tenants sometimes make these false claims in order to force a landlord to accept an otherwise unauthorized animal in the leased premises or to force the landlord to tolerate the pet without charging typical pet deposits or pet rent. The issue can also come up when the tenant wants to house a dog that is on a restricted breed list or wants the dog to be able to violate various rules for the dog’s behavior. Regardless of whether the request is for an animal in a no-animal facility, a free animal where normally there is a pet charge, an animal which is on a restricted breed list or an animal that doesn’t comply with pet rules, the landlord’s analysis is the same. The landlord must determine: •
Is the tenant disabled?
Does the animal provide a service to the tenant?
Is that service related to the disability?
The tenant’s health care provider typically provides the certification of these three issues. Since the pet will not be residing in the tenant’s health care provider’s property, it is relatively easy
for a tenant to obtain the written statement of a health care provider stating that the health care provider believes it will be of some benefit to the tenant to have a pet. However, many (if not most) of these notes fail to shed light on one or more of the three issues (disability, need for an animal, and relationship between the need for the animal and the disability). A common scenario is for the landlord to receive a written note from a health care provider that leaves the landlord unsure whether the tenant is disabled, whether the disability requires the services of an animal, whether the animal provides any services and whether the health care provider has the qualifications and licenses to render an opinion about any of these issues. Upon the receipt of a request for a service animal, the landlord will have a choice. Many landlords will choose simply to accept the assertion on its face and allow the animal. Claimed service animal status and disability are currently areas of active litigation for advocates of disabled persons and with the State and Federal government. The Colorado Civil Rights Division spends the majority of its time and budget forcing landlords to respond to false claims of housing discrimination. A significant percentage of those claims include the Division deciding where it thinks dogs should and should not be allowed to live. Defending a housing discrimination claim is exceedingly expensive and there is no method of recovering the defense costs, even if the landlord’s position is correct and ultimately the landlord prevails. Many landlords will find the benefit of the fight not worth the cost. Consequently, landlords frequently succumb to even the most spurious claims for service animal status. Also keep in mind that pets are very emotional issues to their owners. A tenant who might be reasonable regarding most issues, may be motivated to aggressively defend and litigate any attempt by a landlord to force the removal of a pet (service animal or otherwise).
REQUEST FOR HEALTH CARE PROVIDER’S CERTIFICATE However, some landlords may choose to take a more aggressive approach to verify the existence of the disability and the status of the purported service animal. If a landlord chooses to verify the legitimacy of the service animal request, the landlord must be extremely careful about not inquiring into the “nature” of the tenant’s disability. One might suspect that if the landlord is to be forced to accommodate the request of a tenant who claims a disability - the landlord would be free to confirm the disability and inquire into the precise status of the limitations created by the disability. If the existence of the disability is not apparent, the landlord is allowed to require certification that the tenant is disabled. However, a landlord is prohibited from inquiring into the nature of a tenant’s claimed disability. Put more simply, it is important to inquire only to whether the tenant is disabled, not to inquire as to what the disability is.
The line between the legally acceptable requirement of certification of a disability and the legally prohibited inquiry into the nature of the disability is, at best, murky. Advocates for the disabled are free to argue that virtually any request for certification or verification of the claimed disability status is instead a prohibited inquiry into the nature of the disability. Nevertheless, there is no explicit prohibition against requesting that the health care provider certify that the tenant is disabled pursuant to the definitions under federal law, that the health care provider is licensed and competent to make such a diagnosis and certification, that the health care provider certifies the need for the service animal, and that the need for the service animal is related to the disability. Attached is an example of a certification which covers the relevant elements of a service animal request. It is often useful to provide the health care provider with the appropriate definition of disability as part of the request for a certification of disability. The appropriate definition is as follows:
DEFINITION OF DISABILITY Under federal law, an individual is disabled: if he/she has a physical or mental impairment that substantially limits one or more major life activity; has a record of such an impairment; or is regarded as having such an impairment. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction, and alcoholism. This definition doesn't include any individual who is a drug addict and is currently using illegal drugs or an alcoholic who poses a direct threat to property or safety because of alcohol use. [24 CFR Part 8.3, and HUD Handbook 4350.3 (Exh. 2-2)].
In addition to certifying that the tenant is disabled pursuant to the above definition, the health care provider may be asked how the services provided by the animal have a nexus (are related to) the disability and whether there are less onerous accommodations which would provide the same benefit to the tenant. These inquiries can include request for explanations of why the tenant needs more than one dog, why the dog must be on the restricted breed list, or why the dog cannot comply with normal rules governing the dogâ€™s behavior.
Certification of Disability, Request for Reasonable Accommodation and Professional Certification to Render Such an Opinion I hereby certify that ____________________________ (the “Patient”) is disabled as defined by Federal law, in that the Patient: Has a physical or mental impairment that substantially limits one or more major life activity; has a record of such an impairment; or is regarded as having such an impairment. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction, and alcoholism. This definition doesn't include any individual who is a drug addict and is currently using illegal drugs or an alcoholic who poses a direct threat to property or safety because of alcohol use. [24 CFR Part 8.3, and HUD Handbook 4350.3 (Exh. 2-2)]. I further certify that I am licensed by the state of Colorado and am competent to make this diagnosis and certification. I further certify that the Patient’s disability requires that the Patient house an animal described as __________________________________ to provide a service to Patient described as ____________________________________ and that service is directly related to that disability. The Patient can be expected to control the animal and cause it to comply with all typical rules and regulations regarding animals (keeping on it leashed, preventing barking or aggressive behavior, picking up after the animal, preventing the animal from damaging property). The services provided by the animal do not have to be provided by an animal on any restricted breed list and can be provided by a single animal. (Note: If you indicate that the Patient cannot be excepted to cause the animal to observe normal behavioral rules, that the services provided by the animal must be provided by an animal on a restricted bread list, or that the services cannot be provided by a single animal, you must explain in detail on attached Exhibit A what rules the animal must be allowed to violate, what services are to be provided by the animal which cannot be provided by an animal which is not on the restricted bread list and what service is to be provided by a second animal which cannot be provided by a single animal and how that rule violation is related to the Patient’s disability). __________________________ (Signature) (Date) __________________________ (Street Address) __________________________ (City, State and Zip Code)
__________________________ (Printed Name) __________________________ (Phone) __________________________ (Professional Certification) ___________________________ (License Number) Verification of Licensee’s Signature
State of Colorado County of _____________ Subscribed and sworn to me this ______ day of _______, by ____________________ who is either known to me or presented identification sufficient to verify identity ____________________________________ (Seal) (Notary Public) My Commission Expires: ____________
EXHIBIT : CERTIFICATION OF DISABILITY
DEFAMATION OVERVIEW Knowingly communicating false information about someone is defamation. When the communication is in writing, it is more specifically referred to as liable. When the communication is spoken, it is specifically referred to as slander. If the defamation causes economic harm, it is legally actionable. Landlords are frequently the victims of defamation. Rejected applicants and disgruntled residents (past and present) occasionally communicate their frustration. Sometimes those communications are knowingly false. The Internet and social media sites give these persons access to large levels of readers. Those readers may be influenced not to do business with a landlord based on these false statements about the landlord. Tenants also sometimes resort to less high-tech communication methods to communicate their defamation. Door-to-door canvasing, flyers, picketing, signs and posters, and simple outbursts in the leasing office are all frequently used methods of defamatory communication.
ANONYMOUS COMPLAINTS Many times the biggest hurdle in dealing with negative postings and defamatory communications is identifying the complaining party. The first step in bringing a lawsuit is to identify whom to sue. Without a known defendant, a landlord canâ€™t even bring legal action; let alone prove that the person committed actionable defamation.
PROBLEMS WITH PROVING THE CASE Even when the potential defendant is identifiable, there are other hurdles in litigating the issue. One of the elements of a defamation claim that it must be proven is that the defendant knew the information being communicated was false. Any claim that depends on objectively proving what someone was thinking at a given time is always difficult. Even with a collection of provable facts that demonstrate that the defendant reasonably must have known that he or she was not telling the truth, the defendantâ€™s denial of knowledge will usually win out.
DEFAMATION DAMAGES Assuming one has an identifiable party and can prove that person knew the information being communicated was false, it is still necessary to prove the false information caused actual damages. Many times the false information is aggravating. Sometimes it can be speculated that the false information might have caused monetary damages. However, rarely can specific losses or damages be tied to specific defamatory communication. Without quantifiable losses, a defamation suit can’t be won.
EXPENSE OF LITIGATION Most of a landlord’s litigation experience involves collection and eviction cases. These cases are typically bundled up and multiple cases are presented to the court at the same time. Consequently the litigation expense associated with this litigation is greatly reduced. This leaves many landlords with a false sense of anticipated legal costs associated with more customized litigation. A defamation case would be a very unique piece of litigation. It would be pursued on its own without any cost efficiencies from bundling lawsuits. Additionally, if injunctive relief (a court order to stop the communications) was desired by the landlord, the action would have to be brought in District Court. District Court is a much more expensive and formal setting than the County Court and Small Claims Court venues where most landlord tenant disputes are heard. A landlord desiring to bring a contested action in District Court should expect to spend tens of thousands of dollars in litigation costs. This hurdle alone will make almost all defamation issues impractical to litigate. Consequently, in the vast majority of situations, a landlord will find that suing a tenant for defamatory conduct is impractical to pursue even in the relatively uncommon situation where the claim wouldn’t also be impossible to prove.
REMEDIES WITHIN THE SITE
The sites and organizations that publish or post the information that is claimed to be inaccurate are largely immune from the legal claims of the victim of the defamation. Simply put, those sites donâ€™t warrant or investigate the accuracy of the information appearing on their sites. The only potential claim to evaluate against the publisher is whether the publisher has followed its own procedures and policies in handling the publication and any response. Some of the organizations that compile and publish complaints have a process for responding to and, in some cases, correcting false information. The Better Business Bureau, one of the original consumer complaint processers, is an example of an organization with a formal response process. Utilizing the siteâ€™s formal response process may be the only practical remedy available. Even without a formal response process, many sites offer the opportunity for a responsive posting. The content of the response is less a matter of legal precision than it is a matter of good persuasive public relations. Regardless of how provoked the landlord may be, a professional, measured and emotionally controlled response will always be the most effective course of action. Keeping the responsive communication short is usually most sucessful. The potential reader will have far less interest and far less time to spend with the controversy than the landlord might imagine. In the end, an opportunity to respond with a short and persuasive recital of the truth will be the most effective and only remedy available to the landlord.
NEGLIGENCE OVERVIEW Most of the people landlords are likely to have disputes with will be parties to a contract of some sort with the landlord. Property managers and owners typically define their obligations to each other with a management agreement. Lenders and owners define their obligations to each other with a promissory note and deed of trust. Property managers and tenants have a lease. Property managers and vendors use a service contract. The provisions of these contracts create the rules of liability each has to the other. However, there are legal theories and causes of action that apply to people’s dealings with each other that have little to do with any agreement or business relationship among them. Negligence is the most important of these causes of action and represents a broad type of claim for damages by a person who doesn’t necessarily have any agreement or business relationship with the person they are suing.
DEFINITION A good working definition of negligence is failing to behave in a reasonably cautious way to prevent causing someone harm. Anything from the injuries suffered in a traffic accident to property damages caused by animals can be the basis of a negligence claim. Landlords tend to see claims most often associated with alleged personal injuries suffered at the landlord’s facility and property damages associated with leaks and fires.
FORESEEABILITY A landlord is not legally expected to anticipate and prevent all injury. Accidents sometimes happen without anyone doing anything wrong (or failing to do something required). Whether a duty exists on the part of the landlord depends on whether the risk of harm was foreseeable. Residents and others making claims against landlords tend to misunderstand the requirement that the landlord have some duty regarding the accident based on foreseeability. Rather, residents accurately identify that they have suffered damages and that the accident wasn’t their fault. Therefore, they presume someone else must have legal responsibility. That someone else tends to be their landlord.
Granted, foreseeability is a nebulous issue. Armed with hindsight, many things may appear to have been reasonably foreseeable after the fact. However, if a landlord can demonstrate that they didn’t know of the risk and there was no reason the landlord should have known of the risk, the landlord should be able to establish that the risk of harm was not foreseeable. If the risk of harm was not foreseeable, generally the landlord does not have a legal responsibility to prevent the harm. Notification or knowledge of a problem greatly increases a landlord’s legal liability because it increases the foreseeability of the harm. For this reason, a method of monitoring all complaints and service requests must be in place. Additionally, inspection reports and other observations of the landlord’s staff must be systematically reviewed and promptly acted upon. Knowledge by one member of the landlord’s staff creates a legal obligation for the landlord as if the entire staff knew of the problem. Consequently, a communication system must be in place so that all necessary staff members are fully aware of all risks reported and can act on those risks accordingly.
REPAIR Evidence of a landowner’s remediation or repair of a problem is not admissible as evidence to demonstrate the landowner’s responsibility for an accident. Our legal system attempts to encourage people to make needed repair without fear of increasing their legal liability. Consequently, it is always appropriate to repair a dangerous condition as soon as it comes to the landlord’s attention.
FAILURE TO WARN Many negligence claims allege that the landlord’s negligence was the failure to warn of a known danger. This is particularly relevant in the case of reoccurring maintenance problems. A landlord may have no liability for a sewer line blockage. However, once the blockage occurs frequently (reoccurring tree roots for example) and the landlord fails to disclose the defect, the landlord runs the risk of being held to have negligently concealed a known risk. All repairs should be assessed to determine whether the problem has likely been permanently corrected and, if likely to reoccur, how much risk there is to residents and their property. When the reoccurrence rate is likely to be high and the risk of harm or damage is great, future residents should be warned.
Accidents often have a number of different causes and potentially a number of different persons responsible for those causes. Sometimes the person that suffered the damages or injury is partially responsible for the mishap. Colorado is one of the many states that recognizes the concept of contributory negligence, an attempt to fairly account for the injured person’s complicity in the accident. Under contributory negligence principles, a person’s awarded damages are reduced by the percentage of responsibility attributed to their own negligence. In a case where a landlord was found to be 70% responsible for the accident and the resident 30%, the landlord would be legally responsible for only 70% of the resident’s damages. If the resident was found to be 50% or more responsible, the resident would be legally prevented from recovering anything (under the theory that the resident was mostly at fault).
INSURANCE COMPANY NOTIFICATION Once an accident occurs or a claim is made against the landlord, one of the first decisions that will have to be made is whether to involve the landlord’s insurance company. If the insurance company is not promptly notified of the claim for liability, the insurance company will have a basis to deny coverage under the terms of many insurance policies. A landlord may choose not to make a claim for insurance coverage for all claims. Claims made against policies tend to cause increases in future insurance premiums and can lead to cancellation of coverage. Insurance companies tend to be more generous with their offers to settle claims than the landlord might be directly. If the policy includes a high deductible, much of the money offered to settle a small claim may not be covered by the policy and will be coming out of the landlord’s pocket. For these reasons a landlord may decide to handle negotiation and payment of a claim directly rather than involving the insurance company. However, this should be a conscious decision by the landlord, not one that is forced on the landlord because of a failure to notify the carrier.
SETTLEMENT A payment to a resident should be documented with a settlement agreement that releases the landlord from the resident’s claims. Any release agreement should include a release of claims against not only the property management company, but, also the ownership entity and all the employees and related parties of each entity. The landlord doesn’t want to be in the position of settling a resident’s claims against one part of the ownership/management group, only to see the resident then move on to make the same or a similar claim against the other.
Because a parent’s legal ability to release the claims of their minor children can be limited (without a court order approving the settlement), it is always prudent to have the parent indemnify and hold the landlord harmless against the claims of all household members and other occupants as part of the settlement. It is often appropriate to include the obligation of the resident to move-out of the apartment complex as part of the settlement. Once a resident gets a taste of obtaining money from their landlord based on the threat of litigation, the resident can quickly learn to like it. Such a resident has too high of a potential to make future claims for a prudent landlord to be willing to continue to do business with that resident.
CUSTOMER SERVICE VS. SETTLEMENT Many times a landlord will try to placate a resident’s demand associated with an accident regardless of legal liability and without thinking about the concessions as an attempt to settle the resident’s claims. These concessions or payments may greatly exceed the value of the resident’s legal claim as an attempt to protect an ongoing business relationship. These concessions should always be made conditional upon the resident signing a release agreement. The landlord does not want to end up in the position that the landlord has given away things of significant value to placate the resident, only to find the resident is still pursuing the threat of litigation.
PARKING ISSUES OVERVIEW Managing the challenges of limited parking and the resulting towing disputes can be a very frustrating responsibility for property managers. Most properties do not have as many parking spaces as all involved would prefer. Dealing with the scarce resource and disputes over the use of the spaces between the landlord, various residents, visitors, third party towing companies and local governments can be difficult.
TOWING POLICY There are few actions that will make a resident more angry than towing the resident’s vehicle or a vehicle belonging to the resident’s guest. For a landlord, towing may be a relatively inexpensive and immediate solution to a parking problem. However, towing carries a number of less obvious costs in the form of potential liability and lost good will. It is prudent to have a well thought through policy for parking that minimizes the need for towing. When thinking through a parking policy, it is helpful to determine what types of parking violations may need to be rectified immediately, as opposed to those that can be corrected over a more reasonable period of time. Care should be taken not to “over tow” by using parking violations that don’t create an immediate need for resolution as a reason to tow a vehicle. Parking in a fire lane, blocking in other vehicles and (in some cases) unauthorized parking in a handicap designated space are examples of violations that might create the need for an immediate fix thereby warranting the expense, inconvenience and potential liability of towing the vehicle. Parking an unauthorized type of vehicle, unauthorized parking in someone’s reserved spot, leaving a vehicle in the same spot for too long, parking in multiple spots or parking a noncompliant vehicle are examples of violations that typically do not create the need for an immediate solution and can therefore be dealt with a warning before towing. It is important to have the policy communicated in the lease agreement as well as signage around the property. The terms of the lease agreement will create the ground rules between the landlord and the resident. However, those provisions will not control disputes between the landlord and nonresident parkers.
SIGNAGE REGULATIONS The Colorado Public Utilities Commission (“PUC”) regulates a number of types of commercial vehicles, including tow trucks. In 2013 the PUC updated its regulations covering tow trucks to create signage regulations covering towing from private property. The regulations are found at Rule 6500-6599 of 4 Code of Colorado Regulations. The Rules require signage warning that, “Unauthorized vehicles will be towed at the vehicle owner’s expense.” The signs must be posted in conspicuous locations, at eye level, at least one sign per 10 designated parking spaces and also within 10 feet of the entrance to any private parking area. It is also useful to post the contact information for the towing company. The signs must each be at least one square foot in size with lettering of at least one inch in height (Rule 6508(III). The Rules specifically allow local governments to impose additional signage requirements through local ordinance (and some do). Consequently, it is prudent for a landlord to check local ordinances for additional signage requirements. It is also a good idea to build into the contract with the property’s towing provider that the towing provider will be responsible for complying with all towing relating regulations (including signage) and that the towing provider will indemnify and hold the landlord harmless from any failure to comply with such regulations.
DELEGATION OF TOWING DECISIONS It has been a common practice in managing parking areas to allow tow truck operators to make the decision in the field of when a parking violation was sufficiently serious to warrant the vehicle being towed. A property owner delegating this authority to the towing company creates some practical advantages. It eliminates the need for communication between the property manager and the towing operator and speeds up the decision making process. Because towing issues often come up during nonbusiness hours, it can be significantly more convenient to have the tow truck operator make the towing decisions. However, delegating the towing decision to the tow truck operator also creates a subtle conflict of interest and arguably contributes to over towing. A towing vender makes money from towing vehicles, not leaving them alone. Additionally, unlike the property manager, the towing vender does not have an ongoing business relationship with the vehicle owner that needs to be managed and taken into account. Quickly going to the towing solution may be in the best interest of the towing vender. However, it often leaves the property manager dealing with the resulting hostile relationship. The new PUC regulations now prohibit a property owner from giving the towing company the authority to make towing decisions on its own. The regulations also prohibit pre-signed blank towing authorization forms. The property owner is now required to provide written towing instructions covering and describing each vehicle to be towed and the time and date of the towing.
LIABILITY FOR VEHICLE TAGS Many local governments have adopted ordinances that make landowners legally responsible for fines for inoperable vehicles, expired license plates and emissions certifications for motor vehicles parked on their land. This can put a landlord in the position of having to pay the resident’s parking tickets. To protect the landlord from this liability, the lease should require that the residents’ vehicle plates and tags be fully current and that all vehicles be operational and compliant with local ordinances. It is also helpful to have clause wherein the resident agrees to indemnify (obligation to reimburse) and hold the landlord harmless from all fines imposed because of the resident’s vehicles. It may also become necessary for the property manager to periodically inspect the vehicles in the parking lot and issues demands or warnings regarding these violations in communities where the enforcement of theses provisions by the local government is active.
REGULATION OF USE The property owner is free to place reasonable restrictions on use of the parking lot. To be enforceable, these restrictions need to be in the lease, community policies or a parking addendum. Common restrictions include: prohibitions against leaving a vehicle parked in nonreserved parking for an extended period of time, repairing or maintaining vehicles, and storage of non-commuter vehicles such as RVs, boats, trailers and commercial vehicles. Even reserved spots and garages may require restrictions on the storage of hazardous materials or items that impact other parking spaces.
PLAYING IN THE PARKING LOT Issues come up in some communities regarding children playing, skateboarding or riding bikes in parking lots. Care has to be taken not to overregulate children’s behavior for fear of generating fair housing complaints based on familial status. However, there are legitimate safety concerns associated with pedestrians in vehicle use areas. Prohibitions should focus on the specific uses that are prohibited rather than the age of the restricted persons. Consequently, a restriction against bicycling in the parking lot is safer than a restriction against children in the parking lot.
EVICTIONS NO SELF-HELP The Forcible Entry and Detainer statutes set forth the basis, procedures and requirements for terminating a tenancy and evicting a tenant. As a general rule, landlords cannot exercise "selfhelp" in evicting tenants. There are only two ways to legally remove a tenant, by mutual agreement or with a valid court order. The statutes governing evictions are procedurally expedited and give little time for tenants to respond. Therefore, the courts require strict compliance with the statute by the landlord.
TWO BASIC TYPES OF NOTICES In most instances the first step in evicting a tenant is to post a notice at the leased property. The type of notice will be dictated by the reason the tenant is being told to leave and the type of possessory interest held by the tenant. There are two basic types of notices. When a tenant has no right to possess the property, a Notice to Quit is used. If the tenant has a right to possess the property, but has breached the tenant’s obligations under the lease, a Demand for Compliance or Possession is used.
NOTICES TO QUIT NOT FOR MOST LEASE VIOLATIONS A Notice to Quit is used when a tenant has no right to possess the property, either because the lease has expired (or will expire), or because the tenant never had a right to the property. A Notice to Quit is not used when a tenant breaches the lease, as a Notice to Quit does not provide the tenant with the required right to cure the breach. There are specialized Notices to Quit for “repeat” and “substantial” violations of the lease. These types of notices are used in only very specific circumstances and are discussed at length below. If a landlord desires to remove a tenant, but the tenant has not breached the lease, the landlord must wait for the lease to expire and in most circumstance must provide the appropriate Notice to Quit.
NOTICE NOT REQUIRED FOR LEASES ENDING ON A SPECIFIC DATE If a lease ends on a specific date, neither the tenant nor the landlord is required to give notice, unless the lease expressly requires notice. If the tenant remains in possession after the lease termination date, and the landlord wants the tenant to vacate, the landlord may go directly to filing the summons and complaint.
However, as a practical matter, even if no notice is required because the lease is to end on a specific date, the landlord may want to give a Notice to Quit before the expiration of the lease anyway. The notice will serve to advise the tenant that the landlord will not be renewing the lease and facilitate a smooth transition. Court staff is used to seeing a notice as a precursor to an eviction, so having a notice will expedite the filing. Additionally, even if not required by statute, a Notice to Quit prior to initiating an eviction action will strike the Court as more equitable.
10 DAY NOTICE REQUIREMENT A 10 day Notice to Quit is required if the lease is a month-to-month lease. The Notice should expire on the last day of the monthly period. The CAA Lease renews on a month-to-month basis after the initial term. Therefore, under the CAA Lease, if a landlord accepts rent after the initial term of the lease, a periodic month-tomonth tenancy has been created and the landlord is required to provide a 10 day Notice to Quit. By serving a Notice to Quit at least 10 days prior to the expiration date of the existing lease term, the landlord will eliminate the tenant's ability to argue that the lease has renewed as a periodic month-to-month tenancy, thereby requiring notice.
30 DAY NOTICE REQUIREMENT The CAA Lease also requires the tenant to give 30 day notice that the tenant intends to vacate the premises, even if that date is the same as the lease termination date. Contractual promises to give more notice than the statute requires are typically enforceable. Without any specific statutory basis, some courts hold that if the tenant must give 30 day notice, then it is implied that the landlord must also give the same notice. There are no prohibitions about giving a tenant too much notice. Consequently, a landlord is wise to give as much notice as possible, regardless of the statutory minimums. Most of the time a landlord knows of the desire not to renew the lease more than 30 days before the desired termination date. By giving more than 30 day notice, the landlord will eliminate almost all challenges based on improper notice.
3 DAY NOTICE REQUIREMENT Even a person who has no right to possession of the property is entitled to a Notice to Quit. Such a person is presumed to be a tenant at will, unless the contrary is shown. A tenant at will is entitled to a 3 day Notice to Quit.
DEMAND FOR COMPLIANCE OR POSSESSION RIGHT TO CURE In many cases the landlord will desire to regain possession of the leased premises, not because the lease has expired, but because the tenant has breached the lease. A breach of the lease by the tenant may consist of a monetary breach, such as failure to pay rent or a nonmonetary breach of the lease, such as keeping an unauthorized pet. In order to force the tenant to move based on a breach of the lease, the landlord must provide the tenant with notice of the breach and three days to cure the breach. The notice of the breach and three days to cure the breach are required by Colorado law and cannot be waived by the tenant. Because there are a number of issues which are handled differently between monetary and nonmonetary breaches of the lease, each is discussed separately.
DEFAULT - NON-PAYMENT OF RENT Colorado law requires that before commencing any action in court for failure to pay rent, the landlord must give the tenant a demand to pay or move within three days. This notice is commonly titled as a Demand for Compliance or Possession or a Demand for Rent or Possession. The Demand gives the tenant an option to either pay the amount that is due or to move and return possession of the property to the landlord during the three day period. During this three day period, the landlord is obligated to accept the amount of money referenced in the Demand, if offered by the tenant. If the tenant instead surrenders possession of the property, the landlord will not be required to obtain a court order to take possession of the property.
PARTIAL PAYMENT The landlord has no obligation to accept a partial payment. However, if the landlord accepts partial payment the landlord must start the process over. If the demand states that the tenant must pay $500.00 and the tenant pays (and the landlord accepts) $400.00, most judges rule that the landlord has waived his rights under the three day demand. The landlord is still entitled to the remaining $100.00. However, the landlord must post another Demand for Compliance or Possession and provide the tenant an additional three day period to pay the balance ($100.00), prior to initiating an eviction action. It may be a good business decision to accept a partial payment. The amount of money offered by the tenant may be well worth the trouble of posting a new Demand for Compliance or Possession and three additional days that the new Demand will provide.
RETURN OF PAYMENT
If the landlord does not wish to accept the partial payment, the partial payment should be returned as soon as reasonably practical. The landlord should be cautious in how partial payments are returned. Simply slipping the check under the tenantâ€™s door often is met by a claim that it was never returned. The landlord should try to return the check in a fashion that is provable in court, such as hand delivery, by keeping a copy of the payment and the cover letter and returning it by mail, or even by a letter to the tenant advising the tenant to retrieve the check from the landlord.
FULL PAYMENT AFTER 3 DAYS If the tenant attempts to pay after the three day period, the landlord does not have an obligation to accept the payment, even if the offered payment is the full amount demanded in the Demand for Compliance or Possession. If the landlord does accept the payment, the landlord has again waived the right to proceed with the eviction. The further along in the eviction process the landlord is, the less incentive the landlord has to start over by accepting partial rent.
DEFAULT - OTHER T HAN RENT (NONMONETARY DEFAULT) When a tenant violates the lease in some nonmonetary fashion, the tenant is still entitled to notice of the breach and a 3 day right to cure. Common nonmonetary breaches of the lease include unauthorized residents and pets, disturbances, illegal activity and damages to the premises.
USUALLY A RIGHT TO CURE There are some special exceptions to this general rule for serious criminal acts and repeat violations discussed below. However, for most nonmonetary breaches, the law requires the Demand for Compliance or Possession, with a three day right to cure the breach, prior to commencing an eviction action against a tenant for nonmonetary breaches of the lease. The Demand for Compliance or Possession must tell the tenant how the tenant breached the lease, preferably how to cure the breach, and give the tenant three days to cure the breach.
BE SPECIFIC Generally, most judges require that the notice be specific enough so that the tenant knows what the tenant must do (or stop doing) to cure the breach. For example, if the tenant is disturbing other residents, the Demand for Compliance or Possession should provide: "On May 11, 2000 at approximately 11:00 p.m., you breached your lease by unreasonably disturbing your neighbors with loud music. You must cease unreasonably disturbing your neighbors."
Do not merely say "violation of paragraph 15 of the lease" as the paragraphs usually contain many different provisions and such a statement does not tell the tenant exactly what the problem is and what the tenant needs to do to cure the problem. If the tenant does not cure the default, then the landlord may proceed to initiate the eviction action. If the tenant does cure the breach, then the landlord cannot proceed with the court action at that time.
DIFFICULTY OF PROOF What makes nonmonetary defaults so different from nonpayment of rent cases is the difficulty of proving the breach. If the matter goes to trial, the landlord will have the burden of proving that the specific tenant caused the specific breach, that a three day Demand for Compliance or Possession was posted, and that the tenant failed to cure the breach. Often the landlord is not a witness to the alleged breach. The landlord instead is left to rely on the statements of other tenants or third parties. The credibility of these third party witnesses may be difficult to determine before trial. Additionally, the landlord may have a difficult time persuading these witnesses to testify. Before the initiation of an eviction action for any nonmonetary breach of the lease, the landlord will have to take care to have persuasive and admissible evidence of the breach. Often times the landlord is left in the frustrating position of strongly suspecting, or even knowing, that a breach is taking place, but not being able to prove it.
REPEAT VIOLATIONS MULTIPLE DEMANDS In many cases a tenant will cure the breach of the lease within the cure period provided by the Demand for Compliance or Possession only to commit the same breach again latter. A landlord could find himself in the frustrating position of posting a continuous stream of Demands for Compliance or Possession, each one doing nothing more than requiring compliance with the lease for the 3 day cure period. This dilemma is particularly a problem with disturbances or criminal violations. These breaches are rarely continuous. They occur sporadically and provide the tenant the defense of claiming that each violation entitled the tenant to a new Demand for Compliance or Possession and a new three day period to cure.
NOTICE TO QUIT AFTER 2ND VIOLATION Recognizing this problem, C.R.S. 13-40-104 (e.5) provides that if the tenant has been previously provided a Demand for Compliance or Possession and, after the cure period, commits the same violation again, a three day Notice to Quit may be posted without giving the tenant a new 3 day period to cure. This option can be a powerful tool for the landlord when dealing with a habitually bad tenant. While not specifically required by statute, the Notice to Quit for a repeat violation typically contains slightly different verbiage than the standard Notice to Quit. The Notice to Quit for a Repeat Violation should reference the prior breach and the previous posting of the Demand for Compliance or Possession. Disputes can arise as to whether the tenant failed to cure an alleged breach or alternatively cured and re-breached. If the tenant never cured the alleged breach, the landlord may proceed directly to file the eviction action without posting the Notice to Quit for a Repeat Violation. However, if the tenant cured the alleged breach and then committed a later breach, the landlord must post the Notice to Quit for a Repeat Violation prior to initiating the eviction. The safest course of action is to always treat either the failure to cure or a second violation as a repeat violation and provide the Notice to Quit for Repeat Violation. Example: The tenant is noisy on January 1. The Landlord posts a Demand for Compliance or Possession on January 2. The tenant is noisy on January 3, 4, and 5, but is quiet after that. Consequently, the tenant has cured in accordance with the demand. On January 20th the tenant is again noisy. The landlord posts a three day Notice to Quit for repeat violation on January 21st and initiates the eviction action on January 25.
DEFAULT FOR A SUBSTANTIAL VIOLATION Recognizing that a 3 day period to cure a default is not appropriate when the default is a serious violation of the law, the legislature has provided a procedure to evict a tenant without a cure period under C.R.S. 13-40-107.5.
SERIOUS CRIMINAL ACTIVITY If (and only if) the alleged breach is serious enough to be considered a â€œsubstantial violationâ€? as defined by the statute, the landlord can provide a Notice to Quit for Substantial Violation, without providing the tenant with a 3-day right to cure.
DEFINITION A substantial violation is defined as an act, or series of acts by the tenant, or any guest or invitee of a tenant, when taken together: a) occur on or near the premises and endanger the life or person of another; b) occur on or near the premises and willfully and substantially endangers the property of the landlord, any co-tenant, or any person living on or near the premises; c) occurs on or near the premises and constitutes a violent or drug related felony prohibited under article 3, 4, 6, 7, 9, 10, 12, or 18 of Title 18 of the Colorado Revised Statutes (these include offenses such as assault, robbery, trespass, prostitution and firearm offenses ); or, d) are punishable by more than 6 months in jail and have been declared a public nuisance.
PETTY CRIMES Most criminal acts do not come under this definition. Possession of a small quantity of marijuana, public intoxication, petty vandalism, and drunk driving are all examples of illegal behavior that is not sufficient to be classified as a substantial violation.
EXCEPTIONS There are several important exceptions to this definition. If the tenant was a victim of domestic violence or if the tenant did not know of the violation and could not reasonably have known of or prevented the violation and immediately notified a law enforcement agency, the act is not a substantial violation, even though such act might otherwise fit the definition.
DIFFERENT NOTICE In the case of a substantial violation, the landlord may post a 3 day Notice to Quit and after the 3 day period, initiate an eviction action. While not specifically required by statute, the Notice to Quit for a Substantial Violation typically contains significantly different verbiage than the standard Notice to Quit. The Notice to Quit for a Substantial Violation should reference the alleged behavior and that it constitutes a substantial violation.
PROOF PROBLEMS In these cases, the landlord does not need to prove the crime beyond a reasonable doubt, as is required in a criminal case. However, the landlord still must prove the alleged substantial violation by a preponderance of the evidence. Like any nonmonetary event of default, assembling evidence of the tenantâ€™s substantial violation may be beyond the landlordâ€™s ability.
ISSUES FOR ALL DEMANDS AND NOTICES
The following are requirements for all demands and notices required by the statutes regardless whether rent or non-rent matters.
POSTING The notices must be posted at the premises in a “conspicuous” place. Case law holds that posting face out on the front door constitutes a conspicuous posting. Posting with the printed material face out may seem like an undue source of embarrassment to the tenant. However, the purpose of posting is to make anyone who has an interest in the property aware of the notice.
SIGNED BY LANDLORD The landlord or the landlord’s authorized agent must sign the notice. The name of the landlord on the notice should correspond with the name of the landlord on the lease or on a written assignment of the lease. In addition to signing the notice, the landlord or the authorized agent must also sign a certification indicating that the notice was posted.
KEEP COPY The landlord should keep a copy of the notice and the certification of posting so that the landlord can prove to the court that the notice requirements were complied with. There is no requirement that the tenant actually receive the notice - only that the landlord gives the notice. Therefore, the tenant's claim that "I did not receive the three day notice" is generally not a valid defense. All notices must contain a complete and accurate street address of the premises and be addressed to the tenant. Listing all known tenants, with the addition language of “and all other occupants” will help eliminate disputes as to whether every required person has been provided notice.
COUNTING DAYS Don’t count the day of posting. Don’t file the case until after midnight on the day that the demand expires.
COMPLAINT AND SUMMONS
If, after the notice or the demand has expired, the tenant has not complied with the notice or the demand, the landlord may begin the court/eviction process.
COUNTY VS. DISTRICT COURT The eviction action must be filed in the county in which the property is located. The eviction action can be filed in either county court or district court. If the amount requested in the demand is less than $15,000, then the case should usually be filed in the county court (the county court has a jurisdictional limit of $15,000 and is cheaper and faster to deal with than the district court). The case must be filed in the district court if you wish to get a judgment for more than $15,000.
SUMMONS The owner of the property or an attorney must sign the complaint. The summons must be issued by the court or by an attorney only. The initial court date, or Return Hearing, must be no less than seven days and no more than ten days from the date of issuance of the summons. The time does not begin until the day after issuance of the summons. If the summons is issued on January 5th, the first day of the seven to ten day period begins on the 6th of January.
SERVICE Once the summons and complaint are issued, a copy, along with a blank answer form, must be mailed to the defendant/tenant and one copy must be served on each defendant or posted on the property. If personal service is obtained on the tenant, mailing is not also required. However, it is suggested that the landlord immediately mail a copy anyway. The landlord is not likely to know if service will be obtained by posting or in person at the time of the mailing. If the tenant is personally served and the tenant does not file an answer, the landlord may obtain a judgment for possession of the property, rent, costs and attorney fees. If service is by posting and mailing, and the tenant does not answer, the landlord may only obtain judgment for possession of the property. Since most landlords are more concerned about getting the property back quickly than they are with obtaining a money judgment, most will post immediately after trying to obtain personal service. Unlike the previous notices or demands, the Summons and Complaint must be served by either the sheriff or some disinterested party over the age of 18. If the tenant does not file an Answer before or on the court date, a default judgment will be entered. If the tenant files an Answer, a trial date will be set, usually within 7 days after the return date.
If the tenant appears in court at the Return Hearing, it is usually advantageous to attempt to reach an agreement to settle the matter. An agreement made in court can be documented with a written “stipulation” which when signed by the judge becomes an enforceable court order. A typical stipulation might include the confession of a judgment for possession by the tenant in exchange for the promise of the landlord to give the tenant extra time to move out of the premises. It generally takes a week or more to get the sheriff out to force a tenant to move in response to a judgment for possession. Consequently, trading an agreement not to have the sheriff come out for one week in exchange for the tenant’s confession of a judgment for possession is not really giving anything up. On the day of trial the parties will usually be encouraged by the court to discuss the matter to see if they can agree or stipulate to a resolution of the case. In some counties the parties are even required to mediate the dispute before the trial.
TRIAL If the parties cannot stipulate to settle the matter, a trial will be held. The landlord’s case, as plaintiff, is presented first. The landlord must prove the landlord’s case. The typical elements that must be proven by the landlord include: •
The tenant lives in the apartment.
The landlord is the owner or agent for the owner.
There is a lease.
The tenant breached the lease.
The landlord gave the required notice(s).
The tenant did not cure or comply with the notice(s).
The tenant will have the opportunity to cross-examine the landlord’s witnesses. After the landlord's case, the tenant has the chance to put on his case to show why the landlord should not get its judgment. The landlord will have the opportunity to cross-examine the tenant’s witnesses. The judge will then rule. If the case against the tenant is for both possession and money damages, most courts spilt the issues into two trials and will hear the possession issue within the 7 days, but will set the money issues for a future date.
ATTORNEY FEES Most leases grant costs and attorney fees to the "prevailing party." A landlord does not want to get in the position of losing an eviction case to a tenant represented by an attorney and, therefore, having to pay the tenant’s legal bills. If the tenant disputes the case and hires an attorney, the landlord should consult with an attorney before trying the case.
WRIT OF RESTITUTION Once a judgment for possession is entered, a Writ of Restitution may be requested after waiting 48 hours. The writ is the formal written court order directing the sheriff to move the tenant out. If the tenant has not vacated after the 48 hours, the landlord (or the landlord’s attorney) must draft the writ form. Care should be taken to include the landlord's name and telephone number so the sheriff will know who to contact. After the writ has been prepared it must be taken to the court clerk to be issued. Most courts require that the writ must be issued within 30 days from the date of the judgment.
SERVICE OF WRIT After the writ is issued by the Court, most county sheriff offices require that it be served on the property. Most counties will allow for the service of the writ by a private process server. However, some require that the sheriff must serve the writ. If the landlord uses a private process server for the service of the writ, the sheriff must be given a copy.
SCHEDULE WITH THE SHERIFF After the writ has been served and delivered to the sheriff, the landlord must call the sheriff to set a date for the sheriff to come to the property to "execute" on the writ. Depending upon the sheriff’s schedule, the move out date may take place very quickly or there may be a several week delay in scheduling. Many sheriffs’ offices require that the landlord call the sheriff’s office on the day before the scheduled move out to reconfirm the appointment. Sheriff charges vary from county to county. Most sheriff offices are currently charging $150.00 for the writ. Most sheriffs’ offices will refund a portion of the fee if the writ is canceled.
THE MOVE OUT At the scheduled move out date the landlord must provide the workers to move the tenant's property from the unit. The sheriff will only supervise (keep the peace), not move anything. Generally, sheriffs require enough movers to be on site to complete the move in 1 hour. The landlord should also supply trash bags for moving small items and be prepared to have the locks changed.
TO THE CURB The writ may only be executed during daylight hours. The sheriff will direct where the sheriff wants the tenant’s possessions to be placed. Usually the sheriff directs that the tenant's possessions be placed off the landlord’s property, at the curb. The landlord should not store the goods for the tenant. Storage by the landlord of the tenant's possessions creates additional duties and liabilities by the landlord.
EVICTING EMPLOYEES Sometimes a landlord’s employee may also be a tenant. These dual relationships can cause unanticipated problems if the landlord is not careful about documenting the agreement. If the employment relationship sours, the landlord may want to remove the employee/tenant from the community quickly. A disgruntled former employee can do a great deal of damage to the landlord’s relationships with other tenants. If a landlord enters into a long term lease with the employee, the landlord my find itself in the position of being able to terminate the employment, but, not the tenancy. Additionally, if the leased unit was provided to the employee as compensation for the employment, an attempt to terminate the tenancy may be met with legal arguments about legality of the termination of employment.
AT WILL EMPLOYMENT Colorado is an “employment at will” state. Without an employment contract to the contrary, the employment relationship may be terminated by either the employer or employee, with or without notice and with or without cause. However, the employee/tenant may try to create an employment contract based on an alleged oral agreement, the employee handbook or policies, or even through the provisions of a lease. Additionally, if the rent for the premises is a portion of the compensation paid to the employee/tenant, there may be a dispute as to whether full compensation has been paid and at what point the employee/tenant vested or earned the rent for the premises. Eviction trials of employee/tenants can deteriorate into lengthy testimony regarding the employment relationship, the propriety of the termination of the employment, and the sufficiency of the compensation paid.
LICENSE TO OCCUPY In an attempt to assist landlords with this issue, Colorado has enacted a statute as part of its labor laws entitled Termination of License to Occupy Premises (found at C.R.S. '8-4-127). The statute provides the basic terms of a written lease agreement between the employer and employee (referred to as a License to Occupy), requiring the inclusion of at least the following terms:
1. Names of the employer and employee; 2. A statement that a license to occupy the premises is provided to the employee as part of the employee's compensation and is subject to termination at any time after the employment relationship ceases; 3. The address of the premises; and, 4. The signature of both the employer and employee. A landlord supplying housing to its employees should have a written agreement with the employee which provides all the statutory information above and which further makes it clear that the employment relationship is "at will" and can be terminated by either party with or with notice and with or without cause.
TERMINATION OF TENANCY This statute allows the landlord\employer to terminate the employee\tenant’s possession of the apartment by service of a 3-day Notice of Termination of License to Occupy the Premises. The only statutory requirement for the Notice is that it: •
described the premises;
state the time when the right occupancy will terminate;
be signed by the employer or its agent.
Technically, a normal Notice to Quit fulfills all these requirements and would suffice. However, as the landlord/employer would want to make it apparent to either a court or sheriff's office that the landlord/employer was relying on this specific statute. Consequently, it is better practice to utilize a notice containing the precise statutory title Notice of Termination of License to Occupy the Premises. Interestingly, if the employee/tenant fails to vacate the premises within the timeframe contained within the Notice, the employer/landlord is authorized to present the notice directly to the sheriff’s office and directs the sheriff to remove the employee/tenant from the premises. This procedure completely skips any need to obtain a court order or bring an eviction action and civil court. Skipping the court portion of the eviction process has a number of advantages. It potentially saves the landlord several hundred dollars of filling fees and attorney fees. It also reduces the start to finish eviction time by approximately two weeks.
MOBILE HOME EVICTIONS STATUTE DOESN’T APPLY IF LANDLORD OWNS THE MOBILE HOME There are unique statutory requirements that apply to leasing and evicting an owner occupied mobile home from a lot owned by a landlord (found at C.R.S. section 38-12-201). These statutes only apply when the landlord does not own the mobile home and is leasing the lot on which the mobile home sits to the tenant. In a case where the landlord owns both the mobile home and the lot, the eviction of the tenant is carried out under standard landlord/tenant statutes.
LEASE MUST BE IN WRITING Pursuant to the statute, a rental agreement covering the lot on which the mobile home is to be attached must be in writing and must specifically state the: •
Term of the tenancy.
Amount of the rent.
Day the rental payment is due.
Day the rental payment is in default.
Rules and regulations of the mobile home park.
Name and address where manager's decisions can be appealed.
Other charges in addition to rent.
EXPANDED TENANT RIGHTS In case of an eviction, the statute gives the mobile home owner substantially greater notice, rights and due process than are afforded to standard tenants. The statute recites that these additional protections are in recognition of the greater likelihood of damage to the tenant's property (the mobile home) during the eviction and based on the tenant's greater financial investment in the tenant's premises.
NOTICES The required Notice to Quit or Demand for Possession or Compliance can be in substantially similar format to those used for a standard tenant. The statute requires that the notices at a minimum contain: •
The name of the landlord or the mobile home park.
The mailing address of the property.
The location or space number of the lot.
The county in which the mobile home is located.
The time periods required for mobile home notices are longer than those for traditional landlord/tenant notices.
5 DAY RENT DEMAND A Demand for Rent or Possession based on non-payment of rent requires a five day cure period (rather than the typical three day period).
60 DAY NOTICE TO QUIT A Notice to Quit at the end of a lease term must be given at least 60 days prior to the termination. 60 day notice is also required for rent increases and other changes in the lease terms.
LANDLORD MUST HAVE CAUSE TO TERMINATE The landlord also must have cause to terminate the tenancy, even at the expiration of the lease. The statute specifically provides that a tenancy cannot be terminated solely to lease the lot to another mobile home owner. The permissible reasons for termination include: •
Tenant's failure to comply with state and local law.
Tenant's annoyance of other homeowners or interference with management staff.
Failure of tenant to comply with rules and regulations.
Condemnation of the mobile home park (but only after 17 day notice of the condemnation).
Change of use of the mobile home park(but only after 6 month notice of the change).
False statements in the rental application.
The Notice to Quit must also specify which reason the landowner is utilizing to terminate the tenancy.
30 DAY CURE PERIOD When the tenant is given a Notice to Quit based on cause (listed prior) the tenant has 30 days to cure the default. The 30 day cure period can run concurrently with the 60 day period to remove the mobile home. The inconsistency of the 30 day cure period and the 60 day period to remove the home is a historical glitch that has resulted from this statute being modified on a piece meal basis and frequently. This 30 day cure period is also a substantial expansion of the 3 day right to cure given to tenants in apartments. If the Notice to Quit is based on the same violation for which a previous Notice to Quit was served during the previous 12 months, the Second Notice to Quit does not have to contain a 30 day cure period. Rather, this second Notice to Quit can contain a straightforward demand that the mobile home be removed within 60 days of the notice.
SUBSTANTIAL VIOLATIONS The mobile home statute has a provisions to allow a landlord to terminate a lease for serious criminal behavior without providing the tenant a right to cure for 30 days. The standards of behavior necessary to qualify as a statutory “Substantial Violation” (found at C.R.S. 38-12-202 and 203) is similar to the standard for more typical rental property (found at C.R.S. 13-40107.5). However, the period to move is 10 days. A more detailed discussion of Substantial Violations is contained in the Termination of Tenancies chapter.
NOTICE OF TENANT’S LEGAL RIGHTS The statute also requires that a second notice be delivered along with the Notice to Quit or Demand for Possession or Compliance advising the tenant of certain legal rights. This second notice must be in at least 10 point type, must advise the tenant of a number of statutory rights and procedures and must be titled “Important Notice to the Home Owner.” A copy of the mandatory Important Notice to the Home Owner is attached. Once the proper notices are served, the procedure for obtaining a judgment for possession is similar to a standard eviction. However, the landlord is required to make representations to the Court as to whether there are any persons who hold a security interest in the mobile home. Consequently, it is prudent for a mobile home park operator to collect information about the
name, address and telephone number of any persons who hold a security interest in the mobile home at the time the tenant applies to rent a lot. After a judgment for possession is obtained from the Court, the procedures for acting on the resulting Writ of Restitution (the court order sending the sheriff out to force the move) are significantly different from a standard eviction.
NOTICE OF JUDGMENT The Writ of Restitution is immediately issued by the Court. However, before the Writ is executed upon (the process of the sheriff actually overseeing the removal of the mobile home), the tenant must be served with a Notice of Judgment advising the tenant to prepare the mobile home for transport by removing the skirting, disconnecting utilities, attaching tires and otherwise making the mobile home safe and ready for highway travel. This notice must be given at least 48 hours in advance of execution.
30 DAY EXTENSION The owner of the mobile home has the statutory right to extend the time to remove the mobile home for an additional 30 day period, provided the home owner pays all the past due balances and charges prorated through the extended date of removal. Payment must be made in certified funds.
HOME TO BE STORED When the Writ is executed, rather than simply moving the mobile home to the edge of the property, the mobile home is to be stored (with reasonable storage charges assessed against the tenant). The statute does not pre-describe the period of storage. Consequently, it is advisable to have the Court enter, as part of its order for possession, the length of time required for storage.
AD HOC STORAGE ON THE EXISTING SITE As a practical matter many mobile homes cannot be moved and there is no place to take the unit for it to be stored. Recognizing this reality, the sheriffs in many jurisdictions do not require the actual removal of the mobile home. Rather, the mobile home ownerâ€™s personal property is removed from the mobile home and the mobile home owner is locked out of the mobile home. This effectively treats the mobile home as if it had been moved and stored somewhere else thereby depriving the home owner of its use. The problem with this procedure is it may not do anything to solve the landlordâ€™s problem in that it does not return a vacant and rentable lot to landlord.
However, when this procedure is combined with a landlord's application to obtain title to the mobile home or ability to obtain payment from a lien holder or other buyer of them, it can nevertheless be the most practical method of resolving problem.
ABANDONED TITLE After the home owner is physically removed from the mobile home, application can be made to obtain title to the mobile home based on abandonment pursuant to C.R.S. 38-29-119. In order to obtain ownership based on abandonment, a number of items must be submitted to the Colorado Department of Revenue through the County Clerk and Recorder. A summary of the items required to apply for abandoned title include: •
A recital of how the applicant acquired the possession of the mobile home, the source of the title, the outstanding liens and encumbrances, and the basis of the right of the applicant to have a certificate of title issued.
A copy of an order or judgment for possession obtained through a civil eviction proceeding.
Proof of efforts to notify the prior owner of the potential removal or transfer of title of the home.
Proof of ownership of the real property on which the mobile home is located.
Formal application for certificate title as required by 38-29-107.
A surety bond in an amount twice the actual value of the mobile home. No bond is required if the home is 25 years or older.
If the landlord obtains title to the mobile home, the landlord becomes the owner of the mobile home at which point it may be sold or transferred as the landlord sees fit.
IMPORTANT NOTICE TO THE HOME OWNER: This notice and the accompanying notice to quit/notice of nonpayment of rent are the first steps in the eviction process. Any dispute you may have regarding the grounds for eviction should be addressed with your landlord or the management of the mobile home park or in the courts if an eviction action is filed. Please be advised that the "Mobile Home Park Act", part 2 of article 12 of title 38, Colorado Revised Statutes, may provide you with legal protection: NOTICE TO QUIT: The landlord or management of a mobile home park must serve to a home owner a notice to quit in order to terminate a home owner's tenancy. The notice must be in writing and must contain certain information, including: • • •
The grounds for the termination of the tenancy; Whether or not the home owner has a right to cure under the "Mobile Home Park Act"; and That the home owner has a right to mediation pursuant to section 38-12-216, Colorado Revised Statutes, of the "Mobile Home Park Act".
NOTICE OF NONPAYMENT OF RENT: The landlord or management of a mobile home park must serve to a home owner a notice of nonpayment of rent in order to terminate a home owner's tenancy. The notice must be in writing and must require that the home owner either make payment of rent and any applicable fees due and owing or remove the owner's unit from the premises, within a period of not less than five days after the date the notice is served or posted, for failure to pay rent when due. CURE PERIODS: If the home owner has a right to cure under the "Mobile Home Park Act", the landlord or management of a mobile home park cannot terminate a home owner's tenancy without first providing the home owner with a time period to cure the noncompliance. "Cure" refers to a home owner remedying, fixing, or otherwise correcting the situation or problem that caused the tenancy to be terminated pursuant to sections 38-12-202, 38-12-203, or 38-12-204, Colorado Revised Statutes. COMMENCEMENT OF LEGAL ACTION TO TERMINATE THE TENANCY: After the last day of the notice period, a legal action may be commenced to take possession of the space leased by the home owner. In order to evict a home owner, the landlord or management of the mobile home park must prove: • • •
The landlord or management complied with the notice requirements of the "Mobile Home Park Act"; The landlord or management provided the home owner with a statement of reasons for termination of the tenancy; and The reasons for termination of the tenancy are true and valid under the "Mobile Home Park Act".
A home owner must appear in court to defend against an eviction action. If the court rules in favor of the landlord or management of the mobile home park, the home owner will have not less than 48 hours from the time of the ruling to remove the mobile home and to vacate the premises. In all other circumstances, if the home owner wishes to extend such period beyond 48 hours but not more than thirty days from the date of the ruling, the home owner shall prepay to the landlord an amount equal to any total amount declared by the court to be due to the landlord, as well as a pro rata share of rent for each day following the court's ruling that the mobile home owner will remain on the premises. All prepayments shall be paid by certified check, by cashier's check, or by wire transfer and shall be paid no later than 48 hours after the court ruling.
EXHIBIT F: IMPORTANT NOTICE TO THE HOME OWNER
BEHAVIORAL PROBLEMS The universe of tenant behavioral problems is not as broad as one might think. Most objectionable behavior can be broken into the categories of unreasonable disturbances, unauthorized residents, unlawful activities, unauthorized pets or damage to the unit. A landlord has very few options to force a tenant to behave in accordance with a lease. A landlord doesnâ€™t have the legal ability to physically force the tenant to comply. A landlord doesnâ€™t have the legal ability to financially fine or penalize the tenant. The one tool a landlord does have is to force a tenant to move after having been given proper legal notice of the problem and the right to cure the behavior. Making a tenant move is certainly an effective solution to problem behavior. However, it may also be more solution than the landlord wants. An eviction action is an all or nothing proposition. Forcing a person out of their residence is obviously undesirable to the resident. It also has undesirable aspects for the landlord. The process is time-consuming, expensive and will typically lead to balances of money owed by the tenant that remained outstanding. A landlord is often left with two marginal choices when dealing with behavioral problems. The first is tolerating some level of aggravating behavior. The second is having an empty unit. In all cases where a landlord decides the behavioral issue is severe enough to suffer the cost and losses associated with making the tenant move, the landlord must start the process by posting a Demand for Compliance or Possession giving the tenant notice of the bad behavior and three days to cure.
UNREASONABLE DISTURBANCES Claims of unreasonable disturbances are the most common tenant behavioral problem a landlord has to deal with. Almost all leases require a tenant not to unreasonably disturb their neighbors and it is the catchall provision covering many disputes. Assessing whether the tenant being complained about is unreasonably noisy or whether the tenant making the complaint is unreasonably sensitive can be difficult to figure out. Clearly, the standard of an unreasonable disturbance is somewhat fuzzy to begin with. The source, time and duration of the disturbance are all relevant factors in determining the level unreasonableness. The tenantâ€™s intent in causing the disturbance can also be important. When a landlord is confident a tenant is engaging in some act that constitutes an unreasonable disturbance, the landlord may post a Demand for Compliance or Possession giving the tenant
three days to stop the disturbance and then can proceed with an eviction action if the disturbances continue. In situations where none of the landlord’s staff has witnessed the claimed disturbance and there is only one complaining party, a prudent landlord should keep in mind the difficulty in bringing an action and bearing the burden of proof when the entire dispute is going to be resolved based on the believability of two different tenants. Many landlords, therefore, adopt the practical policy of not pursuing a tenant for unreasonable disturbances unless there is supporting evidence from more than one witness or some other source. When the landlord can’t determine whether there has been an unreasonable disturbance, it is generally best to wait until more evidence is available before taking action. A typical lease requires that a tenant not engage in an unreasonable disturbances. This doesn’t mean that the landlord has warranted that a tenant's neighbors will be make unreasonable noise from time-to-time. The landlord does not (and really cannot) make that promise in the lease. Consequently, even when the landlord has a situation where a tenant is committing an unreasonable disturbance, it does not follow that the landlord as a legal obligation to evict the tenant. When a landlord is confident the complaining party is making false or exaggerated complaints (particularly if those complaints are being made to law enforcement officers), the process of complaining itself can be an unreasonable disturbance and support the issuance of a Demand for Compliance or Possession to the complaining tenant.
UNLAWFUL BEHAVIOR How to proceed when a tenant has engaged in criminal activity is dictated by the severity of the criminal activity. Most criminal activity is dealt with like any other behavioral violation of the lease. The tenant is given a Demand for Compliance or Possession allowing three days to cure the default by ceasing to engage in future unlawful activities. This can be particularly frustrating when the crime is one that is hard to observe and when the landlord believes the landlord may never catch the tenant in the act again. Proceeding against a tenant over criminal activity can create some unique proof problems. If the matter is contested, the landlord will have to be able to prove that criminal activity occurred. This often requires the testimony of persons other than the landlord’s staff members. These witnesses may be less than cooperative. Many situations arise where a landlord “knows” the criminal action has occurred but can’t prove the occurrence. Some behavior is so extreme that it is statutorily classified as a “substantial violation” and no 3 day right to cure is required.
When a tenant commits a “substantial” violation of the lease, the landlord doesn’t have to provide the tenant with a right to cure the violation and then wait for a new violation. The Landlord only has to serve a Notice to Quit for Substantial Violation giving the tenant three days to get out. The trick is deciding when the criminal behavior is serious enough to be considered a substantial violation. By Colorado Statute (C.R.S. 13-40-107.5) the main requirements of a substantial violation are acts committed by the tenant (or a guest or invitee of the tenant) which occur at or near the apartment, and which qualifies as one of the following: •
a violent or drug related felony, or
endangers another person, or
willfully and substantially endangers the property of another, or
declared a public nuisance and punishable by more than 6 months in jail.
The statute does nothing to help with a proof problems associated with evicting a tenant for criminal behavior. However, not having to wait for a new unlawful act to take place after a three-day cure period significantly simplifies and speeds up the process of evicting dangerous tenants. Almost every unlawful act is also an unreasonable disturbance. Even the act of the police coming to the leased premises (typically with sirens, lights, guns and clubs) is something that neighbors would find reasonably distressing. It is a good practice to include an allegation of the unreasonable disturbance along with any allegation of unlawful behavior when preparing the Demand for Compliance or Possession. A landlord is more likely to catch a tenant in a future unreasonable disturbance than a future unlawful act. By including this second violation, the landlord increases the likelihood of being able to evict the tenant in the future.
UNAUTHORIZED RESIDENT A claimed violation for an unauthorized resident can be one of the hardest lease violations to prove. Without access to the interior of the apartment and details of the tenant’s personal life it can be difficult to show when someone crosses the line from frequent (but allowable) visitation into actual residency. Frequency and permanence of the occupant’s presence is the ultimate issue. Overnight stay is a significant factor in determining residency. A person sleeps where they live. Coming and going in an unsupervised fashion with the aid of a key is another significant factor. The receipt of mail at an address and providing the address as a home address to third parties (frequently police) is
also helpful evidence. The keeping of personal effects or a wardrobe is also an observable sign of residency. Judges tend to be all over the board as to their personal standards for what constitutes unauthorized occupancy or unauthorized residency. It is preferable to use the terminology of an unauthorized occupant when drafting a lease, as most judges believe that the standard to establish “occupancy” is significantly less than the standard for proving “residency.” Tight lease language describing what constitutes occupancy is helpful in these cases. The Association lease contains useful language in an argument over unauthorized occupancy as follows: A person shall be considered to be occupying the Apartment if the person reasonably appears to be using the Apartment as a place to live. Indications of occupancy shall include, but not be limited to: coming and going to the Apartment with the use of a key, providing any third-party (including the police) with the address of the Apartment as that person’s residential address, receiving mail at the Apartment, keeping clothes or personal effects at the Apartment, commonly being present in the Apartment or common areas of the apartment community, or commonly parking the person’s vehicle for extended periods of time or overnight. A person may establish unauthorized occupancy of the Apartment and thereby create a violation of this Lease Contract, even if that person owns or leases other residential property.
A claim of a violation based on unauthorized occupancy is frequently accompanied by a claim for some other lease violation. Often the landlord wouldn’t even be aware of an unauthorized occupant unless the person living in the unit was engaged in unreasonable disturbances or unlawful behavior. When drafting a Demand for Compliance or Possession for unauthorized occupants it is good practice to include any claims for other lease violations. Ultimately it may be easier for a landlord to prove that the disturbances or unlawful activities are continuing rather than proving that the unauthorized person is still living there.
UNAUTHORIZED ANIMALS Dealing with an unauthorized animal is very similar to dealing with an unauthorized person. Almost all leases require that a tenant obtain the landlord’s prior written permission before having an animal at the premises. If a landlord is dealing with an unauthorized animal the landlord needs to serve a Demand for Compliance or Possession requiring the removal of the animal within three days. The landlord doesn't necessarily have to demand the removal of the animal. In some cases the landlord might be willing to allow the tenant to have the animal, but only if the tenant paid the required pet deposit, pet rents, or signed the necessary pet addendum. When this is the case the Demand for Compliance or Possession should be drafted in fashion demanding the payment of the necessary charges and completion of the required paper work, not the removal of the animal.
Example language to insert into a Demand for Compliance or Possession for each of these alternatives is: You are keeping an unauthorized animal in violation of the lease. You have three days to remove the animal from the leased premises. You are keeping an animal at the premises without landlord's prior written permission in violation of the lease. You have three days to cure this violation by obtaining the landlordâ€™s written permission, paying all necessary pet deposits, pet rent, and signing our pet addendum.
DAMAGES TO THE UNIT Most leases prohibit a tenant from intentionally or negligently damaging the leased premises. Most leases also provide that the tenant will repay the landlord for the cost of repairing any such damage. When there is damage to the leased premises from intentional or negligent misuse the landlord may be satisfied with simply billing the tenant for the cost. When the landlord is only concerned about recouping the cost, it is a normal monetary default under the lease and may be handled in the same fashion as nonpayment of rent case. Sometimes recoupment of money does not solve the underlying problem. If the damage to the property becomes a reoccurring problem or if the landlord becomes concerned about future damage, the landlord may choose to deal with the behavioral rather than the monetary aspects of the violation. The tenant can be served with a Demand for Compliance or Possession demanding that the tenant cease violating the lease through the intentional or negligent misuse of the leased premises. After receiving such demand and the expiration of cure period, the landlord would then be in a position to evict the tenant if similar problems occur in future.
NUISANCE ORDINANCES OWNER RESPONSIBLE FOR TENANT’S BEHAVIOR A number of local governments have enacted nuisance ordinances. The provisions of these ordinances vary significantly from one local government to the next. Generally, all of the ordinances define a certain violations, both relative to the condition of the property and the behavior of the occupants, which constitute a nuisance. These ordinances provide some mechanism for notice to the owner of the property of the alleged nuisance and, if not corrected by the owner, authority for the local government to take steps to abate the nuisance. In some cases, the abatement can include the seizure of the property and even cause the landlord to be criminally liable for the tenant’s behavior. Because the potential loss to the owner may be catastrophic, a landlord must be extremely proactive in dealing with alleged nuisances.
DEFINED NUISANCES Most ordinances include as a defined nuisance the stereotypical “crack house” and conditions of the property that are dangerous to surrounding properties and people. However, many also lump much more mundane issues like weed control, trash in the yard, and noise into the definition. Some might believe it is appropriate to take a property away when the owner fails to take reasonable steps to keep it from being used as a crack house. Few would believe it is the appropriate remedy when the property is not being sufficiently mowed. The broadness of the defined nuisances can make these ordinances deceptively dangerous.
NOTICE ISSUES For a landlord to take steps to correct an alleged deficiency, the landlord must know of the alleged deficiency. The notice provisions of many nuisance ordinances leave much to be desired. Few nuisance ordinances require that the local government prove actual notice to the owner. Most call for notice to be made by posting at the property and by mailing to the record owner of the property, as listed in the county assessor’s office. Some ordinances require mailed notices to the record owner, as recorded in the county clerk and recorder’s office. Obviously, a notice posted on a property inhabited by someone other than the owner may not be brought to the attention of the owner. This is particularly true if the alleged nuisance concerns the behavior of the tenant. Therefore, the landlord should make sure that owner names and addresses are kept current in the public records (both the Clerk and Recorder and Assessor’s offices) in order to have a reasonable hope that the owner will receive notice.
TO IMPROVE THE ODDS OF RECEIVING NOTICE Many county assessors have the capacity to keep expanded information on contact persons and addresses. Providing the assessor with full information, not only concerning the owner, but also the management company, can improve the odds of receiving notice. Additionally, recording a superfluous document such as a Memorandum of Management Agreement or Notice of Address of Record Owner, which includes names, addresses and phone numbers of owners and managers can also improve the odds of receiving notice. If the owner is an entity rather than an individual, it is important to make sure the information regarding the entity is current with the Office of the Colorado Secretary of State and the Colorado Department of Revenue.
ABATEMENT Once the nuisance has been identified and the owner has been sent notice, most nuisance ordinances grant the owner a period of time to abate the nuisance. In the case of a claimed nuisance based on the condition of the property, the abatement is typically correcting the physical defect and arranging for the property to be re-inspected. In the case of a claimed nuisance based on the behavior of a tenant, the abatement is usually the eviction of a tenant. Many issues arise in an attempt to evict a tenant for the alleged unlawful activity. The first issue is to determine that the alleged behavior is a violation of the lease. Many leases, including the Association Lease, contain broad prohibitions against behavior that is unlawful or unreasonably endangers the property. In such cases the behavior of the tenant which led to the nuisance notice will typically represent a violation of the lease enabling the landlord to serve the tenant with a Demand for Compliance or Possession.
TENANTâ€™S RIGHT TO CURE All Demands for Compliance or Possession provide the tenant a 3-day right to cure the alleged violation. If the local governmentâ€™s demand for abatement is for the removal of the tenant, not just the cessation of the alleged activity, the landlord may find himself in the position of not being legally able to comply with the local governmentâ€™s demand. Instead the landlord would be forced to wait for the tenant to commit a similar violation after having been served with the Demand for Compliance or Possession. If the second violation never happens (or the landlord never knows of or can never prove the second violation) the landlord has no basis to evict.
SUBSTANTIAL VIOLATIONS C.R.S. 13-40-107.5 allows a landlord to evict a tenant following a 3-day Notice to Quit, without the right to cure, in situations involving violent or drug-related felonies, activities that endanger other persons, activities that willfully and substantially endanger the landlordâ€™s property, and many criminal activities (but not all) which constitute public nuisances. If the tenantâ€™s behavior which constitutes the alleged nuisance falls within the provisions of C.R.S. 13-40-107.5, the landlord will likely be able to remove the tenant within the time frame demanded by the local government because the landlord will not have to wait for a second violation.
PROVING BEHAVIOR When evicting a tenant over alleged conduct that the local government has classified as a nuisance, the landlord must prove the alleged conduct. Telling the judge that the local government has claimed something bad has happened is not the same as proving that it has happened. The landlord may very well be forced to subpoena police officers, victims and other witnesses to testify to the criminal activity at trial.
COMMUNICATE WITH OFFICIALS The inspectors, city attorneys and police officers charged with enforcing the nuisance ordinances are typically more reasonable than the terms of those ordinances would require. When the officials enforcing the nuisance ordinances see good faith attempts to abate the nuisance, they tend to be reasonable with granting extensions and waivers. Consequently, it is extremely important to communicate with the enforcement officials and to keep them apprised of the progress and attempts to abate.
CHANGES IN SCREENING Some nuisance ordinances require a landlord to modify the landlordâ€™s tenant screening process once the landlord has received notice of a nuisance. The most typical requirement is to mandate that the landlord conduct criminal background checks on applicants. If the landlord then fails to conduct criminal background checks on applicants, the landlord loses the ability to defend an attempt to seize the property based on the affirmative defense that the landlord has taken reasonable steps to abate the nuisance. All adult occupants of a leased property should be subject to a criminal background check. Many nuisance ordinances provide greater levels of penalties for repeat violations. Consequently owners of large properties must be particularly vigilant. Obviously, the number of violations which are generated by a 400-unit property are likely to be 400 times greater than the violations that come out of a single family residence.
TAKE NUISANCE NOTICES SERIOUSLY If a landlord receives notification from a local government that the landlordâ€™s property or a tenant residing at the landlordâ€™s property constitutes a nuisance, it is imperative that the landlord retain counsel familiar with the local nuisance ordinance immediately. The potential financial lose is extreme and that risk needs to be managed.
REGISTERED SEX OFFENDERS LIST OF SEX OFFENDERS Federal law (42 U.S.C. 14071) and state statute (C.R.S. 18-3-412.5) require convicted sex offenders to register their home addresses with local law enforcement agencies and for those agencies to make these lists available to the public. There are web-based services that publish these lists as well as maps depicting the location of the residences of registered sex offenders. The registration of a landlord’s property as a sex offender’s residence can create an economic stigma for the surrounding rental units and create the potential for liability for the landlord.
LIABILITY Knowledge of a risk is one of the elements of a negligence claim. The greater the level of a landlord’s knowledge of a risk, the greater the landlord’s duties are to deal with the risk. Public information is legally imputed to be known by all persons regardless whether it is actually known. Since the identity and residence of convicted sex offenders is now public information, a landlord has greater liability associated with the acts of persons on the registered sex offender list. Consequently, a prudent landlord should periodically review compilations of registered sex offenders. Additionally, the landlord’s lease should contain a waiver of any warranty regarding the criminal history of tenants and others in the area.
WARNING RESIDENTS ABOUT REGISTERED SEX OFFENDERS The landlord should be careful about warning residents about the status of registered sex offenders in the area. Any compilation of information contains errors from time to time. Lists of registered sex offenders are no different. The governmental agencies and departments that compile registered sex offender lists enjoy governmental immunity from claims for the defamation associated with inaccurate information. A landlord does not have those same protections. Consequently, landlords who republish false information could find themselves liable for damages caused by that defamation.
In the event landlord desires to see that its residents are aware of the information contained on a registered sex offender list, the residents should be directed to the list or website where the resident can view this information for themselves.
DEALING WITH PERSONS ON THE LIST If the list identifies neighboring offenders, the landlord has little ability to do anything about it. The landlordâ€™s options still may be limited even if the listed offender is a tenant. Most landlords refuse to lease to and refuse to renew the leases of convicted sex offenders. However, the landlord must find a violation of the lease to terminate the lease early if the registered sex offender already has a lease. Most leases make criminal activity, which occurs at or near the leased premises and during the lease term, a violation of the lease for which the tenant can be evicted. Few leases make past criminal behavior or criminal behavior occurring far away from the leased premises the basis for terminating a lease. As the behavior which placed the person on the registered sex offender list is likely to have occurred either prior to the lease term or in a different location (or both), the underlying offense will not necessarily be a violation of the lease.
FALSE APPLICATIONS The tenant's failure to disclose that the tenant is a registered sex offender in the application may be a material misrepresentation. However, the failure to disclose is only a misrepresentation if the tenant was asked a question in the application which would've required the disclosure. If the application or lease also makes it clear that misrepresentations on the application will be a basis for terminating the lease, the landlord would then be in a position to evict the tenant. However, if the landlord application didn't inquire about sex offender status and the applicant didn't disclose it - the landlord's failure to learn of the registered sex offender status is not a misrepresentation by the tenant.
UNAUTHORIZED OCCUPANTS Many times the registered sex offender will not be a tenant or authorized occupant. Most leases only allow persons to occupy the leased premises with the landlordâ€™s prior approval. In such cases the landlord may serve a Demand for Compliance or Possession associated with the existence of an unauthorized occupant and move to eviction if the unauthorized occupant remains in unit. However, proving unauthorized occupancy (verses frequent visitation) is notoriously difficult. The fact that the person has made a representation of residency, which has caused him to be on the registered sex offender list, offers some proof of that occupancy. Nevertheless, it is not by itself conclusive. The relevant CAA lease provision makes evicting a tenant over registered sex offender status significantly easier by containing a warranty by the tenant that the leased premises will not appear on a registered sex offender list. The provision is as follows: Registered Sex Offender List: No person, including but not limited to Resident or any occupant, shall register the address of the Apartment on any list of registered sex offenders or predators or similar compilation. Landlord does not warrant, represent nor guarantee whether other persons residing in or near the complex appear on any list of sex offenders and shall not be obligated to monitor or disseminate any compilations of registered sex offenders or other criminals.
By using this clause, a landlord would only have to prove that the leased premises appeared on the list after the tenant received a proper Demand for Compliance or possession. The landlord would not have to prove that the offender resides in the leased premises or committed the underlying crime.
DOMESTIC VIOLENCE People who claim to be victims of domestic violence are given a number of statutory protections from their landlords in the State of Colorado. If a person claims to be a victim of domestic violence, generally they can immediately cancel their obligations under a lease, move from the leased premises and cannot be held responsible for the charges associated with the early termination of the lease (C.R.S. 38-12-402). Additionally, they can be immune from a landlord’s attempt to evict them based on the unreasonable disturbance or unlawful behavior associated with the incident of domestic violence (C.R.S. 13-40-104(4)). Finally, they are granted certain immunity from the cost of repair of the leased unit associated with the event of domestic violence (C.R.S. 38-12-503(3)).
DOCUMENTATION OF A CLAIM A person’s claim to be a victim of domestic violence must be substantiated with either a valid protection order or a police report. These documents are a landlord’s only protection from fabricated claims of victim status. There is little that a landlord can do to protect against false claims made in either a police report or an application for the protection order. However, there are several practical reasons that people would tend not to make false claims in either document. Most police departments’ protocols require the arrest of at least one of the involved parties if the police are summoned on a call related to domestic violence, regardless of the ultimate situation encountered. Consequently, there will rarely be times that a person would be willing to cause an associated person to be arrested in order to create a false paper trail for the purposes of terminating a lease. Restraining or Protection Orders give the right to more than just the protected person to cause the restrained person to be arrested. Consequently, a landlord who becomes aware of a violation of the restraining order can have the restrained party arrested. This creates motivation not to have fabricated restraining orders issued.
LOCATION OF THE DOMESTIC VIOLENCE AND PERPETRATOR There is no requirement that the perpetrator live in the apartment in order for the victim to claim protection under the statute. Likewise, there is no requirement that the incident of domestic violence occur at or near the apartment. Consequently, landlords can find themselves in positions where the actions of either an unauthorized resident or even a perpetrator that has absolutely no connection with the leased apartment can trigger the tenant’s rights under the statute.
RELATIONSHIP BETWEEN PERPETRATOR AND VICTIM Not all violent crimes constitute domestic violence or abuse. Whether the violence or abuse is considered “domestic” turns on the relationship between the parties. The triggering elements creating a domestic relationship are found at C.R.S. 18-6-800.3 and 13-14-101(2) and are any one or more of the following: •
Parties are related
Parties live or lived together
Parties are or were married
Parties are parents to the same child
Parties are or were an unmarried couple
There is no specific statutory definition of what is meant by “unmarried couple,” but one has to presume it implies a romantic relationship.
ONLY THE VICTIM IS PROTECTED No protection is provided to the claimed perpetrator or other third parties. Consequently, in the event a victim claims the victim should not be responsible for paying for property damage or should not be responsible for future rent after moving out, there is nothing to prevent the landlord from charging the full amount to the other parties to the lease, including the perpetrator, non-victim cosigners and guarantors. There is also no protection from eviction for the perpetrator. However, there are practical difficulties in evicting only part of a household.
LIMITATIONS ON RENT The statute provides that the landlord can collect rent from the victim for one additional month after the victim vacates the unit. However, this rent can be charged only if some other party does not pay the amount. The victim can have up to 90 days after the victim vacates the unit before that one month’s additional rent is due. The statute is vague and does not speak to prorations of rent or credits for pre-paid rent. Consequently, when a victim moves out in the middle of a month (after rent has been paid), an aggressive landlord might claim that a full additional one-month rent payment was due from the victim without any credit for the prorated rent. This argument is bolstered by the statute’s use of the term “one month’s rent” rather than 30 days’ rent.
COOPERATION WITH RESTRAINING ORDERS A restraining order requires the restrained party to stay away from the protected person and orders the police to arrest the restrained party if there is a violation of the order. The restraining order does not order the landlord to do anything. Typically, the restraining order will define the protected space by using the protected personâ€™s addresses and also requiring that the restrained party stay a certain distance from the victim (100 yards is typical). Both of these limitations may make it unlawful for the restrained party to enter an apartment, even if the restrained party is a leaseholder. Being restrained from entering the leased apartment by a restraining order does not remove a tenant's obligation to pay rent for that apartment. A Landlord may find itself in a situation where a tenant protected by a restraining order wants to change the locks and the person restrained by the order wants a copy of the new key. Looking at a typical lease on its own, a landlord would be obligated to give the tenant who was the restrained party a replacement key. However, it is hard to imagine circumstances where a judge would hold a landlord responsible for changing locks at the request of a tenant holding a valid restraining order and refusing to assist the restrained a party in violating a protection order. Occasionally circumstances arise where the landlord does not wish to assist in keeping the restrained party out of the leased unit. This may occur when the person protected by the restraining order is an unauthorized occupant and when the landlord knows the allegations made supporting a temporary restraining order to be fabrications. As the restraining order does not order the landlord to do anything, the landlord is legally entitled to ignore the restraining order and leave the parties to work out possession of the leased unit amongst themselves and the police.
DEATH OF A TENANT ENTRY ISSUES Upon the death of a tenant, a landlord is often faced with the issue of someone not on the lease requesting permission to enter the leased premises to remove the effects of the deceased tenant. Just as when the tenant is alive, a landlord should not assist an unauthorized person in entering the tenant’s apartment or taking the tenant’s belongings. The landlord maintains the same entry rights for the unit that existed before the death. Assuming the lease gives the landlord the right to enter the unit for maintenance and repair, the landlord can conduct necessary restoration work (as long as it doesn’t require the removal of the deceased tenant’s personal property) without obtaining a court order or the permission of the estate. Occasionally there will be situations where a third-party already has a key from some source other than the landlord (the tenant while he was alive or the Coroner). The landlord is not obligated to (and generally shouldn’t) take steps to prevent those who already have keys from entering the unit.
LETTERS OF TESTAMENTARY A landlord should require proof from the person requesting entry that the person is the deceased tenant's personal representative. This proof generally comes in the form of "Letters of Testamentary" which is an order from the probate court confirming that the tenant is dead and the name of the appointed personal representative. If a tenant dies with a valid will in place, the personal representative can apply for and receive Letters of Testamentary very quickly.
SMALL ESTATE AFFIDAVIT The formality of a court review of an estate can be expensive and time consuming. If the estate is sufficiently small, Colorado Statute (CRS §15-12-1201) allows for a landlord (or other person controlling a deceased person's tangible personal property) to rely on an affidavit of a "successor" without requiring a Letter of Testamentary or other court order. Typically this affidavit is entitled "Small Estate Affidavit". A Small Estate Affidavit can only be utilized if the total net value of the deceased person's estate is less than $60,000.00 and if the deceased person has been dead for 10 or more days. The Small Estate Affidavit must include the following statements:
1. The deceased person has been dead 10 or more days. 2. The fair market value of the deceased persons property (less liens and encumbrances) does not exceed $60,000.00. 3. No application has been made to any court to appoint a personal representative. 4. A listing of the person(s) entitled to the property and in what proportion. The affidavit must be signed by the Successor. If presented with a Small Estate Affidavit, a landlord may allow the identified successor to enter the apartment and take the deceased tenant's personal belongings.
CLAIM FOR RENT Another issue that often comes up is the failure of the estate to pay rent. A landlord may make a claim against the deceased person's estate for money owed the landlord. No particular format is required. Generally the claim is made in the form of a letter to the personal representative and, if the estate has been submitted to a court for supervision, a copy to the court.
EVICTION If an agreement cannot be reached with the personal representative for ongoing payment of rent or if personal property remains and appears to be abandoned, the landlord should post a Demand for Rent or Possession and initiate a standard eviction to recover possession of the premises. There is no obligation for the landlord to attempt to collect rent from the estate. Once the rent becomes delinquent, the landlord may proceed directly to posting a Demand for Rent or Possession. Occasionally circumstances cause a landlord to want to initiate an eviction action before the next scheduled rent payment becomes due. Depending upon the specific facts surrounding the particular death, the landlord may have a basis to serve the property with a Demand for Compliance or Possession based on the abandonment of the apartment or based upon failure to maintain the apartment in a clean and sanitary condition (applicable in situations where the death in the apartment creates a biohazard).
LIABILITY Deaths are emotional times for surviving family and friends. Grief can cause those attempting to settle a deceased tenant's affairs to be less than rational. Additionally, there may be competing claims from various beneficiaries and those claims may be heavily influenced by emotional and sentimental issues. These factors can elevate disputes beyond the limited dollar value of the items in question.
Landlords should be careful to follow formal methods in granting entry and regaining possession of the leased unit of a deceased tenant.
BED BUGS AND PEST INFESTATION The factors that cause insect infestation in residential units vary depending upon the insect. However, generally more of these factors are reflections of the tenant’s use of the property rather than the landlord’s. Often the landlord’s ability to do anything about the insect problem is extremely limited. Historically, landlords have been free to build into their leases requirements that the tenant, not the landlord, be responsible for maintaining the rented premises and keeping it free from insect infestation. However, Colorado’s Warranty of Habitability (C.R.S. 38-12-501) limits the ability of a landlord to completely defer all pest control to the tenant. The statute doesn’t go so far as to require that the landlord keep the rented premises free from insects. However, the statute does require that the landlord provide “appropriate extermination in response to infestation of rodents or vermin” (vermin has a very broad definition that includes insects). Theoretically, an insect infestation only becomes a violation of the Warranty of Habitability and, therefore, the landlord’s legal responsibility to deal with if it is “materially dangerous or hazardous to the tenant’s life, health or safety.” Few insect infestations really rise to this technical legal level. However many judges can’t get past the human “yuck factor” in analyzing bug disputes. A landlord can expect that if a tenant can show a significant insect infestation, combined with a lack of reasonable response by the landlord, there will be a finding of a violation of the Warranty of Habitability. The obligation for appropriate extermination response applies to the common areas as well as to the residential unit. A landlord's obligations for dealing with in insect infestation in common areas are limited to infestations that are significant enough to affect the tenant’s use of the tenant's apartment. Therefore insects in hallways are going to be much more relevant than insects in lawn. A landlord is allowed to charge the tenant for the extermination costs if the tenant’s actions caused the infestation. However, it is very difficult in to prove by the required legal standards where and why the insect infestation occurred. Consequently, a landlord will rarely be successful in sifting the extermination cost to a tenant in a multiunit building.
BED BUGS Currently, the most problematic noxious insect in the Colorado area is the bed bug. A wide range of reasons are given for the explosion of bed bug infestation. Common explanations include: lower levels of toxicity in applied insecticides, warmer temperatures, increased commerce in used furniture and clothing, contaminated moving vehicles and increased international travel and immigration. Regardless of the cause, bed bugs have proven to be extremely difficult pests to eradicate in a multi-family environment. Bedbugs tend to not be exposed and vulnerable when they are not feeding. Available pesticides do not kill the eggs so that multiple applications are usually required. A big part of the problem is that successful eradication requires more tenant cooperation than with other pests and more tenant cooperation than most leases require the tenant to provide.
LEASE CHANGES Most leases require tenants to keep the leased premises in a clean and sanitary condition and to allow a landlord access for the purposes of providing extermination services. This tends to be about all the landlord needs to deal with most pests. However, the cleanliness of the leased premises has very little to do with the presence of bedbugs as they feed off of the tenants rather than the tenantâ€™s trash. Successful eradication can also require far more than simply allowing the landlordâ€™s exterminator entry. It can require that the tenant bag and launder clothes, remove and destroy personal property, permanently remove even reasonable levels of clutter and spend a significant amount of effort making the unit ready for extermination and following up the extermination with frequent vacuuming and inspections. Consequently, given that the Warranty of Habitability imposes obligations on the landlord to deal with insect infestations, a prudent landlord should beef up the lease to add requirements for reasonable tenant cooperation with extermination efforts including broad entry rights.
DISCLOSURE The legal theory of fraudulent concealment requires that any known material defect in a rental property that is likely to affect the tenant's use of the leased premises be disclosed to a prospective tenant. If unit has been treated for bedbugs, there is no need to disclose a problem to the next tenant if the bedbug infestation has been successfully and permanently eradicated. However, if the infestation has not been eradicated then the infestation is a material defect and must be disclosed to a future prospective tenant. For the same reasons it's difficult to prove where a bedbug infestation came from and who is the cause, it is also difficult to prove whether the infestation has or has not been eradicated. Without disclosure of the past infestation, a landlord risks liability to the next tenant for the damages caused by a subsequent infestation. A general disclosure of the possibility of past infestations helps some. It still may not be enough of a disclosure where there is a known specific insect infestation that may not be completely eradicated. However, when trying to find a balance between the protection of some level of disclosure and the marketing problems of actually telling prospective tenants that theyâ€™re likely to have bedbugs, the following language may be a reasonable compromise: To the extent the Apartment has ever been infested by rodents and vermin, including, but not limited to, beetles, spiders, ants, roaches, bedbugs, mice, and rats (collectively â€œPestsâ€?), Owner believes that appropriate extermination response has been made to any infestation and that the Apartment is not currently infested by Pests. Resident acknowledges that the Apartment is free of Pests shall keep the Apartment free from Pest infestation for the full term of the Lease.
BAD CHECKS Frequently in the business of leasing property to tenants a landlord may receive a check that the tenant’s bank refuses to honor. Colorado Statute (C.R.S. 13-21-109) provides anyone who receives a bad check very powerful tools to assist in collecting on the check. If the recipient of the bad check first provides the maker of the check with the required notice and demand, the holder of the check may receive an award of damages of three times the amount of the check, plus reasonable attorneys’ fees necessary to collect upon the check. Prior to availing oneself to these remedies, the landlord must first give notice required by statute. The notice to the tenant must include: •
The date of the check.
The name of the bank on which the check was drawn.
The name of the payee.
The face amount of the check.
A statement of the total amount due at the time of demand (which will be the amount of the check, plus any contracted bad check charges not to exceed $20.00).
A statement that the tenant has 15 days to make payment in full for the total amount due.
A statement that if the total amount due is not paid within 15 days, the landlord may pursue a civil action for three times the face amount of the check plus attorneys’ fees.
The notice must be provided to the tenant by personal service or certified mail. In spite of common banking practices and popular belief, a landlord is not required to run a dishonored check through twice. Once the demand period has expired, the landlord is free to pursue a civil action against the tenant for the full penalty provided by statute. Pursuit of a bad check and the penalties provided by this statute should be done only in addition to serving a Demand for Rent or Possession and initiating an eviction action to recover possession of the premises. It is likely to be several, if not many, months before a hearing is held on the bad check claim. Therefore, the landlord should take steps to recover possession of the property without waiting for the resolution of the bad check claim.
BANKRUPTCY Federal law provides a mechanism which allows people and legal entities to eliminate all or portions of their debt. The concept is that society and the economy as a whole benefits by giving a person suffering from crippling debt the opportunity for a fresh start. Bankruptcy can affect the balances owed and the contractual obligations of a tenant.
PRE AND POST PETITION DEBTS The critical date in a bankruptcy case is the date the case is filed in the federal bankruptcy court. The system treats debts that arise before the filing date differently than debts that arise after the filing date. Any money owed for rent at the time of the filing will become an unsecured debt in the bankruptcy action. More than likely the landlord will see little or no payments on these pre-filing balances. The rent that becomes due after the date of the filing of the bankruptcy is not dischargeable in bankruptcy. It is a “post-petition” debt. However, the tenant is given the right in the bankruptcy to accept or reject the lease obligation. If the tenant rejects the lease, the tenant is obligated to return the leased premises to the landlord and is responsible for paying rent from the date of filing to the date the premises is returned. If the tenant accepts the lease, post-filing rent remains due and payable per the lease agreement. Consequently, after the filing date, the tenant has the right walk away from the lease and not be responsible for rent which accrues after the date tenant vacates the leased premises.
STAY OF EXECUTION While the bankruptcy is pending, the landlord is prevented from taking any steps to collect the debt owed. This includes money for rent for pre-and post-filing obligations. A landlord cannot serve a Demand for Rent or Possession or move forward with an eviction or collection lawsuit. The bankruptcy creates an automatic stay of execution. If the landlord has the account out for eviction or collection it is extremely important that a landlord immediately notifies the landlord's attorney of a tenant’s bankruptcy filing. Failure to do so can expose both the landlord and the landlord’s attorney to monetary sanctions for violating the automatic stay
RELIEF FROM STAY In order to move forward collecting money owed to the landlord or to evict the tenant, the landlord must obtain relief from the automatic stay in the Bankruptcy Court. If uncontested, this process takes about five weeks and generally cost about $750. Writing off the pre-filing balances and this extra expense and delay in forcing the tenant to move after the filing of the bankruptcy are the two major ways that bankruptcy cost a landlord money. The bankruptcy code does allow a landlord to continue moving forward with an order for possession which was obtained prior to the filing of the bankruptcy. However, most state judges and county sheriffs are not bankruptcy experts. These persons will likely require an order from the bankruptcy court to take action anyway. So, from a practical standpoint, the landlord will still be in a position of having to file a motion with the bankruptcy court.
LANDLORD STRATEGY Many tenants choose to keep their landlord current through the bankruptcy process. The tenant will continue to need a place to live after the bankruptcy. Obtaining a new apartment from a new landlord may be extremely difficult with the bankruptcy on the tenantâ€™s credit record. There is nothing that prevents a tenant from voluntarily making payments as due and reaffirming the lease obligation. Without being aggressive in the inquiry to the point that the landlord's action could be viewed as a violation of the automatic stay, the landlord should try to find out the tenantâ€™s intentions regarding the apartment. If the tenant plans on timely returning the apartment or paying rent and staying in the apartment, the bankruptcy should cause the landlord few problems. However, if the tenant plans on not paying and staying in the unit for as long as possible before the landlord can make the tenant move, then the landlord will want to immediately begin the process of obtaining relief from stay in the bankruptcy court so that the landlord can then move to an eviction action in the state court.
COLLECTING PRE AND POST-PETITION OBLIGATIONS If there are rent payments that become due after the filing date but before the tenant moves and which remain unpaid, these amounts can be sent off for collection in the usual fashion after the bankruptcy is completed. Rent that became due prior to the filing date which remains unpaid can be collected only through the bankruptcy process. The likelihood of a landlord being paid any money towards these balances is statistically small. However, whether there will be payment toward this pre-petition balance is influenced by which type of bankruptcy the tenant files. There are two basic types of bankruptcies.
CHAPTER 7 LIQUIDATION The first type, a Chapter 7, is a system to discharge the debtor’s existing debts. This process involves identifying the debtor's assets which are exempt from creditors. These exempt assets include most of the household possessions and assets that a typical tenant would be expected to own. The debtor is allowed to keep these items. Secured creditors (car loans, home loans etc.) are either given their collateral back or their loan balances are written down to the current value of the collateral. Nonexempt assets are liquidated and the proceeds are applied (on a prorata basis) to all the debtor's unsecured creditors. A landlord's claims fall into this category. In most Chapter 7 liquidation bankruptcies there are typically few if any distributions made for the benefit of unsecured creditors.
CHAPTER 13 AND 11 REORGANIZATION In a reorganization bankruptcy (Chapter 13 for an individual and Chapter 11 for an entity) nonexempt assets are not liquidated. Instead a payment plan is developed so that creditors are paid a portion (usually a greatly reduced portion) of the debt over time. In a Chapter 13 bankruptcy a landlord may well receive a partial payment of some of the pre-petition rent which was due. In either event, it may be worth the landlord's time to file a Proof of Claim with the bankruptcy court. This document simply indicates the landlord’s pre-petition balance and contact information. By filing the Proof of Claim the landlord will make the court aware of the landlord’s claim in case a distribution is made.
SERVICE MEMBERS’ CIVIL RELIEF ACT The Federal legislation commonly referred to as the Service Members’ Civil Relief Act (50 U.S.C. Sec. 531-537) provides protections to active duty service members, national guardspersons and their immediate family members. The most import of these protections from the perspective of a landlord is the right to terminate a lease upon joining the military, leaving the military or receiving a transfer from one station to another. In order to terminate a lease, the service member must have received orders for a permanent change of station or deployment with a military unit for at least 90 days. The service member must provide the landlord written termination notice, along with a copy of the service member’s orders. The termination will be effective 30 days after the first date on which the next lease payment is owed (i.e. notice given on March 10th with the next lease payment due April 1st, will result in a lease termination of April 30th) 50 U.S.C. Sec 535(d)(1). The Act also expands the right of a state court judge to stay (or postpone) an eviction action. If the Court finds that the service member’s ability to pay rent is “materially affected by military service” the Court may stay the eviction action for a period of time at the Court’s discretion (usually 90 days) or modify the lease obligations “as equity may require.” There is no required correlation between the effective date of the order and the date of requested termination of the lease. This makes sense within reason, as a service member may want to terminate the lease before or after the actual transfer date. However, this also allows for situations where the service member uses an order as a pretext for terminating the lease for other reasons. A landlord has no legal tool to deal with this abuse of the system. The orders do have to be received after the execution of the lease (50 U.S.C. Sec 535(b)(1)(B)). Consequently, the service member is precluded from knowingly signing a long-term lease agreement that the service member will not be allowed to honor because of pre-existing orders. The protections of the act cover the service member, the service member's spouse and dependents. It does not provide protection to roommates, girlfriends, parents, or unrelated guarantors. The act makes it a fair housing violation to discriminate against a service member based on the possibility the service member may utilize the protections of the act. It would be difficult to distinguish discrimination based on a fear of the rights granted by the act and discrimination based on simply being in the military. Consequently, the act effectively elevates military service to a federal protected classification for fair housing purposes. Landlords should review their policies to make sure no housing discrimination is taking place based on military status. An area where this comes up from time to time is the duration of leases. A landlord might be tempted to sign shorter term leases (at higher rental rates) with service members, knowing that
those persons are more likely than most to cancel a longer-term commitment. However, such a policy represents clear-cut housing discrimination against a service member. Finally, the act and Colorado court rules require disclosure to a court of a service memberâ€™s status in legal actions against the service member. Consequently, a landlord should always inform the landlord's attorney when a defendant in either an eviction or collection case is known to be a service member.
SUBSIDIZED HOUSING The Federal Government has a number of different housing programs to pay a portion or all of the rent for low and no income households. A detailed discussion of the rules and regulations regarding the management of federally subsidized housing units is beyond the scope of this Handbook. However, the basic concepts of subsidized housing are of enough general interest to Association members to warrant a brief overview.
TENANTâ€™S RENT IS A PERCENTAGE OF INCOME In most federally subsidized programs a tenant's adjusted monthly income is computed. Incomes are adjusted to account for the number of persons in the household, income received, including child support and assistance payments, medical expenses and child care expenses. If a tenant's adjusted income is low enough to qualify for the program, the tenant will be responsible for paying 30% of the tenant's adjusted income for housing and utilities and the Federal Government will pay the remainder.
REQUIRED GOVERNMENT LEASE In many subsidized housing programs, the landlord is not free to use its own lease. Rather, specific pre-approved leases must be used. The most common required lease is the HUD Model Lease. These leases are very long on the landlord's obligations and the tenant's rights, but very short on the tenant's obligation and the landlord's rights. When using a HUD Model Lease, a landlord will frequently be frustrated that basic and traditional landlord protections and tenant obligations are not covered by the lease.
MUST HAVE CAUSE NOT TO RENEW There is no obligation for a private landlord and private tenant to continue to do business with each other after the lease expires. Both are free to end their business relationship without cause (other than prohibitions on refusing to renew based on a protected classification under Fair Housing laws). In many subsidized programs, a landlord must have cause for terminating the tenancy of a subsidized tenant, even when the lease expires. These subsidized leases renew themselves perpetually, absent a breach of the lease by the tenant or other cause sufficient to enable the landlord to terminate the lease.
SPECIAL NOTICES Additionally, Federal regulations require specific language to be included in any notice of termination of a subsidized tenant. Standard Colorado Notices to Quit and Demands for Possession and Compliance do not provide the additional language required to comply with Federal regulations for many subsidized programs.
LEGAL ASSISTANCE Subsidized tenants often qualify for free (taxpayer paid) legal representation in disputes with landlords. Even the most minor violation of Federal regulation by the landlord often leads to extensive and expensive litigation.
DIFFERENT PROGRAMS WITH DIFFERENT RULES There are a multitude of different Federal programs created to provide assistance to low income tenants and owners of properties which lease to low income tenants. The regulatory requirements for each of these programs are different. In some cases the differences in regulation from one program to the next are very large. In others the differences are less significant. For the purposes of a generalized discussion, it is helpful to think of these programs in two basic categories, Project Based Programs and Tenant Based Programs.
PROJECT BASED PROGRAM Project based programs provide assistance for all tenants in the project. Generally, project based programs are created when the owner of the project chooses to borrow money to build or remodel the property at a subsidized, lower than market interest rate. In exchange for the subsidized loan, the owner agrees to provide housing for low-income tenants. In some cases the property owners are private companies. In other cases the owners are, themselves, local governmental entities referred to as public housing authorities. In project based programs, the owner or manager of the property determines and certifies the tenant's eligibility to participate in the subsidized program, the tenant's adjusted income, and the tenant's portion of the monthly rent.
MATERIAL NON-COMPLIANCE The basic requirements for the termination of a lease in Project Based Programs are found at 24 CFR 247. Termination of tenancy from Project Based Programs during the term of the lease can only be had if there is material non-compliance with the lease by the tenant. Material noncompliance is defined by Federal regulation, as follows: 1) One or more substantial violations of the rental agreement. 2) Repeated minor violations of the rental agreement that: a) Disrupt the livability of the project; or, b) Adversely affect the health or safety of any person or the right of any tenant to the quiet enjoyment of the leased premises and the related project facilities; or, c) Interfere with the management of the project; or, d) Have an adverse financial effect on the project. 3) Failure to timely supply information on income and family composition or other eligibility factors. 4) Non-payment of rent or any other financial obligation (including any portion thereof).
NOTICE In the event the tenant materially non-complies with the lease, the landlord must provide a written notice of termination which includes the date the tenancy is to be terminated, states the reason for the landlord's action with enough specificity to enable the tenant to present a defense, advises the tenant if he or she remains in the leased premises the landlord may seek to enforce the termination only by bringing a judicial action at which time the tenant may present a defense and advise the tenant of their right to make a reasonable accommodation request if they are disabled. The notice must be served personally on the tenant or, if no tenant is at home, by placing it under the door if possible and if not possible, by posting it to the door and also by mailing the notice to the tenant by first class mail. Many of the pre-approved subsidized leases contain additional requirements for notices. Of course, as with all leases, the landlord is required to comply with not only Federal and Colorado law, but also the contractual obligations created by the lease. A frequently reoccurring lease requirement is for the landlord to provide notice that the tenant has 10 days to discuss the claimed lease violation and the landlord agrees to meet with the tenant. Consequently, a careful review of the provisions of any subsidized lease is required before drafting either a Demand for Possession or Compliance or a Notice to Quit. There is no requirement that the landlord serve two separate notices (one to comply with the Federal requirements and one to comply with State). Rather, the provisions of the Federal regulations can be
incorporated into a single notice to comply with both Colorado law and Federal regulations, provided all of the required verbiage is included. Alternatively, the Federal language can be attached to the Colorado notice as an addendum or exhibit. The time period for both notices may run concurrently.
OTHER G OOD CAUSE At the end of the lease term, if the landlord desires to terminate the tenancy, the landlord still must have cause. However, the cause does not have to be sufficient to constitute material noncompliance. Rather the standard is "other good cause." There is a theoretical difference in the legal standard required for terminating a lease during the lease term vs. refusing to renew the lease. Generally the standard for terminating a lease during the term is “material noncompliance with the lease.” The standard for terminating at renewal is “other good cause,” provided the tenant received written notice during the term of the lease that the tenant’s behavior might be the basis for a refusal to renew. As a practical matter, whether evicting for “material noncompliance” or for “other good cause”, the landlord still must obtain proof of the alleged violation. There are many times that a landlord knows of problem behavior, but, can’t assemble legal evidence to prove the behavior in a court of law. These situations cannot be resolved through failure to renew a lease, which is a significant difference from a private landlord/tenant relationship. Additionally most state courts are not so nuanced in the difference between the two standards as to treat them any differently. The judge is going to have to be convinced of a serious violation of the lease in both instances. Given that so much of a tenant's undesirable behavior is not a violation of a HUD Model Lease, a landlord can end up having to continue to do business with a very administratively expensive and undesirable tenant for an extended period of time.
PRIOR WARNINGS In order to terminate for other good cause, at lease expiration, the landlord must have provided prior notice that the violation would be grounds for terminating the lease at lease expiration (written warning). The landlord must also provide a Notice to Quit (which complies with all the requirements discussed above) at least 30 days in advance of the lease expiration date.
TENANT BASED PROGRAMS The other primary category is tenant based subsidies including the Section 8 Voucher Program. In tenant based programs, the individual owner accepts subsidies for a portion of the rent but a separate public housing authority determines and certifies the tenant's eligibility to participate in the subsidized program, the tenant's adjusted income, and the tenant's portion of the monthly rent.
REFUSAL TO ACCEPT VOUCHERS
Tenant based programs are more likely to effect landlords with no subsidized leasing experience. Under these programs tenants are free to select private housing of the tenant's choosing and request that the landlord participate in the subsidy program. At the time of the printing of this handbook, there is no requirement that the landlord agree to accept subsidized tenants. However, refusal to accept subsidized tenants could be conceivably utilized by a tenant to support the position that the landlord is actually refusing to lease based on race, familial status or other protected classifications discussed in more detail in the Fair Housing portion of this handbook.
NOTICES There are no unique requirements for the contents of the termination notice for voucher based programs. However, in programs that involve a Public Housing Authority, the notice must also be delivered to that organization.
HAP CONTRACTS In many tenant based programs the landlord is obligated to enter into a HAP Contract with the Public Housing Authority that administers the program. These HAP Contracts frequently place significant limitations on the landlordâ€™s ability to terminate the lease and require customized language in demands and notices to the tenant. If there is a conflict between the landlordâ€™s lease and the HAP Contract the HAP Contract will supersede (or cancel out) the conflicting portion of the lease. A landlord should thoroughly review the terms of the HAP Contract before agreeing to accept a subsidized tenant.
WRONGFUL EVICTION & ABANDONED PROPERTY If a tenant moves from an apartment and leaves behind property, the landlord must be very careful not to dispose of the property in a way that will create liability for the landlord.
WRIT OF RESTITUTION PROVIDES IMMUNITY If a landlord files an eviction action, obtains a writ of restitution, and, under the supervision of a sheriff, puts the property out in the street, Colorado statute provides immunity from civil or criminal liability relative to a tenant’s property (C.R.S. 13-40-122). While this process is expensive and time consuming, it is the only method that will provide statutory immunity to the landlord from a tenant’s claim regarding the loss of or damage to the property.
NO DUTY TO STORE The statute was amended in 1998 to clarify that a landlord has no duty to store, maintain, inventory or determine ownership of the property removed pursuant to a writ of restitution. It also provides that a landlord who elects to store the tenant’s property does not take on liability for loss or damage associated with that storage. These grants of immunity are only applicable when the property is removed pursuant to a court ordered writ of restitution. The statute makes no provision for immunity when a landlord removes or stores the property without a court ordered writ of restitution.
STATUTORY DEFINITION OF SURRENDER OF A UNIT When the Warranty of Habitability was enacted in 2008, it (oddly) included a brief section that deals with when a unit can be considered abandoned (C.R.S. 38-12-510). The statute initially provides that it’s unlawful for a landlord to remove or exclude a tenant from a dwelling without resorting to court process, unless the dwelling unit has been abandoned by the tenant as evidenced by: 1. the return of keys; or, 2. the substantial removal of the tenant’s personal property; or, 3. notice by the tenant; or, 4. the extended absence of the tenant while rent remains unpaid;
5. any of which would cause a reasonable person to believe the tenant had permanently surrendered possession of the unit. The statute doesn’t require that all the tenant’s property be removed, only the “substantial removal” of the property. However, the statute doesn’t define substantial removal. If there is a later dispute about personal property left at the apartment, the dispute is likely to include a disagreement about what items were left. Consequently, the landlord will want to be in the position to prove exactly what was and wasn’t left and be able to show that the remaining items were not substantial. Similarly, the statute doesn’t specify “written” notice. Presumably the tenant’s verbal notice would be good enough. Once again though, if there is a later dispute about personal property left in the unit, the dispute is likely to include a disagreement about the contents of any claimed verbal notice. The landlord will want to be in the position to prove exactly what was said. The statute also doesn’t define what an extended absence is. People routinely take two-week vacations. Consequently, it is hard to argue that an absence of anything less than two weeks is extended. Establishing the tenant has abandoned the unit is not necessarily the same thing as abandoning the personal property that remains there. Consequently, scenarios can arise when even though the landlord has a relatively clear statutory basis for believing the unit is abandoned, the tenant is still able to argue there was no intent to abandon the personal property.
RISK VS. RETURN Because of the expense and time involved with obtaining and executing upon a writ of restitution, a landlord may be tempted to incur the risk associated with removing and storing property without the backing of a court order and the sheriff. Only the landlord can make the analysis of the cost vs. benefit of removing the tenant’s property without statutory immunity. The decision will be influenced by how quickly the landlord believes the unit can be re-rented and how much money is being lost because of the vacancy. If the tenant truly has abandoned the unit and its contents (and never regrets that decision in the future) the tenant will not sue the landlord for disposing of the property. If the tenant doesn’t make a legal claim, it’s largely irrelevant whether the landlord complies with the law.
STORAGE, NOTICE AND DISPOSAL If the landlord elects to take the risk of removing and holding property for the tenant, a number of steps will help to document; (1) that the landlord reasonably believed the property was abandoned; and (2) the identity and value of the property left behind. The property should be fully inventoried, with any damage to the property noted. Two people should conduct and sign the inventory.
The property should be well photographed. The photographs are usually best if they show exactly how the items were left. The property should be stored in a safe place. The landlord should notify the tenant where the property is, how and when it can be retrieved, and for how long it will be held. Notification should be made in writing to the tenant’s last known address, by certified mail. The landlord should allow the tenant to reclaim the property for the period specified, which at a minimum should be 30 days. By holding the property at least 30 days, the landlord has the property to return, if there turns out to be some misunderstanding. 30 days is also long enough to expect a judge to find that the tenant’s absence is “extended”. If the tenant does not reclaim the property, the landlord should dispose of the property in the manner provided in the notice. Any proceeds should be applied to the tenant’s account. Retaining the tenant’s property is always unwise as it undercuts the landlord’s argument that the property had limited value, was trash, or otherwise was reasonably presumed to have been abandoned.
LEASE BREAK FEES, LATE CHARGES AND OTHER PRE-AGREED DAMAGES LEASE BREAK FEE OVERVIEW: Court enforcement of pre-agreed fees for the early termination of a lease contract (often called a lease break fee) is very sporadic. The enforcement problems have far more to do with the specific facts surrounding a given early termination than they do with the specific lease language used to describe the pre-agreed fees. Simply put, courts do not like to award landlords more money than the actual dollars lost due to the early lease termination, regardless of what the parties have agreed to in their lease. Nevertheless, these lease break fees and similar provisions requiring the repayment of rent concessions can provide significant sources of revenue, reduction in administrative expenses and motivation to tenants to honor the full term of their leases. Pre-agreed termination fees are therefore popular with landlords. However, using pre-agreed termination fees generate significant legal risks. No landlord should make the business decision to incorporate pre-agreed termination fees into a lease without fully understanding these risks.
ENFORCEMENT PROBLEMS: These business and financial advantages come with a cost. The enforcement of Lease Break Fees can run afoul of a number of different legal principles. Therefore, enforcement of these clauses is highly unpredictable. The basic problem with enforceability is as follows: Colorado Law allows the parties to a contract a great deal of flexibility in defining what the parties’ relative contractual obligations are. A court will not tell the parties that their lease is too long or the rent is too high. However, the law does not give parties much freedom in defining what monetary damages will result from a breach of the agreement. The early termination of a contract (leases included) cannot result in a financial windfall for the non-breaching party. No matter what one’s contract provides, the most the law will award is the amount of money the non-breaching party would have recovered if the breaching party had fully performed under the terms of the lease. A contractual “penalty” is an amount of money charged which is over and above the damages suffered by the non-breaching party. Contractual penalties are unenforceable. Consequently, when a Lease Break Fee results in the landlord claiming more money from the tenant than the landlord actually suffered in damages because of the early termination of the lease (usually lost rent), there will be enforcement problems.
EXCEPTION FOR “LIQUIDATED DAMAGES”: There is a legal exception to the absolute prohibition against penalties in a contract. The exception is for “liquidated damages.” “Liquidated” in this context means estimated. Contracting parties are, in some cases, free to liquidate or estimate their damages in advance. While “liquidated damages” is the term used in most legal court opinions, the term “estimated damages” will be used in this discussion to make for easier reading. In order for an estimated damages clause to be legally enforceable, it must pass three legal tests. 1) The damages to be estimated must be difficult or impossible to quantify at the time the contract was signed. 2) The parties must specifically agree on the amount of the estimated damages in their contract. 3) The agreed upon estimated damages must be reasonably related to the actual damages suffered. Test 1 is relatively easy to get around. The most common estimated damages include late fees, NSF check charges and the cost of re-documenting a replacement lease. All of these costs have administrative components (in consuming staff time, advertising budgets, etc.) that, although very real, are difficult to quantify. However, when the estimated damages are intended to compensate the landlord for lost rent, Test 1 should (at least theoretically) be a problem. At the time the lease is signed, while no one knows precisely how much rent might be lost if the tenant breaches the lease early, the parties can certainly come up with an accurate formula to calculate those losses (each day the landlord doesn’t receive paid rent will be the responsibility of the tenant). However, as a practical matter, landlords rarely lose these cases on Test 1. Judges tend to be persuaded by the legal argument that since the exact number of days the property might sit vacant is unknown to the parties, that potential lost rent was difficult or impossible to quantify at the time the contract was made. The second test is also rarely an issue. Landlords who desire to use an estimated damages provision typically describe the amount of the lease break fee in great detail in the lease, thereby satisfying this requirement. On occasion, one will see a lease that provides that upon the early termination of the lease the tenant will pay a lease break fee, but will not indicate the amount of the fee or a formula for calculating the fee. In this relatively rare event, the desired estimated damage will be unenforceable because of a failure of Test 2. However, if there is a problem with satisfying Test 2, it is relatively easy to fix the problem through changes in lease language.
Test 3, however, is often problematic when enforcing a lease break fee. If the lease break fee is significantly higher than the landlordâ€™s documentable losses, it will not be enforceable. Obviously, the lower the lease break fee, the easier it is to defend. However, no lease break fee that attempts to include the cost of lost rent, no matter how small, will be enforceable in all situations.
LEASE BREAK FEES TO COVER NON-RENT LOSSES: Even though attempting to liquidate the damages associated with lost rent is problematic, there are consistently enforceable lease break fees when those fees are intended to recover the administrative cost of turning the unit. A lease break fee limited to compensating the landlord for finding a new tenant, turning the unit and re-documenting the leases can fit squarely within the three prong test. Itâ€™s hard to say with any precision what the upper limit of what this lease break fee could be. However, a $250.00 fee to compensate the landlord for this administrative cost is very similar to (and, therefore supported by) the charges for a residential loan closing.
RECOUPMENT OF MONTHLY CONCESSIONS: The first hurdle in analyzing the enforceability of a clause which requires a tenant to repay monthly concessions is to prove that the claimed concessions are not just an illusion. Many landlords claim that the fair market rent for a given unit is one amount (say $1,000.00) and then claim that they are giving a concession (presumably in exchange for a long term lease commitment) of some portion of that rent (say $250.00). This is all well and good if the landlord is actually renting some of its units for the claimed fair market amount ($1,000.00) and if short term or month-to-month tenants are paying this higher amount. However, as is often the case, if no tenant is paying the higher amount, it is extremely difficult to maintain that the fair market value for the unit is $1,000.00 and not the concessed rate of $750.00. Fair market value is the amount of money a willing lessor and willing lessee would agree upon to exchange an apartment. If the fair market value for a unit is $750.00, pretending in a contract that itâ€™s $1,000.00 does not make the fair market value $1,000.00. However, the fact that a monthly concession may be an illusion is not the only legal hurdle when trying to recoup the monthly concessions. A clause that requires a tenant to repay monthly concessions is also difficult to enforce because there is no logical connection between the amount to be repaid and the damages the landlord suffered. A tenant who breaches the lease in month ten will owe the landlord far more money than a tenant who breaches in month two. Example, if there is a $250.00 monthly concession and the tenant skips after month one, the
repayment amount would be $250.00. If the tenant waits until after month 10 to skip (thereby significantly reducing the landlord’s actual damages) the repayment amount would be $2,500.00. This complete lack of connection between the repayment penalty and the damages suffered will invariable lead to enforceability problems. Ultimately, there is only one calculation of damages that a landlord can charge a tenant who terminates a lease early for the value of the lost rent with absolute certainty of enforcement. It is the amount of rent lost during the remaining lease term, provided the landlord exercises a reasonable attempt to re-rent the property.
LATE FEES Late fees are common contractual provisions and are routinely enforced. However, late fees also have the potential to be disallowed as unenforceable contractual penalties if the fees do not qualify as estimated damages. As with the other estimated damages late fees generally clear the requirement of being difficult or impossible to quantify at the time the lease is signed and being specifically agreed to in the lease. However, when the late fees grow too large, those fees run the risk of being disallowed as not reasonably related to the actual damages suffered. Colorado does not currently have a statutory limit on the amount of late fees (although one is proposed almost ever legislative session). Consequently, the only limiting factor on late fees is that it must be reasonably related to the landlord’s damages. It is difficult to advise on an absolute upward limit on late fees. “Reasonableness” is a standard that varies from person to person. The amount of the rent payment and the date on which the late fee becomes due influence the equation. However, late fees accruing during the early days of the month that exceed 10% of the rent payment or $100.00 seem difficult to defend.
SECURITY DEPOSITS The Colorado security deposit statute (found at C.R.S. 38-12-101) requires landlords to timely account to tenants for security deposits and provides stiff penalties for noncompliance. The statutes only apply to residential property and not to commercial leases.
DEFINITION A security deposit is any advance payment of money that has the primary function of securing the performance of a lease. Pre-payment of rent does not constitute a security deposit. By case law, a security deposit actually belongs to the tenant and is only security for the landlord.
ONE MONTH TO RETURN OR PROVIDE NOTICE Within one month (or up to 60 days if provided in the lease) after the termination of the lease or surrender and acceptance of the premises, whichever occurs last, a landlord must either: 1. return the deposit in full; or 2. provide a written statement listing the exact reasons for the retention of all or any portion of the deposit (and, if only a portion of the deposit is retained, to return the balance of the deposit). The one month period for the landlord to hold the deposit may be extended by terms of the lease. The period may not be extended beyond 60 days. The calculation of the time period begins at the date of the “termination of the lease or surrender and acceptance of the premises, whichever occurs last”. As each of these triggering events are subjective and capable of being interpreted by a judge in a surprising fashion, a landlord should never wait until the end of the period to account for the security deposit.
FAILURE TO COMPLY If a landlord fails to timely return the deposit or provide written explanation of the retention, the landlord forfeits all rights to withhold any portion of the deposit. It does not matter how much money the tenant owes the landlord. If landlord is outside the time period the landlord must return the full deposit. Forfeiting the right to the deposit does not mean the landlord loses the right to sue the tenant for the money the tenant owes the landlord. The landlord simply can no longer use the deposit to offset those damages.
The landlord is obligated to return the deposit or the written explanation for the retention of the deposit to the tenant’s last known address. If no forwarding address is known by the landlord, the last known address is the leased apartment (even though the tenant has moved from it). Since the landlord bears the burden of proving the mailing, the accounting should be sent certified mail/return receipt requested (even though not required by the statute). The statute long predates the Internet and only contemplates mailing of the notice. A landlord should not rely on e-mail correspondence to satisfy the statute's requirement of a written explanation for the retention of the deposit.
TENANT’S NOTICE If the landlord fails to timely account for the security deposit the tenant may provide the landlord with 7 day written demand for the return of the deposit and notification of the tenant's intent to sue for return of the deposit. During the 7 day period, the landlord must return the deposit, even if the landlord had a valid reason for withholding it. The landlord’s previous failure to timely return the deposit or provide written notice of why the deposit was retained completely forfeits the landlord’s right to hold the deposit.
TREBLE DAMAGES If the landlord does not return the deposit within 7 days of the tenant’s notice, the landlord’s continued retention of the deposit will then become what the statute calls both “wrongful” and “willful.” The tenant may then file a civil action in which the tenant will be awarded treble damages (three times the amount of the deposit withheld) plus attorney’s fees. If the tenant fails to give the landlord the 7 day notice prior to filing the suit, the tenant cannot be awarded treble damages or attorneys fees under the statute. However, the tenant will still be awarded the security deposit.
RESTRICTIVE CHECKS A restrictive endorsement on a check to the tenant is not a valid defense for the landlord. For example, if the tenant's deposit is $500.00, and the landlord returns a check for $300.00 with a restrictive endorsement on the check that provides "Full payment of security deposit" - even if the tenant cashes the check, the restriction is not binding upon the tenant. The statute expressly prohibits any attempt to waive a landlord’s obligations under the statute as against public policy.
NORMAL WEAR AND TEAR The landlord may not withhold any of the security deposit for damages which would be considered normal wear and tear. The definition of â€œnormal wear and tearâ€? is normal deterioration which occurs without negligence, accident, or abuse of the premises when used for the purpose for which it was intended. Tenants often think the normal wear and tear exception applies to cleaning as well as damages. It does not. The statute specifically authorizes a landlord and tenant to agree contractually to the level of cleaning required from the tenant. Consequently, it is permissible for a lease to require the unit to be returned in a fully clean condition.
BURDEN OF PROOF The landlord has the burden of proving the retention of the deposit was not wrongful in any suit regarding a security deposit (even one brought by a tenant), Consequently, landlords need detailed records, preferably acknowledged by the tenant, of the condition of the unit at both move-in and move-out. Courts look closely at whether the charges are "reasonable and necessary." It is helpful to have a specific written agreement with the tenant as to how and at what rates damages and cleaning charges will be assessed. Receipts, canceled checks, invoices, bids and other written documentation to prove that the repairs were actually made is critical to proving the reasonableness of the retained deposit. Photographic evidence is also extremely helpful in demonstrating physical damage to the property. If the landlord intends to utilize a photograph as evidence in court the landlord must be prepared to have the person that took the photograph available as a witness to establish the evidentiary foundation of the date and authenticity of the picture. Video taping of the premises can also be useful. However, presenting videotape evidence in court has practical limitations associated with the difficulty in playback and preserving a record of the video as part of the court file.
MITIGATION OF DAMAGES In all cases of damages, the party claiming damages has a duty to mitigate or lessen the partyâ€™s damages. Consequently, if a tenant breaches a lease and surrenders possession of a property, the landlord has a duty to make reasonable attempts to find a replacement tenant. The landlord cannot simply sit back and allow the property to remain vacant and expect the tenant to continue paying rent for the full term of the lease. If, and only if, the landlord makes reasonable efforts to re-lease the property (and is unsuccessful), will the tenant continue to be liable for future lease payments.
ESTIMATES Technically, it is not a requirement that the repair actually be made. However, a judge will rightfully be far more suspicious of a claim that damages have actually been incurred and repairs must be made when the landlord has not undertaken to make the repairs in a reasonable amount of time. Additionally, invoices from third parties for services actually performed serve as far better proof of actual damages than do estimates of cost of repairs. A damage claim is much more credible when the repair has actually been made. The possibility the estimated amount for the repair is inaccurate and also that the repair is not actually needed is implied when the repair has not actually been made. However sometimes an estimate must be used temporarily. This is particularly true when a landlord is trying to beat the relatively short timeframe required for the return of the security deposit account. If an estimate is used, the security deposit accounting should clearly indicate the figure is an estimate and that the tenant's account statement will be updated once the actual expense is known.
PRORATIONS Damaged items must be prorated for their reasonable expected useful life. Damaged carpeting is the most typical item for which prorations are applicable. If a tenantâ€™s abuse forces a landlord to replace carpeting, the full replacement cost of the carpeting will usually not be the appropriate amount to charge to the tenant. A court will allow a landlord to deduct only that portion of the cost of the carpet attributed to lost life caused by the tenantâ€™s abuse. For example, if the tenant moved into an apartment with 4 year old carpet, lived in the apartment for 1 year, damaged the carpet to the point that it had to be replaced and the court believed the reasonable expected life for the carpet was 7 years - the landlord would be allowed to bill the tenant only 2/7ths of the cost of the replacement carpet. If the judge believed the carpet had an expected useful life of only 5 years - there would be no money awarded for the damage. To prevail on a claim for damaged carpeting, the court generally requires the landlord to prove: 1) when the carpet was installed, 2) the condition of the carpet at move-in, 3) the condition of the carpet at move-out, 4) the life expectancy of the carpet, and 5) that the tenant was only charged for the portion of the carpet attributable to their tenancy, beyond normal wear and tear, 6) that the replacement carpeting was of the same quality of the original carpeting.
FEDERAL CONSUMER INFORMATION DISPOSAL REQUIREMENTS The Federal Trade Commission Regulation commonly referred to as the FTC’s Disposal Rule (published November 24, 2004 (696 Fed Reg 68690)) became effective June 1, 2005 (the “Disposal Rule”). The Disposal Rule was adopted pursuant to the Fair and Accurate Credit Transactions Act (FACTA), which granted the Federal Trade Commission, in conjunction with other administrative agencies, authority to establish specific rules governing disposal of consumer information. Landlords are exempt from much of the regulatory requirements of FACTA, as those requirements are primarily directed to banks and other lenders. However, the Disposal Rule requires all persons (defined as all individuals and all businesses) who maintain or possess “consumer information,” or compilations of consumer information, to properly dispose of those reports and records.
INFORMATION COVERED The Disposal Rule covers any and all consumer information a Landlord may obtain in connection with its rental operations. However, “Consumer Information” only includes consumer reports received from a consumer reporting agency and any manipulation or compilation of information from a consumer report. Specifically it includes any record - whether paper, electronic or otherwise - about an individual that is 1) a consumer report, 2) information that comes about by manipulation from a consumer report, or 3) any compilation of these records. The Disposal Rule does not cover the rest of the contents of the tenant file. Consumer information also does not include non-identifying aggregate information or data. A “consumer report” is any written, oral, or other communication made by a consumer reporting agency concerning an individual’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living that is used to establish employment, rental qualification, or for any other legitimate business purpose. A “consumer reporting agency” is any person or business that regularly engages in the practice of assembling or evaluating consumer credit information or other information on individuals for the purpose of providing consumer reports to third parties. The Disposal Rule does not cover information gathered through internal checks. This is true despite the fact that some information gathered internally may include personally identifying information. For example, rental applications completed prior to a background or reference check do not fall within the definition of consumer information. Nor does the disposal requirement cover other internal records, such as payroll records, emergency contact information, or payment ledgers, created throughout the rental relationship. Although the Disposal Rule applies only to consumer reports and the information derived from consumer reports, the FTC publications explaining the Disposal Rule specifically “encourage” that other records containing personal or financial information be disposed of with similar precautions. This suggestion by the FTC could create the basis of a negligence claim against a
landlord who disposes of personal or financial information in an unreasonable fashion. As a practical matter, it is probably more time consuming to go through a tenant file to determine which portions are covered by the Disposal Rule and which portion are not. The most cost effect solution and the one that provides the least level of liability may be to shred the entire tenant file.
DISPOSAL METHODS The Disposal Rule requires that reasonable measures must be taken when disposing of any consumer information. Proper disposal includes burning, pulverizing, or shredding all consumer information. The disposal rule applies to the disposal of both paper and electronic records. Information in electronic format must also be destroyed or erased.
EMPLOYEE DESTRUCTION The Disposal Rule allows for destruction of the information internally by employees, or outsourcing the destruction to a third-party vendor. If a landlord elects to have its employees internally destroy consumer information, written policies and procedures must be established concerning the degree of care and methods used. Additionally, employee training must be provided to ensure compliance with disposal requirements.
DESTRUCTION BY THIRD-PARTY VENDOR If a third-party vendor is used, the vendor must be carefully selected to ensure its ability to dispose of the consumer information properly. The Disposal Rule specifically requires a landlord to conduct due diligence when hiring a document destruction contractor to dispose of consumer information. Due diligence is recited to include: •
reviewing an independent audit of a disposal company’s operations and/or its compliance with the Rule;
obtaining information about the disposal company from several references;
requiring that the disposal company be certified by a recognized trade association;
reviewing and evaluating the disposal company’s information security policies or procedures.
Once a vendor is selected the Disposal Rule requires that a landlord notify the vendor that the information being destroyed is consumer information. The contract with the vendor must specifically establish that the vendor will dispose of the information in compliance with the Disposal Rule.
SETTLEMENT AND RELEASE NEED FOR WRITTEN AGREEMENTS In any business relationship there will be disagreements from time to time. The business relationship between a landlord and a tenant is no different. When settling any disagreement it is a good idea to have a written document that outlines the terms of the settlement. A written document is particularly important to evidence the terms of a settlement agreement since the parties are already in a disagreement. A written settlement agreement is uniquely important in a landlord-tenant relationship because the parties are likely to be doing business with each other after the settlement. Also, in the typical settlement arrangement, the landlord will be parting with something tangible (money or waived rent) while only obtaining the promise of the tenant (primarily the promise of the tenant not to sue). Consequently, proving the terms of the deal in the future will more likely benefit the landlord than the tenant.
STRATEGY A landlord typically starts the process of settling a dispute with a tenant as a customer service issue. The tenant complains-the landlord makes concessions. It is only after the landlord gets frustrated with having granted a number of concessions (to no avail) that the landlord starts to think in terms of settling the dispute. Unfortunately, after the concessions have already been given, the landlord has lost bargaining leverage. In any legal dispute, a party should never give the other party something the other party wants without fully settling the dispute. Consequently, any time a landlord gives a tenant something of value (to which the tenant is not otherwise entitled) the landlord should obtain a written release of the tenantâ€™s claims. Keep in mind that if the resident is given a significant amount of value as part of a settlement, the landlord may wish to insist that the resident move out as part of the deal. Continuing to house a resident that has learned that the resident can receive monetary gain by making demand on the landlord may be too financially risky to allow the business relationship to continue. Release agreements can be complex and full of legal language. However, the basic point of a release agreement is simple. The tenant should agree that (in exchange for receiving the landlordâ€™s concession) the tenant releases any claim of liability against the landlord.
PARTIES In most landlord-tenant relationships there is a party who owns the leased premises and another party who manages the lease premises. Any release agreement should release both of these parties. Each of these parties (the owner and the manager) also have related persons. If either the owner or the management companies are legal entities (such as partnerships, corporations or limited liability companies) – related persons include: members, managers, partners, officers, directors, shareholders, employees and agents. Each of these persons should be released as well. People who sign the release agreement are presumed to be releasing their claims. However, most of the time a landlord wants to obtain the release not only of the persons signing the agreement, but, also any other occupant, guest or minor child.
INDEMNIFICATION AND HOLD HARMLESS CLAUSES When a person signs a release agreement, that release is only applicable to the person signing the document. A person has very limited legal ability to release the claims of others, even if those other persons are children, spouses or other close relatives. However, a promise to defend the landlord from the claims of and to pay any damages awarded to such persons is typically enforceable. Consequently, it is a good idea to include a clause in a release or waiver wherein the resident agrees to indemnify and hold the landlord harmless from all persons affiliated with the tenant. Even without releasing their claims, a child or spouse would not find it financially rewarding to bring a claim against a landlord with an indemnification provision in place signed by their family member. All they would accomplish is to increase the liability of the family member.
FINANCIAL VIABILITY AND INSURANCE Keep in mind that person’s promise is only as good as their financial ability to back that promise up. Indemnification clauses do not eliminate the need for appropriate insurance coverage from financially solvent carriers. While a resident’s indemnification will likely protect a landlord from the claims of people the resident can control, it will do little to protect the landlord from the claims of affiliated people the resident can’t totally control. Indemnification of the claims of guests and invitees may do little to discourage those claims and the resident most likely doesn’t have the financial strength to sufficiently protect the landlord from those claims.
CONFIDENTIALITY Confidentiality provisions are also relevant in release agreements. Many times a landlord would be embarrassed by and does not want other persons to know the terms of the settlement. Knowing the terms of the settlement might encourage others to make similar claims. It is easy to include language in a settlement agreement that prohibits a tenant from disclosing the terms of the settlement or otherwise speaking poorly of the landlord. However, enforcing these provisions is difficult. Not only are there problems associated with proving a violation of the agreement, it is very difficult to prove a dollar value associated with the damages caused by a violation. Consequently, a landlord should view any promise of the releasing party regarding confidentiality as a bluff and of little financial value.
RELEASES BEFORE THE FACT Sometimes a landlord would like to obtain the residentâ€™s agreement to release the landlord from liability before the incident leading to the liability occurs. Common examples of these types of transactions include waivers to participate in athletic and social events. Unlike release agreements associated with paying someone for a harm already done, the enforceability of a pre-agreed liability waiver is not universal. Not all levels of negligence can be consented to in advance and waived. Consequently, even when the tenant has signed a liability waiver, landlords can find themselves subject to claims for injuries to the tenant. While it can never hurt to have a signed liability waiver, a landlord must still be careful not to engage in unreasonably risky behavior and carry appropriate insurance coverage for all perceived risks.
EXAMPLE DOCUMENT The following is a blank Settlement Agreement and Release that can be used in simple settlement situations. A landlord should involve the landlordâ€™s attorney to review the release and draft custom language as necessary if the dollar amount of the settlement gets high or the terms get complex.
Settlement Agreement and Release This Settlement Agreement and Release is made by _______________________ (“Landlord”) and ______________________________________________________ (collectively Resident”). Recitals: A) Landlord and Resident are parties to a Lease relative to a leased apartment with an address of _______________________________________________ (the “Apartment”). B) Disputes have arisen between Landlord and Resident regarding ______________ ________________________________________________________________________. C)
Landlord and Resident desire to resolve through settlement all claims of Resident.
Therefore, in consideration of the mutual promises and covenants below, the parties agree as follows: Agreement and Release: 1) Upon full execution of this Settlement Agreement and Release, Landlord shall: _________________________________________________________________________. 2) Resident, for Resident and all occupants of the Apartment, including any minor children, as well as all successors in interest, agents or assigns, hereby releases Landlord, as well as all officers, directors, shareholders, members, managers, employees, successors in interest, affiliated companies, the owner of the real property, agents, and assigns from any and all claims, causes of action, known or unknown, including but not limited to claims associated with the Lease, the condition of the Apartment, damage to personal property or any personal injury associated with the condition of the Apartment or common areas, and also any issues recited above. Furthermore, Resident hereby indemnifies and shall hold harmless all such released persons from any and all claims or causes of action of all occupants of the Apartment including any minor children. This indemnification and agreement to hold harmless shall specifically include all costs of defense and reasonable attorney fees. 3) Resident agrees to keep the terms of this Agreement and the underlying dispute strictly confidential and will forfeit all consideration under this Agreement in the event the terms are disclosed by Resident. Landlord By: _______________________________ _______________________________ (date) Resident (date)
CAA LEASE AND FORM SAMPLES The following pages contain the most up to date Colorado Apartment Association Lease and Form samples. All of the following forms are available in physical and electronic form through your local Association. For more information, please contact the Colorado Apartment Association at (303) 329-3300.
APARTMENT LEASE CONTRACT
NON-RENEWAL OF LEASE
MOVE IN / MOVE OUT AGREEMENT
DEMAND FOR COMPLIANCE
LEAD-BASED PAINT DISCLOSURE
PEST CONTROL ADDENDUM
CRIME FREE ADDENDUM
BROKERAGE DISCLOSURE TO TENANT
NOTICE TO QUIT
3 DAY NOTICE TO QUIT
NOTICE TO QUIT – REPEAT VIOLATION
NOTICE TO VACATE – TERMINATED EMPLOYEE
AGREEMENT FOR NON-WAIVER AND PARTIAL PAYMENT
STATUTES EMPLOYEE EVICTIONS 8-4-123. Termination of occupancy pursuant to contract of employment - legislative declaration (1) The general assembly hereby finds, determines, and declares that many businesses, such as nursing homes or building management companies, either desire or are required by law to have staff on premises at all times. As part of the compensation for such employees, many employers offer housing to employees. However, once that employment relationship ceases, it may become undesirable for such employees to occupy the premises for many reasons, including the safety of the employer's patients, clients, customers, or tenants. Under traditional landlord and tenant law, such employees may have established the technical or legal right to occupy the premises for a fixed term that continues far beyond the cessation of the employment relationship. However, in employment situations, such occupancy is not a tenancy, but a license to occupy the premises pursuant to an employment relationship. The occupancy of the premises by the employee is not entered into by the employer for the purpose of providing housing, but merely as a means to provide services to the employer's patients, clients, customers, or tenants. In certain cases, it may be necessary to curtail the occupancy of former employees in order to protect the rights or safety of an employer's tenants or patients. (2) (a) Pursuant to a written agreement meeting the requirements of paragraph (b) of this subsection (2), a license to occupy the premises entered into as part of an employee's compensation may be terminated at any time after the employment relationship ceases between an employer and employee. A termination of a license to occupy the premises shall be effective three days after the service of written notice of termination of a license to occupy the premises. (b) An agreement made pursuant to this section shall be in writing and shall include the following: (I) The names of the employer and employee; (II) A statement that the license to occupy the premises is provided to the employee as part of the employee's compensation and is subject to termination at any time after the employment relationship ceases; (III) The address of the premises; and (IV) The signature of both the employer and the employee. (c) The notice of termination of a license to occupy the premises shall describe the premises and shall set forth the time when the license to occupy the premises will terminate. The notice shall be signed by the employer or the employer's agent or attorney. (3) If an employee fails to vacate the premises within three days after the receipt of the notice of termination of the license to occupy the premises, the employer may contact the county sheriff to have the employee removed from the premises. The county sheriff shall remove the employee and any personal property of the employee from the premises upon the showing to the county sheriff of the notice of termination of the license to occupy the premises and agreement pursuant to which the license to occupy the premises was granted.
BAD CHECKS 13-21-109. Recovery of damages for checks, drafts, or orders not paid upon presentment (1) Any person who obtains money, merchandise, property, or other thing of value, or who makes any payment of any obligation other than an obligation on a consumer credit transaction as defined in section 5-1-301, C.R.S., by means of making any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation which is not paid upon its presentment is liable to the holder of such check, draft, or order or any assignee for collection for one of the following amounts, at the option of the holder or such assignee: (a) The face amount of the check, draft, or order plus actual damages determined in accordance with the provisions of the "Uniform Commercial Code", title 4, C.R.S.; or (b) An amount equal to the face amount of the check, draft, or order and: (I) The amount of any reasonable posted or contractual charge not exceeding twenty dollars; and (II) If the check, draft, or order has been assigned for collection to a person licensed as a collection agency pursuant to article 14 of title 12, C.R.S., as costs of collection, twenty percent of the face amount of the check, draft, or order but not less than twenty dollars; or (c) An amount as provided in subsection (2) of this section. (2) (a) If notice of nonpayment on presentment of the check, draft, or order has been given in accordance with subsections (3) and (4) of this section and the total amount due as set forth in the notice has not been paid within fifteen days after such notice is given, instead of the amounts set forth in paragraph (a) or (b) of subsection (1) of this section, the person shall be liable to the holder or any assignee for collection for three times the face amount of the check but not less than one hundred dollars and, with regard to a paycheck, actual damages caused by the nonpayment, including associated late fees. (b) The person, also referred to in this section as the "maker", shall not be liable in accordance with the provisions of paragraph (a) of this subsection (2) if he establishes any one of the following: (I) That the account contained sufficient funds or credit to cover the check, draft, or order at the time the check, draft, or order was made, plus all other checks, drafts, and orders on the account then outstanding and unpaid; (II) That the check, draft, or order was not paid because a paycheck, deposited in the account in an amount sufficient to cover the check, draft, or order, was not paid upon presentment; (III) That funds sufficient to cover the check, draft, or order were garnished, attached, or set off and the maker had no notice of such garnishment, attachment, or setoff at the time the check, draft, or order was made; (IV) That the maker of the check, draft, or order was not competent or of full age to enter into a legal contractual obligation at the time the check, draft, or order was made; (V) That the making of the check, draft, or order was induced by fraud or duress; (VI) That the transaction which gave rise to the obligation for which the check, draft, or order was given lacked consideration or was illegal.
(3) Notice that a check, draft, or order has not been paid upon presentment shall be in writing and given in person and receipted for, or by personal service, or by depositing the notice by certified mail, return receipt requested and postage prepaid, or by regular mail supported by an affidavit of mailing sworn and retained by the sender, in the United States mail and addressed to the recipient's most recent address known to the sender. If the notice is mailed and not returned as undeliverable by the United States postal service, notice shall be conclusively presumed to have been given on the date of mailing. For the purpose of this subsection (3), "undeliverable" does not include unclaimed or refused. (4) The notice given pursuant to subsection (3) of this section shall include the following information regarding the unpaid check, draft, or order: (a) The date the check, draft, or order was issued; (b) The name of the bank, depository, person, firm, or corporation on which it was drawn; (c) The name of the payee; (d) The face amount; (e) A statement of the total amount due, which shall be itemized and shall not exceed the amount permitted under paragraph (a) or (b) of subsection (1) of this section; (f) A statement that the maker has fifteen days from the date notice was given to make payment in full of the total amount due; and (g) A statement that, if the total amount due is not paid within fifteen days after the date notice was given, the maker may be liable in a civil action for three times the face amount of the check but not less than one hundred dollars and that, in such civil action, the court may award court costs and reasonable attorney fees to the prevailing party. (5) No holder or assignee for collection shall assert that any maker has liability for any amount set forth under subsection (2) of this section unless such liability has been determined by entry of a final judgment by a court of competent jurisdiction. (6) In any civil action brought under this section, the prevailing party may recover court costs and reasonable attorney fees. In addition, in an action brought under paragraph (b) of subsection (1) of this section, if the holder or assignee for collection prevails, actual costs of collection may be recovered by the holder or assignee for collection if such actual costs of collection are greater than the costs of collection provided under such paragraph (b). (7) Nothing in this section shall be deemed to apply to any check, draft, or order on which payment has been stopped by the maker by reason of a dispute relating to the money, merchandise, property, or other thing of value obtained by the maker. (8) Nothing in this section applies to any criminal case or affects eligibility or terms of probation. (9) Any limitation on a cause of action under this section, except a cause of action under subsection (2) of this section, shall be governed by the provisions of section 13-80-103.5. Any limitation on a cause of action under subsection (2) of this section shall be governed by the provisions of section 13-80-102.
AGE OF COMPETENCY 13-22-101. Competence of persons eighteen years of age or older
(1) Notwithstanding any other provision of law enacted or any judicial decision made prior to July 1, 1973, every person, otherwise competent, shall be deemed to be of full age at the age of eighteen years or older for the following specific purposes: (a) To enter into any legal contractual obligation and to be legally bound thereby to the full extent as any other adult person; but such obligation shall not be considered a family expense of the parents of the person who entered into the contract, under section 14-6-110, C.R.S.; (b) To manage his estate in the same manner as any other adult person. This section shall not apply to custodial property given or held under the terms of the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S., or property held for a protected person under the "Colorado Probate Code", article 14 of title 15, C.R.S., unless otherwise permitted in said articles; (c) To sue and be sued in any action to the full extent as any other adult person in any of the courts of this state, without the necessity for a guardian ad litem or someone acting in his behalf; (d) To make decisions in regard to his own body and the body of his issue, whether natural or adopted by such person, to the full extent allowed to any other adult person.
EVICTION 13-40-101. Forcible entry and detainer defined (1) If any person enters upon or into any lands, tenements, mining claims, or other possessions with force or strong hand or multitude of people, whether any person is actually upon or in the same at the time of such entry, or if any person by threats of violence or injury to the party in possession or by such words or actions as have a natural tendency to excite fear or apprehension of danger gains possession of any lands, tenements, mining claims, or other possessions and detains and holds the same, such person so offending is guilty of a forcible entry and detainer within the meaning of this article. (2) If any person enters peaceably upon any lands, tenements, mining claims, or other possessions, whether any person is actually in or upon the same at the time of such entry and by force turns the party in possession out or, by threats or by words or actions which have a natural tendency to excite fear or apprehension of danger, frightens the party out of possession and detains and holds the same, such person so offending is guilty of a forcible detainer within the meaning of this article. (3) If any person enters upon or into any lands, tenements, mining claims, or other possessions by force or by threats of violence, or words or actions which have a natural tendency to excite fear or apprehension of danger, and intimidates the party entitled to possession from returning upon or possessing the same, such person so offending is guilty of a forcible entry within the meaning of this article. 13-40-102. Forcible entry prohibited No person shall enter into or upon any real property, except in cases where entry is allowed by law, and in such cases not with strong hand or with a multitude of people, but only in a peaceable manner. 13-40-103. Forcible detention prohibited
No person, having peaceably entered into or upon any real property without right to the possession thereof, shall forcibly hold or detain the same as against the person who has a lawful right to such possession. 13-40-104. Unlawful detention defined (1) Any person is guilty of an unlawful detention of real property in the following cases: (a) When entry is made, without right or title, into any vacant or unoccupied lands or tenements; (b) When entry is made, wrongfully, into any public lands, tenements, mining claims, or other possessions which are claimed or held by a person who may have located, entered, or settled upon the same in conformity with the laws, rules, and regulations of the United States, or of this state, in relation thereto; (c) When any lessee or tenant at will, or by sufferance, or for any part of a year, or for one or more years, of any real property, including a specific or undivided portion of a building or dwelling, holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of the term for which the same were leased, or after such tenancy, at will or sufferance, has been terminated by either party; (d) When such tenant or lessee holds over without permission of his landlord after any default in the payment of rent pursuant to the agreement under which he holds, and three days' notice in writing has been duly served upon the tenant or lessee holding over, requiring in the alternative the payment of the rent or the possession of the premises. No such agreement shall contain a waiver by the tenant of the three days' notice requirement of this paragraph (d). It shall not be necessary, in order to work a forfeiture of such agreement, for nonpayment of rent, to make a demand for such rent on the day on which the same becomes due; but a failure to pay such rent upon demand, when made, works a forfeiture. (d.5) When such tenant or lessee holds over, without the permission of the landlord, contrary to any condition or covenant the violation of which is defined as a substantial violation in section 13-40-107.5, and notice in writing has been duly served upon such tenant or lessee in accordance with section 13-40-107.5; (e) When such tenant or lessee holds over, without such permission, contrary to any other condition or covenant of the agreement under which such tenant or lessee holds, and three days' notice in writing has been duly served upon such tenant or lessee requiring in the alternative the compliance with such condition or covenant or the delivery of the possession of the premises so held; (e.5) (I) When a tenant or lessee has previously been served with the notice described in paragraph (e) of this subsection (1) requiring compliance with a condition or covenant of the agreement, and subsequent to that notice holds over, without permission of the tenant or lessee's landlord, contrary to the same condition or covenant. (II) A tenancy may be terminated at any time pursuant to this paragraph (e.5) on the basis of a subsequent violation. The termination shall be effective three days after service of written notice to quit. (f) When the property has been duly sold under any power of sale, contained in any mortgage or trust deed that was executed by such person, or any person under whom such person claims by title subsequent to date of the recording of such mortgage or trust deed, and the title under such sale has been duly perfected and the purchaser at such sale, or his or her assigns, has duly demanded the possession thereof; (g) When the property has been duly sold under the judgment or decree of any court of competent jurisdiction and the party or privies to such judgment or decree, after the expiration of the time of redemption when redemption is allowed by law, refuse or neglect to surrender possession thereof after demand therefor has been duly made by the purchaser at such sale, or his or her assigns;
(h) When an heir or devisee continues in possession of any premises sold and conveyed by any personal representative with authority to sell, after demand therefor is duly made; (i) When a vendee having obtained possession under an agreement to purchase lands or tenements, and having failed to comply with his agreement, withholds possession thereof from his vendor, or assigns, after demand therefor is duly made. (2) and (3) Repealed. (4) (a) It shall not constitute an unlawful detention of real property as described in paragraph (d.5), (e), or (e.5) of subsection (1) of this section if the tenant or lessee is the victim of domestic violence, as that term is defined in section 18-6-800.3, C.R.S., or of domestic abuse, as that term is defined in section 13-14-101 (2), which domestic violence or domestic abuse was the cause of or resulted in the alleged unlawful detention and which domestic violence or domestic abuse has been documented by the following: (I) A police report; or (II) A valid civil or emergency protection order. (b) A person is not guilty of an unlawful detention of real property pursuant to paragraph (a) of this subsection (4) if the alleged violation of the rental or lease agreement is a result of domestic violence or domestic abuse against the tenant or lessee. (c) A rental, lease, or other such agreement shall not contain a waiver by the tenant or lessee of the protections provided in this subsection (4). (d) Nothing in this subsection (4) shall prevent the landlord from seeking judgment for possession against the tenant or lessee of the premises who perpetuated the violence or abuse that was the cause of or resulted in the alleged unlawful detention. 13-40-105. Crops of possessor In all cases arising under section 13-40-104 (1) (c) to (1) (i), the person in possession is entitled to cultivate and gather the crops, if any, planted or sown by him previous to the service of the demand to deliver up possession, and then grown or growing on the premises, and shall have the right to enter such premises for the purpose of cultivating or removing such crops, first paying or tendering to the party entitled to the possession of said premises a reasonable compensation for the use of the land before removing such crops. 13-40-106. Written demand The demand required by section 13-40-104 shall be made in writing, specifying the grounds of the demandant's right to the possession of such premises, describing the same, and the time when the same shall be delivered up, and shall be signed by the person claiming such possession, his agent, or his attorney. 13-40-107. Notice to quit (1) A tenancy may be terminated by notice in writing, served not less than the respective period fixed before the end of the applicable tenancy, as follows: (a) A tenancy for one year or longer, three months;
(b) A tenancy of six months or longer but less than a year, one month; (c) A tenancy of one month or longer but less than six months, ten days; (d) A tenancy of one week or longer but less than one month, or a tenancy at will, three days; (e) A tenancy for less than one week, one day. (2) Such notice shall describe the property and the particular time when the tenancy will terminate and shall be signed by the landlord or tenant, the party giving such notice or his agent or attorney. (3) Any person in possession of real property with the assent of the owner is presumed to be a tenant at will until the contrary is shown. (4) No notice to quit shall be necessary from or to a tenant whose term is, by agreement, to end at a time certain. (5) Except as otherwise provided in section 38-33-112, C.R.S., the provisions of subsections (1) and (4) of this section shall not apply to the termination of a residential tenancy during the ninety-day period provided for in said section. 13-40-107.5. Termination of tenancy for substantial violation - definition - legislative declaration (1) The general assembly finds and declares that: (a) Violent and antisocial criminal acts are increasingly committed by persons who base their operations in rented homes, apartments, and commercial properties; (b) Such persons often lease such property from owners who are unaware of the dangerous nature of such persons until after the persons have taken possession of the property; (c) Under traditional landlord and tenant law, such persons may have established the technical, legal right to occupy the premises for a fixed term which continues long after they have demonstrated themselves unfit to coexist with their neighbors and co-tenants; furthermore, such persons often resist eviction as long as possible; (d) In certain cases it is necessary to curtail the technical, legal right of occupancy of such persons in order to protect the equal or greater rights of neighbors and co-tenants, the interests of property owners, the values of trust and community within neighborhoods, and the health, safety, and welfare of all the people of this state. (2) It is declared to be an implied term of every lease of real property in this state that the tenant shall not commit a substantial violation while in possession of the premises. (3) As used in this section, "substantial violation" means any act or series of acts by the tenant or any guest or invitee of the tenant that, when considered together: (a) Occurs on or near the premises and endangers the person or willfully and substantially endangers the property of the landlord, any co-tenant, or any person living on or near the premises; or (b) Occurs on or near the premises and constitutes a violent or drug-related felony prohibited under article 3, 4, 6, 7, 9, 10, 12, or 18 of title 18, C.R.S.; or (c) Occurs on the tenant's leased premises or the common areas, hallway, grounds, parking lot, or other area located in
the same building or complex in which the tenant's leased premises are located and constitutes a criminal act in violation of federal or state law or local ordinance that: (I) Carries a potential sentence of incarceration of one hundred eighty days or more; and (II) Has been declared to be a public nuisance under state law or local ordinance based on a state statute. (4) (a) A tenancy may be terminated at any time on the basis of a substantial violation. The termination shall be effective three days after service of written notice to quit. (b) The notice to quit shall describe the property, the particular time when the tenancy will terminate, and the grounds for termination. The notice shall be signed by the landlord or by the landlord's agent or attorney. (5) (a) In any action for possession under this section, the landlord has the burden of proving the occurrence of a substantial violation by a preponderance of the evidence. (b) In any action for possession under this section, it shall be a defense that: (I) (Deleted by amendment, L. 2005, p. 402, ยง 2, effective July 1, 2005.) (II) The tenant did not know of, and could not reasonably have known of or prevented, the commission of a substantial violation by a guest or invitee but immediately notified a law enforcement officer of his or her knowledge of the substantial violation. (c) (I) The landlord shall not have a basis for possession under this section if the tenant or lessee is the victim of domestic violence, as that term is defined in section 18-6-800.3, C.R.S., or of domestic abuse, as that term is defined in section 13-14-101 (2), which domestic violence or domestic abuse was the cause of or resulted in the alleged substantial violation and which domestic violence or domestic abuse has been documented pursuant to the provisions set forth in section 13-40-104 (4). (II) Nothing in this paragraph (c) shall prevent the landlord from seeking possession against a tenant or lessee of the premises who perpetuated the violence or abuse that was the cause of or resulted in the alleged substantial violation. 13-40-108. Service of notice to quit A notice to quit or demand for possession of real property may be served by delivering a copy thereof to the tenant or other person occupying such premises, or by leaving such copy with some person, a member of the tenant's family above the age of fifteen years, residing on or in charge of the premises, or, in case no one is on the premises at the time service is attempted, by posting such copy in some conspicuous place on the premises. 13-40-109. Jurisdiction of courts The district courts in their respective districts and county courts in their respective counties have jurisdiction of all cases of forcible entry, forcible detainer, or unlawful detainer arising under this article, and the person entitled to the possession of any premises may recover possession thereof by action brought in any of said courts in the manner provided in this article. On and after January 1, 1991, in all actions brought before county courts under section 13-40104 (1) (f) to (1) (i), where the allegations of the complaint are put in issue by a verified answer and in actions in which the verified answer alleges a monthly rental value of the property in excess of fifteen thousand dollars, the county court, upon the filing of said answer, shall suspend all proceedings therein and certify said cause and transmit the papers therein to the district court of the same county. Causes so certified by the county court shall be proceeded within the courts to which they have been so certified in all respects as if originally begun in the court to which they
have been certified. On and after January 1, 1991, the jurisdiction of the county court to enter judgment for rent, or damages, or both and to render judgment on a counterclaim in forcible entry and detainer shall be limited to a total of fifteen thousand dollars in favor of either party, exclusive of costs and attorney fees. 13-40-110. Action - how commenced (1) An action under this article is commenced by filing with the court a complaint in writing describing the property with reasonable certainty, the grounds for the recovery thereof, the name of the person in possession or occupancy, and a prayer for recovery of possession. The complaint may also set forth the amount of rent due, the rate at which it is accruing, the amount of damages due, and the rate at which they are accruing and may include a prayer for rent due or to become due, present and future damages, costs, and any other relief to which plaintiff is entitled. (2) In an action for termination of a tenancy in a mobile home park, the complaint, in addition to the requirements of subsection (1) of this section, shall specify the particular reasons for termination as such reasons are stated in section 38-12-203, C.R.S. Such complaint shall specify the approximate time, place, and manner in which the tenant allegedly committed the acts giving rise to the complaint. If the action is based on the mobile home or mobile home lot being out of compliance with the rules and regulations adopted pursuant to section 38-12-203 (1) (c), C.R.S., the complaint shall specify that the home owner was given thirty days from the date of service or posting of the notice to quit to cure the noncompliance and that thirty days have passed and the noncompliance has not been cured. 13-40-111. Issuance and return of summons (1) Upon filing the complaint as provided in section 13-40-110, the clerk of the court or the attorney for the plaintiff shall issue a summons. The summons shall command the defendant to appear before the court at a place named in such summons and at a time and on a day which shall be not less than five business days nor more than ten calendar days from the day of issuing the same to answer the complaint of plaintiff. The summons shall also contain a statement addressed to the defendant stating: "If you fail to file with the court, at or before the time for appearance specified in the summons, an answer to the complaint setting forth the grounds upon which you base your claim for possession and denying or admitting all of the material allegations of the complaint, judgment by default may be taken against you for the possession of the property described in the complaint, for the rent, if any, due or to become due, for present and future damages and costs, and for any other relief to which the plaintiff is entitled. If you are claiming that the landlord's failure to repair the residential premises is a defense to the landlord's allegation of nonpayment of rent, the court will require you to pay into the registry of the court, at the time of filing your answer, the rent due less any expenses you have incurred based upon the landlord's failure to repair the residential premises." (2) For purposes of this section, "business days" means any calendar day excluding Saturdays, Sundays, and legal holidays. (3) For actions commenced pursuant to section 13-40-104 (1) (f) and (1) (g) only, if no answer to the complaint is filed as provided in subsection (1) of this section, the court shall examine the complaint, and, if satisfied that venue is proper and the plaintiff is entitled to possession of the premises, the court shall dispense with appearances by the plaintiff or a hearing and shall forthwith enter a judgment for possession, present or future damages, and costs. 13-40-112. Service (1) Such summons may be served by personal service as in any civil action. A copy of the complaint must be served with the summons. (2) If personal service cannot be had upon the defendant by a person qualified under the Colorado rules of civil procedure to serve process, after having made diligent effort to make such personal service, such person may make service by posting a copy of the summons and the complaint in some conspicuous place upon the premises. In addition thereto, the plaintiff shall mail, no later than the next business day following the day on which he or she files the
complaint, a copy of the summons, or, in the event that an alias summons is issued, a copy of the alias summons, and a copy of the complaint to the defendant at the premises by postage prepaid, first-class mail. (3) Personal service or service by posting shall be made at least five business days before the day for appearance specified in such summons, and the time and manner of such service shall be endorsed upon such summons by the person making service thereof. (4) For purposes of this section, "business days" means any calendar day excluding Saturdays, Sundays, and legal holidays. 13-40-113. Answer of defendant - additional and amended pleadings (1) The defendant shall file with the court, at or before the time specified for his appearance in the summons, an answer in writing setting forth the grounds on which he bases his claim for possession and admitting or denying all of the material allegations of the complaint and presenting every defense which then exists and upon which he intends to rely, either by including the same in his answer or by filing simultaneously therewith motions setting forth every such defense. (2) The court for good cause may permit the filing of additional and amended pleadings where such will not result in delay prejudicial to the defendant. 13-40-114. Delay in trial - undertaking If either party requests a delay in trial longer than five days, the court in its discretion may, upon good cause shown, require either of the parties to give bond or other security approved and fixed by the court in an amount for the payment to the opposite party of such sum as he may be damaged due to the delay. 13-40-115. Judgment - writ of restitution (1) Upon the trial of any action under this article if service was had only by posting in accordance with section 13-40112 (2) and if the court finds that the defendant has committed an unlawful detainer, the court shall enter judgment for the plaintiff to have restitution of the premises and shall issue a writ of restitution. The court may also continue the case for further hearing from time to time and may issue alias and pluries summonses until personal service upon the defendant is had. (2) Upon such trial or further hearing under this article after personal service is had upon the defendant in accordance with section 13-40-112 (1), if the court or jury has not already tried the issue of unlawful detainer, it may do so, and, if it finds that the defendant has committed an unlawful detainer, the court shall enter judgment for the plaintiff to have restitution of the premises and shall issue a writ of restitution. In addition to such judgment for restitution, the court or jury shall further find the amount of rent, if any, due to the plaintiff from the defendant at the time of trial, the amount of damages, if any, sustained by the plaintiff to the time of the trial on account of the unlawful detention of the property by the defendant, and damages sustained by the plaintiff to the time of trial on account of injuries to the property, and judgment shall enter for such amounts, together with reasonable attorney's fees and costs, upon which judgment execution shall issue as in other civil actions. Nothing in this section shall be construed to permit the entry of judgment in excess of the jurisdictional limit of the court. (3) A writ of restitution that is issued by the court pursuant subsection (1) or (2) of this section shall remain in effect for forty-five days after issuance and shall automatically expire thereafter. 13-40-116. Dismissal
If the plaintiff's action brought for any of the causes mentioned in this article, upon the trial thereon, is dismissed or the action fails to prove the plaintiff's right to the possession of the premises described in the complaint, the defendant shall have judgment and execution for his costs. 13-40-117. Appeals (1) If either party feels aggrieved by the judgment rendered in such action before the county court, he may appeal to the district court, as in other cases tried before the county court, with the additional requirements provided in this article. (2) Upon the court's taking such appeal, all further proceedings in the case shall be stayed, and the appellate court shall thereafter issue all needful writs and process to carry out any judgment which may be rendered thereon in the appellate court. (3) If the appellee believes that he may suffer serious economic harm during the pendency of the appeal, he may petition the court taking the appeal to order that an additional undertaking be required of the appellant to cover the anticipated harm. The court shall order such undertaking only after a hearing and upon a finding that the appellee has shown a substantial likelihood of suffering such economic harm during the pendency of the appeal and that he will not adequately be protected under the appeals bond and the other requirements for appeal pursuant to sections 13-40-118, 13-40-120, and 13-40-123. 13-40-118. Deposit of rent In all appeals from the judgment of a county court, in an action founded upon section 13-40-104 (1) (d), the defendant, at the time of the filing thereof, shall deposit with the court the amount of rent found due and specified in such judgment. Unless such deposit is made, the appeal is not perfected, and proceedings upon such judgment shall thereupon be had accordingly. If the appeal is perfected, the court shall transmit such deposit to the clerk of the appellate court, with the papers in such case; and the appellant thereafter, at the time when the rents become due as specified in the judgment appealed from and as often as the same become due, shall deposit the amount thereof with the clerk of such appellate court. In case the appellant, at any time during the pendency of such appeal and before final judgment therein, neglects or fails to make any deposit of rent, falling due at the time specified in the judgment appealed from, the court in which such appeal is pending, upon such fact being made to appear and upon motion of the appellee, shall affirm the judgment appealed from with costs; and proceedings thereupon shall be had as in like cases determined upon the merits. 13-40-119. Rules of practice In all actions brought under any provision of this article in any court, the proceedings shall be governed by the rules of practice and the provisions of law concerning civil actions in such court, except as may be otherwise provided in this article. 13-40-120. Appellate review Appellate review of the judgment of the district courts of this state, in proceedings under this article, is allowed as provided by law and the Colorado appellate rules. In cases of appeal from judgments founded upon causes of action embraced in section 13-40-104 (1) (d), the deposit of rent money during pendency of appeal shall be made, or judgment of affirmance shall be entered, in the manner provided in section 13-40-118. 13-40-121. When deposit of rent is paid The rent money deposited, as provided for in this article, shall be paid to the landlord entitled thereto, upon the order
of the court wherein the same is deposited and at such time and in such manner as the court determines necessary to protect the rights of the parties. 13-40-122. Writ of restitution after judgment (1) No writ of restitution shall issue upon any judgment entered in any action under the provisions of this article out of any court until after the expiration of forty-eight hours from the time of the entry of such judgment; and such writs shall be executed by the officer having the same only in the daytime and between sunrise and sunset. Any writ of restitution governed by this section may be executed by the county sheriff's office in which the property is located by a sheriff, undersheriff, or deputy sheriff, as described in section 16-2.5-103 (1) or (2), C.R.S., while off duty or on duty at rates charged by the employing sheriff's office in accordance with section 30-1-104 (1) (gg), C.R.S. (2) The officer that executes a writ of restitution under subsection (1) of this section and the law enforcement agency that employs such officer shall be immune from civil liability for any damage to a tenant's personal property that was removed from the premises during the execution of the writ. A landlord who complies with the lawful directions of the officer executing a writ of restitution shall be immune from civil and criminal liability for any act or omission related to a tenant's personal property that was removed from the premises during or after the execution of a writ of restitution. (3) A landlord has no duty to store or maintain a tenant's personal property that is removed from the premises during or after the execution of a writ of restitution. Regardless of whether a landlord elects to store or maintain the personal property so removed, the landlord shall have no duty to inventory the personal property or to determine ownership of or the condition of the personal property. Such storage shall not create either an implied or express bailment of the personal property, and the landlord shall be immune from liability for any loss or damage to the personal property. (4) A landlord who elects to store a tenant's personal property that was removed from the premises during or after the execution of a writ of restitution may charge the tenant the reasonable costs of storing the personal property. To recover such costs, the landlord may either dispose of the personal property under any lien rights the landlord has under part 1 of article 20 of title 38, C.R.S., or the landlord may allow the tenant to recover the personal property after paying the reasonable storage charges incurred by the landlord. 13-40-123. Damages The prevailing party in any action brought under the provisions of this article is entitled to recover damages, reasonable attorney fees, and costs of suit; except that a residential landlord or tenant who is a prevailing party shall not be entitled to recover reasonable attorney fees unless the residential rental agreement between the parties contains a provision for either party to obtain attorney fees. Nothing in this section shall be construed to permit the entry of judgments in any single proceeding in excess of the jurisdictional limit of said court.
SMALL ESTATE AFFIDAVIT 15-12-1201. Collection of personal property by affidavit (1) At any time ten or more days after the date of death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock brand belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock brand to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that: (a) The fair market value of property owned by the decedent and subject to disposition by will or intestate succession at the time of his or her death, wherever that property is located, less liens and encumbrances, does not exceed sixty thousand dollars;
(b) At least ten days have elapsed since the death of the decedent; (c) No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and (d) Each claiming successor is entitled to payment or delivery of the property in the respective proportion set forth in such affidavit. (2) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (1) of this section. (3) The public official having cognizance over the registered title of any personal property of the decedent shall change the registered ownership from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (1) of this section. 15-12-1202. Effect of affidavit The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
SEX OFFENDER REGISTRATION 18-3-412. Habitual sex offenders against children - indictment or information - verdict of the jury (1) For the purpose of this section, "unlawful sexual offense" means sexual assault, as described in section 18-3-402, when the victim at the time of the commission of the act is a child less than fifteen years of age, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the second degree, as described in section 18-3-403 (1) (a), (1) (b), (1) (c), (1) (d), (1) (g), or (1) (h), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age, or as described in section 18-3-403 (1) (e), as it existed prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at least four years older than the victim; unlawful sexual contact, as described in section 18-3-404 (1) (a), (1) (b), (1) (c), (1) (d), (1) (f), or (1) (g), when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the third degree, as described in section 18-3-404 (1) (a), (1) (b), (1) (c), (1) (d), (1) (f), or (1) (g), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault on a child, as described in section 18-3-405; sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; aggravated incest, as described in section 18-6-302; trafficking in children, as described in section 18-3-502; sexual exploitation of a child, as described in section 18-6-403; procurement of a child for sexual exploitation, as described in section 18-6-404; soliciting for child prostitution, as described in section 18-7402; pandering of a child, as described in section 18-7-403; procurement of a child, as described in section 18-7-403.5; keeping a place of child prostitution, as described in section 18-7-404; pimping of a child, as described in section 18-7405; inducement of child prostitution, as described in section 18-7-405.5; patronizing a prostituted child, as described in section 18-7-406; or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this subsection (1).
(2) Every person convicted in this state of an unlawful sexual offense who has been previously convicted upon charges prior to the commission of the present act, which were separately brought, either in this state or elsewhere, of an unlawful sexual offense or who has been previously convicted under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States of an unlawful act that, if committed within this state, would be an unlawful sexual offense shall be adjudged an habitual sex offender against children. If the second or subsequent unlawful sexual offense for which a defendant is convicted constitutes a felony, the court shall impose a sentence to the department of corrections of not less than three times the upper limit of the presumptive range for that class felony as set out in section 18-1.3-401. If the second or subsequent unlawful sexual offense for which a defendant is convicted constitutes a misdemeanor, the court shall impose a sentence to the county jail of not less than three times the maximum sentence for that class misdemeanor as set out in section 18-1.3-501. (3) Any previous conviction of an unlawful sexual offense shall be set forth in apt words in the complaint, indictment, or information. For purposes of trial, a duly authenticated copy of the record of previous convictions and judgments of any court of record for any of said crimes of the party indicted, charged, or informed against shall be prima facie evidence of such convictions and may be used in evidence against such party. A duly authenticated copy of the records of institutions of treatment or incarceration, including, but not limited to, records pertaining to identification of the party indicted, charged, or informed against, shall be prima facie evidence of the facts contained therein and may be used in evidence against such party. (4) Any person who is subject to the provisions of this section shall not be eligible for suspension of sentence. (5) The procedures specified in section 18-1.3-803 shall govern in a trial to which the provisions of this section are alleged to apply based on a previous conviction or convictions for an unlawful sexual offense as set out in the complaint, indictment, or information. 18-3-412.5. Failure to register as a sex offender (1) A person who is required to register pursuant to article 22 of title 16, C.R.S., and who fails to comply with any of the requirements placed on registrants by said article, including but not limited to committing any of the acts specified in this subsection (1), commits the offense of failure to register as a sex offender: (a) Failure to register pursuant to article 22 of title 16, C.R.S.; (b) Submission of a registration form containing false information or submission of an incomplete registration form; (c) Failure to provide information or knowingly providing false information to a probation department employee, to a community corrections administrator or his or her designee, or to a judge or magistrate when receiving notice pursuant to section 16-22-106 (1), (2), or (3), C.R.S., of the duty to register; (d) If the person has been sentenced to a county jail, otherwise incarcerated, or committed, due to conviction of or disposition or adjudication for an offense specified in section 16-22-103, C.R.S., failure to provide notice of the address where the person intends to reside upon release as required in sections 16-22-106 and 16-22-107, C.R.S.; (e) Knowingly providing false information to a sheriff or his or her designee, department of corrections personnel, or department of human services personnel concerning the address where the person intends to reside upon release from the county jail, the department of corrections, or the department of human services. Providing false information shall include, but is not limited to, providing false information as described in section 16-22-107 (4) (b), C.R.S. (f) Failure when registering to provide the person's current name and any former names; (g) Failure to register with the local law enforcement agency in each jurisdiction in which the person resides upon
changing an address, establishing an additional residence, or legally changing names; (h) Failure to provide the person's correct date of birth, to sit for or otherwise provide a current photograph or image, to provide a current set of fingerprints, or to provide the person's correct address; (i) Failure to complete a cancellation of registration form and file the form with the local law enforcement agency of the jurisdiction in which the person will no longer reside; (j) When the person's place of residence is a trailer or motor home, failure to register an address at which the trailer or motor home is lawfully located pursuant to section 16-22-109 (1) (a.3), C.R.S.; (k) Failure to register an e-mail address, instant-messaging identity, or chat room identity prior to using the address or identity if the person is required to register that information pursuant to section 16-22-108 (2.5), C.R.S. (1.5) (a) In a prosecution for a violation of this section, it is an affirmative defense that: (I) Uncontrollable circumstances prevented the person from complying; (II) The person did not contribute to the creation of the circumstances in reckless disregard of the requirement to comply; and (III) The person complied as soon as the circumstances ceased to exist. (b) In order to assert the affirmative defense pursuant to this subsection (1.5), the defendant shall provide notice to the prosecuting attorney as soon as practicable, but not later than thirty days prior to trial, of his or her notice of intent to rely upon the affirmative defense. The notice shall include a description of the uncontrollable circumstance or circumstances and the dates the uncontrollable circumstances began and ceased to exist in addition to the names and addresses of any witnesses the defendant plans to call to support the affirmative defense. The prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such affirmative defense as soon as practicable after their names become known. Upon the request of the prosecution, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute sufficient evidence to support submission to the jury. (2) (a) Failure to register as a sex offender is a class 6 felony if the person was convicted of felony unlawful sexual behavior, or of another offense, the underlying factual basis of which includes felony unlawful sexual behavior, or if the person received a disposition or was adjudicated for an offense that would constitute felony unlawful sexual behavior if committed by an adult, or for another offense, the underlying factual basis of which involves felony unlawful sexual behavior; except that any second or subsequent offense of failure to register as a sex offender by such person is a class 5 felony. (b) Any person convicted of felony failure to register as a sex offender shall be sentenced pursuant to the provisions of section 18-1.3-401. If such person is sentenced to probation, the court may require, as a condition of probation, that the person participate until further order of the court in an intensive supervision probation program established pursuant to section 18-1.3-1007. If such person is sentenced to incarceration and subsequently released on parole, the parole board may require, as a condition of parole, that the person participate in an intensive supervision parole program established pursuant to section 18-1.3-1005. (c) A person who is convicted of a felony sex offense in another state or jurisdiction, including but not limited to a military or federal jurisdiction, and who commits failure to register as a sex offender in this state commits felony failure to register as a sex offender as specified in paragraph (a) of this subsection (2) and shall be sentenced as provided in paragraph (b) of this subsection (2).
(3) (a) Failure to register as a sex offender is a class 1 misdemeanor if the person was convicted of misdemeanor unlawful sexual behavior, or of another offense, the underlying factual basis of which involves misdemeanor unlawful sexual behavior, or if the person received a disposition or was adjudicated for an offense that would constitute misdemeanor unlawful sexual behavior if committed by an adult, or for another offense, the underlying factual basis of which involves misdemeanor unlawful sexual behavior. A class 1 misdemeanor conviction pursuant to this subsection (3) is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3). (b) A person who is convicted of a misdemeanor sex offense in another state or jurisdiction, including but not limited to a military or federal jurisdiction, and who commits failure to register as a sex offender in this state commits misdemeanor failure to register as a sex offender as specified in paragraph (a) of this subsection (3). (4) (a) Any juvenile who receives a disposition or is adjudicated for a delinquent act of failure to register as a sex offender that would constitute a felony if committed by an adult shall be sentenced to a forty-five-day mandatory minimum detention sentence; except that any juvenile who receives a disposition or is adjudicated for a second or subsequent delinquent act of failure to register as a sex offender that would constitute a felony if committed by an adult shall be placed or committed out of the home for not less than one year. (b) Any juvenile who receives a disposition or is adjudicated for a delinquent act of failure to register as a sex offender that would constitute a misdemeanor if committed by an adult shall be sentenced to a thirty-day mandatory minimum detention sentence; except that any juvenile who receives a disposition or is adjudicated for a second or subsequent delinquent act of failure to register as a sex offender that would constitute a misdemeanor if committed by an adult shall be sentenced to a forty-five-day mandatory minimum detention sentence. (5) For purposes of this section, unless the context otherwise requires, "unlawful sexual behavior" has the same meaning as set forth in section 16-22-102 (9), C.R.S. (6) (a) When a peace officer determines that there is probable cause to believe that a crime of failure to register as a sex offender has been committed by a person required to register as a sexually violent predator in this state pursuant to article 22 of title 16, C.R.S., or in any other state, the officer shall arrest the person suspected of the crime. It shall be a condition of any bond posted by such person that the person shall register pursuant to the provisions of section 16-22108, C.R.S., within five business days after release from incarceration. (b) When a peace officer makes a warrantless arrest pursuant to this subsection (6), the peace officer shall immediately notify the Colorado bureau of investigation of the arrest. Upon receiving the notification, the Colorado bureau of investigation shall notify the jurisdiction where the sexually violent predator last registered. The jurisdiction where the sexually violent predator last registered, if it is not the jurisdiction where the probable cause arrest is made, shall coordinate with the arresting jurisdiction immediately to determine the appropriate jurisdiction that will file the charge. If the sexually violent predator is being held in custody after the arrest, the appropriate jurisdiction shall have no less than five business days after the date of the arrest to charge the sexually violent predator.
STATUTE OF FRAUDS 38-10-108. Contracts for interests in land - must be written Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands is void unless the contract or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party by whom the lease or sale is to be made.
SECURITY DEPOSITS 38-12-101. Legislative declaration
The provisions of this part 1 shall be liberally construed to implement the intent of the general assembly to insure the proper administration of security deposits and protect the interests of tenants and landlords. 38-12-102. Definitions As used in this part 1, unless the context otherwise requires: (1) "Normal wear and tear" means that 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. (2) "Security deposit" means any advance or deposit of money, regardless of its denomination, the primary function of which is to secure the performance of a rental agreement for residential premises or any part thereof. 38-12-103. Return of security deposit (1) A landlord shall, within one month after the termination of a lease or surrender and acceptance of the premises, whichever occurs last, return to the tenant the full security deposit deposited with the landlord by the tenant, unless the lease agreement specifies a longer period of time, but not to exceed sixty days. No security deposit shall be retained to cover normal wear and tear. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention of any portion of the security deposit. When the statement is delivered, it shall be accompanied by payment of the difference between any sum deposited and the amount retained. The landlord is deemed to have complied with this section by mailing said statement and any payment required to the last known address of the tenant. Nothing in this section shall preclude the landlord from retaining the security deposit for nonpayment of rent, abandonment of the premises, or nonpayment of utility charges, repair work, or cleaning contracted for by the tenant. (2) The failure of a landlord to provide a written statement within the required time specified in subsection (1) of this section shall work a forfeiture of all his rights to withhold any portion of the security deposit under this section. (3) (a) The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorneys' fees and court costs; except that the tenant has the obligation to give notice to the landlord of his intention to file legal proceedings a minimum of seven days prior to filing said action. (b) In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful. (4) Upon cessation of his interest in the dwelling unit, whether by sale, assignment, death, appointment of a receiver, or otherwise, the person in possession of the security deposit, including but not limited to the landlord, his agent, or his executor, shall, within a reasonable time: (a) Transfer the funds, or any remainder after lawful deductions under subsection (1) of this section, to the landlord's successor in interest and notify the tenant by mail of such transfer and of the transferee's name and address; or (b) Return the funds, or any remainder after lawful deductions under subsection (1) of this section, to the tenant. (5) Upon compliance with subsection (4) of this section, the person in possession of the security deposit shall be relieved of further liability. (6) Upon receipt of transferred funds under subsection (4) (a) of this section, the transferee, in relation to such funds,
shall be deemed to have all of the rights and obligations of a landlord holding the funds as a security deposit. (7) Any provision, whether oral or written, in or pertaining to a rental agreement whereby any provision of this section for the benefit of a tenant or members of his household is waived shall be deemed to be against public policy and shall be void. 38-12-104. Return of security deposit - hazardous condition - gas appliance (1) Anytime service personnel from any organization providing gas service to a residential building become aware of any hazardous condition of a gas appliance, piping, or other gas equipment, such personnel shall inform the customer of record at the affected address in writing of the hazardous condition and take any further action provided for by the policies of such personnel's employer. Such written notification shall state the potential nature of the hazard as a fire hazard or a hazard to life, health, property, or public welfare and shall explain the possible cause of the hazard. (2) If the resident of the residential building is a tenant, such tenant shall immediately inform the landlord of the property or the landlord's agent in writing of the existence of the hazard. (3) The landlord shall then have seventy-two hours excluding a Saturday, Sunday, or a legal holiday after the actual receipt of the written notice of the hazardous condition to have the hazardous condition repaired by a professional. "Professional" for the purposes of this section means a person authorized by the state of Colorado or by a county or municipal government through license or certificate where such government authorization is required. Where no person with such government authorization is available, and where there are no local requirements for government authorization, a person who is otherwise qualified and who possesses insurance with a minimum of one hundred thousand dollars public liability and property damage coverage shall be deemed a professional for purposes of this section. Proof of such repairs shall be forwarded to the landlord or the landlord's agent. Such proof may also be used as an affirmative defense in any action to recover the security deposit, as provided for in this section. (4) If the landlord does not have the repairs made within seventy-two hours excluding a Saturday, Sunday, or a legal holiday, and the condition of the building remains hazardous, the tenant may opt to vacate the premises. After the tenant vacates the premises, the lease or other rental agreement between the landlord and tenant becomes null and void, all rights and future obligations between the landlord and tenant pursuant to the lease or other rental agreement terminate, and the tenant may demand the immediate return of all or any portion of the security deposit held by the landlord to which the tenant is entitled. The landlord shall have seventy-two hours following the tenant's vacation of the premises to deliver to the tenant all of, or the appropriate portion of, the security deposit plus any rent rebate owed to the tenant for rent paid by the tenant for the period of time after the tenant has vacated. If the seventy-second hour falls on a Saturday, Sunday, or legal holiday, the security deposit must be delivered by noon on the next day that is not a Saturday, Sunday, or legal holiday. The tenant shall provide the landlord with a correct forwarding address. No security deposit shall be retained to cover normal wear and tear. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention of any portion of the security deposit. When the statement is delivered, it shall be accompanied by payment of the difference between any sum deposited and the amount retained. The landlord is deemed to have complied with this section by mailing said statement and any payments required by this section to the forwarding address of the tenant. Nothing in this section shall preclude the landlord from withholding the security deposit for nonpayment of rent or for nonpayment of utility charges, repair work, or cleaning contracted for by the tenant. If the tenant does not receive the entire security deposit or a portion of the security deposit together with a written statement listing the exact reasons for the retention of any portion of the security deposit within the time period provided for in this section, the retention of the security deposit shall be deemed willful and wrongful and, notwithstanding the provisions of section 38-12-103 (3), shall entitle the tenant to twice the amount of the security deposit and to reasonable attorney fees.
38-12-200.1. Short title This part 2 shall be known and may be cited as the "Mobile Home Park Act". 38-12-200.2. Legislative declaration The general assembly hereby declares that the purpose of this part 2 is to establish the relationship between the owner of a mobile home park and the owner of a mobile home situated in such park. 38-12-201. Application of part 2 (1) This part 2 shall apply only to manufactured homes as defined in section 42-1-102 (106) (b), C.R.S. (2) Repealed. 38-12-201.3. Legislative declaration - increased availability of mobile home parks The general assembly hereby finds and declares that mobile homes, manufactured housing, and factory-built housing are important and effective ways to meet Colorado's affordable housing needs. The general assembly further finds and declares that, because of the unique aspects of mobile homes and mobile home park ownership, there is a need to protect mobile home owners from eviction with short notice so as to prevent mobile home owners from losing their shelter as well as any equity in their mobile homes. The general assembly encourages local governments to allow and protect mobile home parks in their jurisdictions and to enact plans to increase the number of mobile home parks in their jurisdictions. The general assembly further encourages local governments to provide incentives to mobile home park owners to attract additional mobile home parks and to increase the viability of current parks. 38-12-201.5. Definitions As used in this part 2, unless the context otherwise requires: (1) "Home owner" means any person or family of such person owning a mobile home that is subject to a tenancy in a mobile home park under a rental agreement. (1.5) "Management" or "landlord" means the owner or person responsible for operating and managing a mobile home park or an agent, employee, or representative authorized to act on said management's behalf in connection with matters relating to tenancy in the park. (2) "Mobile home" means a single-family dwelling built on a permanent chassis designed for long-term residential occupancy and containing complete electrical, plumbing, and sanitary facilities and designed to be installed in a permanent or semipermanent manner with or without a permanent foundation, which is capable of being drawn over public highways as a unit, or in sections by special permit, or a manufactured home as defined in section 38-29-102 (6) if the manufactured home is situated in a mobile home park. (3) "Mobile home park" or "park" means a parcel of land used for the continuous accommodation of five or more occupied mobile homes and operated for the pecuniary benefit of the owner of the parcel of land, his agents, lessees, or assignees. Mobile home park does not include mobile home subdivisions or property zoned for manufactured home subdivisions. (4) "Mobile home space", "space", "mobile home lot" or "lot" means a parcel of land within a mobile home park designated by the management to accommodate one mobile home and its accessory buildings and to which the required sewer and utility connections are provided by the mobile home park.
(5) "Premises" means a mobile home park and existing facilities and appurtenances therein, including furniture and utilities where applicable, and grounds, areas, and existing facilities held out for the use of home owners generally or the use of which is promised to the home owner. (6) "Rent" means any money or other consideration to be paid to the management for the right of use, possession, and occupation of the premises. (7) "Rental agreement" means an agreement, written or implied by law, between the management and the home owner establishing the terms and conditions of a tenancy, including reasonable rules and regulations promulgated by the park management. A lease is a rental agreement. (8) Repealed. (9) "Tenancy" means the rights of a home owner to use a space or lot within a park on which to locate, maintain, and occupy a mobile home, lot improvements, and accessory structures for human habitation, including the use of services and facilities of the park. 38-12-202. Tenancy - notice to quit (1) (a) No tenancy or other lease or rental occupancy of space in a mobile home park shall commence without a written lease or rental agreement, and no tenancy in a mobile home park shall be terminated until a notice to quit has been served. Said notice to quit shall be in writing and in the form specified in section 13-40-107 (2), C.R.S. The property description required in section 13-40-107 (2), C.R.S., shall be deemed legally sufficient if it states: (I) The name of the landlord or the mobile home park; (II) The mailing address of the property; (III) The location or space number upon which the mobile home is situate; and (IV) The county in which the mobile home is situate. (b) Service of the notice to quit shall be as specified in section 13-40-108, C.R.S. Service by posting shall be deemed legally sufficient within the meaning of section 13-40-108, C.R.S., if the notice is affixed to the main entrance of the mobile home. (c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), the home owner shall be given a period of not less than sixty days to remove any mobile home from the premises from the date the notice is served or posted. In those situations where a mobile home is being leased to, or occupied by, persons other than its owner and in a manner contrary to the rules and regulations of the landlord, then in that event, the tenancy may be terminated by the landlord upon giving a thirty-day notice rather than said sixty-day notice. (II) If the tenancy is terminated on grounds specified in section 38-12-203 (1) (f), the home owner shall be given a period of not less than ten days to remove any mobile home from the premises from the date the notice is served or posted. (2) No lease shall contain any provision by which the home owner waives his or her rights under this part 2, and any such waiver shall be deemed contrary to public policy and shall be unenforceable and void. In those situations where a mobile home is being leased to, or occupied by, persons other than its owner and in a manner contrary to the rules and regulations of the landlord, then, in that event, the tenancy may be terminated by the landlord upon giving a thirty-day notice rather than said sixty-day notice.
(3) The landlord or management of a mobile home park shall specify, in the notice required by this section, the reason for the termination, as described in section 38-12-203, of any tenancy in such mobile home park. If the tenancy is being terminated based on the mobile home or mobile home lot being out of compliance with the rules and regulations adopted pursuant to section 38-12-203 (1) (c), the notice required by this section shall include a statement advising the home owner that the home owner has a right to cure the noncompliance within thirty days of the date of service or posting of the notice to quit. The thirty-day period to cure any noncompliance set forth in this subsection (3) shall run concurrently with the sixty-day period to remove a mobile home from the premises as set forth in paragraph (c) of subsection (1) and subsection (2) of this section. Acceptance of rent by the landlord or management of a mobile home park during the thirty-day right to cure period set forth in section 38-12-203 (1) (c) shall not constitute a waiver of the landlord's right to terminate the tenancy for any noncompliance set forth in section 38-12-203 (1) (c). 38-12-202.5. Action for termination (1) The action for termination shall be commenced in the manner described in section 13-40-110, C.R.S. The property description shall be deemed legally sufficient and within the meaning of section 13-40-110, C.R.S., if it states: (a) The name of the landlord or the mobile home park; (b) The mailing address of the property; (c) The location or space number upon which the mobile home is situate; and (d) The county in which the mobile home is situate. (2) Service of summons shall be as specified in section 13-40-112, C.R.S. Service by posting shall be deemed legally sufficient within the meaning of section 13-40-112, C.R.S., if the summons is affixed to the main entrance of the mobile home. (3) Jurisdiction of courts in cases of forcible entry, forcible detainer, or unlawful detainer shall be as specified in section 13-40-109, C.R.S. Trial on the issue of possession shall be timely as specified in section 13-40-114, C.R.S., with no delay allowed for the determination of other issues or claims which may be severed at the discretion of the trial court. (4) After commencement of the action and before judgment, any person not already a party to the action who is discovered to have a property interest in the mobile home shall be allowed to enter into a stipulation with the landlord and be bound thereby. 38-12-203. Reasons for termination (1) A tenancy shall be terminated pursuant to this part 2 only for one or more of the following reasons: (a) Failure of the home owner to comply with local ordinances and state laws and regulations relating to mobile homes and mobile home lots; (b) Conduct of the home owner, on the mobile home park premises, which constitutes an annoyance to other home owners or interference with park management; (c) Failure of the home owner to comply with written rules and regulations of the mobile home park either established by the management in the rental agreement at the inception of the tenancy, amended subsequently thereto with the consent of the home owner, or amended subsequently thereto without the consent of the home owner on sixty days' written notice if the amended rules and regulations are reasonable; except that the home owner shall have thirty days from the date of service or posting of the notice to quit set forth in section 38-12-202 (3) to cure any noncompliance on
the mobile home or mobile home lot before an action for termination may be commenced, except if local ordinances, state laws and regulations, park rules and regulations, or emergency, health, or safety situations require immediate compliance. If a home owner was in violation or noncompliance pursuant to this paragraph (c) and was given notice and a right to cure such noncompliance and within a twelve-month period from the date of service of the notice is in noncompliance of the same rule or regulation and is given notice of the second noncompliance, there shall be no right to cure the second noncompliance. Regulations applicable to recreational facilities may be amended at the reasonable discretion of the management. For purposes of this paragraph (c), when the mobile home is owned by a person other than the owner of the mobile home park, the mobile home is a separate unit of ownership, and regulations that are adopted subsequent to the unit location in the park without the consent of the home owner and that place restrictions or requirements on that separate unit are prima facie unreasonable. Nothing in this paragraph (c) shall prohibit a mobile home park owner from requiring compliance with current park unit regulations at the time of sale or transfer of the mobile home to a new owner. Transfer under this paragraph (c) shall not include transfer to a co-owner pursuant to death or divorce or to a new co-owner pursuant to marriage. (d) (I) Condemnation or change of use of the mobile home park. When the owner of a mobile home park is formally notified by a notice of intent to acquire pursuant to section 38-1-121 (1) or other similar provision of law, or a complaint in a condemnation action from an appropriate governmental agency that the mobile home park, or any portion thereof, is to be acquired by the governmental agency or may be the subject of a condemnation proceeding, the landlord shall, within seventeen days, notify the home owners in writing of the terms of the notice of intent to acquire or complaint received by the landlord. (II) In those cases where the landlord desires to change the use of the mobile home park and where such change of use would result in eviction of inhabited mobile homes, the landlord shall first give the owner of each mobile home subject to such eviction a written notice of the landlord's intent to evict not less than six months prior to such change of use of the land, notice to be mailed to each home owner. (e) The making or causing to be made, with knowledge, of false or misleading statements on an application for tenancy; (f) Conduct of the home owner or any lessee of the home owner or any guest, agent, invitee, or associate of the home owner or lessee of the home owner, that: (I) Occurs on the mobile home park premises and unreasonably endangers the life of the landlord, any home owner or lessee of the mobile home park, any person living in the park, or any guest, agent, invitee, or associate of the home owner or lessee of the home owner; (II) Occurs on the mobile home park premises and constitutes willful, wanton, or malicious damage to or destruction of property of the landlord, any home owner or lessee of the mobile home park, any person living in the park, or any guest, agent, invitee, or associate of the home owner or lessee of the home owner; (III) Occurs on the mobile home park premises and constitutes a felony prohibited under article 3, 4, 6, 7, 9, 10, 12, or 18 of title 18, C.R.S.; or (IV) Is the basis for a pending action to declare the mobile home or any of its contents a class 1 public nuisance under section 16-13-303, C.R.S. (2) In an action pursuant to this part 2, the landlord shall have the burden of proving that the landlord complied with the relevant notice requirements and that the landlord provided the home owner with a statement of reasons for the termination. In addition to any other defenses a home owner may have, it shall be a defense that the landlord's allegations are false or that the reasons for termination are invalid.
38-12-204. Nonpayment of rent - notice required for rent increase (1) Any tenancy or other estate at will or lease in a mobile home park may be terminated upon the landlord's written notice to the home owner requiring, in the alternative, payment of rent or the removal of the home owner's unit from the premises, within a period of not less than five days after the date notice is served or posted, for failure to pay rent when due. (2) Rent shall not be increased without sixty days' written notice to the home owner. In addition to the amount and the effective date of the rent increase, such written notice shall include the name, address, and telephone number of the mobile home park management, if such management is a principal owner, or owner of the mobile home park and, if the owner is other than a natural person, the name, address, and telephone number of the owner's chief executive officer or managing partner; except that such ownership information need not be given if it was disclosed in the rental agreement made pursuant to section 38-12-213. 38-12-204.3. Notice required for termination (1) Where the tenancy of a mobile home owner is being terminated under section 38-12-202 or section 38-12-204, the landlord or mobile home park owner shall provide such mobile home owner with written notice as provided for in subsection (2) of this section. Service of such notice shall occur at the same time and in the same manner as service of: (a) The notice to quit as provided in section 38-12-202 (1); or (b) The notice of nonpayment of rent as provided in section 38-12-204 (1). (2) The notice required under this section shall be in at least ten-point type and shall read as follows: IMPORTANT NOTICE TO THE HOME OWNER: This notice and the accompanying notice to quit/notice of nonpayment of rent are the first steps in the eviction process. Any dispute you may have regarding the grounds for eviction should be addressed with your landlord or the management of the mobile home park or in the courts if an eviction action is filed. Please be advised that the "Mobile Home Park Act", part 2 of article 12 of title 38, Colorado Revised Statutes, may provide you with legal protection: NOTICE TO QUIT: The landlord or management of a mobile home park must serve to a home owner a notice to quit in order to terminate a home owner's tenancy. The notice must be in writing and must contain certain information, including: ;The grounds for the termination of the tenancy; ;Whether or not the home owner has a right to cure under the "Mobile Home Park Act"; and ;That the home owner has a right to mediation pursuant to section 38-12-216, Colorado Revised Statutes, of the "Mobile Home Park Act". NOTICE OF NONPAYMENT OF RENT: The landlord or management of a mobile home park must serve to a home owner a notice of nonpayment of rent in order to terminate a home owner's tenancy. The notice must be in writing and must require that the home owner either make payment of rent and any applicable fees due and owing or remove the owner's unit from the premises, within a period of not less than five days after the date the notice is served or posted, for failure to pay rent when due. CURE PERIODS: If the home owner has a right to cure under the "Mobile Home Park Act", the landlord or management of a mobile home park cannot terminate a home owner's tenancy without first providing the home owner with a time period to cure the noncompliance. "Cure" refers to a home owner remedying, fixing, or otherwise
correcting the situation or problem that caused the tenancy to be terminated pursuant to sections 38-12-202, 38-12-203, or 38-12-204, Colorado Revised Statutes. COMMENCEMENT OF LEGAL ACTION TO TERMINATE THE TENANCY: After the last day of the notice period, a legal action may be commenced to take possession of the space leased by the home owner. In order to evict a home owner, the landlord or management of the mobile home park must prove: ;The landlord or management complied with the notice requirements of the "Mobile Home Park Act"; ;The landlord or management provided the home owner with a statement of reasons for termination of the tenancy; and ;The reasons for termination of the tenancy are true and valid under the "Mobile Home Park Act". A home owner must appear in court to defend against an eviction action. If the court rules in favor of the landlord or management of the mobile home park, the home owner will have not less than 48 hours from the time of the ruling to remove the mobile home and to vacate the premises. If a tenancy is being terminated pursuant to section 38-12-203 (1) (f), Colorado Revised Statutes, the home owner shall have not less than 48 hours from the time of the ruling to remove the home and vacate the premises. In all other circumstances, if the home owner wishes to extend such period beyond 48 hours but not more than thirty days from the date of the ruling, the home owner shall prepay to the landlord an amount equal to any total amount declared by the court to be due to the landlord, as well as a pro rata share of rent for each day following the court's ruling that the mobile home owner will remain on the premises. All prepayments shall be paid by certified check, by cashier's check, or by wire transfer and shall be paid no later than 48 hours after the court ruling. 38-12-205. Termination prohibited A tenancy or other estate at will or lease in a mobile home park may not be terminated solely for the purpose of making the home owner's space in the park available for another mobile home or trailer coach. 38-12-206. Home owner meetings - assembly in common areas Home owners shall have the right to meet and establish a homeowners' association. Meetings of home owners or the homeowners' association relating to mobile home living and affairs in their park common area, community hall, or recreation hall, if such a facility or similar facility exists, shall not be subject to prohibition by the park management if the common area or hall is reserved according to the park rules and such meetings are held at reasonable hours and when the facility is not otherwise in use; except that no such meetings shall be held in the streets or thoroughfares of the mobile home park. 38-12-207. Security deposits - legal process (1) The owner of a mobile home park or his agents may charge a security deposit not greater than the amount of one month's rent or two month's rent for multiwide units. (2) Legal process, other than eviction, shall be used for the collection of utility charges and incidental service charges other than those provided by the rental agreement. 38-12-208. Remedies (1) (a) Upon granting judgment for possession by the landlord in a forcible entry and detainer action, the court shall immediately issue a writ of restitution which the landlord shall take to the sheriff. In addition, if a money judgment has been requested in the complaint and if service was accomplished by personal service, the court shall determine and enter judgment for any amounts due to the landlord and shall calculate a pro rata daily rent amount that must be paid for the home to remain in the park. The court may rely upon information provided by the landlord or the landlord's
attorney when determining the pro rata daily rent amount to be paid by the home owner. Upon receipt of the writ of restitution, the sheriff shall serve notice in accordance with the requirements of section 13-40-108, C.R.S., to the home owner of the court's decision and entry of judgment. (b) The notice of judgment shall state that, at a specified time not less than forty-eight hours from the entry of judgment if a tenancy is being terminated pursuant to section 38-12-203 (1) (f) and, in all other instances, not less than forty-eight hours from the entry of judgment, which may be extended to not more than thirty days after the entry of judgment if the home owner has prepaid by certified check, by cashier's check, or by wire transfer no later than fortyeight hours after the court ruling to the landlord an amount equal to any total amount declared by the court to be due to the landlord, as well as a pro rata share of rent for each day following the court's ruling that the mobile home owner will remain on the premises, the sheriff will return to serve a writ of restitution and superintend the peaceful and orderly removal of the mobile home under that order of court. The notice of judgment shall also advise the home owner to prepare the mobile home for removal from the premises by removing the skirting, disconnecting utilities, attaching tires, and otherwise making the mobile home safe and ready for highway travel. (c) Should the home owner fail to have the mobile home safe and ready for physical removal from the premises or should inclement weather or other unforeseen problems occur at the time specified in the notice of judgment, the landlord and the sheriff may, by written agreement, extend the time for the execution of the writ of restitution to allow time for the landlord to arrange to have the necessary work done or to permit the sheriff's execution of the writ of restitution at a time when weather or other conditions will make removal less hazardous to the mobile home. (d) If the mobile home is not removed from the landlord's land on behalf of the mobile home owner within the time permitted by the writ of restitution, then the landlord and the sheriff shall have the right to take possession of the mobile home for the purposes of removal and storage. The liability of the landlord and the sheriff in such event shall be limited to gross negligence or willful and wanton disregard of the property rights of the home owner. The responsibility to prevent freezing and to prevent wind and weather damage to the mobile home lies exclusively with those persons who have a property interest in the mobile home; except that the landlord may take appropriate action to prevent freezing, to prevent wind and weather damage, and to prevent damage caused by vandals. (e) Reasonable removal and storage charges and the costs associated with preventing damage caused by wind, weather, or vandals can be paid by any party in interest. Those charges will run with the mobile home, and whoever ultimately claims the mobile home will owe that sum to the person who paid it. (2) (a) Prior to the issuance of said writ of restitution, the court shall make a finding of fact based upon evidence or statements of counsel that there is or is not a security agreement on the mobile home being subjected to the writ of restitution. A written statement on the mobile home owner's application for tenancy with the landlord that there is no security agreement on the mobile home shall be prima facie evidence of the nonexistence of such security agreement. (b) In those cases where the court finds there is a security agreement on the mobile home subject to the writ of restitution and where that holder of the security agreement can be identified with reasonable certainty, then, upon receipt of the writ of restitution, the plaintiff shall promptly inform the holder of such security agreement as to the location of the mobile home, the name of the landlord who obtained the writ of restitution, and the time when the mobile home will be subject to removal by the sheriff and the landlord. (3) The remedies provided in part 1 of this article and article 40 of title 13, C.R.S., except as inconsistent with this part 2, shall be applicable to this part 2. 38-12-209. Entry fees prohibited - entry fee defined - security deposit - court costs (1) The owner of a mobile home park, or the agent of such owner, shall neither pay to nor receive from an owner or a seller of a mobile home an entry fee of any type as a condition of tenancy in a mobile home park.
(2) As used in this section, "entry fee" means any fee paid to or received from an owner of a mobile home park or his agent except for: (a) Rent; (b) A security deposit against actual damages to the premises or to secure rental payments, which deposit shall not be greater than the amount allowed under this part 2. Subsequent to July 1, 1979, security deposits will remain the property of the home owner, and they shall be deposited into a separate trust account by the landlord to be administered by the landlord as a private trustee. For the purpose of preserving the corpus, the landlord will not commingle the trust funds with other money, but he is permitted to keep the interest and profits thereon as his compensation for administering the trust account. (c) Fees charged by any state, county, town, or city governmental agency; (d) Utilities; (e) Incidental reasonable charges for services actually performed by the mobile home park owner or his agent and agreed to in writing by the home owner. (3) The trial judge may award court costs and attorney fees in any court action brought pursuant to any provision of this part 2 to the prevailing party upon finding that the prevailing party undertook the court action and legal representation for a legally sufficient reason and not for a dilatory or unfounded cause. (4) The management or the resident may bring a civil action for violation of the rental agreement or any provision of this part 2 in the appropriate court of the county in which the park is located. Either party may recover actual damages or, the court may in its discretion award such equitable relief as it deems necessary, including the enjoining of either party from further violations. 38-12-210. Closed parks prohibited (1) The owner of a mobile home park or his agent shall not require as a condition of tenancy in a mobile home park that the prospective home owner has purchased a mobile home from any particular seller or from any one of a particular group of sellers. (2) Such owner or agent shall not give any special preference in renting to a prospective home owner who has purchased a mobile home from a particular seller. (3) A seller of mobile homes shall not require as a condition of sale that a purchaser locate in a particular mobile home park or in any one of a particular group of mobile home parks. (4) The owner or operator of a mobile home park shall treat all persons equally in renting or leasing available space. Notwithstanding the foregoing, nothing in this subsection (4) shall be construed to preclude owners and operators of mobile home parks from providing housing for older persons as defined in section 24-34-502 (7) (b), C.R.S. 38-12-211. Selling fees prohibited The owner of a mobile home park or his agent shall not require payment of any type of selling fee or transfer fee by either a home owner in the park wishing to sell his mobile home to another party or by any party wishing to buy a mobile home from a home owner in the park as a condition of tenancy in a mobile home park for the prospective buyer. This section shall in no way prevent the owner of a mobile home park or his agent from applying the normal park standards to prospective buyers before granting or denying tenancy or from charging a reasonable selling fee or transfer fee for services actually performed and agreed to in writing by the home owner. Nothing in this section shall be construed to affect the rent charged. The owner of a mobile home shall have the right to place a "for sale" sign on or
in his mobile home. The size, placement, and character of such signs shall be subject to reasonable rules and regulations of the mobile home park. 38-12-212. Certain types of landlord-seller agreements prohibited A seller of mobile homes shall not pay or offer cash or other consideration to the owner of a mobile home park or his agent for the purpose of reserving spaces or otherwise inducing acceptance of one or more mobile homes in a mobile home park. 38-12-212.3. Responsibilities of landlord - acts prohibited (1) (a) Except as otherwise provided in this section, a landlord shall be responsible for and pay the cost of the maintenance and repair of: (I) Any sewer lines, water lines, utility service lines, or related connections owned and provided by the landlord to the utility pedestal or pad space for a mobile home sited in the park; and (II) Any accessory buildings or structures, including, but not limited to, sheds and carports, owned by the landlord and provided for the use of the residents; and (III) The premises as defined in section 38-12-201.5 (5). (b) Any landlord who fails to maintain or repair the items delineated in paragraph (a) of this subsection (1) shall be responsible for and pay the cost of repairing any damage to a mobile home which results from such failure. The landlord shall ensure that all plumbing lines and connections owned and provided by the landlord to the utility pedestal or pad space for each mobile home in the mobile home park have plumbing that conformed to applicable law in effect at the time the plumbing was installed and that is maintained in good working order and running water and reasonable amounts of water at all times furnished to the utility pedestal or pad space and shall ensure that each pad space is connected to a sewage disposal system approved under applicable law; except that these conditions need not be met if: (I) A mobile home is individually metered and the tenant occupying the mobile home fails to pay for water services; (II) The local government in which the mobile home park is situated shuts off water service to a mobile home for any reason; (III) Weather conditions present a likelihood that water pipes will freeze, water pipes to a mobile home are wrapped in heated pipe tape, and the utility company has shut off electrical service to a mobile home for any reason or the heat tape malfunctions for any reason; or (IV) Running water is not available for any other reason outside the landlord's control. (c) The landlord shall give a minimum of two days' notice to a mobile home owner if the water service will be disrupted for planned maintenance. The landlord shall attempt to give a reasonable amount of notice to home owners if water service is to be disrupted for any other reasons unless conditions are such that providing the notice would result in property damage, health, or safety concerns or when conditions otherwise require emergency repair. (2) No landlord shall require a resident to assume the responsibilities outlined in subsection (1) of this section as a condition of tenancy in the mobile home park. (3) Nothing in this section shall be construed as:
(a) Limiting the liability of a resident for the cost of repairing any damage caused by such resident to the landlord's property or other property located in the park; or (b) Restricting a landlord or his agent or a property manager from requiring a resident to comply with reasonable rules and regulations or terms of the rental agreement and any covenants binding upon the landlord or resident, including covenants running with the land which pertain to the cleanliness of such resident's lot and routine lawn and yard maintenance, exclusive of major landscaping projects. 38-12-212.7. Landlord utilities account (1) Whenever a landlord contracts with a utility for service to be provided to a resident, the usage of which is to be measured by a master meter or other composite measurement device, such landlord shall remit to the utility all moneys collected from each resident as payment for the resident's share of the charges for such utility service within forty-five days of the landlord's receipt of payment. (2) If a landlord fails to timely remit utility moneys collected from residents as required by subsection (1) of this section, such utility may, after written demand therefor is served upon the landlord, require the landlord to deposit an amount equal to the average daily charge for the usage of such utility service for the preceding twelve months multiplied by the sum of ninety. (3) Any utility which prevails in an action brought to enforce the provisions of this section shall be entitled to an award of its reasonable attorney fees and court costs. 38-12-213. Rental agreement - disclosure of terms in writing (1) The terms and conditions of a tenancy must be adequately disclosed in writing in a rental agreement by the management to any prospective home owner prior to the rental or occupancy of a mobile home space or lot. Said disclosures shall include: (a) The term of the tenancy and the amount of rent therefor, subject to the requirements of subsection (4) of this section; (b) The day rental payment is due and payable; (c) The day when unpaid rent shall be considered in default; (d) The rules and regulations of the park then in effect; (e) The name and mailing address where a manager's decision can be appealed; (f) All charges to the home owner other than rent. (2) Said rental agreement shall be signed by both the management and the home owner, and each party shall receive a copy thereof. (3) The management and the home owner may include in a rental agreement terms and conditions not prohibited by this part 2. (4) The terms of tenancy shall be specified in a written rental agreement subject to the following conditions: (a) The standard rental agreement shall be for a month-to-month tenancy.
(b) Upon written request by the home owner to the landlord, the landlord shall allow a rental agreement for a fixed tenancy of not less than one year if the home owner is current on all rent payments and is not in violation of the terms of the then-current rental agreement; except that an initial rental agreement for a fixed tenancy may be for less than one year in order to ensure conformity with a standard anniversary date. A landlord shall not evict or otherwise penalize a home owner for requesting a rental agreement for a fixed period. (c) A landlord may, in the landlord's discretion, allow a lease for a fixed period of longer than one year. In such circumstances, the requirements of paragraphs (a) and (b) of this subsection (4) shall not apply. 38-12-214. Rules and regulations (1) The management shall adopt written rules and regulations concerning all home owners' use and occupancy of the premises. Such rules and regulations are enforceable against a home owner only if: (a) Their purpose is to promote the convenience, safety, or welfare of the home owners, protect and preserve the premises from abusive use, or make a fair distribution of services and facilities held out for the home owners generally; (b) They are reasonably related to the purpose for which they are adopted; (c) They are not retaliatory or discriminatory in nature; (d) They are sufficiently explicit in prohibition, direction, or limitation of the home owner's conduct to fairly inform him of what he must or must not do to comply. 38-12-215. New developments and parks - rental of sites to dealers authorized (1) The management of a new mobile home park or manufactured housing community development may require as a condition of leasing a mobile home site or manufactured home site for the first time such site is offered for lease that the prospective lessee has purchased a mobile home or manufactured home from a particular seller or from any one of a particular group of sellers. (2) A licensed mobile home dealer or a manufactured home dealer may, by contract with the management of a new mobile home park or manufactured housing community development, be granted the exclusive right to first-time rental of one or more mobile home sites or manufactured home sites. 38-12-216. Mediation, when permitted - court actions (1) In any controversy between the management and a home owner of a mobile home park arising out of the provisions of this part 2, except for the nonpayment of rent or in cases in which the health or safety of other home owners is in imminent danger, such controversy may be submitted to mediation by either party prior to the filing of a forcible entry and detainer lawsuit upon agreement of the parties. (2) The agreement, if one is reached, shall be presented to the court as a stipulation. Either party to the mediation may terminate the mediation process at any time without prejudice. (3) If either party subsequently violates the stipulation, the other party may apply immediately to the court for relief. 38-12-217. Notice of sale of mobile home park - notice of change in use (1) (a) The mobile home park owner shall notify the owners of all mobile homes in the park and the municipality in which the park is situated or, if none, the county in which the park is situated of his or her intent to change the use of
the land comprising the park or to sell the park pursuant to paragraph (b) or (c) of this subsection (1), as applicable. (b) If the mobile home park owner intends to sell the park, the notification shall be made only once for any particular contract to sell or trade and shall be by written notice mailed to each mobile home owner at the address shown on the rental agreement with the mobile home park owner at least ten days prior to the first scheduled closing for the sale or trade. (c) If the mobile home park owner intends to change the use of the land comprising the mobile home park, the mobile home park owner shall give written notice to each mobile home owner at least one hundred eighty days before the change in use will occur. The mobile home park owner shall mail the written notice to each mobile home owner at the address shown on the rental agreement with the mobile home park owner. (2) The provisions of paragraph (b) of subsection (1) of this section shall not apply to the sale of a mobile home park when such sale occurs between members of an immediate family, related business entities, members and managers of a limited liability company, shareholders, officers, and directors in a corporation, trustees and beneficiaries of a trust, or partners and limited liability partners in a partnership or limited liability partnership; except that such purchasers shall not change the use of the land comprising the mobile home park without complying with the notice provisions of this section. For purposes of this section, "immediate family" means persons related by blood or adoption. 38-12-218. Mobile home owners - right to form a cooperative One or more members of a homeowners' association may, at any time, form a cooperative for the purposes of offering to purchase or finance a mobile home park. A home owner shall be a member of the homeowners' association in order to participate in the cooperative, and participation in the cooperative shall be voluntary. 38-12-219. Home owners' and landlords' rights (1) Every home owner and landlord shall have the right to the following: (a) Protection from abuse or disregard of state or local law by the landlord and home owners; (b) Peaceful enjoyment of the home owner's mobile home space, free from unreasonable, arbitrary, or capricious rules and enforcement thereof; and (c) Tenancy free from harassment or frivolous lawsuits by the landlord and homeowners. 8-12-220. Private civil right of action Any home owner who owns a home in a mobile home park where the landlord has violated any provision of this article shall have a private civil right of action against the landlord. In any such action, the home owner shall be entitled to actual economic damages and reasonable attorney fees and costs if the home owner is successful in the action. 38-12-221. Access by counties and municipalities Notwithstanding any other provision of law, upon a finding that the utilities in a park create a significant health or safety danger to park residents, the landlord of a mobile home park shall grant county or municipal officers or employees access to the mobile home park for the purposes of investigating or conducting a study related to such danger.
38-12-401. Definitions As used in this part 4, unless the context otherwise requires: (1) "Domestic abuse" shall have the same meaning as provided in section 13-14-101 (2), C.R.S. (2) "Domestic violence" shall have the same meaning as provided in section 18-6-800.3 (1), C.R.S. 38-12-402. Protection for victims of domestic violence (1) A landlord shall not include in a residential rental agreement or lease agreement for housing a provision authorizing the landlord to terminate the agreement or to impose a penalty on a residential tenant for calls made by the residential tenant for peace officer assistance or other emergency assistance in response to a domestic violence or domestic abuse situation. A residential tenant may not waive the residential tenant's right to call for police or other emergency assistance. (2) (a) If a tenant to a residential rental agreement or lease agreement notifies the landlord in writing that he or she is the victim of domestic violence or domestic abuse and provides to the landlord evidence of domestic violence or domestic abuse in the form of a police report written within the prior sixty days or a valid protection order and the residential tenant seeks to vacate the premises due to fear of imminent danger for self or children because of the domestic violence or domestic abuse, then the residential tenant may terminate the residential rental agreement or lease agreement and vacate the premises without further obligation except as otherwise provided in paragraph (b) of this subsection (2). (b) If a tenant to a residential rental agreement or lease agreement terminates the residential rental agreement or lease agreement and vacates the premises pursuant to paragraph (a) of this subsection (2), then the tenant shall be responsible for one month's rent following vacation of the premises, which amount shall be due and payable to the landlord within ninety days after the tenant vacates the premises. The landlord shall not be obligated to refund the security deposit to the tenant until such time as the tenant has paid the one month's rent pursuant to this section. Notwithstanding the provisions of section 38-12-103, the landlord and the tenant to a residential rental agreement or lease agreement may use any amounts owed to the other to offset costs for the one month's rent or the security deposit. The provisions of this paragraph (b) shall apply only if the landlord has experienced and documented damages equal to at least one month's rent as a result of the tenant's early termination of the agreement. (3) Nothing in this part 4 authorizes the termination of tenancy and eviction of a residential tenant solely because the residential tenant is the victim of domestic violence or domestic abuse.
WARRANTY OF HABITABILITY 38-12-501. Legislative declaration - matter of statewide concern - purposes and policies (1) The general assembly hereby finds and declares that the provisions of this part 5 are a matter of statewide concern. Any local government ordinance, resolution, or other regulation that is in conflict with this part 5 shall be unenforceable. (2) The underlying purposes and policies of this part 5 are to: (a) Simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants;
(b) Encourage landlords and tenants to maintain and improve the quality of housing; and (c) Make uniform the law with respect to the subject of this part 5 throughout Colorado. 38-12-502. Definitions As used in this part 5, unless the context otherwise requires: (1) "Common areas" means the facilities and appurtenances to a residential premises, including the grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to a tenant. (2) "Dwelling unit" means a structure or the part of a structure that is used as a home, residence, or sleeping place by a tenant. (3) "Landlord" means the owner, manager, lessor, or sublessor of a residential premises. (4) "Rental agreement" means the agreement, written or oral, embodying the terms and conditions concerning the use and occupancy of a residential premises. (5) "Residential premises" means a dwelling unit, the structure of which the unit is a part, and the common areas. (6) "Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. 38-12-503. Warranty of habitability (1) In every rental agreement, the landlord is deemed to warrant that the residential premises is fit for human habitation. (2) A landlord breaches the warranty of habitability set forth in subsection (1) of this section if: (a) A residential premises is uninhabitable as described in section 38-12-505 or otherwise unfit for human habitation; and (b) The residential premises is in a condition that is materially dangerous or hazardous to the tenant's life, health, or safety; and (c) The landlord has received written notice of the condition described in paragraphs (a) and (b) of this subsection (2) and failed to cure the problem within a reasonable time. (3) When any condition described in subsection (2) of this section is caused by the misconduct of the tenant, a member of the tenant's household, a guest or invitee of the tenant, or a person under the tenant's direction or control, the condition shall not constitute a breach of the warranty of habitability. It shall not be misconduct by a victim of domestic violence or domestic abuse under this subsection (3) if the condition is the result of domestic violence or domestic abuse and the landlord has been given written notice and evidence of domestic violence or domestic abuse as described in section 38-12-402 (2) (a). (4) In response to the notice sent pursuant to paragraph (c) of subsection (2) of this section, a landlord may, in the landlord's discretion, move a tenant to a comparable unit after paying the reasonable costs, actually incurred, incident to the move. (5) Except as set forth in this part 5, any agreement waiving or modifying the warranty of habitability shall be void as
contrary to public policy. (6) Nothing in this part 5 shall: (a) Prevent a landlord from terminating a rental agreement as a result of a casualty or catastrophe to the dwelling unit without further liability to the landlord or tenant; or (b) Preclude a landlord from initiating an action for nonpayment of rent, breach of the rental agreement, violation of section 38-12-504, or as provided for under article 40 of title 13, C.R.S. 38-12-504. Tenant's maintenance of premises (1) In addition to any duties imposed upon a tenant by a rental agreement, every tenant of a residential premises has a duty to use that portion of the premises within the tenant's control in a reasonably clean and safe manner. A tenant fails to maintain the premises in a reasonably clean and safe manner when the tenant substantially fails to: (a) Comply with obligations imposed upon tenants by applicable provisions of building, health, and housing codes materially affecting health and safety; (b) Keep the dwelling unit reasonably clean, safe, and sanitary as permitted by the conditions of the unit; (c) Dispose of ashes, garbage, rubbish, and other waste from the dwelling unit in a clean, safe, sanitary, and legally compliant manner; (d) Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, elevators, and other facilities and appliances in the dwelling unit; (e) Conduct himself or herself and require other persons in the residential premises within the tenant's control to conduct themselves in a manner that does not disturb their neighbors' peaceful enjoyment of the neighbors' dwelling unit; or (f) Promptly notify the landlord if the residential premises is uninhabitable as defined in section 38-12-505 or if there is a condition that could result in the premises becoming uninhabitable if not remedied. (2) In addition to the duties set forth in subsection (1) of this section, a tenant shall not knowingly, intentionally, deliberately, or negligently destroy, deface, damage, impair, or remove any part of the residential premises or knowingly permit any person within his or her control to do so. (3) Nothing in this section shall be construed to authorize a modification of a landlord's obligations under the warranty of habitability. 38-12-505. Uninhabitable residential premises (1) A residential premises is deemed uninhabitable if it substantially lacks any of the following characteristics: (a) Waterproofing and weather protection of roof and exterior walls maintained in good working order, including unbroken windows and doors; (b) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation and that are maintained in good working order;
(c) Running water and reasonable amounts of hot water at all times furnished to appropriate fixtures and connected to a sewage disposal system approved under applicable law; (d) Functioning heating facilities that conformed to applicable law at the time of installation and that are maintained in good working order; (e) Electrical lighting, with wiring and electrical equipment that conformed to applicable law at the time of installation, maintained in good working order; (f) Common areas and areas under the control of the landlord that are kept reasonably clean, sanitary, and free from all accumulations of debris, filth, rubbish, and garbage and that have appropriate extermination in response to the infestation of rodents or vermin; (g) Appropriate extermination in response to the infestation of rodents or vermin throughout a residential premises; (h) An adequate number of appropriate exterior receptacles for garbage and rubbish, in good repair; (i) Floors, stairways, and railings maintained in good repair; (j) Locks on all exterior doors and locks or security devices on windows designed to be opened that are maintained in good working order; or (k) Compliance with all applicable building, housing, and health codes, which, if violated, would constitute a condition that is dangerous or hazardous to a tenant's life, health, or safety. (2) No deficiency in the common area shall render a residential premises uninhabitable as set forth in subsection (1) of this section, unless it materially and substantially limits the tenant's use of his or her dwelling unit. (3) Unless otherwise stated in section 38-12-506, prior to being leased to a tenant, a residential premises must comply with the requirements set forth in section 38-12-503 (1), (2) (a), and (2) (b). 38-12-506. Opt-out (1) If a dwelling unit is contained within a mobile home park, as defined in section 38-12-201.5 (3), or if there are four or fewer dwelling units sharing common walls or located on the same parcel, as defined in section 30-28-302 (5), C.R.S., all of which have the same owner, or if the dwelling unit is a single-family residential premises: (a) A good faith rental agreement may require a tenant to assume the obligation for one or more of the characteristics contained in section 38-12-505 (1) (f), (1) (g), and (1) (h), as long as the requirement is not inconsistent with any obligations imposed upon a landlord by a governmental entity for the receipt of a subsidy for the residential premises; and (b) For any dwelling unit for which a landlord does not receive a subsidy from any governmental source, a landlord and tenant may agree in writing that the tenant is to perform specific repairs, maintenance tasks, alterations, and remodeling, but only if: (I) The agreement of the parties is entered into in good faith and is set forth in a separate writing signed by the parties and supported by adequate consideration; (II) The work is not necessary to cure a failure to comply with section 38-12-505 (3); and
(III) Such agreement does not affect the obligation of the landlord to other tenants' residential premises. (2) For a single-family residential premises for which a landlord does not receive a subsidy from any governmental source, a landlord and tenant may agree in writing that the tenant is to perform specific repairs, maintenance tasks, alterations, and remodeling necessary to cure a failure to comply with section 38-12-505 (3), but only if: (a) The agreement of the landlord and tenant is entered into in good faith and is set forth in a writing that is separate from the rental agreement, signed by the parties, and supported by adequate consideration; and (b) The tenant has the requisite skills to perform the work required to cure a failure to comply with section 38-12-505 (3). (3) To the extent that performance by a tenant relates to a characteristic set forth in section 38-12-505 (1), the tenant shall assume the obligation for such characteristic. (4) If consistent with this section a tenant assumes an obligation for a characteristic set forth in section 38-12-505 (1), the lack of such characteristic shall not make a residential premises uninhabitable. 38-12-507. Breach of warranty of habitability - tenant's remedies (1) If there is a breach of the warranty of habitability as set forth in section 38-12-503 (2), the following provisions shall apply: (a) Upon no less than ten and no more than thirty days written notice to the landlord specifying the condition alleged to breach the warranty of habitability and giving the landlord five business days from the receipt of the written notice to remedy the breach, a tenant may terminate the rental agreement by surrendering possession of the dwelling unit. If the breach is remediable by repairs, the payment of damages, or otherwise and the landlord adequately remedies the breach within five business days of receipt of the notice, the rental agreement shall not terminate by reason of the breach. (b) A tenant may obtain injunctive relief for breach of the warranty of habitability in any court of competent jurisdiction. In any proceeding for injunctive relief, the court shall determine actual damages for a breach of the warranty at the time the court orders the injunctive relief. A landlord shall not be subject to any court order for injunctive relief if the landlord tenders the actual damages to the court within two business days of the order. Upon application by the tenant, the court shall immediately release to the tenant the damages paid by the landlord. If the tenant vacates the leased premises, the landlord shall not be permitted to rent the premises again until such time as the unit would be in compliance with the warranty of habitability set forth in section 38-12-503 (1). (c) In an action for possession based upon nonpayment of rent in which the tenant asserts a defense to possession based upon the landlord's alleged breach of the warranty of habitability, upon the filing of the tenant's answer the court shall order the tenant to pay into the registry of the court all or part of the rent accrued after due consideration of expenses already incurred by the tenant based upon the landlord's breach of the warranty of habitability. (d) Whether asserted as a claim or counterclaim, a tenant may recover damages directly arising from a breach of the warranty of habitability, which may include, but are not limited to, any reduction in the fair rental value of the dwelling unit, in any court of competent jurisdiction. (2) If a rental agreement contains a provision for either party in an action related to the rental agreement to obtain attorney fees and costs, then the prevailing party in any action brought under this part 5 shall be entitled to recover reasonable attorney fees and costs.
38-12-508. Landlord's defenses to a claim of breach of warranty - limitations on claiming a breach (1) It shall be a defense to a tenant's claim of breach of the warranty of habitability that the tenant's actions or inactions prevented the landlord from curing the condition underlying the breach of the warranty of habitability. (2) Only parties to the rental agreement or other adult residents listed on the rental agreement who are also lawfully residing in the dwelling unit may assert a claim for a breach of the warranty of habitability. (3) A tenant may not assert a claim for injunctive relief based upon the landlord's breach of the warranty of habitability of a residential premises unless the tenant has given notice to a local government within the boundaries of which the residential premises is located of the condition underlying the breach that is materially dangerous or hazardous to the tenant's life, health, or safety. (4) A tenant may not assert a breach of the warranty of habitability as a defense to a landlord's action for possession based upon a nonmonetary violation of the rental agreement or for an action for possession based upon a notice to quit or vacate. (5) If the condition alleged to breach the warranty of habitability is the result of the action or inaction of a tenant in another dwelling unit or another third party not under the direction and control of the landlord and the landlord has taken reasonable, necessary, and timely steps to abate the condition, but is unable to abate the condition due to circumstances beyond the landlord's reasonable control, the tenant's only remedy shall be termination of the rental agreement consistent with section 38-12-507 (1) (a). (6) For public housing authorities and other housing providers receiving federal financial assistance directly from the federal government, no provision of this part 5 in direct conflict with any federal law or regulation shall be enforceable against such housing provider. 38-12-509. Prohibition on retaliation (1) A landlord shall not retaliate against a tenant for alleging a breach of the warranty of habitability by discriminatorily increasing rent or decreasing services or by bringing or threatening to bring an action for possession in response to the tenant having made a good faith complaint to the landlord or to a governmental agency alleging a breach of the warranty of habitability. (2) A landlord shall not be liable for retaliation under this section, unless a tenant proves that a landlord breached the warranty of habitability. (3) Regardless of when an action for possession of the premises where the landlord is seeking to terminate the tenancy for violation of the terms of the rental agreement is brought, there shall be a rebuttable presumption in favor of the landlord that his or her decision to terminate is not retaliatory. The presumption created by this subsection (3) cannot be rebutted by evidence of the timing alone of the landlord's initiation of the action. (4) If the landlord has a right to increase rent, to decrease service, or to terminate the tenant's tenancy at the end of any term of the rental agreement and the landlord exercises any of these rights, there shall be a rebuttable presumption that the landlord's exercise of any of these rights was not retaliatory. The presumption of this subsection (4) cannot be rebutted by evidence of the timing alone of the landlord's exercise of any of these rights. 38-12-510. Unlawful removal or exclusion It shall be unlawful for a landlord to remove or exclude a tenant from a dwelling unit without resorting to court process, unless the removal or exclusion is consistent with the provisions of article 18.5 of title 25, C.R.S., and the
rules promulgated by the state board of health for the cleanup of an illegal drug laboratory or is with the mutual consent of the landlord and tenant or unless the dwelling unit has been abandoned by the tenant as evidenced by the return of keys, the substantial removal of the tenant's personal property, notice by the tenant, or the extended absence of the tenant while rent remains unpaid, any of which would cause a reasonable person to believe the tenant had permanently surrendered possession of the dwelling unit. Such unlawful removal or exclusion includes the willful termination of utilities or the willful removal of doors, windows, or locks to the premises other than as required for repair or maintenance. If the landlord willfully and unlawfully removes the tenant from the premises or willfully and unlawfully causes the termination of heat, running water, hot water, electric, gas, or other essential services, the tenant may seek any remedy available under the law, including this part 5. 38-12-511. Application (1) Unless created to avoid its application, this part 5 shall not apply to any of the following arrangements: (a) Residence at a public or private institution, if such residence is incidental to detention or the provision of medical, geriatric, education, counseling, religious, or similar service; (b) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser, seller, or a person who succeeds to his or her interest; (c) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization; (d) Transient occupancy in a hotel or motel that lasts less than thirty days; (e) Occupancy by an employee or independent contractor whose right to occupancy is conditional upon performance of services for an employer or contractor; (f) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative; (g) Occupancy in a structure that is located within an unincorporated area of a county, does not receive water, heat, and sewer services from a public entity, and is rented for recreational purposes, such as a hunting cabin, yurt, hut, or other similar structure; (h) Occupancy under rental agreement covering a residential premises used by the occupant primarily for agricultural purposes; or (i) Any relationship between the owner of a mobile home park and the owner of a mobile home situated in the park. (2) Nothing in this section shall be construed to limit remedies available elsewhere in law for a tenant to seek to maintain safe and sanitary housing.
CARBON MONOXIDE DETECTORS 38-45-101. Definitions As used in this article, unless the context otherwise requires: (1) "Carbon monoxide alarm" means a device that detects carbon monoxide and that:
(a) Produces a distinct, audible alarm; (b) Is listed by a nationally recognized, independent product-safety testing and certification laboratory to conform to the standards for carbon monoxide alarms issued by such laboratory or any successor standards; (c) Is battery powered, plugs into a dwelling's electrical outlet and has a battery backup, is wired into a dwelling's electrical system and has a battery backup, or is connected to an electrical system via an electrical panel; and (d) May be combined with a smoke detecting device if the combined device complies with applicable law regarding both smoke detecting devices and carbon monoxide alarms and that the combined unit produces an alarm, or an alarm and voice signal, in a manner that clearly differentiates between the two hazards. (2) "Dwelling unit" means a single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation. (3) "Fuel" means coal, kerosene, oil, fuel gases, or other petroleum products or hydrocarbon products such as wood that emit carbon monoxide as a by-product of combustion. (4) "Installed" means that a carbon monoxide alarm is installed in a dwelling unit in one of the following ways: (a) Wired directly into the dwelling's electrical system; (b) Directly plugged into an electrical outlet without a switch other than a circuit breaker; or (c) If the alarm is battery-powered, attached to the wall or ceiling of the dwelling unit in accordance with the national fire protection association's standard 720, or any successor standard, for the operation and installation of carbon monoxide detection and warning equipment in dwelling units. (5) "Multi-family dwelling" means any improved real property used or intended to be used as a residence and that contains more than one dwelling unit. Multi-family dwelling includes a condominium or cooperative. (6) "Operational" means working and in service in accordance with manufacturer instructions. (7) "Single-family dwelling" means any improved real property used or intended to be used as a residence and that contains one dwelling unit. 38-45-102. Carbon monoxide alarms in single-family dwellings - rules (1) (a) Notwithstanding any other provision of law, the seller of each existing single-family dwelling offered for sale or transfer on or after July 1, 2009, that has a fuel-fired heater or appliance, a fireplace, or an attached garage shall assure that an operational carbon monoxide alarm is installed within fifteen feet of the entrance to each room lawfully used for sleeping purposes or in a location as specified in any building code adopted by the state or any local government entity. (b) By July 1, 2009, the real estate commission created in section 12-61-105, C.R.S., shall by rule require each listing contract for residential real property that is subject to the commission's jurisdiction pursuant to article 61 of title 12, C.R.S., to disclose the requirements specified in paragraph (a) of this subsection (1). (2) Notwithstanding any other provision of law, every single-family dwelling that includes either fuel-fired appliances or an attached garage where, on or after July 1, 2009, interior alterations, repairs, fuel-fired appliance replacements, or additions, any of which require a building permit, occurs or where one or more rooms lawfully used for sleeping purposes are added shall have an operational carbon monoxide alarm installed within fifteen feet of the entrance to
each room lawfully used for sleeping purposes or in a location as specified in any building code adopted by the state or any local government entity. (3) No person shall remove batteries from, or in any way render inoperable, a carbon monoxide alarm, except as part of a process to inspect, maintain, repair, or replace the alarm or replace the batteries in the alarm. 8-45-103. Carbon monoxide alarms in multi-family dwellings - rules (1) (a) Notwithstanding any other provision of law, the seller of every dwelling unit of an existing multi-family dwelling offered for sale or transfer on or after July 1, 2009, that has a fuel-fired heater or appliance, a fireplace, or an attached garage shall assure that an operational carbon monoxide alarm is installed within fifteen feet of the entrance to each room lawfully used for sleeping purposes or in a location as specified in any building code adopted by the state or any local government entity. (b) By July 1, 2009, the real estate commission created in section 12-61-105, C.R.S., shall by rule require each listing contract for residential real property that is subject to the commission's jurisdiction pursuant to article 61 of title 12, C.R.S., to disclose the requirements specified in paragraph (a) of this subsection (1). (2) Notwithstanding any other provision of law, every dwelling unit of a multi-family dwelling that includes fuel-fired appliances or an attached garage where, on or after July 1, 2009, interior alterations, repairs, fuel-fired appliance replacements, or additions, any of which require a building permit, occurs or where one or more rooms lawfully used for sleeping purposes are added shall have an operational carbon monoxide alarm installed within fifteen feet of the entrance to each room lawfully used for sleeping purposes or in a location as specified in any building code adopted by the state or any local government entity. (3) No person shall remove batteries from, or in any way render inoperable, a carbon monoxide alarm, except as part of a process to inspect, maintain, repair, or replace the alarm or replace the batteries in the alarm. 38-45-104. Carbon monoxide alarms in rental properties (1) Except as provided in subsection (5) of this section, any single-family dwelling or dwelling unit in a multi-family dwelling used for rental purposes and that includes fuel-fired appliances or an attached garage where, on or after July 1, 2009, interior alterations, repairs, fuel-fired appliance replacements, or additions, any of which requires a building permit, occurs or where one or more rooms lawfully used for sleeping purposes are added shall be subject to the requirements specified in sections 38-45-102 and 38-45-103. (2) Except as provided in subsection (5) of this section, each existing single-family dwelling or existing dwelling unit in a multi-family dwelling that is used for rental purposes that has a change in tenant occupancy on or after July 1, 2009, shall be subject to the requirements specified in sections 38-45-102 and 38-45-103. (3) (a) Notwithstanding any other provision of law, the owner of any rental property specified in subsections (1) and (2) of this section shall: (I) Prior to the commencement of a new tenant occupancy, replace any carbon monoxide alarm that was stolen, removed, found missing, or found not operational after the previous occupancy; (II) Ensure that any batteries necessary to make the carbon monoxide alarm operational are provided to the tenant at the time the tenant takes residence in the dwelling unit; (III) Replace any carbon monoxide alarm if notified by a tenant as specified in paragraph (c) of subsection (4) of this section that any carbon monoxide alarm was stolen, removed, found missing, or found not operational during the
tenant's occupancy; and (IV) Fix any deficiency in a carbon monoxide alarm if notified by a tenant as specified in paragraph (d) of subsection (4) of this section. (b) Except as provided in paragraph (a) of this subsection (3), the owner of a single-family dwelling or dwelling unit in a multi-family dwelling that is used for rental purposes is not responsible for the maintenance, repair, or replacement of a carbon monoxide alarm or the care and replacement of batteries for such an alarm. (4) Notwithstanding any other provision of law, the tenant of any rental property specified in subsections (1) and (2) of this section shall: (a) Keep, test, and maintain all carbon monoxide alarms in good repair; (b) Notify, in writing, the owner of the single-family dwelling or dwelling unit of a multi-family dwelling, or the owner's authorized agent, if the batteries of any carbon monoxide alarm need to be replaced; (c) Notify, in writing, the owner of the single-family dwelling or dwelling unit of a multi-family dwelling, or the owner's authorized agent, if any carbon monoxide alarm is stolen, removed, found missing, or found not operational during the tenant's occupancy of the single-family dwelling or dwelling unit in the multi-family dwelling; and (d) Notify, in writing, the owner of the single-family dwelling or dwelling unit of a multi-family dwelling, or the owner's authorized agent, of any deficiency in any carbon monoxide alarm that the tenant cannot correct. (5) Notwithstanding the requirements of section 38-45-103 (1) and (2), so long as there is a centralized alarm system or other mechanism for a responsible person to hear the alarm at all times in a multi-family dwelling used for rental purposes, such multi-family dwelling may have an operational carbon monoxide alarm installed within twenty-five feet of any fuel-fired heater or appliance, fireplace, or garage or in a location as specified in any building code adopted by the state or any local government entity. (6) No person shall remove batteries from, or in any way render inoperable, a carbon monoxide alarm, except as part of a process to inspect, maintain, repair, or replace the alarm or replace the batteries in the alarm. 38-45-105. Municipal or county ordinances regarding carbon monoxide alarms Nothing in this article shall be construed to limit a municipality, city, home rule city, city and county, county, or other local government entity from adopting or enforcing any requirements for the installation and maintenance of carbon monoxide alarms that are more stringent than the requirements set forth in this article. 38-45-106. Limitation of liability (1) No person shall have a claim for relief against a property owner, an authorized agent of a property owner, a person in possession of real property, or an installer for any damages resulting from the operation, maintenance, or effectiveness of a carbon monoxide alarm if the property owner, authorized agent, person in possession of real property, or installer installs a carbon monoxide alarm in accordance with the manufacturer's published instructions and the provisions of this article. (2) A purchaser shall have no claim for relief against any person licensed pursuant to article 61 of title 12, C.R.S., for any damages resulting from the operation, maintenance, or effectiveness of a carbon monoxide alarm if such licensed person complies with rules promulgated pursuant to sections 38-45-102 (1) (b) and 38-45-103 (1) (b). Nothing in this subsection (2) shall affect any remedy that a purchaser may otherwise have against a seller.
MASTER METER OPERATOR EXCEPTION 40-1-103.5. Limited exemption of master meter operators - conditions - rules (1) Upon its own motion or upon application by any person who purchases gas or electric service from a regulated public utility for the purpose of delivery of such service to end users whose aggregate usage is to be measured by a master meter or other composite measurement device, the commission may exempt such person from regulation of rates under the "Public Utilities Law", articles 1 to 7 of this title, as the commission deems appropriate, so long as all of the following conditions are met: (a) Such person, referred to in this section as a "master meter operator" or "MMO", does not charge the end users, as part of its billing for utility service, for any costs in addition to the actual cost billed to the MMO by the serving utility, including without limitation costs of construction, maintenance, financing, administration, metering, or billing for the utility distribution system owned by the MMO; (b) If the MMO bills the end users separately for service, the sum of such billings does not exceed the amount billed to the MMO by the serving utility; (c) If the MMO bills the end users separately for service, the MMO passes on to the end users any refunds, rebates, rate reductions, or similar adjustments it receives from the serving utility; (d) Any other conditions deemed necessary by the commission. (2) In passing on refunds, rebates, rate reductions, or similar adjustments to end users, the MMO shall notify its current end users, either by first-class mail with a certificate of mailing or by inclusion in any monthly or more frequent regular written communication, of such adjustments and inform the end users that they may claim the adjustments within ninety days after receipt of the notice. The MMO may retain any portion of such adjustments which rightfully belongs to the MMO. Upon the expiration of the ninety-day claims period, the MMO shall identify any such adjustments which are unclaimed and, if the aggregate amount unclaimed exceeds one hundred dollars, the MMO shall contribute such unclaimed amount to the fund established by the commission on low-income energy assistance pursuant to section 40-8.5-104. (3) The commission shall adopt such rules as it deems necessary to implement this section.
Adverse Action, 3 Americans With Disabilities Act, 85, 86 At Will Employment, 121
Fair Credit Reporting Act, 1, 2 Fair Housing, 5, 75, 76, 79, 85, 86, 87, 92, 161, 165 Fair Rental Reduction, 21 Familial Status, 79 Federal Communications Commission, 73 Federal Trade Commission, 4, 179 Fire Alarms, 59
Parking, 59, 86, 87, 88, 105, 106, 107, 132, 219 Parking Lot, 107 Pet Addendum, 91, 132, 133 Pet Prohibition, 91 Prior Notice, 14
B Bad Check, 153 Bankruptcy, 155, 156 Bed Bugs, 150 Behavioral Problems, 87, 88, 129
Handicapped Tenants, 76
Carbon Monoxide Alarms, 59 Census, 67 Colorado Apartment Association, 7, 185 Colorado Real Estate Commission, 49, 51 Common Areas, 25, 61, 62, 63, 73, 86, 87, 91, 132, 149, 184, 219, 236, 244 Common Law, 13, 17 Confidentiality, 183 Consumer Report, 2 Contract, 1, 7, 8, 9, 18, 26, 50, 53, 69, 101, 106, 121, 171, 172, 173, 180, 213, 216, 228, 241, 249, 250, 251 Criminal Activity, 114 Criminal Background Checks, 4 Criminal Screening, 1, 4
D Death Of A Tenant, 147 Defamation, 97, 98, 99, 139 Demand For Compliance, 15, 61, 109, 111, 112, 113, 114, 129, 130, 131, 132, 133, 136, 141, 148, 201 Disability, 63, 65, 89, 94 Discrimination, 1, 5, 22, 75, 76, 78, 79, 80, 81, 93, 159, 160 Disposal Rule, 179, 180
E Environmental Protection Agency, 23, 71 Evictions, 109
Injunction, 20 Insects, 149
L Landlord Consent, 10 Landlord-Tenant Law, 7 Late Fees, 174 Lead-Based Paint, 23, 24, 202 Lease Addenda, 8 Lease Break Fee, 171 Lease Obligations, 17 Lease Violations, 109 License To Occupy, 121, 122
M Marijuana, 61, 62, 63, 64 Mobile Home, 123, 230, 235, 236 Month-To Month, 11 Moving Out, 20
N Negligence, 4, 59, 101, 102, 103, 139, 177, 180, 183, 229, 237 New Lease, 10 Non-Compliance, 4, 163 Nonpublic Areas, 86 Nuisance, 4, 115, 131, 135, 136, 137, 138, 220, 234
O Occupancy Standards, 79 Operating Manual, 53
R Reasonable Accommodation, 63, 65, 85, 87 Refusal Of Entry, 15 Renovations, 25 Restraining Orders, 145 Retaliation, 22 Retirement Community, 79
S Satellite Dishes, 73 Security Deposits, 52, 175, 228 Service Animals, 88, 91, 92 Service Members, 159, 160 Service Membersâ€™ Civil Relief Act, 159 Settlement, 82, 103, 104, 181, 183, 184 Sex Offenders, 139 Signage, 106 Smoking, 61, 62, 63 Submetering, 70 Subsidized Housing, 161
T Tenant Rights, 123 Time To Correct, 19 Towing, 105, 106
U Unlawful Behavior, 130 Unreasonable Disturbances, 63, 129, 130, 132 Utilities, 69, 70, 106, 238, 253
W Warranty Of Habitability, 7, 17, 18, 19, 20, 21, 22, 70, 149, 150, 167, 243 Water, 71 Wear And Tear, 177