What’s a “reasonable” rent increase?

The answer is vague

BY ELLIOTT WENZLER THE COLORADO SUN

Imagine driving down a Colorado highway and instead of seeing a posted speed limit, you pass a road sign that reads: “Go an appropriate speed.” e idea may seem ludicrous, but similarly vague language is often inserted into bills by Colorado’s state lawmakers. Unde ned terms like “reasonable” and “substantial” are included in key parts of legislation and then left to courts to sort out later. is year at the Capitol, multiple highly debated bills weaving their way through the legislative process include ambiguous terms.

Sometimes, the ambiguity arises as laws are tested because it’s impossible for the legislature to imagine every possible scenario in which a statute may apply. Other times, loosey-goosey terms are intentionally added by lawmakers trying to build enough political support to pass a controversial bill.

“When you have a more broad standard that could be left open to interpretation of the courts, I think it’s easier to get things done,” said Rep. Javier Mabrey, a Denver Democrat who is an attorney.

But while some see vagueness as a tool to keep bills moving forward, others see it as a possible burden for the court system.

“If the law is vague, anyone can be dragged in front of the courts for most any reason,” said Rep. Matt Soper, a Delta Republican who is also an attorney.

What’s a “reasonable increase” in rent? What’s a “substantially economically identical” o er on a multifamily residential building that’s for sale? Coloradans won’t know for sure unless those bills get signed into law and are challenged in the court system.

“ is session will be marked by bills that have to be litigated later,” said Jason Hopfer, a longtime lobbyist who represents clients like the Douglas County School District, Je erson County, Xcel Energy and the Colorado Community College System.

Reasonable rent hikes

One bill intended to protect people from evictions that’s sponsored by Mabrey includes language that could be interpreted in a number of ways. e measure attempts to also stop landlords from e ectively evicting tenants by unreasonably increasing their rent. But the bill doesn’t de ne what a “reasonable” rent increase is.

e bill also uses the word “reasonable” to lay out when a tenant has to let a landlord into their property and when a landlord has to complete repairs.

Mabrey said it’s important to balance vagueness and speci city but ultimately, lawmakers have to nd a way to get things done.

“ e law is interpreted by the court at the end of the day,” he said.

Mabrey said the goal of the vague language around rent increases in his House Bill 1171 is to thread the needle between preventing land- lords from imposing retaliatory rent increases and not creating a backdoor rent control policy. e bill has been approved by the Colorado House and is waiting to be considered by the Senate.

Without a de nition for the phrase in the bill, Mabrey said a judge would be the one to decide what “reasonably” means based on the circumstances their jurisdiction is facing.

“To do that in legislation is to invite or force a judge to make their own personal judgment about what’s a reasonable increase in rent,” said state Sen. Bob Gardner, a Colorado Springs Republican and lawyer who often picks apart vague language in bills.

Judges would be uncomfortable making that determination, said Jason Dunn, Colorado’s former U.S. attorney and a former state deputy attorney general.

“No judge is going to take on that role of legislating,” said Dunn, a Republican who now works in private practice for Brownstein Hyatt Farber Schreck, where he focuses on government investigations and white collar defense.

Dunn, who has previously served as an adviser for state legislators during bill drafting, has spent hours trying to understand what lawmakers intended when they approved bills by listening to committees and oor work. at process doesn’t always settle it though, because one lawmaker’s comments don’t necessarily represent the entire legislature’s understanding of a bill.

In one example, Dunn represented a client who shot a man on his patio near Steamboat Springs. Dunn used Colorado’s “Make My Day” law, which allows homeowners to protect themselves from intruders, as a defense.

But Dunn’s challenge was that the law says to legally use deadly force, an intruder must have entered the person’s “dwelling,” which could or could not include a patio. Dunn won the case but said he never got a clear answer on how the legislature de ned dwelling.

“You can’t always predict what sort of factual events will come up that drive an interpretation of language,” Dunn said.

Sometimes when a bill isn’t specific, it’s because state regulators, like those at the Department of Local A airs, are charged with developing procedures later. at’s the case for some parts of Gov. Jared Polis’ recently released local land use bill.

But Dunn and Gardner caution that lawmakers can’t leave all the speci cs to other authorities or the courts because eventually, it turns into its own version of policymaking.

“Courts really don’t like that at all,” Gardner said. “ ey wish we would be precise all the time so they don’t have to play at politics.”

Rep. Mike Weissman, an Aurora Democrat and lawyer, would prefer to see direct language in all bills.

“Wouldn’t we rather say what we actually meant in the rst instance?” said Weissman, who is chair of the House Judiciary Committee.

House Bill 1190 is another bill with some vague language. It would give local governments a “right of rst re- fusal” when multifamily residential properties are put up for sale. at o er would have to be “substantially economically identical” to the one made by a private buyer, but that phrase isn’t de ned in the bill.

Under the proposal, aimed at boosting a ordable housing, local governments would have the right to match any acceptable o er for the property.

Rep. Andrew Boesenecker, a Fort Collins Democrat and prime sponsor of the bill, said the goal is to prevent a seller from favoring an o er from a private buyer over a government buyer without good reason.

“It needs to be reasonably broad in order to give a potential buyer, in this case, a public entity, the ability to make an o er that should be considered as equal,” he said. “Otherwise, you’re going to end up going through the minutiae of being able to nd one sentence that’s di erent and use that as a reason to say that the o ers were not equal.”

But there is a risk in using broad language. If a judge feels that a law is too di cult to interpret, they can deem it “void for vagueness,” Soper said.

Gardner said he’s seen a lot of legislation this session that could leave Coloradans confused about how to comply.

Russ Carparelli, a former Colorado Court of Appeals judge, sees it as part of the judiciary’s role to interpret unclear language from the legislature but that judges should also steer clear of trying to understand what an entire legislative body intended to do when passing a bill.

“If they write poorly, we’re stuck with it,” he said. “We’ve got to en-