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September 2017 Legal Tidbit

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The New Yorker, July 31, 2017

Question: What can I do with a tenant who addresses me and my management staff in a rude, foul-mouthed, threatening, abusive and/or insulting manner?

Answer: Your written lease should have language in it that prohibits the tenant from interfering with the operation of the management staff, or the property. (If not, add it to your lease.) The behavior is a lease violation. Notify the tenant in writing that the behavior is unacceptable and will not be tolerated. If it persists, notify the tenant in writing that all communications with staff must be in writing, that he not to enter the management office, and that if he enters the management office he will be trespassing and the police will be called and asked to arrest him. You may also serve a Demand for Compliance or Possession giving the tenant 3 days to terminate his unacceptable behavior. If the behavior is repeated after the expiration of 3 days from the Demand, serve a Notice to Quit for Repeat Violation and, if necessary, evict.

August 2017 Legal Tidbit

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The New Yorker, July 31, 2017

Question: When is the written accounting of the retention of the tenant’s security deposit due?

Answer: The Colorado security deposit law requires that the landlord’s written accounting explaining the use of the tenant’s security deposit be sent “within one month after the termination of a lease or surrender and acceptance of the premises, whichever occurs last… unless the lease agreement specifies a longer period of time, but not to exceed sixty days.” So, if a tenant signs a one year lease on March 1, 2017, ending February 28, 2018, but abandons the rental or is evicted on June 1, 2017, since the lease does not expire until the following February 28, the accounting is not due until a month (or up to sixty days) after February 28, 2018! However, don’t wait. If possible, send the accounting within several weeks of the date that you receive the rental premises back into your possession.

July 2017 Legal Tidbit

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The 71st Colorado Legislature was busy this term on behalf of tenants. They passed Senate Bill 245 changing the minimum time period for a landlord to give notice to a month-to-month tenant that his tenancy is to end, or that the rent is going up, from seven (7) days to twenty-one (21) days. Governor Hickenlooper is expected to sign the bill into law. The new rule is set to go into effect on August 9, 2017. Assuming that a month-to-month tenant pays his rent on the first of the month, if a landlord wishes to terminate the tenancy and require the tenant to move out, the landlord’s Notice to Quit must be served upon the tenant or posted on his door at least 21 days before the last day of the month. Note that, as before, while Colorado law does not require the landlord to have or give a reason for such termination, the landlord still must have a non-discriminatory reason for the termination of the tenancy under federal and Colorado housing discrimination laws.

June 2017 Legal Tidbit

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Question: Can a victim of stalking or sexual assault get out of his or her lease?

Answer: Apropos of the above cartoon, the answer in Colorado shall soon be yes. During the recent legislative session, the Colorado House and Senate passed a new law adding victims of stalking and sexual assault to victims of domestic violence as persons who may vacate their rentals and terminate their leases regardless of the terms of the written leases. Victims must provide their landlord with a police report or statement from a qualified medical professional and must actually vacate. Once they move out, the lease is terminated and the tenant's liability will be limited to one additional month’s rent beyond the move-out date. Governor Hickenlooper is expected to sign the bill into law shortly.

May 2017 Legal Tidbit

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Question: What does a resident need to show in order to obtain a reasonable accommodation or modification under Fair Housing law?

Answer: A resident must have a disability as defined within Fair Housing law, the requested accommodation (change in property policy, practice, or procedure) or modification (change in the physical condition of the property) must be reasonable, and must be related to the resident’s disability so as to allow the resident the use and enjoyment of the property.

April 2017 Legal Tidbit

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Question: What is a Demand for Compliance or Possession used for?

Answer: This notice is used when a tenant has violated one or more terms of his lease, including a failure to pay rent. It gives the tenant three days within which to bring himself within compliance of the terms of the lease.

March 2017 Legal Tidbit

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Question: Must I accept an applicant who will use a Section 8 voucher to pay his/her rent?

Answer: Generally, no. Because of the additional obligations imposed on a landlord in the acceptance of Section 8 voucher tenants, such as the requirement to enter into a “HAP Agreement” with, and submit to a property inspection by, the administering housing authority, a landlord is not obligated to accept Section 8 voucher tenants. However, the U.S. Housing Act does require landlords to accept a new Sec. 8 applicant when the property has accepted other such applicants. So, generally, it is “take one, take all.” This rule is narrow, however. A landlord who allowed some existing tenants who ran into financial problems to use Sec. 8 vouchers may still refuse to accept a new applicant for housing who would use a Sec. 8 voucher, even where the applicant sought the use of the voucher as a reasonable accommodation of a disability. Efforts by some cities to require landlords to accept Sec. 8 vouchers have so far been unsuccessful.

February 2017 Legal Tidbit

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Question: When can I reject a resident’s rent payment?

Answer: If the lease has just expired, there has been no lease renewal, and the resident is to vacate, any acceptance of rent by the landlord for a period after the date of lease expiration will start a month-to-month tenancy. So, to avoid starting the month-to-month tenancy and preserve the landlord’s right to evict, that rent payment may be rejected. If the landlord has served a Demand for Compliance or Possession (3 Day Notice) due to non-payment, a partial payment within the three days may be rejected. Any payment made after the three day deadline has passed may also be rejected. Reject a payment by mailing a refund of the rejected payment amount with a written letter stating that the payment has been rejected and why within two business days of the date the payment was received. Keep copies of your letter stating that the payment has been rejected as well as the refund check.

January 2017 Legal Tidbit

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Question: What is “disparate impact” housing discrimination?

Answer: Generally, it is a property management policy which burdens a particular protected class (such as a race, religion, or gender) more heavily than other residents or applicants. Often, an intent to illegally discriminate cannot be proven, but a statistical analysis by the claimant shows that the result of the policy is a denial of housing to the protected group. The U.S. Supreme Court in a five to four decision ruled that so long as the landlord can demonstrate that its policy does not raise “artificial, arbitrary and unnecessary barriers” to housing, a statistical analysis alone will not be enough for the policy to be illegal. So, any management policy that furthers a legitimate management goal, will be less likely to be illegal even if it results in a heavier housing burden on an identified group.

December's Legal Tidbit

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Question: What is the easiest way to get a tenant to vacate?

Answer: A voluntary surrender by the tenant is easiest and least expensive for the landlord. If they don’t want to leave, you can offer “cash for keys,” but the tenant shouldn’t get the money until they are completely out and have turned in keys. If you must evict, then the simplest case is where the lease has expired or the tenant is month-to-month and has been served with a Notice to Quit. The next easiest case to win is an eviction based upon non-payment of rent. Evictions based upon non-monetary lease violations (i.e.: unauthorized occupant, unauthorized pet, noise disturbances, etc.) can be more challenging to prove in court.

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