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February 2018 Legal Tidbit

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Question: My tenant’s lease is expiring and I want him to move. What should I do?

Answer: When a landlord accepts rent for any time period after lease expiration, the lease becomes a month-to-month tenancy. To avoid that, immediately after expiration you may evict. Since the tenant should know that his lease is expiring and his right to occupy the rental premises is ending, no legal notice is required prior to starting eviction proceedings. Do not accept any rent for any time after the expiration date. It is recommended (but not legally required) that you send the tenant a written notice 30 to 60 days prior to lease expiration telling him that you have elected not to renew his lease and that he will be expected to surrender the rental premises and his keys to you on or by the lease expiration date.

January 2018 Legal Tidbit

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Question: What does “normal wear and tear” mean?

Answer: Colorado law defines "normal wear and tear" as “that deterioration which occurs… without negligence, carelessness, accident, or abuse of the premises…” The longer that a tenant has been living in the rental unit, the more likely that a court will find that incidental damage is "normal." While there will be no question that a red wine stain in carpet or a large hole in drywall is beyond "normal wear and tear," traffic patterns in carpet, scuff marks on walls, and dings in walls may very likely be viewed as “normal,” particularly if the tenant has been living there a long time or has children and/or pets. Keep in mind that if the expected useful life of paint and carpet in the rental unit has passed, then courts will be unwilling to tax the tenant for any of the costs of new paint or carpet. Since “normal wear and tear” is a subjective judgment by the courts and the statutory consequence of an adverse ruling can be treble damages against the landlord, be conservative in charging your tenant to restore your rental unit.

December 2017 Legal Tidbit

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Question: I want my tenant to move out. What are my choices?

Answer: If the tenant signed a lease which has not yet expired and they are living up to the obligations in the lease agreement, then they cannot be evicted. You can ask them to leave and can offer them compensation. If they agree, sign a termination agreement and do not pay them until they are completely out and have surrendered keys. You may elect not to renew the lease. Notify them in writing so that they have time to find a new place. If the lease has expired, the tenant may be evicted. If the tenant has violated the terms of the lease, serve a three day Demand. If the tenant is month-to-month you may terminate the tenancy by serving a Notice to Quit and evict if they fail to move out.

November Legal Tidbit

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Question: After I have served a Demand on my tenant for non-payment, what are my choices?

Answer: If the tenant pays the amount demanded (or the amount legally due) in full within the three days following the date on which the Demand was delivered, the landlord has no choice but to accept the payment and allow the tenant to stay. The landlord may refuse or reject a partial payment. If a partial payment is accepted, then a new demand for the balance still due should be served. Once the three days have passed, the landlord is not required by law to accept it and may instead require the tenant to vacate by
commencing an eviction lawsuit.

October 2017 Legal Tidbit

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Question: Is my tenant liable to pay for the attorney’s fees I incur to evict him?

Answer: The Colorado eviction law does not provide for the award of statutory attorney’ fees. However, your written lease may have language saying that the prevailing party in any court action will be entitled to recover his attorney’s fees. Note, that if you start the eviction and accept rent from the tenant without collecting those fees with the understanding that you will dismiss the eviction case, then you have not prevailed and are not entitled to the attorney’s fees. Since you are not legally required to accept rent after expiration of the three day, after the three day period, you can require that the tenant pay the past due rent and any attorney’s fees regardless of the terms of the lease as a condition to your acceptance of rent, dismissal of the eviction case, and agreement to allow the tenant to stay.

September 2017 Legal Tidbit

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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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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.

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