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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.

November's Legal Tidbit

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Question: My tenant left before the lease expired. Do I have to re-rent the place to another tenant?

Answer: Yes. The law imposes a ‘duty to mitigate’ damages on anyone who has sustained a loss. The original tenant is liable to you for rent of the remainder of the lease term. However, you must take prompt and reasonable steps to find a replacement tenant. Any rent paid by the replacement tenant during the original lease term is a credit against the rent owed by the original tenant. Failure to try to re-rent the unit gives the original tenant a defense to your claim for rent which came due after he left.

October's Legal Tidbit

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Question: A resident has passed away in my rental unit. What do I do?

Answer: First, call the police. They will bring the coroner and remove the remains. If there are pets, call Animal Control. Call any emergency contact you have for the resident. Contact a biological clean-up vendor to clean the rental of any contamination. If some other occupant or third party was given a key to the apartment, they may enter; you have no duty to prevent entry. You must give a key to any person who presents a court document giving them authority as executor or administrator of the estate. You must also give a key to a person who presents a completed “Collection of Personal Property By Affidavit Pursuant to Sec. 15-12-1201, CRS” not less than ten days after the date of death. If no one vacates the deceased’s property from the rental, you may evict and remove them under the supervision of the sheriff.

September Legal Tidbit

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Question: What if my former tenant sends me a demand for his security deposit?

Answer: The demand may be the first step leading to being sued by the tenant for his security deposit. You have seven (7) days to refund the entire deposit to avoid litigation. Or, you may defend your retention of the deposit. You bear the burden to justify your retention of the deposit. Assemble your documentary evidence showing your compliance with your required accounting, the tenant’s balance due, and the damage beyond normal wear and tear and seek the advice of your lawyer.

August's Legal Tidbit

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Question: I think my tenant has moved. Do I have to post a notice or do an eviction?

Answer: Generally, no. However, there is no “self-help” eviction in Colorado. So, make sure that the tenant has said or done something which indicates an intent to vacate (surrender of keys is the best indicator of intent to vacate). If in any doubt, serve a notice and do the eviction because it will provide civil and criminal immunity from liability to the landlord if the tenant comes back and claims damages for the loss of his stuff.

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