August 2018

How You Can Reduce Potential Damage Claims From Amenities
Repairs By Vendors And Fair Housing Liability

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Volume 19 • Issue 8 AUGUST 2018

Landlord

News

3600 South Yosemite Street Suite 828, Denver, Colorado 80237

thsnews@thslawfirm.com www.thslawfirm.com

Denver Phone 303.766.8004 FAX Completed Eviction Forms To: 303.766.1181 or 303.766.1819

Colorado Springs Phone 719.550.8004 FAX Completed Eviction Forms To: 719.227.1181

HOW YOU CAN REDUCE

POTENTIAL DAMAGE

CLAIMS FROM AMENITIES

Communities are amenity centric. Many communities

offer swimming pools, hot tubs, business centers,

fitness centers, bike rentals, and more. Amenities attract

residents, but they also create potential liability. A good

lease addresses a landlord’s liability if someone is injured

at or in connection with using an amenity. Liability waivers

throughout the lease declare that a landlord is not

liable if a resident or guest is injured. While liability waivers

have a purpose, most landlords are unaware that their

liability, in most cases, is not ultimately determined by

their lease but rather by the Colorado Premises Liability

Act (“PLA”).

At common law, negligence governed a landlord’s

(landowner’s) liability for injuries that occurred on leased

property. Whether somebody is liable for negligence depends

first on whether

a person owes a duty

of care to another. For

example, a surgeon

owes a duty to operate

with the standard

of care by an ordinary

prudent surgeon. Because

of contradictory

and even confusing

court rulings when a

landowner owed a duty of care to persons who were injured

on land belonging to another, the Colorado General

Assembly codified when and under what circumstances

landlords owe a duty of care to tenants, guests, and others.

Under the PLA, different duties are owed to different

classifications of individuals at an apartment community.

Thus, what duty a landlord owes an individual depends

on whether the person is a tenant, guest, or trespasser.

Under the PLA, individuals entering onto land

fall into three categories. The first category is the invitee.

Invitees are owed the highest duty of care under the PLA.

Tenants and occupants are invitees under the PLA. The

continued on page 2

Repairs By Vendors

And Fair Housing

Liability

If you are in the industry long enough, you will

inevitably experience a maintenance request that requires

the assistance of a 3rd party vendor. Whether it is a

plumbing, HVAC, restoration, or roofing issue, in-house

maintenance can’t be expected to specialize in every type

of repair or have all of the equipment necessary to complete

the fixes. Now, it’s time to call in the experts.

So, you contact your trusted vendor partner,

receive an estimate, schedule an appointment a few

weeks out, and let the resident know the details. Assuming

this is a non-emergency issue, everything is fine for

now. However, let us

suppose that there is a

delay from the vendor

and the vendor has

to push the appointment.

For example,

let’s say you need a

small roofing repair

and the state gets hit

with several bad hail

storms, so your nonemergency

request gets put on the back burner while the

roofing company has all hands-on-deck working 12 hours

per day 7 days a week solving the crises’ at hand. This is a

totally understandable predicament, but days are flying by

and your resident is getting less and less patient.

The resident complains once or twice more

over the next 2 months that the water stain in the corner

of their ceiling is growing. You inform them that you

understand and share their frustration and that it will be

fixed as soon as the vendor is available, but they storm off,

unsatisfied with the answer. Then 2 weeks later the tenant

files a Fair Housing Discrimination Complaint against

you.

“What happened!? This can’t possibly be seriously

considered as anything other than frivolous.” You

think to yourself. “We have an appointment in the books,

continued on page 2

HOW YOU CAN REDUCE POTENTIAL DAMAGE

CLAIMS FROM AMENITIES continued from page 1

duty of care owed by landlords to tenants is to use reasonable

care to protect against dangers of which the landlord

actually knows or should have known of. For example, if

an apartment community keeps their hot tub open yearround,

a landlord would likely be liable if a tenant was

injured getting in or out of the hot tub because the tenant

slipped on snow or ice surrounding the hot tub. While

liability certainly would depend on the facts, many factual

scenarios would support liability. In particular, if the

hot tub was outside in an area exposed to snow or where

ice could accumulate, the landlord should know about

the possible danger posed by accumulating snow and ice.

Note: the landlord doesn’t have to be aware of a specific

problem. Under the highest level of care, it is enough if

the landlord fails to take action against a possible danger

that the landlord should have known about.

The second level of care applies to licensees.

Tenants’ guests are licensees. Landlords are only liable to

guests if they actually know about a danger they created

but fail to use reasonable care with respect to the danger.

This means landlords can only be liable to guests for

dangers they actually know about. For example, a landlord

would likely be liable to a guest who worked out in

the fitness center and was injured on a treadmill that the

landlord knew was broken and failed to put an “Out of

Order” sign on it.

The third level of care applies to trespassers.

Trespassers are uninvited

guests (uninvited

by the landlord or a

tenant) who come

onto the apartment

community. Despite

not being invited,

landlords still owe

trespassers some duty

under the PLA, but

only a duty to prevent

injury from dangers

deliberately created

by the Landlord. For example, if the Landlord is in

the process of repairing a water main located under the

parking lot, and as a result there is a giant hole dug in the

parking lot, the landlord would be liable to a trespasser if

the trespasser fell in since the landlord had failed to take

appropriate protective measures.

Most of the calls we get from clients are about injuries

that occur in or around swimming pools and fitness

centers, likely since they are often the most frequently

used amenities. Heavier use increases the wear and tear

on the equipment, and the sheer number of people

continued on page 3

Repairs By Vendors And Fair Housing

Liability continued from page 1

we’re doing all we can.” In reality, it takes almost no evidence

for a tenant to file a Fair Housing Discrimination

Complaint.

The resident is claiming that because of their race

or religion, you have intentionally not responded to their

maintenance request

in a timely manner.

“But we have!”

you think. Your

maintenance tech

looked at the issue,

you contacted your

vendor partner, and

have an appointment

on record to get

the repair completed all within the week of the request.

Unfortunately, over three months have passed since the

original appointment was made and postponed and no

resolution has taken place. A Judge may easily find in favor

of the resident if this is all of the evidence presented.

However, there are steps you can take to protect yourself

against discrimination allegations.

First, when the appointment was pushed from its

original date, you should have immediately contacted other

roofing vendors to get quotes and check their availability.

In the best-case scenario, you find a highly-recommended

vendor who is available to fix the issue relatively

quickly and the entire mess is resolved. On the other

hand, if you call several other roofing companies and they

all say the same thing, “we’re slammed with all of these

hail damage requests, it’s going to be at least a month and

a half before we can get to your issue,” you have evidence

to support your claim that there was nothing that you

could have done to repair the roof more quickly. Unfortunately,

this probably won’t stop the resident from filing

the Fair Housing complaint, but it will give us arguments

for your defense.

Second, if you know it is going to take an unusually

long time

to respond to a

request, follow up

with the resident

on the progress.

Even if there is no

news, it is important

to let the

resident know that

you haven’t forgotten

about the problem and you are addressing it as quickly

as possible. If you wait for the resident to approach you,

they have already reached the point that waiting for the

continued on page 3

Landlord News AUGUST 2018 Page 2

HOW YOU CAN REDUCE POTENTIAL DAMAGE

CLAIMS FROM AMENITIES continued from page 2

increases the likelihood that an accident can happen. In

maintaining these amenities, the landlord should use the

most restrictive duty of care, even if some of the people

using the amenities are guests of the residents.

Because landlords owe the highest duty of care to

tenants under the PLA and tenants use amenities, landlords

need to be aware of any potential dangers associated

with amenities so that they can take reasonable and timely

action to remove dangers. First and foremost, landlords

need to routinely inspect every amenity, and test machinery

and equipment. To defend in court by demonstrating

that you acted with prudence, you should keep logs

of inspections with descriptions. Inspections mean both

routine as well as the more thorough quarterly, semiannual,

or annual inspections. If an amenity is closed

for the season (e.g. the pool), it should always undergo a

thorough inspection before it re-opens.

When and where appropriate, landlords should

post safety signs such

as “No Lifeguard on

Duty” or Behavioral

Rules, such as no running,

no diving, no

glass, etc. The onsite

team should be trained

to enforce rules and

they should enforce

those rules. If you receive

a complaint regarding the amenity, address it timely.

If you receive notice that the free weight rack is broken,

you should fix it as soon as reasonably possible. Until it

is fixed, you should post “DO NOT USE” or another appropriate

sign. Depending on the situation, you should

consider closing the fitness center until the situation is

remedied.

Under the PLA, if you do not repair promptly,

and someone uses the free weight rack and breaks their

toe because the weights fell, you could be held liable. If

the required maintenance or a repair makes an amenity

dangerous, then close down the amenity immediately

until it is repaired. For example, if the pH in your pool

is too low, this can cause skin and eye irritation. If you

cannot get the pH in you pool balanced correctly quickly,

you may need to shut the pool down for a few hours until

the pH can be balanced.

The trend is for landlords to offer more and

more amenities. Some amenities allow third-party vendors

to provide rental bicycles or paddle-boats. These

new amenities come with new challenges under the PLA.

Many landlords wrongly assume that they are free of liability

because the vendor is supplying the equipment.

continued on page 4

Repairs By Vendors And Fair Housing

Liability continued from page 2

repair has become unacceptable to them. A small reminder

every week or

two lends a lot of patience

to the resident

because they feel like

you are on the same

side throughout this

process. In the roof

leak/ceiling water stain

situation, it would be

an excellent idea to

send a maintenance

tech to check on the stain and drain any pooling water to

avoid a larger catastrophe.

If you send a maintenance technician twice per

month to check on the water stain and make diligent efforts

to contain the damage while waiting for the vendor

to make the repairs you should record these visits. It

proves that you did not ignore the problem and is great

evidence when defending against a discrimination complaint.

Finally, if you suspect the resident may file a Fair

Housing discrimination complaint or other lawsuit, such

as a breach Warranty of Habitability, you may want to sit

down with the resident to determine alternative courses

of action other than insisting on just waiting for the

repair to be made. Consider the likelihood of them filing

the complaint or lawsuit. If you think it is a high chance

or if they have threatened to do so, it may be the better

business decision to offer to let them out of their lease

or move them into another unit. Speak with one of the

THS attorneys about your specific situation sooner than

later. But even if you

have strong evidence

to defend your case, it

may be more economical

to avoid the whole

situation and release

the resident from their

lease than to win the

case.

Some repairs are going to take longer than residents

find acceptable and it may be no fault of yours or

your vendors’. As long as you can prove that you tried

your best to resolve the request in a timely fashion and

made diligent efforts to maintain the problem until a permanent

repair could be made, you will have a strong case

to defend against a Fair Housing complaint. However, a

little conversation goes a long way and reaching a compromise

before the situation escalates can save a lot of time

and money before you have to have one of our attorneys

sit down in mediation to settle on that same compromise.

Landlord News AUGUST 2018 Page 3

HOW YOU CAN REDUCE POTENTIAL DAMAGE CLAIMS

FROM AMENITIES continued from page 3

Under the PLA, even if the vendor provides the equipment,

the landlord is still potentially responsible if

the Tenant gets hurt while using the equipment on the

landlord’s property. Thus, if the bicycles are not properly

maintained by the vendor, the tenant can sue both the

vendor and you if the tenant is hurt because the bicycle

was not properly maintained. A landlord would also be liable

under the PLA if the tenant crashed while riding the

bike because your parking lot has a big pothole.

But what about using tenant releases and liability

waivers? These will

protect the landlord,

right? While

it certainly prudent

business practice

to use releases (liability

waivers) in

both your lease and

in connection with

any third-party vendor amenity, the release will not in

most cases absolve the landlord or the vendor of liability.

Under Colorado law, a tenant can never waive liability if

the landlord is at fault.

Despite this fact, because releases serve several

purposes, we recommend using releases. The release puts

the tenant on notice that they could get injured during

the activity and discourage tenants from bringing a

lawsuit. The tenant might read the release signed to use

the bicycles and conclude he can’t sue. If you do allow a

vendor to provide equipment or other services in connection

with an amenity, we strongly recommend getting

an indemnification agreement from the vendor to reduce

your potential legal exposure. An indemnity agreement

requires the vendor to reimburse you for all damages,

costs, expenses, and

attorneys’ fees if you

get sued because a

tenant was hurt using

an amenity that

a vendor provides. To

further reduce liability

related risks,

we also encourage

you to make sure

the vendor is properly maintaining the equipment, that

the vendor is properly insured, and that the vendor has

financial strength (isn’t a shell company).

In addition to legal liability risks associated with

amenities under the PLA, landlord should be aware of the

law of attractive nuisance. What is an attractive nuisance?

An attractive nuisance is something on the property, such

continued on page 5

Landlord News AUGUST 2018 Page 4

IMPORTANT THS AUGUST DATES

AUGUST 15TH WEBINAR WEDNESDAY

SUBJECT TBD

9:00 a.m. – 10:00 a.m. Online

AUGUST 16TH Basic Fair Housing Workshop

THS Lower Level Conference Room

3600 So. Yosemite St.

Denver, CO

9:00 a.m. – Noon

AUGUST 21ST AASC Basic Fair Housing Workshop

545 E. Pikes Peak Ave., Ste. 105

Colorado Sprigs, CO

1:00 p.m. – 4:00 p.m.

AUGUST 21 & 23 NO El PASO COURT

SEPTEMBER 3rd LABOR DAY HOLIDAY

ALL COURTS CLOSED

THS CLOSED

The following web pages have

been moved from the

“Evictions” menu to the

“Client Information” menu

on the THS website Home Page:

Fair Housing Documents

Lease Documents

General Documents

HOW YOU CAN REDUCE POTENTIAL DAMAGE

CLAIMS FROM AMENITIES continued from page 4

as a pool, that attracts a child’s attention, i.e. something

that children commonly like to use or explore. Under the

law of attractive nuisance, the landowner must take reasonable

steps to prevent or protect children from getting

hurt by the attractive nuisance. Reasonable steps usually

means prohibiting access by children through fencing or

locked entryways. Thus, if you have a pool, to avoid liability,

you must make

sure access is restricted,

either through a fence

or a locked entryway. If

you provide bicycles for

your tenants to rent,

make sure the bicycles

are locked and not removable

without proper

access. In addition to providing those barriers, make sure

those barriers are maintained. Unlike the PLA, there are

no levels of classification. It applies to all children under

the age of 14, regardless of whether they are authorized

be on the property. Thus, under the law of attractive

nuisance, a landlord would be liable if a trespassing child

drowned in the pool because access was not controlled.

So how do landlords protect against these potential

risks? The first line of defense is to have good lease

language. Indemnification clauses, subrogation waivers

and liability disclaimers are beneficial in curbing some

of these unwanted lawsuits. However, just like releases,

you can never waive a landlord’s duty of care, even if it is

in a lease. If someone is hurt at the property due to the

landlord’s actions or inactions, these lease provisions are

not likely to successfully avoid liability. But again, they

serve as a powerful first deterrent. Strong lease language

discourages many tenants from bringing lawsuits.

The second line of defense is using signage when

and where appropriate. Having warning signs up in the

fitness room or at the pool, puts tenants on notice of the

potential risks of harm when using that particular amenity.

Like lease language, signs do not protect you from

someone filing a lawsuit, but it does set expectations for

the tenants and puts them on notice of the dangers. Signs

like, “Beware Danger”, “Keep Out” or “No Trespassing”

are beneficial in protecting yourself from a trespass or attractive

nuisance case.

Insurance is a third line of defense. Insurance

should be deployed on two fronts. Landlords obviously

should carry appropriate insurance. Landlords should

also require tenants to have appropriate insurance as

well. However, many landlords only require tenants to

carry liability insurance which only protects landlords

from injury claims caused by the tenant who caused the

problem. Even if you have insurance and require tenants

to carry insurance, insurance carriers might resist paying

by declaring the damage event is not covered. Landlords

should be aware of subrogation issues in general, and

specifically require tenants

to waive subrogation.

This means if the

tenant is injured, and

the tenant’s insurance

company pays out,

the tenant’s insurance

company can’t turn

around and sue the landlord based on an allegation that

the tenant was damaged due to landlord’s fault.

Since you cannot count a hundred percent on

lease language, signage, and insurance to avoid all liability,

you should be vigilant in maintaining and inspecting

amenities. Vigilance starts with comprehensive

maintenance polices. Essential to any comprehensive

maintenance policy is lease language requiring tenants to

promptly report any maintenance needs with the property

including any amenity. Maintenance polices should include

regular maintenance and inspections of the amenities,

including regular testing of equipment. If you know

that something needs to be repaired, address it quickly.

If you cannot fix it, then shut down the amenity until it

can be fixed. Following these guidelines should help with

preventing resident injuries and the potential lawsuits

that follow.

Landlord News AUGUST 2018 Page 5