December 2017

Dog Bites Are On The Rise – What You Need To Know
AIRbnb And The Multi-Family Housing Industry ‘The Saga Continues’

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Volume 18 • Issue 12

December 2017

Landlord

News

3600 South Yosemite Street Suite 828, Denver, Colorado 80237

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DOG BITES ARE ON THE RISE – WHAT YOU NEED TO KNOW

We get many dog bite situations. If a tenant’s dog bites another tenant or somebody else, a landlord is not automatically liable. In Colorado, strict liability for dog bites is limited to the dog owner, in cases of substantial bodily injury, and is limited to economic damages only. A landlord’s liability to a third party (another tenant or a tenant’s guest) for a dog bite is determined by the Colorado Premises Liability Act (PLA).

Colorado courts have held that the PLA is the exclusive remedy for injuries that occur on a landowner’s property. Before a landlord is liable under the PLA, the landlord must be a landowner. Third party fee managers probably just breathed a sigh of relief. However, their relief may be premature because the definition of “landowner” in the PLA is much broader than just a person who owns or holds title to the property. Specifically, landowner includes “without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.”

The expression “not limited to” means that courts will determine on a case by case basis whether a landlord is a landowner, and thus subject to liability for a tenant’s dog biting somebody. The key is control of the real estate. The reality of the rental industry is that most owners and managers have control of the property making them landowners. Specifically, owners and managers (authorized agents) are both in possession of real property, and are legally responsible for the condition and activities conducted on the property. Accordingly, many court decisions have found that owners and managers are landowners. Courts have only found landlords not to be landowners when at the start of the lease the landlords

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AIRBNB AND THE MULTI- FAMILY HOUSING INDUSTRY

‘THE SAGA CONTINUES’

Airbnb Is Now Locked In Legal Battle With

Mega-Landlord AIMCO

Although Airbnb has faced challenges and resistance from municipalities around the world since it launched nine years ago, companies that have been affected like hotels, travel agents and the like have primarily limited their unhappy and critical responses to complaining and negative publicity about the Airbnb business model of short-term sublet rentals. To date, Airbnb has faced a number of legal skirmishes with municipalities and multi-housing apartment providers in selected markets with varying results. But that may be changing as Denver based AIMCO (Apartment Investment & Management Co.) one of the largest residential landlords in the world has filed suit against Airbnb in California and recently revised its complaint in LA to sue on behalf of all owners of apartment complexes across the U.S. where landlords forbid sublets and whose units were illegally subletted through Airbnb. Last month AIMCO also sought a court order to prohibit Airbnb from doing business with its tenants until the case is decided.

This legal move by AIMCO could have a serious impact on the size of Airbnb’s inventory of short-term rentals if the judge makes a ruling that they are violating the law by helping renters break their lease agreements. In its filing, AIMCO makes the argument that Airbnb does a lot more than just provide a platform for property listings, and that it should be held to account as a broker of short-term rental agreements and a processor of payments. Airbnb counters this argument with the contention that federal law gives Internet Companies immunity for content others post on their sites.

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DOG BITES ARE ON THE RISE – WHAT YOU NEED TO KNOW

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turned over exclusive possession and control of the leased property to the tenants.

Because almost all landlords, whether owners or managers, will be found to be landowners under the PLA, liability turns on the status of the individual injured (the person bitten by the dog). The landlord’s duty to a dog bite victim depends on whether the person is a trespasser, licensee, or invitee. Landlords owe the highest duty to an invitee, and the lowest duty to a trespasser. The two most likely persons to sue a landlord for being bitten by a dog are a tenant and a tenant’s guest. Legally, a tenant is considered an “invitee”, and a tenant’s guest is considered a “licensee”.

Under the PLA, an invitee (another tenant) may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which the landowner actually knew or should have known. In layman’s terms, when a tenant’s dog bites another tenant, the landlord will be liable if the landlord failed to take action to protect against the danger of the dog biting another tenant based on information that the landlord knew or should have known.

Under the PLA, a licensee (a tenant guest) may recover damages for dog bites if the landowner unreasonably fails to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew, or for failing to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew. In layman’s terms, when a tenant’s dog bites a guest, the landlord will be liable if the landlord created the situation (allowed a tenant to have a dog knowing the dog had vicious tendencies), or if somehow knew the dog had vicious tendencies and failed to warn the guest.

If a landlord is liable to a guest for a dog bite, because the landlord breached its duty of care to the guest, the landlord would also be liable to any tenants bitten by the dog. The landlord would be liable to tenants as well as guests because the landlord can’t meet the higher duty owed to tenants (invitees) if the landlord didn’t meet the lower duty owed to guests (licensees). The duty to tenants is clearly higher because the landlord has a duty to protect tenants from danger (prevent or head off danger), but only must use reasonable care in dealing with actual dangers potentially impacting guests. The landlord’s duty

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AIRBNB AND THE MULTI- FAMILY HOUSING INDUSTRY

‘THE SAGA CONTINUES’ continued from page 1

Although this case has the potential to set a precedent on subleasing law that could hurt or help Airbnb and other short-term rental sites, it will probably not be the final word on legal challenges between apartment owners and Airbnb.

According to National Multifamily Housing Council spokesman Jim Lapides, “It’s a lively debate inside the industry and opinions within the apartment industry run the full gamut from a total embracing of home sharing to complete opposition.” A recent survey by the trade organization showed that 49 percent of renters under the age of 25 are interested in the opportunity to generate extra income through home-sharing, compared with 15 percent of renters older than 65. A fact that underscores the risk landlords could run in alienating millennials by going hard against Airbnb. On the other hand, many non-millennial renters have less than favorable attitudes about their communities being open to short-term transient renters who are not well screened and are frequently seen as a disruptive presence in their communities. These disruptions, in many instances, have led regular tenants to pack their bags and move. This attitude is reflected in an online review that a former AIMCO resident wrote that was included in their recent court filings. The resident stated “We will move out because it’s (their apartment community) inundated with Airbnb and it’s no longer a private residence but a hotel or a Motel 8 since Airbnb does not have quality guests.”

All apartment communities should determine their policy regarding short-term subletting on their properties and residents should be informed about your clearly defined policies and procedures in addressing this growing situation in the rental industry. The challenge of dealing with Airbnb or any other short-term sublet rentals on your property is only going to escalate with the increased popularity of Airbnb. There is an emerging and growing ‘underground short-term sublet industry’ within the apartment rental industry with some people leasing multiple apartments to make a living from short-term rentals. This is an established fact that all leasing agents should know. Because Airbnb listings are

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December 2017

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Landlord News

DOG BITES ARE ON THE RISE – WHAT YOU NEED TO KNOW

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to tenants is also higher because the landlord has a duty to protect not only against danger that the landlord actually knows of, but danger the landlord should have known about.

Prior to the PLA, a landlord was only liable for dog bites to tenants if the landlord knew of the dog’s vicious propensities. Unfortunately, the “should have known” standard broadens liability by leaving tenants free to argue that “it doesn’t matter if the landlord actually knew the dog was a real Kujo, the evidence is clear that the landlord should have known”. Given the legal standards, a landlord is less likely to be liable for guest dog bites. We don’t know any landlords that would create the dangerous situation by leasing to an individual if the landlord knew the tenant prospect had a dog with vicious tendencies. Assuming a landlord doesn’t lease to tenants with known vicious dogs, the landlord can only be liable to guests for failure to warn. Arguably, a landlord doesn’t even have to warn because people who rent have dogs and dogs sometimes bite (the danger is not unexpected).

Regardless, liability can and should be minimized by taking prompt action to remove any dog that has vicious tendencies. Accordingly, once a landlord has knowledge that a dog has vicious tendencies (has bitten somebody), the landlord must take action to remove the dog or risk liability to both tenants and guests under the PLA. However, even absent a dog bite, landlords should protect themselves by promptly and thoroughly investigating any information or incident that gives any indication that a dog might have vicious tendencies. For example, you should investigate if a tenant reports that a dog aggressively barked at him while straining on his leash and the owner had to hold the dog back. You should meet with the tenant who owns the dog, and ask if this is normal behavior, have there been other incidents, and does the dog have a history of vicious tendencies. Otherwise, if the dog bites another tenant, the tenant will argue based on what transpired, you “should have known” the dog was vicious, and you failed to take action.

If a dog has bitten a tenant, can you terminate the tenant’s lease? Probably not. Because a dog bite is not a statutory substantial violation, you do not have the right to terminate based on a three-day notice to quit for a substantial violation. Thus, unless your lease gives you the right to terminate for dog bites or animal (pet) violations,

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AIRBNB AND THE MULTI- FAMILY HOUSING INDUSTRY

‘THE SAGA CONTINUES’ continued from page 2 anonymous and hosts have become savvy to avoid detection of illegal sublets, it can be difficult if not impossible to link an Airbnb listing to a specific unit. Airbnb hasn’t been totally unresponsive to complaints by landlords and has started a “Friendly Buildings Program” that keeps owners abreast of the home-sharing activities on their property. However, according to AIMCO, the hitch is that the information is only available to landlords who allow subletting.

Airbnb and its copy-cat clone companies are not going away so you need to decide if this is an issue you want to deal with in your community or not, and determine how you are going to handle it.

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December 2017

Landlord News

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DOG BITES ARE ON THE RISE – WHAT YOU NEED TO KNOW

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you may not terminate the tenant’s lease. However, few leases, including the NAA Blue Moon Lease, give landlords the right to terminate for animal violations. Rather solid lease language provides the landlord with the right to insist that the tenant remove the dog who bit another person. Some leases provide that the tenant must remove immediately, and others give the tenant a certain amount of days. Based on this lease language, when a dog bite occurs, the landlord should serve a three-day Demand for Compliance or Possession. Specifically, the landlord should inform the tenant, pursuant to the lease, either remove the dog that bit another person, or get out. If the tenant fails to remove the dog within three days, landlord can proceed with an eviction.

Some leases give landlord the power to impose fines or penalties for animal related behavior that would include dog bites. For example, the language provides that the tenant is fined or penalized a monetary amount for each day that the tenant fails to remove the dog. We strongly advise against this type of language and using it to address a dog bite situation, or any animal behavior issue. Penalties or fines contained in contracts are not legally enforceable in Colorado. Furthermore, the mechanism of penalties or fines is not likely to be effective in either getting the tenant to move out or to remove the animal. When the tenant is unresponsive to this type of enforcement, the landlords only recourse is to evict. However, the eviction is now based on contract language (penalties or fines) that courts are not likely to enforce.

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Some landlords may rely on lease language that states the landlord is not liable for the acts of other tenants. This type of language is known as a waiver of liability or an exculpatory clause. Based on their reliance, landlords may not address dog bites as quickly or as consistently as they should. Relying on these clauses when it comes to known vicious animals, or any other known danger at your community would be a mistake. In enacting the PLA, the clear intent of the Colorado General Assembly was to make landowners accountable for their negligence. Based on this legislative historical backdrop, many courts have held that liability waivers that would shield landowners from PLA liability are unenforceable because they violate public policy.

From elevator encounters to run-ins in the common areas, aggressive dog behavior is increasing. Accordingly, clients have reported an increasing number of dog bites. Your lease must give you the right to promptly address a dog bite scenario. Effective lease language should give you the right to insist that the tenant remove offending animals at your sole discretion, including dogs, that are aggressive or that are disturbing other tenants. Your assistive animal addendum should also make it clear that you have the right to insist that the tenant remove any offending service or emotional support animal. If a dog has not bitten anyone but has been reported to be aggressive or vicious, you need to investigate because under the PLA you can be held liable for vicious dogs that you should have known about. The proper way to remove an offending animal is to serve a three-day demand for Compliance or Possession demanding that the tenant get rid of the animal, or move out.

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Landlord News

IMPORTANT THS DECEMBER DATES

December 15th THS CLOSED AT NOON

ANNUAL HOLIDAY LUNCH

December 25th ALL COURTS CLOSED

CHRISTMAS DAY HOLIDAY

THS CLOSED

CHRISTMAS DAY HOLIDAY

December 26th & NO JEFFERSON CO. COURT

December 28th

January 1st ALL COURTS CLOSED

NEW YEAR DAY HOLIDAY

THS CLOSED

NEW YEAR DAY HOLIDAY

December 2017

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Landlord News

The Tschetter Hamrick Sulzer

Team

Wants to say thank you

to all of our wonderful clients

and to wish you a

Happy Holiday Season!

and extend

Our Best Wishes for a

joyous and prosperous

New Year!