May 2017

Avoid Eviction Issues by Understanding Substantial Violations
Pool Rules Good Intentions Can Create Bad Results
AAMD Trade Show Presentation: Everything You Need to Know About ESAs
THS Releases New Substantial Violation Evaluation Tool

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Volume 18 • Issue 5

May 2017

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

AVOID EVICTION ISSUES

BY UNDERSTANDING

SUBSTANTIAL VIOLATIONS

Most landlords know that a substantial violation is the appropriate eviction notice when tenants engage in criminal conduct. However, we still see a lot of confusion surrounding substantial violations. Many landlords do not know there is both a statutory substantial violation, and a contractual substantial violation. We also see several recurring issues related to substantial violations. Problems include trying to move forward with substantial violations for compliance based behavior, and proof-related issues. To avoid problems, all landlords should understand the key aspects of substantial violations.

The first key, to understanding eviction notices, is to know the difference between an eviction compliance notice and an eviction notice to quit. A compliance notice gives the tenant the right to cure, i.e. do this within X number of days OR get out. In Colorado, the two compliance eviction notices are a Demand for Rent or Possession and a Demand for Compliance or Possession. On the other hand, a notice to quit does not give the tenant the right to cure, i.e. get out within X number of days (your right to possession is being terminated). A substantial violation is a notice to quit, and thus is frequently referred to as “Notice to Quit for Substantial Violation”.

The term “substantial violation” originated in the mid 1990s when the Colorado General Assembly created the statutory substantial violation by amending the eviction statute. The Colorado General Assembly created the statutory substantial violation in 1994 to address violent and antisocial criminal acts committed by tenants in rental properties. Because landlords cannot always be aware of the dangerous nature of certain tenants, until after they take possession of a property as a tenant, the Colorado General Assembly gave landlords the ability to

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POOL RULES GOOD INTENTIONS

CAN CREATE BAD RESULTS

With warmer weather comes the opening of pools along with client questions regarding appropriate pool rules and pool signs. When it comes to Pool issues there are few absolutes and pool rule issues for multi-family housing providers can be confusing, particularly when it comes to Fair Housing. Most, if not all, of the pool rules we see that violate the Fair Housing Act were not written to intentionally discriminate against a protected class although that became the unintended outcome. In fact, pool rules are usually written with the intention of creating a safe environment or preventing physical injury to residents. However, Fair Housing enforcement goes beyond the intent of the rule and examines the possible impact of the rule. According to HUD, as long as the effect is discriminatory, the rule will be regarded as discriminatory.

Many clients are surprised when we advise them that swimming pool rules can cause serious problems under the Federal Fair Housing Act. It only seems reasonable for a property manager to impose rules that regulate or limit access to a swimming pool, but some courts have held that rules that restrict or limit an access to a pool on the basis of age violate the Fair Housing Act’s prohibition against discrimination on the basis of familial status. In this age where lawsuits seem to be filed over everything, common sense is often the casualty. It is ironic that today, rules promulgated by a multi-family housing community for the purpose of risk management can inadvertently result in litigation– not over injury or drowning but over the rule itself on the grounds that it is discriminatory.

It is okay to set behavior rules for your pool, particularly for safety reasons, but make sure the rules

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AVOID EVICTION ISSUES BY UNDERSTANDING

SUBSTANTIAL VIOLATIONS

continued from page 1

immediately terminate a tenant’s right of possession with no right to cure if the tenant engaged in dangerous criminal behavior. The General Assembly wanted landlords to have a strong hand to evict criminals, who often resisted eviction for as long as possible on technicalities, while the criminals were infringing on or otherwise violating the rights of neighbors or co-tenants. In Colorado, every tenant lease prohibits (it is an implied covenant of every lease) a tenant from committing a statutory substantial violation as defined by Colorado Revised Statute § 13-40-107.5.

A statutory substantial violation must pass a two-part test. First, the egregious behavior by the tenant, guest, or invitee of the tenant must occur on or near the property. Second, the conduct must fall into at least one of four categories. The first three categories are simply stated, but can be subject to dispute. The conduct must endanger a person; willfully and substantially endanger the property of the landlord or anyone living on or near the premises; or constitutes a violent or drug-related felony.

The fourth category is more complicated. Specifically, the conduct must be a criminal act that carries a potential sentence of incarceration of 180 days or more, and has been declared a public nuisance under state or local ordinance. Few evictions are based on category four for two reasons. One, the criminal act at issue doesn’t provide for a six-month jail sentence. Two, even if the criminal act does carry a six-month or longer jail sentence, the crime at issue may not have been “declared a public nuisance”.

Statutory substantial violations fail for several common reasons. The number one reason is that the conduct did not occur on or near the property. Even if the tenant robbed a bank or committed murder, if the conduct didn’t take place on the property or near it, the conduct cannot meet the statutory test. A good example is the SWAT scenario. The police issue an arrest warrant for a tenant or occupant. The police or a SWAT team show up to arrest the person, and make a big public display in front of your other tenants. Unless the crimes that are the basis for the arrest warrant happened on the property, this is not a statutory substantial violation.

The most common scenarios that do not meet the statutory test are tenant verbal threats, annoying, or otherwise intimidating behavior. A tenant’s conduct may be aggressive, hostile, rude, outrageous, intimidating, threatening, or uncivilized, but the conduct does not

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POOL RULES GOOD INTENTIONS CAN CREATE

BAD RESULTS continued from page 1

don’t target a specific group, such as children. For example, instead of saying “Children may not run or engage in roughhousing at the pool,” say, “No one may run or engage in roughhousing at the pool.” It’s okay to ban disruptive, dangerous behavior as long as you ban everyone from doing it. ‘Adults only’ pools or swim time are almost certainly violations, in that such rules are based on age and not swimming ability and are viewed as discriminatory. According to court rulings, rules that restrict or single out children can be facially discriminatory.

Examples of some pool rules that courts have deemed unlawfully discriminatory include:

√ Children under the age of 18 are not allowed in the pool area any time unless accompanied by

their parents or legal guardians (children 15 years

of age can be certified Red Cross lifeguards and

demonstrates why this can be a discrimination issue

not a safety issue)

√ Adult only use of the pool after 6:30 p.m.

√ Adult only swimming between 5:30-7:30 pm

√ No Children in the pool area until 10:00 a.m.

√ Children must be potty

trained to use the pool

(you can devise rule a

requiring non-potty

trained children to use

waterproof pants

or diapers and not discriminate)

All of these rules could be rewritten to be more neutral and deemed non-discriminatory while still addressing

issues of safety, health and access.

Frequent Fair Housing Issues for apartment communities not specifically related to children or familial status discrimination concern the banning of wheelchairs and or service animals in the pool area. Obviously, items with wheels can be dangerous around pools. If you decide to ban such items, exclude wheelchairs from the ban. People who use wheelchairs need them to gain access to your pool, and if you ban wheelchairs from the pool area, you could be accused of discrimination based on disability. Instead, set a rule that says: “No bicycles, tricycles, scooters, skates, strollers, or carriages are allowed in the pool area.” It is okay to ban bicycles, scooters, and skates because they are not necessary for access to the pool, and because they create genuine safety risks. And it is okay to ban strollers and carriages because tenants with babies have other options, such as infant carriers, that they can use to bring their babies to the pool.

Pets can also be dangerous around pools. Pets may bother other tenants and cause safety and health

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Landlord News

Page 2

May 2017

AVOID EVICTION ISSUES BY UNDERSTANDING

SUBSTANTIAL VIOLATIONS

continued from page 2

automatically support evicting the tenant for a substantial violation. Thus, common threats such as “I’m going to sue the property into the ground, I’m going to get you fired, or I’m going to get you or make you pay”, without additional factors, are probably not statutory substantial violations.

Even threats of bodily injury may not constitute a statutory substantial violation. Threats of bodily injury can constitute a crime (assault) if the person threatened believes the individual has the present ability to carry out the threat, and that the individual making the threat is serious. The prime indicator of perceived threat is whether the police are contacted, and whether the police act. Thus, if an onsite team member is threatened, but the threat does not warrant contacting the police, or the police are called but do not feel the threat could be considered an assault, the individual probably should not be served with a substantial violation notice.

In most of the “verbal threat” cases we review, the better route is to serve a three-day Demand for Compliance or Possession (DCP) demanding that the behavior cease. If a threat is not a crime, the DCP is a stronger strategy in a verbal threat scenario. The tenant has one strike against him based on the initial threat. When the tenant causes another disturbance, or makes another threat, which is likely, you can then serve him with a Notice to Quit for Repeat Violation. Generally, demand for compliance cases are easier to prove than substantial violations.

If the conduct at issue doesn’t meet the statutory substantial violation test, you can’t evict the tenant unless the tenant’s conduct is a breach of a lease covenant that gives the landlord the right to terminate the tenant’s possession without a right to cure. A landlord’s rights to terminate a tenant’s possession rights (serve a notice to quit) are referred to as a contractual or lease substantial violation. The right to terminate isn’t based on Colorado statute, but rather on the lease contract. These rights are most frequently contained in an addendum usually called a “ Drug & Crime Free Addendum”. The goal of the

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POOL RULES GOOD INTENTIONS CAN CREATE

BAD RESULTS continued from page 2

concerns. But if you decide to ban pets, you cannot include guide, service, and companion animals in your ban, or you could be accused of discrimination based on disability. So, make sure your rule says that animals necessary to assist residents with disabilities are allowed in the pool area.

Put your Rules and Reasons for them in writing. Once you’ve created reasonable pool rules, post them in your community’s pool area, and include them in your community’s rules and regulations that all tenants receive. The latter is also a good place to explain the logic behind your rules. Tenants may be less likely to challenge your rules if they understand the reasoning behind them.

Instruct your staff to enforce the Pool Rules consistently. It’s very important that your staff enforces your pool rules consistently, and that they do not to make any exceptions. Exceptions can lead to trouble. When it comes to Swimming Pools and Fair Housing, consistency in enforcement of Pool Rules is a good defense. When in doubt about your Swimming Pool Rules and Fair Housing Compliance, have your rules reviewed by a THS attorney. Remember this is definitely a situation where playing it safe is a lot less expensive than having to be sorry. The maximum exposure to a property for a violation of the FHA can be anywhere from $10,000 to $50,000 in fines. A determination of a violation of the FHA can pave the way for the complainant to file a civil suit, seeking damages beyond fines. THS is always available to review your pool rules to ensure they are drafted in a way that addresses any of your concerns but also to make sure that your Swimming Pool Rules are FHA compliant.

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May 2017

Page 3

Landlord News

AVOID EVICTION ISSUES BY UNDERSTANDING

SUBSTANTIAL VIOLATIONS

continued from page 3

contractual substantial is to close the statutory substantial violation loopholes. In response to tenants winning statutory substantial violation cases based on technicalities, THS pioneered such language several years after the enactment of the substantial violation statute.

One of the biggest issues with contractual substantial violations is that the lease language (the Drug-Free & Crime-Free Addendum) expands the list of crimes, but fails to address the major limitation of the statutory substantial. Specifically, substantial violation conduct is still limited to occurring on or near the property. Since landlords want to be able to evict a tenant if they rob a bank, even if that bank is across town, your lease language must make criminal conduct (no matter where it takes place) a substantial violation.

Similarly, many leases do not expand the right to terminate the tenant’s possession rights without right to cure beyond traditional criminal conduct. Under Colorado law, landlords have the right to terminate a tenant’s possession even for conduct that may not be criminal. As discussed, threats generally do not meet the statutory substantial violation test. However, they can be addressed in your lease. For example, your lease could state “that criminal activity means any conduct set forth as criminal in this Addendum and specifically includes, but is not limited to any discrimination against, intimidation, or harassment of any person”.

The problem with pursuing a contractual substantial violation eviction is inconsistent court results. The law is clear in our opinion. Landlords and tenants have the right and freedom to agree that a landlord may terminate the tenant’s right of possession with no right to cure if the parties agree to this in the lease. However, some courts may still apply the statutory requirements to the facts. This means despite lease language, the court may decline to evict if the conduct does not qualify as a statutory substantial violation, especially if the lease language is not clear, or does not clearly apply to the situation. This is another reason why you should always have THS review and evaluate substantial violation scenarios.

Regardless of whether you are trying to evict on a statutory substantial violation or a contractual substantial violation, you face similar challenges in both types

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May 2017

Page 4

Landlord News

AAMD TRADE SHOW PRESENTATION:

EVERYTHING YOU NEED TO KNOW ABOUT ESAs

THS Senior Managing Partner, Mark Tschetter’s, presentation at the AAMD 2017 Trade Show and Education Confernence focuses on one of the most frustrating issues faced in the Multifamily Housing Industry, Emotional Support Animal (ESA) requests.

Mark will address questions like: “What is an ESA & how is it different than a service animal?” “How does someone qualify for an ESA?” “What options does my property/company have when creating an ESA request policy?” and many more of the complex problems and solutions in dealing with ESA’s . Mark will also answer questions from the audience. If you are interested and plan on attending this workshop, you can brush up on ESAs by reading Mark’s previous articles in the September 2016, July 2016, October 2015, September 2014, August 2014, and July 2014 newsletters. (As you see, this has been and continues to be an important and frustrating issue in the multi-family housing industry).

Mark’s class on ESA’s will be 9:30 am- 11:00am. To attend, you must be a member of the AAMD, purchase a ticket to the trade show and register for the class through the AAMD. For ticket information, please visit the event registration page at tinyurl.com/AAMDTradeShow2017 or call the AAMD at 303-329-3300.

AVOID EVICTION ISSUES BY UNDERSTANDING

SUBSTANTIAL VIOLATIONS

continued from page 4

of cases. Since any type of substantial violation is almost always based on criminal conduct, courts can be reluctant to evict unless somebody was arrested or charged with a crime. Thus, any substantial violation case that does not involve an arrest or criminal charges should be thoroughly evaluated before a notice is served. In one case, a tenant emptied two ten-round ammunition magazines into another tenant’s dog, but the court found no crime because the tenant wasn’t charged.

As with any non-monetary based eviction, proof is always a key issue in any type of substantial violation case. Frequently, landlords may serve substantial violation notices based on police involvement thinking that the police report will contain the necessary proof to evict. Then the report either doesn’t contain the proof the landlord thought would be there, or the landlord can’t obtain the police report. If you are going to rely on a police report, you should know what is in the report before proceeding.

In addition to the police report, you must know whether the police will testify. The police must testify if the case is contested. You can’t just rely on the police report to prove the case because the police report is hearsay. Similarly, if other witnesses (other tenants) are needed to prove the case, you must know in advance what they are going to say, but more importantly, that they are willing to testify. You can’t just assume, since they witnessed the substantial violation, that they will be helpful or that they are willing to testify.

If the tenant’s conduct isn’t a substantial violation, you should always serve a demand for compliance. If you serve a substantial violation when you should have served the tenant with a demand for compliance or possession, you are only making it more difficult to evict the tenant. The most common scenario (verbal threats) illustrates why serving a demand for compliance is the better option.

The tenant threatens the manager (“I’m going to get you”). A substantial violation is served, but the police are not contacted, the tenant is not arrested, and the tenant is not charged. The case can’t be won, and thus goes nowhere. Two weeks later, the tenant is at it again, and makes more verbal threats. At this point, the only option is to serve the tenant with a demand for compliance or possession. However, the tenant now gets an opportunity to comply, and if the tenant complies, the tenant cannot be evicted. When the tenant originally threatened the manager, if the manager served a demand for compliance (rather than a substantial violation notice), the manager could have served the tenant with a Notice to Quit for a Repeat Violation the second time the tenant threatened the manager.

We get it. Tenants do outrageous things. Tenants can make you mad, upset, and drive out other good tenants. Emotions frequently run high in substantial violation scenarios because the onsite team legitimately feels threatened or intimidated, and the regional wants to back their team. Given the problems the tenant is causing, you just want the tenant out. Because the tenant has no right to cure, out of sheer frustration, you may erroneously deploy the nuclear option by serving a substantial violation notice. However, it does not serve your purpose to launch a nuke that is a dud. The best route may be to serve a demand for compliance.stat

The best part in dealing with frustrating substantial violation scenarios is that you do not have to go it alone. We are always here for you. We will help you evaluate every substantial violation scenario. Just call or send an email to Situations@THSLAWFIRM.COM with your substantial violation situation before you serve any notices. To better assist you, THS has developed an online Substantial Violation Evaluation Form. The form is designed to quickly compile and evaluate the information necessary for us to determine whether the best strategic move is to serve a substantial violation notice or a demand for compliance or possession.

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Landlord News

Page 5

May 2017

May 2017

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Landlord News

THS RELEASES NEW

Substantial Violation Evaluation Tool

At THS, we constantly strive to improve our client service. As discussed in this month’s newsletter article, substantial violation evictions pose challenges.

To quickly and thoroughly help you evaluate substantial violation scenarios, THS has developed an online questionnaire designed to collect all necessary information from you about the specific incident(s) that are the basis for a potential substantial violation eviction.

To get started, simply call or email us to let us know that you have a substantial violation situation. You don’t have to provide any further details. When you inform us that you may have cause to serve or file a Notice to Quit for Substantial Violation, a situation will be created. An Attorney or the Situation Manager will email you the situation number and a link to the questionnaire. Once you have completed the questionnaire an attorney will review your substantial violation situation and call you to discuss the best strategy to move.

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IMPORTANT THS MAY DATES

May 10th Evictions Workshop

THS Lower Conference Center 3600 S. Yosemite Street Denver, CO 8:30 a.m. – 12:00 p.m.

May 11th Subsidized Evictions Boot Camp

THS Lower Conference Center 3600 S. Yosemite Street Denver, CO 8:30 a.m. – 12:00 p.m.

May 11th Colorado Springs Client Luncheon

Ritz Grill

15 S. Tejon Street

Colorado Springs, CO

11:30 a. m. – 1:00 p.m.

May 12th South Client Lunch

Dave & Busters South Colorado Blvd

Denver, CO 11:15 a.m. – 1:00 p.m.

May 24th AAMD Annual Trade Show

The Denver Mart

451 E. 58th Ave

Denver, CO

7:30 a.m. – 5:00 p.m.

May 29th ALL COURTS CLOSED

MEMORIAL DAY HOLIDAY

THS CLOSED

MEMORIAL DAY HOLIDAY

May 31ST DOUGLAS COUNTY COURTS CLOSED