October 2018

Two New Catagories Added To Protected Class Designation
New 2018 Snow Removal Contracts Law Can Cause Legal Problems for Multi-Family Housing Providers

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Volume 19 • Issue 10 OCTOBER 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

TWO NEW CATAGORIES ADDED TO

PROTECTED CLASS DESIGNATION

The City of Boulder and properties in Denver

County (Denver) in Colorado have now expanded what is

considered a “protected class” for the purposes of discrimination

in housing, employment, and public accommodations.

In Denver,

starting January 1,

2019, it will be unlawful

for housing providers

to discriminate against

applicants or residents

based on their source

of income (SOI). In

the city of Boulder, the

ordinance has already

gone into effect as of

August 23, 2018. It prohibits housing providers from

discriminating against applicants and residents based on

their source of income as well as their immigration status

(IS).

This expansion will have major fair housing

implications on housing providers and can affect you

whether you have properties in those cities or not. So far

only Boulder and Denver have enacted ordinances, but

14 states and 65 cities across the US have similar laws,

which means there is a good chance Colorado, or even the

federal government as a whole, may enact the same antidiscrimination

laws based on SOI and/or IS.

This article goes over the basics of the new law,

ways to stay in compliance, and what the penalties are for

violators. Even if you don’t have properties in Denver

County or the City of Boulder, it’s important for you to

understand the implications of SOI and IS because even if

your local laws don’t ban SOI or IS discrimination, if you

deny applicants based on their SOI or IS, you could be

inadvertently discriminating against one of the protected

classes defined by your local, state, and/or federal laws.

For example, refusing to accept applicants who receive

disability benefits could trigger a fair housing violation

based on disability. Likewise, falsely representing to an

continued on page 2

NEW 2018 Snow Removal

Contracts Law CAN CAUSE

LEGAL PROBLEMS FOR MULT IFAMILY

HOUSING PROVIDERS

When the weather turns colder, accidents are

likely to increase on rental properties, due to snow

and ice. Many property managers utilize the service of

third-party vendors to assist in removing snow and ice

from their property to protect residents. The legislature

passed a law (leg.colorado.gov/sites/default/

files/documents/2018A/bills/2018a_062_signed.

pdf) that provides

more protection to

the snow removal

company, and less

protections for the

customers of those

snow removal vendors.

If you want to

review the entire law, click on the link in this paragraph.

Essentially, this new law puts limits on the type

of language an owner or property manager can utilize in

a vendor contract. The law prohibits clauses that allowed

snow removal customers to require vendors to indemnify

and protect customers from all lawsuits related to snow

removal. Indemnify is another way of saying that someone

is agreeing to pay the bill or paying the costs on behalf of

someone else. The new law prohibits broad indemnification

language. The new law impacts everyone that manages

real property and hires a snow removal vendor.

Let us take a look at how this may play out with

some fictional companies, in a hypothetical situation.

Management Co, manages Blackacre for the Owner.

Management Co wants to hire Snow Vendor to remove

snow and ice, when it snows more than 2 inches. Management

Co tells Snow Vendor, if you want to do work at

Blackacre, you have to sign off on our standard vendor

contract. The standard vendor contract contains indemnification

language that protects Management Co and

Owner, requiring the Snow Vendor to be financially responsible

for any damages or liability resulting from Snow

continued on page 2

TWO NEW CATAGORIES ADDED TO PROTECTED CLASS

DESIGNATION continued from page 1

undocumented applicant that a property is not available

based on the applicant’s IS could be construed as discriminating

against the applicant’s nationality.

Source of income means: where applicants and

residents get their

money or financial

support. The income

has to be verifiable,

which means legally

obtained. Examples of

verifiable income are

wages, inheritances,

grants, retirement

benefits, spousal support, child support, unemployment

benefits, veterans’ benefits, disability benefits, and

government or private assistance. This includes housing

assistance paid to or on behalf of renters such as section 8

housing choice vouchers.

Immigration status is an individuals’ classification

status related to citizenship, alienage, and residency. This

includes, but is not limited to: undocumented individuals,

lawful permanent

residents, asylees, refugees,

nonimmigrants,

native born citizens,

naturalized citizens, or

individuals with temporary

protected status

(such as victims or witnesses to serious crimes).

There are exemptions in Denver if the landlord

owns and makes available for rent only a single unit of

housing; if the landlord owns and rents a duplex and occupies

one of the units; if the housing is restricted to the

elderly or disabled; religious organizations and associations;

or where it’s prohibited by law, zoning codes, or

pre-existing program requirements.

In Boulder, the exemptions are not as clear as

they are in Denver. Currently, the ordinance does not

prohibit an owner from limiting occupancy of a single

dwelling unit occupied by the owner as his or her residence;

an owner limiting occupancy of rooms or dwelling

units in buildings occupied by no more than two families

living independently if the owner occupies one such

room or dwelling as his or her residence; or an owner of

a housing facility devoted entirely to housing individuals

of one sex. As with Denver, it does not apply to religious/

denominational organizations, housing intended for the

disabled, or to comply with zoning and occupancy codes.

Discriminatory practices based on SOI and IS

may not be as obvious as it seems. It would be patently

discriminatory for a landlord to refuse to rent to an applicant

simply because they are on unemployment, receive

continued on page 3

NEW 2018 Snow Removal Contracts Law

continued from page 1

Vendor’s actions or inactions with regard to removing

snow and ice.

Under the old law, Snow Vendor would have

signed the standard vendor contract and proceeded to

do business with Blackacre. If there was a slip and fall at

Blackacre, and a personal injury attorney made a demand

on Management Co. Management Co. would then

notify their insurance, the Owner and the Snow Vendor.

Owner and Snow Vendor would contact their insurance.

Snow Vendor would have financial responsibility to defend

Management Company due to the broad indemnification

language in the contract.

Enter the new law, that makes such indemnification

contract provisions unenforceable.

Now Snow Vendor may sign Management Co’s

standard vendor contract, but the law will make those indemnification

clauses invalid. Management Co. will end

up hiring Snow Vendor without those indemnity protections.

The new law does not mean that Snow Vendor’s no

longer have responsibility for doing a good job, or that

they cannot be sued for doing a bad job. The new law

just changes the grounds on which a customer (Owner

or Management Co.) can pursue Snow Vendor. The

Snow Vendor could still be pursued for something that

they failed to perform, such as failing to remove snow or

ice in breach of contract. However, that is a very different

situation from Snow Vendor agreeing to defend their

customer from any claim for damages related to any act

by Snow Vendor. Under the new law, when Management

Co. receives the demand letter from the personal injury

attorney, they would still notify Snow Vendor along with

their own insurance

company.

However, Snow

Vendor would

not have a contractually

obligation

to indemnify

Management Co.

from any liability.

Snow Vendor

could have liability if they breached the contract, but they

would not be responsible to defend the Owner and Management

Co. in the lawsuit.

Interestingly enough, the new law does have a few

exceptions, where broad indemnification language is still

permitted in contracts. The restriction does not apply to

contracts for services with airports, public utilities, public

roads or contracts with public bodies. It also excepts

insurance policies. The insurance policy exception may

open the door for an Owner or Management Company

continued on page 3

Landlord News OCTOBER 2018 Page 2

TWO NEW CATAGORIES ADDED TO PROTECTED CLASS

DESIGNATION continued from page 2

social security benefits, or live entirely off the child support

they receive. But it can also be found if the landlord

discriminates in the terms, conditions, or privileges of

tenancy/occupancy, how landlords market their properties,

and what criteria landlords require for application

and tenancy. In order to be on the right side of the law,

there are three important things rules to remember.

First, you should be careful how you advertise

or promote your

properties. Gone are

the days of a blanket

disclaimer “Section

8 Not Accepted.” If

you have properties

located in Boulder

or Denver, you can

no longer refuse to

accept housing assistance.

Therefore, if you receive online or phone inquiries

as to whether your community accepts Section 8 vouchers,

your answer should be yes. If you disseminate advertising

that indicates a preference or limitation based on an

applicant’s source of income, you could not only catch

the attention of fair housing enforcement organizations

(AKA testers), you could subject your community to a fair

housing complaint filed against you by every prospective

tenant on housing assistance who was deterred from applying

due to your discriminatory advertising.

Second, you should apply the same screening

policies for applicants regardless of SOI or IS. Your company’s

standard procedure should be utilized to ensure

that all applicants and prospects are treated the same

across the board. Be consistent in applying your screening

criteria including credit history, rental history, and criminal

background. It is

no longer permissible

to ask that applicants

provide proof of lawful

status in the country.

You can, however, ask

for identifying information

so that you

can obtain criminal,

rental, and credit reports as long as you ask the same of all

applicants. You should not impose any additional steps on

someone simply because they do not have a social security

card. However, if they cannot provide information to

meet rental criteria, that would be a nondiscriminatory

reason for denying application.

Moreover, SOI laws ban discrimination against

applicants because of where they get their income, not the

continued on page 4

NEW 2018 Snow Removal Contracts Law

continued from page 2

to require that they be listed as an additional insured on a

Vendor’s insurance.

It is fairly common for any slip and fall claim to

be handed over to an insurance company for both Owner

and Management Co. to handle. That will not change

under the new law. What changes is how the Owner and

Management Co. can defend against the lawsuit. Slip and

fall lawsuits related to snow will continue in Colorado,

but the nature of the legal fight will change. Management

companies can continue the best practice of being diligent

about hiring responsible and insured Snow Vendors,

documenting the work performed, and keeping good

records of the snow removal efforts undertaken.

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IMPORTANT THS OCTOBER DATES

OCTOBER 8TH ALL COURTS CLOSED

EXCEPT DENVER

COLUMBUS DAY HOLIDAY

OCTOBER 10th AASC Evictions Workshop

545 E Pikes Peak Ave., Ste 105

Colorado Springs, CO

1:00 p.m. – 4:00 p.m.

October 12th South Client Lunch

Dave & Busters

2000 S. Colorado Blvd

Denver, CO

11:30 a.m. – 1:00 p.m.

OCTOBER 13th AAMD CHILI COOKOFF

Redi Carpet Warehouse

15100 E. 4oth Ave. Unit A

Denver, CO

11:00 a.m. – 3:00 p.m.

OCTOBER 17th NO DOUGLAS COUNTY COURTS

OCTOBER 17th WEBINAR WEDNESDAY

COMBO CLIENT BEST PRACTICES

9:00 a.m. – 10:00 a.m. Online

OCTOBER 25th Basic Fair HousingWorkshop

THS Lower Conference Center

3600 S. Yosemite Street

Denver, CO

9:00 a.m. – Noon

Landlord News OCTOBER 2018 Page 3

TWO NEW CATAGORIES ADDED TO PROTECTED CLASS

DESIGNATION continued from page 3

amount of their income. You may still ask an applicant

about their income but not for the purpose of imposing

different screening policies and procedures based on that

information. Communities may require that all applicants

demonstrate an ability to pay their rent, such as satisfying

minimum income requirements. If you require that

an applicants’ income be two or three times the monthly

rent, then the source of that income cannot be grounds

for a denial. For example, if you’re screening an applicant

with a housing choice voucher, either consider

the amount of the voucher as income towards the entire

amount of rent or you can use your standard formula to

determine eligibility based on the tenant’s portion of the

rent, the amount not covered by the voucher.

Third, follow standard procedures and policies

of tenancy regardless

of SOI or IS.

When someone

has been approved

for tenancy and

moves into your

community, all

residents should

be treated equally in the terms, conditions, and privileges

of tenancy regardless of their SOI or IS. Residents

should move into the available unit that was advertised or

toured when applying for tenancy. Placing all residents in

a particular section of the community who have similar

SOI or IS classifications would be unlawful steering. It

would also be a discriminatory practice to refuse to service

a residents’ unit or put them at the bottom of the list due

to their SOI or IS.

If you find yourself on the receiving end of a

discrimination complaint based on SOI or IS, it is a

good thing you’re not located in Washington, D.C. In

November 2017, a landlord D.C. landlord was ordered

to pay $125,000

in attorneys’ fees,

costs, and damages

to settle a fair housing

case alleging that

the landlord refused

to accept Section 8

vouchers as lawful

income. He was also ordered to affirmatively market units

to voucher holders by providing timely vacancy information

to a list of service providers who assist voucher

holders in locating and securing housing as well as hold

open for 30 days any units for which a voucher holder was

the first applicant to allow sufficient time for processing

through the local housing authority.

In Denver, enforcement of the new law falls on

the tenants to bring the complaints. Complaints can be

made to the city’s agency for human rights and community

relations and must be filed within 180 days of the

discriminatory practice. Landlords will have 30 days to

respond and can request an informal administrative hearing

before the agency. The agency will have up to 60 days

to investigate and conduct the informal hearing, if one

was requested. If discrimination is found, the landlord

will have 30 days

to remediate with

orders which may

include making the

unit or a comparable

one available and/or

cease the discriminatory

practice. If the

landlord fails to comply with the agency directive, he or

she can be assessed a fine of no more than $5,000 which

may be paid to the complainant (tenant).

In Boulder, tenants have one year to file complaints

to the city manager. The city manager may attempt

to negotiate a settlement prior to an investigation. If after

an investigation, the city manager finds there is probable

cause to believe discrimination has occurred, the city

manager can order a conciliation agreement and order

that the violation be eliminated and the complainant

(tenant) be made whole to the greatest extent practicable

including making the unit or a comparable unit available

or actual damages. There can also be judicial enforcement

of the new ordinance, not just an administrative process.

The city manager may file a criminal complaint in the

municipal court seeking imposition of criminal penalties

which include a fine of not more than $1,000, incarceration

for not more than 90 days, or both.

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Landlord News OCTOBER 2018 Page 4

Landlord News OCTOBER 2018 Page 5

AAMD Chili Cook-Off

October 13th 11:00 a.m – 3:00 p.m.

Redi Carpet Warehouse

15100 E. 40th Ave Unit A Aurora

Don’t Miss Out On The Fun!

S t o p B y t h e T H S B o o t h

F o r C h i l i A n d A L o t M o r e