Questions & Answers Regarding The “standard Demand For Rent Or Possession
Q: What is the language that was “REMOVED” from the standard three day?
A: Pursuant to your lease ___ (check if applicable) if this demand is not paid within three days, an additional amount of $ __________________________ is due for attorneys’ fees and court cost.
Q: What prompted THS do send an email about this language?
A: Recently, an Arapahoe County Court Judge informed a THS attorney that in the future the Court may rule that the language constitutes a “waiver”. Specifically, the Judge stated that the language implied that the tenant had a right to pay the amount due even after the expiration of 3 days, if the tenant paid the attorneys’ fees and costs.
Q: Do I need to remove the language or alternatively use the new recommended THS 3 Day Demand for Rent or Possession?
A: THS strongly recommends that all clients remove the language, or use the new THS 3 Day Demand for Rent or Possession.
Q: What will happen if I don’t?
A: If you stick with the old 3 Day Demand for Rent or Possession (that has the attorneys’ fees language), the court could rule that your Rent Demand is defective, and dismiss your eviction case. This is especially possible in Arapahoe County (the county where a judge raised this issue), and especially in cases where the tenant claims that they offered the full amount after the expiration of the 3 days, including attorneys’ fees. Judges talk to each other, and thus it is likely that this Arapahoe County Judge will raise this issue with other judges in other counties.
Q: Can I still collect attorneys’ fees from my tenant?
A: Yes, when you serve a demand for rent or possession, and 3 days expires, you are under no legal obligation to accept the tenant’s money at that point. Thus, after 3 days, you may impose reasonable conditions for accepting the tenant’s money such as payment of your eviction fees. In short, you don’t have to accept the tenant’s offer of payment, but you can if the tenant is also willing to pay your attorneys’ fees or eviction fees.
Q: Can I add attorneys’ fees onto my Rent Demands?
A: No. We don’t recommend this. At the time you serve the demand, no attorneys’ fees are incurred or due. The language on the standard THS rent demand was conditionally, i.e. the attorneys’ fees were only due upon expiration of the three-day period. One court has now expressed an opinion that the court has an issue with this, thus the court is likely to have issues with any attempt to collect or reference attorneys’ fees on a three-day demand.
Q: Why was the language (about attorneys’ fees) added to the rent demand in the first place?
A: Primarily for two reasons. One, so you wouldn’t forget to collect any attorneys’ fees and costs incurred by you. Many clients were forgetting to collect attorneys’ fees incurred for eviction, as a condition of accepting the tenant’s payment after the expiration of 3 days (when you legally don’t have to accept the tenant’s payment). Two, to make it easy and avoid arguments with the tenant. “Look its right there that you must pay our attorneys’ fees.”
Q: How long has the attorneys’ fees language been in the Rent Demand?
A: For approximately 20 years.
Q: Given how long the attorneys’ fee language has been the standard 3 day demand for rent or possession, why is this just coming up now?
A: There is no clear answer to this. However, many new judges are challenging procedures or changing procedures in eviction cases that have been followed for decades.
Q: Do we need to do anything, other than remove the language, or use the new THS form?
A: YES. MAKE SURE YOUR ONSITE TEAMS KNOW TO COLLECT ATTORNEYS’ FEES IF YOU HAVE ALREADY FORWARDED YOUR RENT DEMANDS TO THS. Also, if your rent demands are generated automatically, out of OneSite or YARDI, the text in your forms or templates will need to be changed.
Hud And Justice Department Announce New Efforts To Ease Transition From Prison And Expand Opportunities For Jobs And Housing
Several changes have been proposed to the F-7 Use of Forms and are expected to be accepted by the Colorado Department of Regulatory Agencies. (DORA). To review and download the proposed amendments, click the link below. Tschetter Hamrick Sulzer will be implementing a document and form review program with the purpose of keeping our clients compliant under the new laws. To request a call to discuss with one of our attorneys how these changes will affect your company and register for the review program, complete our Call Request Form: CLICK HERE.Download Document
NMHC Guidance: Lead-Based Paint Renovation, Repair and Painting (RRP) Rule
Update: EPA Amends RRP Rule Effective July 6
The U.S. Environmental Protection Agency (EPA) has amended its Renovation, Repair and Painting rule. The new requirements go into effect on July 6, 2010. This memo outlines the changes of interest to apartment firms, which are largely in the area of recordkeeping and reporting requirements. The amendment (75 FR 24802) is available athttp://bit.ly/cyZdxr.
Resident Notification: Renovation firms (including property maintenance staff) are now required to provide owners and the occupants of a building being renovated with a copy of records demonstrating compliance with the RRP training and work practice requirements. This information must be delivered along with the final invoice for the renovation, or within 30 days of the completion of the renovation, whichever is earlier. This notification can be accomplished through the use of EPA’s “Sample Renovation Recordkeeping Checklist’’ (www.epa.gov/lead/pubs/samplechecklist.pdf). Firms may also develop their own forms or checklists as long as they include all of the required information.
For common area renovations, the renovation firm (or property maintenance staff) must provide the residents “of the affected housing units” with instructions on how to review or obtain this information from the renovation firm at no charge. These instructions must be included in the notice provided to each affected unit under 40 CFR 45.84(b)(2)(i) or on signs posted in the common areas under 40 CFR 745.84(b)(2)(ii). EPA further stipulates that this “information should be provided in a short, easily read checklist or other form.”
Cleaning Verification versus Clearance Testing: The RRP rule does not require clearance testing, but it does require cleaning verification once the work area has been cleaned up. Cleaning verification involves wiping horizontal surfaces with a moist cleaning cloth (i.e., a wet Swiffer) and comparing it to the EPA Cleaning Verification card. The wet cleaning cloth is then visually evaluated in comparison to an EPAprovided color sheet to determine whether the work area is clean. (See 40 CFR 745.85 or the “Clean Up and Verification” section of NAA/NMHC’s RRP White Paper for additional details.)
Under the revised RRP, if a renovation firm or property maintenance staff elect to use a laboratory analysis of dust wipes (i.e., dust clearance testing) instead of using the simple “Swiffer” cleaning verification test, then the lab test results must be provided to both the occupant of the unit that was tested and the owner of the building. Property owners must maintain these reports since they are required to be disclosed under Section 1018 to future occupants of the specific unit and/or at time of sale of the property.
With respect to renovations in common areas, EPA is also requiring property owners to make these records made available to residents “of the affected housing units” by providing individual notices or posted signs on how to review or obtain copies. (See Lead Disclosure Rule, 40 CFR part 745, subpart F.)
Worker Training: The amendment makes minor modifications to the certification, accreditation and state authorization process. Under the RRP rule, renovators are certified for a five-year period. EPA has stated that any worker certified prior to April 22, 2009 will have a full five years of certification beginning on April 22, 2009, the effective date of the rule. Currently, training providers (instructors) complete a 16-hour course. EPA now believes that training instructors need only complete an eight-hour renovator or dust sampling technician training instead of a 16-hour or longer abatement course. States seeking to develop their own worker certification program under the RRP rule have been granted an additional two years to demonstrate to EPA that they meet the requirements of the RRP rule.
Opt-Out: EPA has eliminated the original rule’s “opt-out” provision for owner-occupied single-family properties; however, this is not materially relevant to apartment firms.Download Document