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.