ENTRY AND ACCESS ISSUES – IT’S ALL ABOUT YOUR LEASE

Clients regularly contact us with situations regarding entry and access issues. Entry issues involve notice, whether the tenant has a right to be present when you enter, emergencies, and tenants’ refusing entry. Access issues center around who has a right to access, and when you can bar access. In Colorado, a landlord’s right to re-enter a tenant’s unit is entirely governed by the lease. Your lease must specify when and under what circumstances you can enter. Similarly, without specific lease language, access related issues could become major problems. This month we will discuss some of the most common entry and access scenarios.

No Colorado law (statute) addresses a landlord’s right to re-enter leased property. A Colorado landlord’s re-entry rights are therefore controlled by common law (court decisions). The common law controlling a landlord’s right to enter a leased property is clear. Under common law, absent contractual rights, a landlord has no right to enter a tenant’s leased property for any reason during the lease term. At the commencement of a lease, the property is entirely under the tenant’s control and remains under the tenant’s control until the tenant vacates and surrenders possession of the property at the end of the lease. Based on the law, if a landlord wants to enter the leased property during the lease term, the right to enter must be agreed to by the tenant in the lease contract.

Since a landlord’s rights to enter a unit during the lease are entirely governed by the lease, re-entry rights should be broadly drafted in the lease. Like many lease issues, landlords believe broad equals more. Based on this belief, we see multiple leases that set forth a laundry list of circumstances when landlord may re-enter. Ironically, laundry list re-entry clauses often do not cover the re-entry situations where clients seek our assistance. To make sure you are covered, you do not need to list every circumstance in which you have a right to enter. Rather, the clause should give you a broad right, and list some of the most common reasons you would need to enter. For example, “Tenant shall allow Landlord access to the Premises and Landlord shall have the right to re-enter the Premises at all reasonable times for any legitimate or necessary purpose which Landlord determines in its sole discretion, including but not limited to, inspecting, providing necessary services, making necessary repairs or improvements, and showing the Premises to prospective residents or to other persons having a legitimate or necessary interest.”

Many re-entry situations involve the tenant insisting that they be present when the landlord enters their unit. Many tenants erroneously believe that they have a legal right to be present when a landlord enters their unit. Specifically, tenants believe that because of their right to quiet enjoyment, a landlord may not enter their unit without the tenant’s permission or unless they are present. Absent lease language, the tenant would be correct. However, if your lease gives you broad rights to re-enter at reasonable times, the tenant does not have to be present. To provide tenant service and promote good tenant relations, if feasible, most of our clients will honor a tenant’s request to be present when they enter. Additionally, to avoid disputes and further promote tenant relations, your lease should require that you leave written notice of any entry and the reason for such entry if the tenant is not present.

Other entry disputes center on notice, or more specifically, the lack of notice. Because they own the property, some landlords mistakenly believe that they can enter the property whenever they wish without giving notice to the tenant. On the other hand, tenants mistakenly believe that the landlord is always required to give notice before entering. The practical and legal reality is somewhere in between. Regardless of how broadly a lease is drafted, a tenant may have a legal claim for breach of quiet enjoyment or constructive eviction if a landlord is abusing re-entry rights, especially if consistently without notice, at unreasonable times, and with lack of legitimate purpose. To avoid these problems and to promote harmonious tenant relations, practical landlords should always give advance notice of intent to enter whenever possible. However, some circumstances make it impractical to provide the tenant notice. Two examples are emergencies and lease enforcement issues. If the unit is flooding, you have no time for notice you must enter immediately. If an unauthorized occupant is living at the property, notice of entry will make it more difficult to prove your case. You can cover the notice in your lease by simply stating that you can enter “with notice when practical, and without notice when impractical.”

We often tell clients that we couldn’t make up this situation if we tried. Believe it or not, some tenants try to bar entry by informing the landlord that they will exercise their rights under Colorado’s “Make My Day” law if staff enters the premises without his permission. Under Colorado Revised Statutes § 18-1-704.5, an occupant of a dwelling may invoke immunity from criminal prosecution if he can prove: 1) that an intruder made an unlawful entry into his dwelling, and 2) he had reasonable belief that the intruder had committed, or was intending to commit a crime against a person or property in the dwelling, and 3) he had reasonable belief that the intruder used, or “might” use, physical force against him in the dwelling, and 4) he actually used physical force against the intruder who made the unlawful entry. If you are entering a tenant’s unit for a lawful purpose as stated in the lease, the “Make My Day” statute does not apply. Regardless of your rights, you should never attempt to enter a unit when you have been threatened with violence. Serving a 3-day Demand for Compliance or Possession, or serve a Notice to Quit for prohibitions against threatening conduct should address this problem.

Entry and access situations frequently involve damage events and the need to repair. Some damage scenarios constitute emergencies while others do not. A water leak flooding the units is obviously an emergency. As discussed above, there is no time for notice. Your lease must give you the right to immediately enter to stop the leak. If entry is prevented because the tenant changed the locks, your lease should give you the right to break in, if necessary. If the tenant is present during an emergency but refusing access to deal with the emergency, you should contact local law enforcement and request a civil assist to require the tenant to allow your maintenance team or other vendors to enter the unit to make the emergency repairs.

If the repair is not an emergency and your tenant will not allow you access to remediate water, mold, pests, etc., although frustrating to wait, your legal remedy is to serve the tenant with a Demand for Compliance or Possession, i.e. let us in within 3 days to repair, or get out. If your tenant complies with the Demand for Compliance or Possession within 3 days by allowing you access, you cannot take legal action. However, if the tenant continues to refuse access after the 3 days have passed, it is considered a continued violation and you can move forward with an eviction as of the fourth day. If the tenant initially complies, but then refuses access again later, you can serve the tenant with a Notice to Quit for a Repeat Violation.

Like entry issues, addressing access issues in your lease will avoid a lot of headaches. One of the most common access situations results after the death of a sole resident. We find that many leases fall short in addressing potential issues. For example, most lease documents don’t allow the tenant to designate individuals to enter the unit. After a tenant death, a common scenario is for folks (relatives and non-relatives) to be suddenly popping out of the woodwork and wanting a key to the unit.

While it may seem practical to allow access to deal with the deceased tenant’s property, unless the deceased tenant gave written authority for the party to enter, you should never allow anyone access without proper authority. If a person doesn’t have a key and you allow access to them without a clear legal right or authority, you are exposing yourself to liability. Proper authority is the police, the coroner, the public administrator, or next of kin who have provided you with an Affidavit for the Collection of Personal Property. To avoid disputes and allegations regarding missing property, if you re-enter the unit prior to the time other persons take control over and remove the deceased’s property, you should never enter alone. Enter with two or more management personnel. Each entry should be carefully logged in the tenant’s file including date of entry, purpose, and who entered the unit.

One of the most common scenarios involving access that is not covered by most leases involves protective order scenarios. For example, a girlfriend and boyfriend are on the lease together. The girlfriend obtains a protective order (restraining order) against the boyfriend barring the boyfriend from the unit. The girlfriend comes to you, informs you that she fears for her life, and requests that you immediately change the locks. If this situation is addressed in your lease (Owner may deny any Tenant access to the Premises, including by changing the locks, if any court or legal order restrains or bars a Tenant from the Premises), then it is a non-issue. You lock out the restrained person. In this scenario, whether you have the right or not, we highly recommend you lock out the restrained tenant, and do not allow access (give him a key) unless he is accompanied by law enforcement. Our reasoning is that it would be better to face a lawsuit for wrongfully locking out the restrained tenant versus a wrongful death suit. Specifically, you will be sued for wrongful death or negligence if you don’t lock out the restrained individual, or you give the restrained person a key and as a result he kills or injures the other tenant.

Unauthorized occupants are another lock change (access) scenario. Your tenant moved out, but either allowed an unauthorized occupant in or the unauthorized occupant just took up residence. You are tempted to just change the locks because this unknown occupant is trespassing. Even though this unknown person is living in the unit without your permission, you are not permitted to change the locks. Colorado law is clear. Self-help evictions (changing the locks) died with the enactment of the 2008 Warranty of Habitability Act. During the drafting negotiations of this law, tenant’s rights advocates were concerned about landlords retaliating against tenants who complained about the condition of their unit. Specifically, they were concerned that landlords might resort to self-help and just lock the complaining tenant out. Thus, it became Colorado law that you may not remove any person by any means, including changing the locks, without a court order. You must first serve the unauthorized occupant with a 3-day Notice to Quit. If the person refuses to move out, you must go through eviction proceedings before changing the locks. Entry and access disputes with tenants certainly result in a lot of stress. Much of this stress can be avoided if your lease contains thorough and well-written re-entry and access provisions. Remember, when it comes to re-entry clauses, catchall language covers all bases. There will always be unforeseen reasons why you may need to enter a unit that are not specifically listed in your lease. If you can enter for any legitimate or necessary purpose, you eliminate a tenant’s ability to challenge your entry for a reason that is not specified in the list. Your lease should also cover the most frequent access scenarios discussed above. Finally, your onsite teams should be trained on common access scenarios. The onsite teams should know what to do if a tenant who has lost his key asks for access to a unit, when law enforcement wants to perform a welfare check, and especially on how deal with Protection Order scenarios. Many times, re-entry and access situations are time-sensitive, or the tenant will be attempting to force the urgency of the situation, and thus be pressuring your onsite team to make a quick decision. To prevent onsite teams from wrongfully entering or wrongfully allowing someone else to enter to an apartment, solid policies should be backed by regular training so they can handle these situations with confidence and consistency.

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