New Domestic Violence Law Impacts Your Rights

The new domestic violence law became effective July 1, 2005. The new law grants domestic violence victims certain rights by amending Colorado Revised Statutes (C.R.S.) § 13-40-104, § 13-40-107.5, § 38-12-402. Generally, the new law grants domestic violence victims significantly more rights in defending eviction actions and terminating lease agreements, and creates new obligations for property managers.

WHAT IS DOMESTIC VIOLENCE AND ABUSE?

C.R.S. § 18-6-800.3 defines domestic violence as “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. ”˜Domestic violence’ also includes any other crime against a person or against property or any municipal ordinance violation against a person or against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” The statute further defines an intimate relationship as “a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.”

C.R.S. § 13-14-101 defines domestic abuse as “any act or threatened act of violence that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. ”˜Domestic abuse’ may also include any act or threatened act of violence against the minor children of either of the parties.”

The definition of domestic violence and domestic abuse is broad, and encompasses many types of relationships. Domestic violence or abuse occurs any time there is an act of violence or threat of violence between two people who are intimate or share the same residence. Therefore, the new law can even apply to roommates.

APPLICABILITY OF THE NEW LAWS

The new laws apply only to residential leases and renewals entered into July 1, 2005 or later, and do not apply to commercial leases or leases entered into before this date. The new law specifically gives rights to residents and lessees, but does not mention occupant rights. In addition, the new law does not apply to nonpayment of rent cases. It does apply to compliance cases, subsequent violation cases and substantial violation cases.

THE CONNECTION WITH EVICTIONS

Under C.R.S. § 13-40-104, an eviction action cannot be brought against a resident or lessee when he/she is the documented victim of domestic violence, and the basis for the eviction is related to or connected with the domestic violence incident. You cannot evict someone for being a victim of domestic violence or abuse, if you are basing his/her eviction on any breach of his/her lease which stems or flows from the domestic violence incident. For example, most leases provide that a resident and his/her guests shall refrain from making loud or boisterous noise, or any other objectionable behavior. Let’s say there is a domestic violence or abuse incident between resident and resident’s spouse resulting in a police call. The incident is extremely loud and disturbs the neighbors. You post the resident with demand for compliance or possession. Under the new law, the resident would not be found in violation of his/her lease if he/she could provide the landlord with a police report of the incident citing domestic violence or abuse or if the resident had obtained a valid protection order against the perpetrator.

Under C.R.S. § 13-40-107.5 (the substantial violation statute), the landlord shall not have a basis for possession under this section if resident or lessee is the victim of domestic violence or abuse, which domestic violence or abuse was the cause of or resulted in the alleged substantial violation and the incident has been documented by a police report or a valid protection order. For example, most leases have crime free addendums that provide that residents, occupants and guests agree not to engage in, permit or facilitate criminal activity on or near the property.  Under normal circumstances under a crime free drug free addendum, you can evict the resident if the resident, the resident’s guest or occupant gets arrested for any crime. Under the new law, if co-resident, or a guest or occupant gets arrested for domestic violence or abuse against the resident, that arrest cannot be used as a basis for an eviction against the resident.

Nothing in either statute prevents a landlord from seeking judgment against the resident or lessee who perpetrated the violence or abuse. As a practical matter, this portion of the statute is not helpful to you. Even if a judgment enters against the perpetrating resident, it would be very difficult to do a physical eviction on that resident. This is because the sheriff’s office would not do an eviction because the judgment was not against the entire property, and therefore the sheriff’s office would refuse to act on the writ of restitution.

However, it may prove to be helpful if the victim of the domestic violence or abuse is also a perpetrator himself or herself. The argument could potentially be made that the statutes allow for evictions on perpetrators, therefore even though they are victims of domestic violence or abuse, they would also be perpetrators and subject to an eviction under this portion of the statutes.

DOCUMENTATION AND LEASE TERMINATION

Residents must provide documentation of the domestic violence or abuse to invoke the protection of the new law. Only a police report or a valid civil or emergency protection order is acceptable documentation. If a resident documents the situation, a resident can terminate his/her rental or lease agreement if he/she notifies the landlord in writing that he/she is moving because he/she fears imminent danger for themselves or a child. If the documentation is a police report, the police must have issued the report within the prior sixty days of the request for termination. This time limitation prevents a resident from tucking a police report away for later use. The 60-day limitation does not explicitly apply to valid protection order. However, arguably the same 60-day limitation would apply but the lack of specific language is problematic.

This law could potentially give residents carte blanche to terminate their leases. Residents frequently allow violations or waive altogether protection orders when they reconcile with the abuser either temporarily or permanently. A resident could have a protection order against his/her spouse, reconcile, and then use the protection order as a way out of his/her lease. The potential arguments against residents using this “escape” route are that the resident has to be moving because he/she fears imminent danger and the protection order should be a valid enforceable protection order. Of course, litigating this issue will cost you more money and proving that someone is not in imminent danger may be difficult to prove, as would proving a protection order had been waived and therefore no longer valid. The statute itself states that the resident is not authorized to terminate his/her lease solely because he/she is a victim of domestic violence or abuse. However, we anticipate a wave, hopefully not a tidal wave, of residents who will try to use this law to terminate their leases, even if they are not in immediate danger of domestic violence or abuse. Our anticipation is based on the numerous calls that we have already received from clients dealing with resident requests to terminate their leases based on the new law.

The new law is also problematic because of the “lease break” fee it imposes on residents. Under the statute, if a resident invokes his/her right to break the lease, then the resident is responsible for one month’s rent following his/her vacating the property. The one-month’s rent is due and payable within ninety days after the resident has vacated the property. The statute does not specify the month that the resident owes. Residents might argue that they vacated in the middle of the month, so they only owe you through the middle of the next month instead of the full month’s rent. For example, if the rent is $500.00 per month and the resident moves out on the 7th of the previous month, the resident might argue that he/she only owes $112.90 for the next month because he/she would only owe for the seven days of the following month. It is our opinion that the resident would owe for the full following month’s rent because the legislature used the words “one month period,” not thirty days. Therefore, the argument could be made that he/she was implying a calendar month, not merely thirty days. However, you will only know how the Courts will interpret the statute at the time some rulings are issued.

The new law gives the resident ninety days to pay you the one-month’s rent owed as a “lease break” fee. The 90-day period is not equal to the 60-day security deposit accounting law. The security deposit statute gives you thirty to sixty days to return the security deposit and provide an accounting for the security deposit. The new statute does allow the landlord to retain the security deposit for one month’s rent, but only until the rent is paid or ninety days has past. You now have to keep track of the initial security deposit deadline, as well as the ninety-day deadline. If you initially kept the rent amount, but the resident paid the amount owed on the eighty-ninth day, then you would have to refund the portion of the security deposit you had retained for the rent, thereby potentially extending your liability for treble damages.

The new law severely complicates security deposit accounting. The statute does not specify a time period for the refund of any amounts withheld pursuant to the statute if the resident eventually pays the “one month’s rent.”

The statute only allows collection of the one month’s rent “if you have experienced and documented damages equal to at least one month’s rent as a result of the resident terminated due to domestic violence.” The statute overrides lease break fee provisions. The collective effect of all of these provisions is the creation of significant potential problems and liability over security deposit accounting. For these reasons, whenever you have a domestic violence situation, you will have to take great care not to run afoul of both the new law and the security deposit law. In these situations, when you generate the resident’s security deposit disposition report, you must be very careful in the language you choose to incorporate into the report. For those of you who automatically generate disposition reports and have lease break fees, you will have to make sure that your lease break fee is not being automatically generated on the security deposit report. You may want to consider incorporating language straight from the new statute into the disposition report, and should probably have an attorney review the letter before it is mailed out.

Finally, the current market value for security deposits is usually much lower than one month’s rent. Therefore, even if you retained the security deposit in lieu of the future month owed, it would not be enough to cover the total rent amount. Many times you simply never recover this money. Thus, the statute probably will ultimately have the effect of shifting at least some of the costs associated with domestic violence to you.

CONCLUSION

The new law is designed to help those who are unfortunately involved in domestic violence. This is a worthy goal. However, we are concerned that the new law will be abused by some residents to escape their rental responsibilities.  Only time will tell if our concern becomes reality. The new law does drastically change how you will need to close out resident accounts. Hopefully these situations will not arise frequently. However, when they do, you will need to be very aware of the law, and the additional deadlines and accounting requirements.

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