ASK THE LAWYER
New Laws Require Landlords
To Analyze Tenant Communication
Systems To Meet Legal Requirements
BY MARK TSCHETTER,
TSCHETTER HAMRICK SULZER
T
he Colorado General Assembly
passed multiple landlord tenant bills
this session. Two of these Bills (The
Warranty of Habitability or “WHB” and the
Bed Bug Bill or “BBB”) create signifi cant
ongoing communication requirements for
landlords. The WHB is eff ective August 2,
2019, and the BBB is eff ective January 1, 2020.
Current landlord tenant communication
systems probably do not allow landlords to
comply with these new legal requirements or
put landlords in the best position to defend
claims under these new laws. Accordingly,
landlords should analyze their tenant
communication systems to minimize liability
under the new laws. To assist in this analysis,
this month we explain the statutorily
required communications and the pros and
cons of potential communication solutions.
Under the 2019 WHB, tenants are
required to provide landlords written or
electronic notice of conditions that could
constitute a breach of the warranty of
habitability if not remedied. When the tenant
provides written or electronic notice of a
warranty of habitability issue, the landlord
becomes obligated to respond within
twenty-four hours. The landlord’s response
must indicate the landlord’s intentions
for remedying the condition, including
an estimate of when the remediation will
commence and when it will be completed.
Similar to the WHB, HB19-1328 or the
BBB mandates various communications
between tenants and landlords. First, the
BBB requires a tenant to promptly notify the
tenant’s landlord via written or electronic
notice when the tenant knows or reasonably
suspects that the tenant’s dwelling unit
contains bed bugs.
After receipt of notice, a landlord must
www.aamdhq.org
have the unit inspected by a qualifi ed
inspector within ninety-six hours.
Additionally, the law requires the landlord
to provide the tenant reasonable written
or electronic notice of landlord’s intent to
enter to inspect for bed bugs at least forty-
eight hours in advance. However, the lease
may provide for a diff erent minimum notice
time or waive the notice requirement. All
leases should waive the notice requirement in
the lease to avoid scheduling issues. Even if
notice is waived in the lease, landlords should
still provide at least some electronic notice
of inspection to prove landlord’s compliance,
as a courtesy to the tenant, and to avoid
scheduling confl icts with the tenant.
Both new laws refer to electronic notice.
Both the WHB and the BBB defi ne electronic
notice the same. “Electronic notice means
notice by electronic mail or an electronic
portal or management communications
system that is available to both a landlord
and a tenant.” However, landlords can’t force
tenants to provide electronic notice and
tenants could provide old fashioned written
notice either by hand delivery, mail, or
another courier.
Both new laws also specify where tenants
are to send electronic notice. “A tenant
who gives a landlord electronic notice of a
condition shall send such notice only to the
e-mail address, phone number, or electronic
portal specifi ed by the landlord in the rental
agreement for communications. In the
absence of such a provision in the rental
agreement, the tenant shall communicate
with the landlord in a manner that the
landlord has previously used to communicate
with the tenant. The tenant shall retain
suffi cient proof of delivery of the
electronic notice.”
The new laws do not mandate that
landlords designate where tenants send
statutory communications. However,
designating where communications are sent
is critical for landlords to comply with both
the WHB and the BBB, and to be able to
defend claims brought under both laws. If
landlords don’t designate, tenants could send
WHB or BBB communications to any number
of emails or phones. This creates problems.
The recipients of such communications may
not realize their importance or simply ignore
them all together (that’s maintenance’s job).
If these claims end up in court, a landlord
will have diffi culty assembling necessary
proof of required communications if they are
scattered on multiple mobile devices or over
multiple email accounts.
For these reasons, all landlords should
take advantage of the WHB and BBB
provisions by immediately changing their
leases to direct tenants where to send
electronic notice. As soon as your lease is
changed, you are covered going forward.
However, Landlords should consider
addressing the “GAP lease” issue under the
new laws. GAP leases are existing leases that
don’t expire until after August 2, 2019, the
eff ective date of the WHB (or in the case of
the BBB current leases that don’t expire until
after January 1, 2020).
Some GAP leases may direct tenants
where and how to communicate regarding
maintenance requests. However, GAP
leases do not contain language directing
tenants where to send WHB or BBB related
communications. As a result, tenants could
send statutory notices to a wide range of
communication channels making it diffi cult
for landlords to comply with these new laws.
Landlords can’t unilaterally alter current
AUGUST 2019
TRENDS | 43