Apartment Trends Magazine August 2019 | Page 45

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