Apartment Trends Magazine August 2019 | Page 47

with routine maintenance claims. Running a second pipeline may be difficult to establish and maintain. Vendor system limitations may be an issue. Onsite teams and management personnel are already asked to do more and more. Is it worth burdening them further by creating and maintaining a second pipeline? OK, your communication system is funneling statutory communications to where you have designated. Now you need to respond. The WHB’s requirement that landlords respond to tenant’s initial electronic communication within 24 hours presents difficult challenges. For example, how will landlords respond to a notice received at 10 p.m. on a Saturday or over a long holiday weekend? One solution would be to have someone constantly monitoring this communication channel so that they are in a position to respond. Theoretically, designating a separate communications channel for statutory communications would make monitoring easier because there should be far less communication traffic. Conversely, monitoring a communications pipeline that has both statutory and routine maintenance requests would appear to be a tall order, given the volume of traffic. Some clients plan to employ the auto response or an auto responder to respond to tenants’ statutory electronic notices. Many landlords have online portals run by the big outfits (such as YARDI and RealPage). These landlords will direct tenants to send statutory notices to these portals. These portals are capable of generating auto responses or automatic replies to the tenant when the tenant sends an electronic notice. Similarly, any email client can automatically respond to incoming emails. Like other solutions, the auto responder seems to have advantages and disadvantages. Consistently meeting the statutory requirement of responding within 24 hours appears to be the main advantage. However, how this will play out in court remains to be seen. Specifically, the statute requires the landlord’s response to indicate “the landlord’s intentions for remedying the condition, including an estimate of when the remediation will commence and when it will be completed.” A court may hold that an auto response does not comply with the statute because is not an estimate that applies to the tenant’s situation but just a generic statement. Unless your auto responder has artificial intelligence, the response language has to be programmed and will always be the same. For example, “We have received your service (maintenance request). We intend to remedy the situation. We estimate that work can commence within three days and will be completed within seven days.” In some situations, this may be fine. In other situations, the response may be way off the mark. For example, a flood would obviously require a more immediate response. The auto response may either under promise when immediate action is required, or over promise when the situation is going to take longer to address. The auto responder cannot differentiate between routine maintenance requests, WHB claims, and BBB claims. If you have a single communications channel (i.e. no designated statutory notice channel), you are now making promises regarding every single maintenance request and in particular when such requests will be completed. Under the WHB, landlord isn’t on the hook if the tenant caused the problem. However, an auto response will still promise to complete repairs within a certain time even when the tenant caused the problem. For these reasons discussed, landlords should at least consider having a second designated channel for statutory claims. The auto responder solution seems much more effective if deployed on a designated communications channel because it eliminates automatically making promises on routine maintenance issues. How¬ever, a second channel still has all of the potential issues discussed. Some clients have discussed a hybrid solution with us. Specifically, tenants are directed to the portal for all communications (WHB, BBB, and routine maintenance requests). When the tenant arrives at the portal, the portal asks the tenant if this is a statutory request under the WHB or BBB. This solution appears promising but is untested. The solution theoretically could sort out the statutory claims from the torrent of routine maintenance requests. If effective in isolating statutory claims, those more limited communications could now be responded to in a greater detail. An email system could be programmed along these same lines. Tenant sends email. System responds, “is this a statutory request” (Respond YES or NO)? The email could have an explanation as to what WHB that means. When the tenant’s second email (the answer) is received the system could forward “YES” emails for detailed review and response. The concern with both a hybrid portal or email system is that tenant’s will just say “YES” all the time, thus making every request a statutory request and defeating the system. Even though this is certainly possible, landlords would be prudent to deploy a "These portals are capable of generating auto responses or automatic replies to the tenant" www.aamdhq.org hybrid system and evaluate workability. The hybrid communications system seems to give landlords the advantages of a second designated communication channel without some of the major disadvantages (mainly not having to maintain a second system). Finally, any automated response system may have storage and retrieval issues. In the scenario discussed, the tenant gives the notice thru the portal, and the portal automatically generates a response. This response is sent to tenant at the tenant’s email address. We have all received such emails, and they all say something like “do not reply to this address” or “email address not monitored”. So, in this scenario, where is the tenant’s initial email stored? Where is the reply stored? If the situation went to court, the landlord would need to produce all of the communications involving the WHB or BBB situation. Thus, any communication system has to store all related communications and allow those communications to be easily retrieved for use in court. Based on our analysis of these statutes and the corresponding communication requirements, the Colorado General Assembly clearly had no idea of the massive burden they were creating when these laws were passed. The General Assembly obviously knows little to nothing about how the rental industry works and more importantly how tenants think and act in the real world. Landlord’s liability under both laws is initiated by tenant providing notice to landlord. Because the tenant’s notice both triggers landlord’s liability and landlord’s duty to respond, a landlord needs to know when a WHB or BBB notice is sent. Thus, the ability to identify claims and generate required statutory responses are the critical specifications of any communication system. In the short run, no best practices solution has emerged. Time will tell if an ideal solution emerges. In the interim, we advise to think it through, consider the issues that have been discussed in this article, and do what works for you. Inaction is not an option, otherwise compliance is not possible and legal exposure will be significantly increased. Most of the clients I have talked to are probably going with a single communications channel. Meaning they are going to direct WHB and BBB claims into their existing maintenance communication pipeline. Keep in mind that any SOP has to deal with old fashioned written notice allowed under both laws. This means onsite teams will have to be trained to recognize written WHB and BBB notices. Regardless of your communication system, in order to comply with the law, landlords need to be able to identify and respond to these statutory claims when they arise. AUGUST 2019 TRENDS | 45