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