tenant ' s first eviction court date is on the 29th of the month, the landlord cannot insist that the tenant also pay next month ' s rent. However, payment means payment of all outstanding amounts due at the time of payment pursuant to the tenant ' s lease.
The Bill creates a one strike and you are out system. Thus, tenants get the extra time to cure( pay) one time every six months. If a landlord must serve a second demand for rent within six months because a tenant failed to pay the rent, the landlord could serve a traditional or standard three-day rent demand. If a landlord serves a standard three-day, the landlord only has to accept the tenant ' s payment if made within three days( not counting the day of service).
Altering the status quo from a one-notice system to a two-notice system has probably been the most discussed aspect of the proposed Bill. THS attorneys unanimously thought the two-notice system might confuse landlords and create issues with SOPs.
For example, Community X is a 400-unit property and serves their rent demands on the 4th of the month. Community X can serve anywhere from 30 to 40 rent demands a month. The rent demands are programmed in YARDI, and generated electronically. If five tenants were served with rent demands last month and the landlord now wants to serve these five tenants with a traditional three-day, the system will either have to be reprogrammed or Community X will have to manually generate these three-days.
Some landlords agree that the law would be simpler without the two-notice system. However, other attorneys and landlords argue that landlords need to retain the shorter cure period as a vital tool to evict non-complying tenants. Specifically, sometimes it is very difficult for a landlord to prove a noncompliance case. For example, a tenant can be dealing drugs, and no one wants to testify out of fear. If the non-complying tenant doesn’ t pay the rent, evicting the non-complying tenant for non-payment may be the landlords best option. If the non-complying tenant, who didn’ t pay rent, has until the day before court to pay, the ability to evict the non-complying tenant over non-payment would be greatly diminished.
We agree that the Bill does take away some options. However, overall this is a small number of cases. In our experience noncomplying tenants who do not pay rent within three days, don ' t suddenly offer to pay rent before court. For this reason, the potential for confusion and hassle( which notice do I need to serve or can I serve, having to keep track of which tenants have been served with which
notices, and having to produce two sets of notices) outweigh the benefit of retaining the status quo( the ability to serve a standard three-day rent demand).
In the end, it probably doesn’ t matter. Those who want to retain the ability to serve a standard three-day on the tenant ' s failure to pay rent a second time are happy because the Bill retains this right. If the landlord wants to avoid confusion, hassle, and potential issues caused by serving the wrong notice or having to produce two sets of notice, the landlord can by simply always serve the rent demand that gives the tenants the right to cure right up to the court date.
Initially, this Bill seemed like a huge sea change to the status quo. However, upon further analysis, the Bill does not significantly alter the current landlord-tenant landscape. The reality is that landlords are already taking rent payments after the expiration of three-day notices about 99 % of the time because landlords want the rent and don ' t want to evict tenants. Landlords don’ t refuse rent unless there is some other issue going on, e. g. the tenant is disturbing their neighbors
The Bill does eliminate the use of a rent demand as a compliance tool, at least on the first go-round, and if the second rent default is not within six months. Because landlords can choose to serve two different notices on the second strike, the Bill has fair housing implications. The one thing we do know about SB-120 is that it is not likely to reduce evictions or increase the number of tenants that pay and stay.
Mark Tschetter is a partner of Tschetter Hamrick Sulzer, P. C. who acts as Colorado Council to the NAA. He routinely teaches classes to multifamily housing professionals. His specific area of interest and expertise is Fair Housing Laws, and speaks to professional organizations on landlord / tenant and legislative issues. www. aamdhq. org FEBRUARY 2018 • TRENDS | 41