A Landlord’s Guide to Dealing With a Hostile Tenant

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aggressive tenant, colorado evictions, Colorado landlord law, colorado multi-housing, colorado property management law, difficult tenant, eviction, Fair Housing, FED, forcible entry and detainer, hostile tenant, landlord tenant dispute, Landlord-Tenant, landlord-tenant attorney, lease agreement, rental disputes, tenant problems

A very wise Zen quote states, “Those who know don’t
tell, and those who tell don’t know.”

If you are fortunate enough to have never had a hostile tenant, then you either:

a) know something great that you should tell, or
b) you have not been a landlord very long.

If the former is true, then feel free to stop reading here and continue in your Zen greatness. As for the rest of us, unfortunately, there is no “Staples Easy Button” when it comes to dealing with difficult tenants. They come from all walks of life, and their moods, personalities, quirks, desires, and eccentricities vary as much as the variety of properties that are available for rent. It is nerve-racking enough to take the leap and purchase investment property. That anxiety is all the more maddening when it involves entrusting your real property to tenants you have never before met, especially when they turn out to be people you wish you had never met.

No landlord or landlord attorney, Zen or not, would ever wisely claim to have all the answers. However, drawing collectively on experience gained from numerous landlord-tenant legal battles, the following are some hints that may help in trying to make sense of difficult rental relationships:

1.  Always keep a professional demeanor. I cannot emphasize enough that this is RULE NUMBER ONE. Not only is this a good general rule in life, it can greatly impact any legal issues that may arise. I have seen one too many clients whose poor attitudes toward their tenants consistently cause what would normally be minor legal disputes to turn into protracted and expensive legal battles that are ruled more by emotion than logical decision making.

2.  Adopt a rule that states a resident agrees to act in a manner that will not disturb the peaceful and quiet enjoyment of neighbors, other residents, or unreasonably disturb your ability to manage the property or conduct business activities.

3.  Document in writing, with video, and photographs each act that constitutes a violation and/or unreasonable disruption of your ability to manage.

4.  Report any serious violations to the Police Department and aid in prosecution.

5.  Issue the resident a written notice for each breach of the Lease Agreement (or Termination Notice if the violation is serious enough) with a demand that he/she communicate to management only in writing as to any concerns regarding the property. Include in the notice that the only exception to such written communication would be that of an emergency situation.

6.  Be prepared to enforce the rules if the resident continues to act in a defensive manner. Do not be afraid to stand up for yourself, but always do so in a professional and non-aggressive manner. Never let any resident be abusive to you without consequence. If you allow abuse from any resident, you open the door to continued abuse from that resident, as well as any other resident who finds out.

7.  Use a recording device whenever you talk to such a resident (assuming that doing so is legal in your state). A recorder can help you be on the offensive and not feel like you are constantly on the defense when residents are rude, obnoxious, swearing, intimidating, threatening, embarrassing, demanding, or outrageous.

8.  Make sure that you treat all residents consistently as to avoid Fair Housing issues. This includes developing a protocol for addressing all potential and actual tenants, both during the application process and during the lease itself.

9.  Do not give “warning” notices. Keep your notices consistent with those outlined in the law, such as a 3-Day Notice to cure the violation. If utilized effectively, the notices provide almost all of the tools you need to provide the warnings you believe are necessary, while at the same preserving your rights as a landlord to exercise your legal remedies when the time comes.

One last bit of Zen wisdom: “Pain is inevitable. Suffering is optional.”
It is my hope that these bits of wisdom will help in dealing with the pain of a difficult tenant, with as little suffering as possible.

Because the facts and circumstances vary for each individual, we encourage you to contact us regarding the facts pertaining to your case to determine how the laws discussed in this article apply to you.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

What Does A Landlord Do When A Tenant Files Bankruptcy?

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automatic stay, bankruptcy collection, eviction, eviction attorney lawyer, eviction in bankruptcy, landlord, landlord attorney lawyer, landlord bankruptcy, Landlord-Tenant, lease violation, motion for relief from the automatic stay, stay relief, stay violation, tenant, tenant bankruptcy

As a landlord, what do you do when your tenant files bankruptcy? Should you:

a. immediately run to the courthouse and file for eviction?
b. lock the tenant out of the property?
c. send the tenant a letter demanding immediate payment?
d. knock on the tenant’s door and inform him or her that the bankruptcy is a violation of the lease agreement, which requires him or her to move out?
e. deliver a formal, written notice requesting that the tenant either pay all amounts owed or move out?

Although it is not listed as an answer, hopefully you are screaming to yourself “none of the above!”, as each of the actions listed could be a serious violation of federal bankruptcy law. If you are a landlord and are not sure why, please save yourself the potential heartache, and possibly significant monetary penalties, and read on.

Bankruptcy is a concept that has been around for centuries, but in the past few decades has, for the most part, increased in frequency and the extent of protections granted to debtors. Simply put, bankruptcy is supposed to give the debtor a “fresh start” by allowing him or her to wipe the slate clean of most debts, or at least to enter into a manageable payment plan. The law also provides the debtor certain additional protections from the collection actions of creditors to provide the debtor with some breathing room while the bankruptcy process moves forward. The most critical of those protections for a landlord to understand is the “automatic stay.”

At the moment a debtor files the petition for bankruptcy, federal bankruptcy law automatically imposes a stay that protects the debtor from almost all collection activities by creditors—including landlords. See 11 U.S.C. § 362. I like to tell clients to think of this law as a brick wall that goes up between the debtor and everyone who wants money from the debtor. That brick wall essentially prevents creditors from demanding money, asking for money, threatening to sue for money, threatening to repossess items in the debtor’s possession, or in the case of a landlord, threatening to evict the tenant if the tenant does not pay rent or other money owed.

So, does this mean that the landlord has to just sit back and watch as the tenant lives in the landlord’s house for free? Not if the landlord knows the right way to climb over the wall.

Because the automatic stay comes from federal bankruptcy law, you must go to the federal bankruptcy court to seek relief from the stay (climb over the wall). This is done by filing a motion for relief from the automatic stay in the federal bankruptcy. In that motion, the landlord asks the bankruptcy court for permission to proceed with evicting the tenant for non-payment, or some other violation of the lease. The bankruptcy court will not issue the actual eviction order. Rather, the bankruptcy court will grant relief from the stay so that the landlord can then move forward with eviction proceedings in state court.

Seeking relief from the automatic stay in bankruptcy court can be a complicated process, much more so than simply seeking an eviction in state court. As such, landlords should seriously consider consulting with an attorney experienced in representing creditors in bankruptcy court. Furthermore, the potential penalties for violating the automatic stay can be very steep—sometimes as high as $10,000 per violation—so it is not wise to take any actions that even come close to looking like collection activities. If you are not sure, consult an attorney.

The good news is, with a little time and patience, the landlord can succeed in obtaining relief from the stay and re-gaining possession of the rental property. While it can be extremely frustrating and somewhat expensive, it may be the only way to get the property back on the rental market.

NOTE: Do not make the mistake of believing that by simply filing a bankruptcy, a tenant is automatically in violation of the lease. As long as a tenant continues to pay rent and is in compliance with the other covenants contained in the lease, he or she is not in default, and should not be in danger of eviction. In other words, a bankruptcy is not automatically a lease violation.

Some landlords even go so far as to include a provision in the lease stating that if the tenant files bankruptcy, it is an automatic lease violation. Such provisions are generally in violation of public policy and, therefore, not enforceable in court. Plus, in today’s market, if you have a tenant who is current on rent and otherwise complying with the lease, why would you want to evict?

Because the facts and circumstances vary for each individual, we encourage you to contact us regarding the facts pertaining to your case to determine how the laws discussed in this article apply to you.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

Fair Housing Discrimination Claims: Knowledge Is A Landlord’s Best Defense

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discrimination, eviction, Fair Housing, FED classes, housing, HUD, landlord, leasing, protected, real estate, tenant

When teaching Fair Housing classes to landlords and property managers, I often start with one question: Is it ever okay to discriminate against a prospective tenant? The “knee-jerk” reaction of most attendees is almost always, “No way! It is always wrong to discriminate!”

Wrong answer … believe it or not.

Merriam-Webster’s Dictionary defines “discriminate” as “to mark or perceive the distinguishing or peculiar features of”, or “to distinguish by discerning or exposing differences.” The fact is, landlords and property managers discriminate almost every day. Think about it. According to the dictionary’s definition, every time you check the prior rental history of a prospective tenant, you are discriminating … not necessarily in a bad way, but you are discriminating. Every time you refuse to rent to someone because their dog is too large, you are discriminating. Every time you choose to evict one tenant because of non-payment, you are discriminating.

In other words, the action of “discriminating” is not, in and of itself, necessarily bad. In fact, it is part of a landlord’s job. In our modern-day society, however, we have grown to associate the word “discriminate” with many negative connotations related to racism, sexism, etc. And that kind of discrimination is, of course, very bad, not only for moral reasons, but because it is precisely the kind of discrimination that exposes landlords to liability under federal Fair Housing law.

The federal Fair Housing Act was adopted by Congress as part of the Civil Rights Act of 1968. Fair Housing laws prohibit most landlords and property managers from discriminating against tenants on the basis of race, color, national origin, religion, sex, disability and familial status (which usually means having children under 18 in the household). We refer to these seven categories as the “protected classes.” In other words, a landlord can discriminate against a tenant, as long as the landlord does not do so based upon one of the protected classes.

A tenant who believes that he or she has been the victim of housing discrimination may elect to assert claims against the landlord in one of several ways. First, and probably the most common, the tenant may file a complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO), or one if its local affiliates. The FHEO often delegates investigation and enforcement of such claims to local agencies on the state level, such as the local HUD or attorney general’s office. Those agencies will proceed not only with the investigation of such claims, but will also decide whether probable cause exists to pursue the landlord, and the extent of punishment to be administered. In that sense, they act as the judge, jury and executioner, with the power to enforce penalties including

• Ordering the landlord to Compensate the tenant for any actual damages, including humiliation, pain and suffering
• Assessment of fines to be paid to the Federal Government ranging from as much as $16,000 for a first violation to $65,000 for the third within a seven-year period
• Payment of reasonable attorney’s fees and costs
• Other forms of equitable relief, including forcing the landlord to allow the tenant to live in the rental property

The tenant may also choose to bring a private lawsuit against the landlord, in which the tenant might ask for monetary damages, including actual damages, pain and suffering, attorneys’ fees, court costs, and even punitive damages. Most of those cases are filed in federal court, and have a tendency to drag on for years, thus costing a large amount of time, money and resources to defend.

Needless to say, any landlord or property management company faced with a Fair Housing claim should seriously consider seeking the assistance of an attorney experienced in that area.

Any landlord who has been in the business for much time at all is sure to have some horror stories of defending against Fair Housing claims. However, the old adage, “an ounce of prevention is better than a pound of cure” can go a long way in saving the well-prepared landlord a lot of money and heartache when it comes to Fair Housing claims. An attorney experienced in landlord law can assist you to educate you and your employees how to avoid the many pitfalls that surround discrimination claims under Fair Housing, and can help establish protocols to assure that you and/or your company do not engage in activities that can be perceived as discrimination against the protective classes discussed above.

If you are interested in consulting with our office regarding Fair Housing issues, or even in having one of our attorneys travel to your office or one of your properties to teach a Fair Housing class, please call (719) 260-7900.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC