Apartment Trends Magazine May 2018 | Page 52

ASK THE LAWYER MARK N. TSCHETTER | TSCHETTER HAMRICK SULZER, PC Dealing with Chronic Complaining Tenants Requires You To Be Prepared O verall, most tenants are good. They carry out the prime directive by paying their rent on time, and don't bother other folks, including your on-site team. However, if you have been in the rental industry long enough, you almost certainly and unfortunately have encountered the chronic complaining tenant. The chronic complaining tenant (the CCT) is never satisfied regardless of your efforts. In dealing with a CCT, various issues will come into play, and if you are not prepared, the community may be helpless and will face legal exposure. The typical CCT scenario goes something like this. The CCT makes a maintenance request. You promptly respond. However, after twenty attempts to address the maintenance issue, the CCT is still not satisfied. The CCT expresses his dissatisfaction by bombarding the on-site team with countless calls, texts, and emails. Bombardment is the proper expression. We've seen a CCT call or email the on-site office thirty, forty, or fifty times in a short period of time. The on-site team continues to try to rectify the perceived injustice suffered by the CCT, but to no avail. As a result, the CCT then files a housing discrimination complaint. The community wins the discrimination complaint, but this only infuriates the CCT further. The CCT's lease is coming up for renewal, but the community is hesitant to non-renew the CCT because of retaliation concerns. Thus, the community sends out a renewal offer, but since rents have increased, the CCT refuses to sign it or reply. By this point, the on-site team frequently feels paralyzed about how to proceed. 50 | TRENDS MAY 2018 The first issue raised by this CCT scenario is unreasonable or excessive communications. You can't effectively address hostile or excessive communications without a strong lease provision. Your lease must prohibit the tenant from disrupting or interfering with Owner’s business operations, or communicating with Owner, Owner’s agents, or their employees in an unreasonable, discourteous, rude, harassing, or hostile manner, including excessive or repetitive communications regarding the same subject matter. Armed with a strong provision, landlords should serve a Demand for Compliance when tenants harass them with excessive or hostile communications. Specifically, the landlord should consistently demand that these tenants stop these harassing communications or surrender possession of their unit. CCT scenarios almost always raise the specter of retaliation. Retaliation means taking adverse action because of the tenant's action. Under fair housing laws, retaliation is a form of housing discrimination. Specifically, fair housing laws bar landlords from taking adverse action against a tenant because they exercised a fair housing right. In our scenario, the CCT filed a housing discrimination complaint. Because the CCT filed a housing discrimination complaint, the CCT could argue that any attempt to end his lease constitutes retaliation. However, this doesn't mean that the landlord is stuck with the CCT forever. If the landlord has positioned itself to deal with this scenario, then the landlord can non-renew the tenant with confidence. To be positioned properly, a landlord must have fair housing policies including non-renewal policies. We've been strongly advocating for landlords to have these policies for years, but few still have them. Most landlords don't have non-renewal policies because they think they don't need them. I can't tell you how many times I've been asked whether in Colorado a landlord needs a reason to non-renew a tenant. Specifically, does a landlord need a reason in Colorado to non-renew a tenant? The answer is no. (Except for Tax Credit Properties). However, the fact of the matter is that landlords have reasons for non-renewing tenants. You don't non-renew a tenant who always pays on time and doesn't cause trouble. Further, if a tenant files a discrimination complaint against the landlord, the Colorado Civil Rights Division will require the landlord to state the landlord’s reasons for non-renewal. So, let's just stop once and for all. Stop pretending that landlords don't have reasons for non-renewing tenants and stop pretending that landlords can hide behind the guise of not needing a reason. Because if push comes to shove, the landlord will have to articulate its reasons for non-renewal. Landlords shouldn't deny these facts, but rather they should embrace them and use them to their advantage to defeat retaliation claims. Retaliation is about consistency, timing, and causation. When a landlord promptly takes adverse www.aamdhq.org