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
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