action against a tenant, after a tenant has
filed a housing discrimination complaint,
it looks like retaliation. When a landlord
takes adverse action against this same
tenant and can't prove that it has taken
similar action against other CCTs in the
past, it looks like retaliation.
Non-renewal policies can entirely
change this picture. As part of landlord's
non-renewal policies, landlord has made
a conscious decision to non-renew CCTs.
Landlord has determined that CCTs take
up too much of the on-site team's time
and will never be satisfied.
Further, landlord's non-renewal policy
dictates that if the on-site team has
determined to non-renew a tenant, then
that decision is documented in the tenant's
file once the determination is made.
If you make a decision to non-renew a
tenant, you don't have to tell them until
you are legally or contractually obligated
to tell them. For example, if the tenant
is on a twelve-month lease (e.g. January
to December) and you determine three
months in that the tenant is a CCT, you
can document in writing that the on-site
team has determined to non-renew.
www.aamdhq.org
When October rolls around, you then
send out the sixty-day notice of non-
renewal.
In our CCT scenario, if the landlord
had adopted these policies two years
prior to the CCT coming onto the scene,
the landlord could now non-renew with
confidence. The CCT may still allege
retaliation, but the landlord is armed to
defeat any retaliation claim. No, we didn't
single this CCT out because he filed a
housing discrimination complaint.
We non-renew every CCT. No, we aren't
just making this up. We have a written
policy that was adopted years ago, prior
to us even renting to this CCT. Since
that time, we have non-
renewed 22 CCTs based
on this policy. No, we
didn't decide to non-renew
the CCT after he filed a
housing discrimination
complaint. In fact, we made
the decision to non-renew
the CCT in March per the
written documentation in
his file. The CCT didn't file
his housing discrimination
complaint until July.
Because the decision to non-
renew the CCT was made
prior to the CCT filing
a housing discrimination
complaint, our decision
wasn't based on him filing
a complaint.
In addition to not having
non-renewal policies, we see
landlords make too many
mistakes in handling renewal
offers. In this case, the CCT
is refusing to sign a renewal
offer. Based on everything
that has transpired, the on-site team
doesn't want to force the issue because
they are afraid of making a wrong move
which will aggravate the CCT further.
A landlord should never allow a tenant to
hold them hostage over a renewal offer.
All renewal offer issues can and
should be addressed by landlord's policies.
First and foremost, every landlord's
renewal policy should dictate that
renewal offers are limited.
Specifically, if a renewal is not accepted
within X days, it is automatically
withdrawn. If a renewal offer is
withdrawn due to the passage of time, per
the tenant's lease, the tenant becomes a
month-to-month tenant at the expiration
of the term. If a tenant goes month-
to- month then their rent will likely be
higher, i.e. either the then market rate or
current rent plus
month-to-month fees. If a tenant
becomes month-to-month, the landlord
can end the relationship at any time.
If a renewal offer is withdrawn due to
the passage of time, the landlord is under
no obligation and can't guarantee that
landlord will enter into a new lease.
CCTs raise many challenging issues.
All CCT related issues can be addressed
by proper policies. Without proper,
well thought out policies, CCTs can
literally hold the on-site team hostage.
For example, if your lease doesn't
adequately address hostile or excessive
communications, a CCT can subject the
on-site team to a relentless stream of
emails and voicemails. Similarly, without
well thought out non-renewal policies,
if a CCT or any tenant for that matter
files a housing discrimination complaint
against you, your options for handling are
extremely limited. In most cases,
your only option is to allow enough
time to pass so it appears that your
non-renewal decision isn't based on
the fact that the tenant filed a housing
discrimination complaint (retaliation).
Of course, during this time, the on-site
team is subject to further abuse by the
CCT, and who know what else will come
up during the CCT’s extended stay.
When it comes to CCTs, the boy scout
motto is the best. Be Prepared.
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.
MAY 2018
TRENDS | 51