CREJ - Multifamily Properties Quarterly - July 2015
It is common for a landlord to rent residences to couples, whether or not the couples are married. Under housing discrimination laws, a landlord may - not refuse to rent to a couple because they are unmarried. Both members of the couple may sign the lease. It also is possible for a single tenant to allow his or her partner to move in. Couples often have conflicts and sometimes these conflicts erupt into violence. The male tenant is often the perpetrator of the violence and the female is often the victim, but not always. Incidents of domestic violence also have occurred between same-sex couples. When violence occurs, the police are called. If the police believe violence is in progress, the police may ask the landlord to let them into the residence. If the occupants or the landlord do not unlock the residence door, the police may feel that it is necessary to break down the door. While the landlord has a duty to protect the privacy of the tenant, preventing damage to the property also should be a consideration. Under Colorado Revised Statutes section 16-3-202, a landlord “shall not be civilly or criminally liable for any reasonable conduct in aid of the (police) officer or for any acts expressly directed by the officer.” Therefore, a landlord may provide a key and also may provide the police with identification and personal information about the occupants. The landlord should ask the police for a copy of the warrant or obtain the identity of the officer making the request. The landlord may or may not be notified by the police about the incident. Sometimes, the landlord learns of the occurrence from a neighbor who is disturbed by the conflict. Language in the lease agreement prohibiting behavior that disturbs other residents entitles the landlord to serve a three-day demand for compliance or possession on the tenants. If another similar incident occurs that disturbs the neighbors, the landlord may serve a notice to quit for repeat violation and require the problematic tenants to move. When the police are summoned, usually violence occurred or was threatened. Under C.R.S. 13-40-107.5, a “substantial violation” is a violent or drug-related felony at or near the leased premises. If a violent or drug-related felony has been charged, a notice to quit for substantial violation can be served on the tenants, which requires them to move. If the landlord had the tenants sign a crime-free lease addendum, which makes any crime a “substantial violation,” then even if the perpetrator is charged with a misdemeanor, the landlord will have grounds to evict. The landlord may be able to evict only the perpetrator. Courts likely will refuse to evict a domestic violence victim. In some cases, the police will arrest the perpetrator and take that person into custody. In other cases, the police will instruct the perpetrator to spend the night elsewhere to allow the situation to settle. The landlord should obtain a copy of the police report to be used as evidence later, if necessary. A police incident report may be attached as an exhibit to the notice to quit for substantial violation. A victim of domestic violence may go to court and obtain a civil protection order. The court will grant the request upon the sworn testimony of the victim of harm or a threat of harm. The court order will require the perpetrator to stay away from the residence, workplace and school of the victim. That means the perpetrator will have to move out of the rented residence. The landlord should avoid involvement in the victim’s effort to obtain the protection order. That is not the landlord’s role, and the landlord likely will have little direct knowledge of the events. If a protection order requires the perpetrator to move from the residence, that person may return for personal property and ask the landlord for access. The landlord must allow access because the perpetrator has a right of access under the lease. However, access should be granted only after notice is given to the victim. The victim should leave the premises and contact the police. Law enforcement should be present in order to prevent a breach of the peace. In some cases, the victim must move elsewhere so that the perpetrator cannot find the victim and cause more harm. In other cases, the victim is left in possession of a residence that is no longer affordable. Colorado law (C.R.S. 38-12-402) allows the victim to terminate the lease. In order to do this the victim must present the landlord with a copy of the protection order or police incident report, notify the landlord of intent to terminate the lease and move, and must actually move out. The law provides that the victim will only be liable to the landlord for one additional month’s rent after the date on which the residence is surrendered. Further, the victim will have 90 days to pay that additional month’s rent. The landlord may retain the security deposit until the additional month’s rent is paid. However, the landlord must still provide the written security deposit accounting within the time provided in the security deposit law or lease, no more than 60 days. If both members of the couple have signed the lease, then the perpetrator has a right to retain possession of the residence. If he is required to move out while the victim remained in possession, he may move back in after the victim has moved elsewhere. If the landlord had no basis to terminate his occupancy, then the landlord may have no choice but to let him resume his tenancy. However, most often the perpetrator has no interest in returning to the residence. If the victim has left and the perpetrator has not returned, the landlord is left with an empty residence. The landlord still must account in writing for the use of the security deposit. When a balance remains due to the landlord, if the victim has complied with the statute allowing termination of the lease, the victim is released from further liability. However, the lease remains enforceable against the perpetrator and he may be sued for any monetary lease obligations that have not been paid.