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Sean J. Gilliland's Blog

By Sean J. Gilliland | Agent in Denver, CO

Landlord's/Tenant's rights and responsibilities



Landlord's/Tenant's rights and responsiblilities

Renting a home may be difficult for a landlord and as a renter.  Knowing the correct information is the first step.  Here are the basic rights and responsibilites for the landlords and the tenants.  Please contact us for all your property management needs or concerns... http://www.denverrealestatemoguls.com/propertymanagement.php

LANDLORD / TENANT RIGHTS

Leases - A lease (a written rental agreement) sets up the rules between the tenant and the landlord regarding the rental unit. A lease should protect both the landlord and the tenant. Leases can be set for any length of time, but most are for six months or one year. Examples of other provisions a lease sets forth are: identification of the leased property, number of persons who are to reside in the unit, security deposit, rent amount, rent due date, late penalty fee, utility responsibilities, yard care, trash removal, repair responsibility, subleasing and whether pets are allowed. During the term of a lease, changes cannot be made to the lease unless mutually agreed to by both the landlord and the tenant. The lease must be signed by the landlord and the tenant. Once the lease is signed, both parties are bound to it. A standard lease form can be obtained from a book or stationery store. Provisions can be added to these forms to meet any special needs. If there is not a written lease and the rent is paid monthly, the tenancy is considered month-to-month. To protect both of you, make sure any agreements that are made that are not part of the original lease are put in writing no matter how much you trust each other. If anything goes wrong, most judges will not even let "oral agreements" be presented in court.

Moving In - At the time of move in, a tenant should create a file in which to keep important documents related to their rental housing. The file should contain receipts for all deposits, the lease, a list of damages to the unit, monthly rent receipts and any other documents that pertain to their rental housing. Before moving into a rental unit, it is very important for the landlord and the tenant to examine the condition of the rental unit. All existing damages in the rental unit should be listed in writing (there should be a statement of unit form used by the landlord and signed by both the landlord and tenant. This will help to avoid arguments pertaining to the refund of the security deposit and additional damage claims. If the landlord will not sign the list of existing damages noted, then a neutral witness should be present when the family inspects the rental unit. This witness can sign the existing damage list.

Moving Out - Before moving out, both the tenant and landlord should inspect the rental unit. A written statement of the condition of the unit should be signed by both parties. If the landlord refuses to inspect the unit at move-out, then the tenant should obtain a neutral witness to check the condition of the unit with them. Again, a statement of the condition should be signed by both.

Security Deposit - A security deposit, is a payment of money by a tenant to a landlord to cover damage or cleaning of a rental unit. A landlord cannot keep the security deposit to cover normal wear and tear. A landlord can keep all or part of the security deposit to cover damage caused by the tenant's negligence, intentional abuse or cleaning beyond normal wear and tear. A landlord can keep all or part of the security deposit to cover damage caused by the tenant's negligence, intentional abuse or cleaning beyond normal wear and tear. A landlord can utilize small claims court to collect money owed for damages that exceed the security deposit collected.

Return of the Deposit - When a tenant leaves a rental unit, the landlord has 30 days (unless stipulated differently in the lease) to return the security deposit or send a written list of damages and the amount of money owed for repairs to the tenant. The above must be sent to the tenant's last known address. If a security deposit is wrongly withheld, the tenant could receive a judgment of three times of the amount wrongfully withheld, and court costs and attorney's fees. A tenant may utilize small claims court for this purpose.

Rent Increases - If a lease exists the rent is locked in for the term of the lease. If there is not a lease, a landlord can increase a tenant's rent by giving the following written notice: 10 days written notice before rent is due if rent is paid once a month.

Trespass by Landlord - The tenant has the right to peaceful enjoyment of the property, but this right can be modified by the lease. Unless the lease provides otherwise, the landlord does not have a right to enter the property without permission of the tenant except to demand payment of rent or to make emergency repairs. A tenant can sue a landlord for violating the tenant's rights.

Lockout by Landlord - Under most circumstances, a landlord should not "lockout" a tenant for any reason without a court order. The landlord may be held responsible for interfering with the tenant's right to "peaceful possession" until a legal court eviction. A landlord who illegally locks out a tenant risks being sued for damages.

Eviction - The only way a landlord can legally evict a tenant is by going through the legal eviction process. A landlord may evict a tenant for the following 3 reasons: 1) Failure to pay rent on time. The landlord must first give the tenant a written notice* demanding that the tenant either pay the rent or move out within 3 days. If the tenant fails to pay or move, the landlord may on the 4th day commence an eviction proceeding in county court. The tenant may contest the eviction if the tenant thinks there are legal grounds by filing an answer on or before the time set by the court. If the tenant fails to answer or appear on the date indicated in the eviction papers, the tenant will then have 48 hours to vacate or be forcibly removed by the sheriff's department. 2) Breaking any terms of the lease. If the tenant breaks any of the written or oral terms remember, oral terms are hard to prove in court) of the lease, the tenant may be evicted in much of the same manner as nonpayment of rent. In such cases, the landlord must give the tenant written notice of the lease violation and 3 days to remedy the situation or move. If the tenant fails to comply or move, the landlord on the 4th day may commence eviction proceedings in county court. 3) No reason. If the landlord wants to evict a tenant at the end of the lease period, the landlord can do so without giving a reason, but the landlord must give the tenant proper notice to leave. Notice to vacate must be served upon the tenant in a specified number of days before the end of the rental period. The length of the lease period is determined within the lease. If the lease does not state the rental term or a written lease does not exist, the rental period is determined by the frequency of rental payments. For example, if the rent is due each month, it is a month-to-month tenancy or lease. Notice to vacate requirements for rental lease periods are as follows:

• 1 year or longer - 3 months,
• 6 months to 1 year - 1 month,
• 1 month to 6 months - 10 days,
• 1 week to 1 month - 3 days, and
• less than 1 week - 1 day.
If the tenant fails to leave, the landlord, again, must follow the procedures set forth above.

Habitability Code - Habitability is the condition of a building in which inhabitants can live free of serious defects that might harm their health and safety (example - a lack of running water or heat adversely effects the apartment habitability). A Colorado Revised Statute does not exist covering this type code. There are a number of communities which have habitability codes. For more information check with the Community Development or Planning Office within the city where you reside.

Written Notice - should contain the following: 1) the date, 2) the address of the rental unit, 3) the dollar amount of the rent owed or the lease violation, 4) the tenant's options of paying the rent or complying with the lease within three days or vacating the unit, 5) the notice must be signed by the landlord or the agent for the landlord, 6) if the tenant pays the full rent owed and/or complies with other terms of the lease within 3 days, this cancels the eviction, and 7) the Computation of Time law states that the 3 day period begins the day after the notice is given, and the last day of the 3 days cannot end on a Saturday, Sunday, or legal holiday.

Landlord Requirements:

1. Landlord has burden of proof that his retention was not wrongful.
2. Landlord must give written explanation of reasons why any portion of the security deposit is being retained. Such notice must be delivered together with the remaining security deposit (security deposit paid - amount retained). If landlord mails to your last known address, he or she has complied with the statute.
3. Landlord may not retain any part of the security deposit for "normal wear and tear" which is defined as follows: that deterioration which occurs, based upon the use for which the rental unit is intended, without negligence, carelessness, accident, or abuse of the premises or equipment or chattels by the tenant or members of his household, or their invitees or guests.
4. Nothing in the statute prohibits a landlord from retaining part or all of the security deposit to cover nonpayment of rent, abandonment of the premises, or nonpayment of utility charges, repair work, or cleaning contracted for by the tenant.

Time Requirements: Landlord must give tenant the written explanation/refund required within one month (or up to sixty days if so agreed in the lease) after termination of the lease or vacation of the premises, whichever occurs last. If tenant objects, tenant must then give notice of intent to sue to the landlord, wait a minimum of seven days after giving such notice, and then file suit. Actions for treble damages (see infra) must be brought within one year. Actions for actual deposit and attorney fees is governed by a six year statute of limitations.

Notification Procedures: Landlord need only send the written explanation and net amount due tenant to tenant's last known address, so, from the tenant's perspective, it is imperative to keep landlord informed as to current address. Tenant should keep evidence indicating landlord knew of new address.

Transferee Liability: New landlord is liable if deposit has been transferred. Old landlord is relieved when transfer is complete and tenant has been notified.

Penalties: Treble the amount wrongfully withheld plus attorneys' fees and costs for "willful" violation of statute. To avoid liability for treble damages, the landlord may return the full deposit within the seven days after tenant has given notice of intent to sue. Otherwise, landlord must show actions were in good faith.

Tenant Requirements: After expiration of the time allotted for landlord to return deposit and notice, tenant must give notice of intent to bring suit. This is a condition precedent to recover treble damages. Then, tenant must wait at least seven days to file suit.

A LEASE IS A CONTRACT
A lease is a contract between the tenant and the landlord and is in effect for the time period specified in the lease. If either party breaches (breaks) the lease, he is still liable for what he agreed to under the terms of the lease. For example, if the tenant moves out early, he is still liable for the rent for the remainder of the lease. However, the landlord has a duty to "mitigate" his damages by using reasonable efforts to rent to another tenant to reduce the landlord's losses. If the tenant stops paying rent, the lease will often allow the landlord to terminate the lease and often allows him to keep any security deposits.



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