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COVID-19 Frequently Asked Questions for Management Companies

Industry , COVID-19 Resources ,
Am I responsible to make sure residents at my community wear face masks?

No member’s existing lease explicitly requires residents to wear a mask.  Consequently, in order to plausibly claim that a resident has an obligation to  wear a mask, the owner would have to rely on the unlawful behavior clause of the lease and then a state or local law mandating mask wearing in a particular situation.

While there are a number of mandated mask wearing requirements that apply to people in their capacity as employees, the mandates for the general public (which would include residents) are much less specific.

On a statewide level, the only mask related guidance is a recommendation to wear a mask when away from the residence.  Consequently, without a local ordinance, there is no way to construct a legal obligation for residents to be masked.

Several cities (including Denver and Boulder) do require the general public to be masked in certain situations.  Denver requires residents to be masked when inside or in line for retail or commercial facilities.  The only space that would clearly be subject to this requirement would be the leasing office.   Boulder requires people to be masked when 6’ distancing can’t be maintained, which would create more common masking requirements in common area scenarios.

When a resident violates the behavioral terms of a lease (including the unlawful refusal to wear a mask in the limited circumstances when that may apply), a landlord’s legal tool for dealing with the behavioral violation is to serve a 10-day Demand for Compliance or Possession, followed by a 10-day Notice to Quit for Repeat Violation if the problem continues, followed by an eviction lawsuit and the forcible displacement of the Resident by the sheriff.  All of these activities are currently banned by Executive Order 51 and the CARES Act (where applicable).

Consequently, other than a polite request for residents to wear masks as a courtesy to other residents, there are not many options for dealing with a Resident who refuses to wear a mask.

Is property management essential personnel? 

According to Governor Polis’ order on March 25, 2020, yes, property management companies are Critical Businesses providing” places of accommodation” and “providing services necessary to maintain the safety, sanitation, and critical operation of residences.” Most property management companies are operating with significantly reduced staff.  See the full executive order here: https://www.colorado.gov/governor/2020-executive-orders.

 

How should we treat a resident who can’t pay their rent?

First, this is a challenging time for everyone. Please treat each resident with empathy and care. Practically speaking, you have a few options to work with a resident who cannot pay his/her April rent. Option 1: Work with the resident with a Covid-19-related hardship on a payment plan to pay the rent over the next few months. The Apartment Association has forms available to help you document a virus-related need and an extension of time to pay.  2. Use the resident’s security deposit as their rent or part of their rent for the month and have them pay back the security deposit at a later date. 3. There is a list of resources for residents on the Apartment Association of Metro Denver, you can have residents go here: https://www.aamdhq.org/news/coronavirus and look under the “Renters Resources” section for resources that may be able to help residents.

 

How should we treat a resident who can afford to pay their rent but is opting not to thinking they can’t be evicted during this time?

You should not treat a resident any differently than a person who is paying their rent. However, eviction notices are still able to be served during this time. Because of court closures and the reluctance of sheriffs to enforce court orders during the stay at home order, you may find delays in pursuing normal eviction and collection processes.  However, when non-payment is not based and virus-related loss of income, you should work with your attorneys to obtain possession of the property and pursue your financial claims as quickly as the currently slowed court system will allow.

I understand the Associations’ recommendation on waiving late fees, not raising rents and not scheduling court hearings for new evictions for residents before May 18, 2020.  However, what should I be doing with existing evictions orders that are based previous nonpayment of rent that have nothing to do with virus related loss of income?

There are two separate issues here.  The first is finding ways to preserve housing and maximize the value of your portfolio regarding customers who are experiencing income loss because of virus-related closures.  However, regardless of whether the resident’s default is virus-related or not, we do not want to be putting residents out of rented units during the Stay at Home Order.  Consequently, the Association is recommending not enforcing eviction orders until the latter of April 30, 2020 or the lifting of the Governor’s Stay at Home Order. 

 

Am I legally supposed to do something if one of my residents has the virus?

A landlord should never disclose the name or unit number of a resident known to be sick. That information is far too private. Some have speculated that in might constitute negligence to fail to provide residents notice when there is a known and medically confirmed case of coronavirus on the community, so that other residents can take whatever additional steps the feel are appropriate. This seems a bit illogically when everyone is being advised to treat all non-household members as potentially contagious. Taking the following precautions are advised: informing other residents so he/she can take necessary precautions while also following the CDC and HIPPA guidelines (i.e. keeping the name and unit of the resident private); clean all community areas per the CDC cleaning guidelines; use protective gear and social distancing if maintenance must enter this or any other unit.

 

Do I have to create payment plans for everyone and how far out do I need to postpone rent?

Residents who are not affected by COVID-19 should still pay rent, the full amount due and pay on time. For residents who are affected and cannot afford to pay the full amount or partial rent, Colorado Apartment Association recommends that you work with residents on A) a payment plan or B) use their deposit as part of the rent and allow the resident to pay the deposit back at a later date. Rent should not be postponed and instead a rental payment plan should be put in place. The time frame for re-payment is up to each housing provider, but some housing providers are offering up to six months as well as lease extensions without increase of rent. Housing providers are encouraged to only work on a payment plan for the rent that is currently due, not the future month’s rent. For additional information or a sample rent addendum, please visit AAMD’s coronavirus resources page.

 

What if I have a move in but the old resident can’t move out because of Coronavirus?

A landlord cannot give a new resident possession of a unit (even if there is a signed lease) if the old resident fails to honor their obligation to move as agreed. The landlord can initiate an eviction to legally force the old resident to move. However, this is a slow process in normal times (about 6 weeks) and will likely be slower with various virus-related closures and delays.

 

Does a resident assistance application exist and where can I find it?

Each government assistance program has its own application process. Some larger management companies have developed specific policies and applications for residents providing verification of coronavirus related income loss to help them make decisions on requests to restructure April rent. With or without a specific form, it’s important for a resident to let a landlord know early that there is a virus-related income loss and a request for a rent restructure. Help can’t be provided if the need is not made known. The ability of a landlord to restructure rents is, of course, dependent on many things.  Obligations to pay employees, mortgages and the landlord’s own virus-related income loses will limit what can be done. For resident resources, please see the AAMD’s coronavirus resources page

 
The Governor’s emergency declaration included expanded and mandatory sick leave for various market sectors including “community living facilities”. Does that mean apartment complexes? 

Community living facilities were not defined in the Governor’s statement nor is it a phrase defined by Colorado statute. However, “community living” does appear routinely in Colorado statute and is always in the context of group homes for the elderly, veterans and disabled.  One should expect Community Living Facilities to be interpreted narrowly to include facilities that offer some level of assistance (predominantly medical) or shared living space (like a cafeteria), but not merely a collection of apartment units with no living assistance. Presumably, if the Governor had meant to include apartments, he would’ve said so more directly. 

 

Is refusing to show someone an apartment or refusing to respond to their maintenance requests because of concerns over sickness a fair housing violation? 

Sickness (at least when it’s temporary) is not a protected classification. Therefore, refusing to offer services to someone because they are believed to be contagious is not a direct fair housing violation.  

The fair housing problem with refusing service based on sickness would come from a plaintiff claiming the refusal of service was based on some other protected classification and that the landlord’s claim of fear of sickness was either fabricated or selectively applied to people of a particular protected classification.   

As with all fair housing defense, our industry attempts to reduce employee discretion, institute policies of defensible sameness and make a written record of those policies to defend against claims of differing treatment. These strategies are difficult when talking about degrees of suspected sickness, particularly when none of the people making the assessment will likely have any level of medical expertise.  If you’re going to go down thpath of giving employees discretion to not do business with customers based on perceived risk of infection, you’ll have to give a lot of thought to a written definition of someone that is too dangerous to do business with. An example of such a definition is: 

In order to minimize risk to other residents of the community and the management staff, staff will limit their direct contact with persons and units of persons experiencing respiratory symptoms such as fever, cough, shortness of breath, sore throat, runny or stuffy nose, body aches, headaches, chills or fatigue.  Residents should wait for at least twenty four (24) hours after symptoms subside or have been cleared by a doctor to return to public activities before initiating or requesting contact with other residents or our staff. 

A more defensible policy would focus on blanket reduction in services (to all persons) to eliminate the rather subjective and difficult to document distinctions of the status of the customer’s health. 

The analysis changes a bit if the condition is permanent and can be claimed to be a disability requiring a reasonable accommodation. However, most of the symptoms causing concern to Association Members are not associated with traditional disabilities and an analysis of the proper response to a requested reasonable accommodation is not the issue on most people’s mind.  If a resident claims their symptoms are the result of a more permanent disability rather than the flu, they should be asked to complete a formal request for reasonable accommodation with certification of the disability and disability related need. 

 

Does fear of the virus relieve a Landlord from obligations to provide maintenance under the Warranty of Habitability? 

Mostly no.  The Warranty of Habitability statue requires a landlord response to the tenant’s notice of a covered maintenance problem within 24 of receipt.  The response must include: 

  • The landlord’s intentions for remedying the condition. 
  • An estimate of when the remediation will commence. 
  • An estimate of when the remediation will be completed. 

The statute then requires commencement of the work within 24 or 96 hours depending on the category of the maintenance issue.  

However, what constitutes commencement of the work and when the work needs to be completed are largely undefined.   

By using the warranty of habitability notice to disclose an estimate of the commencement of the work to include reduced or delayed contact with the resident and the unit and an estimate of completion to include disclosure of delays based on limited availability of materials or persons because of illness concerns, a landlord stands the best chance of having a legally defensible position for  reduced or delayed maintenance response.