The state Supreme Court just added another possible burden to landlords. If there's one thing this state needs more of it's appointed board members!
Our judicial system is a common law tradition system*, and the state Supreme Court just added another possible burden to landlords.
This most recent millstone is covered in the op ed linked below. I'll leave it to you to read, there are a lot of legal details about the case itself, but I think I can do a fair job of summarizing before taking note of the point that sticks out to me.
When a landlord goes to evict someone, there is a legal process. If both parties take it to court (not always a given), the eviction proceeding is supposed to provide a process by which a judge can decide whether or not a tenant can legally be barred from possession and use of a rental property. The things that might constitute grounds for eviction are spelled out both in law and in the lease.**
Colorado also has the Colorado Fair Housing Act (CFHA) a law that defines and prohibits certain kinds of discrimination in housing and retaliation for fighting such discrimination. In the case covered in the article below, a woman had "rented" space in a man's home in return for doing chores and he later evicted her. The woman then alleged a violation of the CFHA because she said the landlord evicted her in retaliation for refusing his advances.
Prior to the recent ruling by the Colorado State Supreme Court, a lower court held that these were two separate issues: that is, the eviction should get hearing on its merits independent of the alleged discrimination and retaliation and that the woman, if she felt there was a violation, should take that violation of CFHA under a separate lawsuit.
The essence of the Supreme Court decision is that a violation of CFHA is an affirmative defense against eviction. That is, you can defend yourself against an eviction by claiming discrimination under CFHA.
Now for my thoughts.
On its face, this opinion seems to be a good thing, or at the least innocuous. I mean, if your landlord says he's evicting you because you're black, we shouldn't allow that. And in the case profiled in the op ed, if the facts are as the tenant says, then making advances on a tenant and then evicting her because she said no is not an okay thing and she should be allowed to fight the eviction on those grounds.
The author of the op ed notes, however, that the court makes no procedure or process by which to weigh a claim of discrimination in a defense against eviction. He holds forth his speculation as to how lower courts might make those decisions but the point is that it's not spelled out.
And that means exactly what the author's last lines say: "...landlords should expect that residential eviction proceedings will move more slowly than in the past and potentially involve expensive, slow-moving discovery."
In deciding to expand what constitutes a defense against eviction but without saying ahead of time what kind of evidence or procedure could demonstrate discrimination, the court opened the door to more expenses and longer evictions should a tenant choose to make a false claim.
*Just in case: remember that a common law system is one in which a judge's ruling is used by other, later judges to make interpretations of law. So, as a hypothetical, a judge in a particular case might rule that sending a registered letter to a former tenant's forwarding address constitutes a "reasonable attempt" to contact said tenant and thus satisfies the law. In future cases, a landlord could feel safe following this procedure to avoid losing a court case.
**Just as an FYI, be careful who and how you allow to live with you. In some circumstances, someone you thought of as a guest is actually a tenant and getting rid of them could involve going to court to evict them!
https://www.lawweekcolorado.com/article/colorado-supreme-court-holds-alleged-violations-of-colorado-fair-housing-act-may-be-asserted-as-affirmative-defense-in-residential-evictions/
Related:
From the thoughtless decision above to legally-required thoughtful action below.
The Colorado judicial branch recently followed what law told them to do and made an online database of published high court decisions which dates back to 1864. The database is free and can be found through a link in the CFOIC article on the database linked below.
https://coloradofoic.org/colorado-judicial-branch-unveils-free-online-database-of-appellate-decisions-dating-back-to-statehood-and-earlier/?fbclid=IwAR1zqa6ZC_xjkDzZMGFZLtZ42kNJTklwguOSUN_cn5qHpIE1miQzeBhT-HA
If there's one thing this state needs more of it's appointed board members!
Some Democrat state legislators (almost certainly with the support of Gov Polis) are moving to rework the RTD board to move it from a board that is elected with the board members representing certain districts to one with fewer members, with the governor getting to appoint 2 out of the 7 members.
This is among other things which you can see in screenshots 1 and 2 attached (from the CPR article linked below).
I'm not going to argue here that RTD's board is doing a bang up job. I'm not going to tell you that things run smoothly right now.
I am going to argue that this is an obvious state takeover of RTD and it is yet another switch away from having public money spent by elected officials.
By moving the number of members from 15 down to 7, actually effectively 5 since 2 of those 7 are appointed, you dilute the representation of all the people who live in districts where you have to pay taxes to RTD.
You allow the governor about a fourth of the voice of this district via his unelected representatives.
By moving to at-large board members instead of board members running in defined districts how much influence will the tiny little areas (tiny by population if not by geographic area) in the RTD taxing district? I'll give you a metaphor. Since we elect one "at-large" governor, how much sway do the rural areas of this state have on his actions? Exactly.
RTD needs a whole lot of fixing. This is not the kind of fixing it needs. Haven't we seen enough dilution of representation by large population centers and unelected boards in the last four years?
Do we really need more?
https://www.cpr.org/2024/03/26/state-lawmakers-move-to-cut-two-thirds-of-rtd-boards-elected-seats/