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Page 10 — Property Management Quarterly — July 2021 www.crej.com Law I t is a beautiful Sat- urday morning, you check your email and find one from one of your valued tenants stating: “I am writing today to officially begin to forward in motion the termination of our lease, which expires 01/31/2024 … I spoke with you five weeks ago about the safety and security of the building, numerous vehicle break-ins, thefts of vehicles, vandalism of both vehicles and property, and even the shooting that happened in March directly in front of our building …We no longer feel safe in your building and its environment …We are copy- ing this email and lease to our attorney.” ■ Sessions: It is my under- standing that constructive eviction is a legal claim for relief from rent and other obli- gations under a lease on the basis that the condi- tion of the premises is such that the tenant has effec- tively, or for all prac- tical purposes, been evicted by the landlord. ■ Halstead: While that’s true, it’s a bit more nuanced. The condition giving rise to the claim for constructive eviction needs to be caused (whether by act or omission) by the landlord. Additionally, the condi- tion must essentially deprive the tenant of the use of the prem- ises for the purposes leased. See Carder, Inc. v. Cash, 97 P.3d 174, 184 and Candell v. Western Federal Sv. & Loan Ass’n of Denver, 156 Colo. 552, 400 P.2d 909 (Colo. 1965). In most cases, landlords will not be held liable for the criminal acts of third parties. However, a tenant might argue that a landlord is nonetheless liable if the criminal act was “reasonably foreseeable” and the land- lord failed to take reasonable efforts to prevent future acts. Whether something is “reasonably foreseeable” is a question of fact. In other words, how the court might perceive it is uncertain, and uncertainty involves risk. For that reason, and in order to avoid any uncertainty or risk, a landlord should take care to include language in the body of the lease reliev- ing the landlord of any responsibility for criminal acts such as the ones you described by parties other than the landlord. Most leases include a robust waiver clause in favor of the landlord and a waiver for criminal acts of third parties is essential to such a provision. ■ Sessions: What does the property manager need to do to avoid this constructive eviction? ■ Halstead: Any time a tenant suggests that there may be a basis for construc- tive eviction, the landlord should review the lease to see what provisions address the condition giving rise to the claim to determine whether the condition is the responsibility of the landlord or tenant and whether such a claim has been expressly waived by the tenant. The property manager should let the tenant know that while the landlord takes the tenant’s concerns very seriously, for the reasons set forth in the lease, the land- lord is not responsible for the acts of third parties. While not necessarily liable for the acts of third parties, the landlord might consider upgrading the light- ing in a shopping center or engaging a security patrol service. This is particularly important where there have been repeated incidences of crime at the property and in order to avoid any argument that future “reasonably fore- seeable” criminal behavior went unaddressed by the landlord. It should, how- ever, be clearly communi- cated to the tenant that any increased security measures are being taken to protect the landlord’s property and not the property or person of the tenant. Otherwise, the landlord’s efforts might be viewed as having taken on a duty to provide a “safe” shopping center. At the end of the day, a property manager should at all times be attentive to tenant’s concerns and keep records of tenant complaints and landlord responses. In so doing, managers better position themselves should a claim of constructive evic- tion rise to litigation. ■ Sessions: I am concerned that tenants will start using this legal tactic to termi- nate their leases for various reasons, including home- lessness, crime and lack of security. ■ Halstead: Your concern is very real. These are difficult times, and crime is on the rise. Landlords should fully anticipate that struggling tenants might consider rais- ing these types of issues in order to avoid liability under their leases. Our offices are seeing tenants raising these types of issues on a weekly basis. That is precisely why it is so important to include appropriate language regard- ing the landlord’s obligations (or lack thereof) relative to security measures and appropriate releases for acts of third parties in commer- cial leases. A well-written lease really is the best way to insulate oneself from these types of issues. ▲ steve@sessionsllc.com ahh@mhzlegal.com Understand landlord liability for criminal acts Steven S. Sessions J.D., RPA CEO, Sessions Group LLC Amanda Halstead Manager, Real Estate Practice Group, Mills Halstead Zaloudek LLC Four Decades Of Innovation Flexible, Full-Service, Turnkey Solutions Centric Elevator is a locally-owned, family-led business that’s been maintaining, modernizing and installing commercial, government, hotel, retail and multi-family elevators since 1977, making them one of the largest independent elevator contractors in the Western United States. 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