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The Law Frog on KILO 94.3 – February 12, 2024

On the third Wednesday of every month, David McDivitt joins KILO 94.3 to answer legal questions from callers in Southern Colorado. Being a part of the morning show on KILO 94.3 is a dream come true for David, who had always aspired to be a rock star. David’s talents lead to him practicing law over practicing sick guitar rifts, but this lets him help people in need AND rock out with other music fans. Tune in from 8am-9am to hear some of the fascinating legal situations David addresses. If you have any questions of your own be sure to call in: 719-633-KILO or submit a question here.

McDivitt Law Firm Frog

February 12, 2024

Caller: An apartment complex in Denver is suing a family whose father had passed away, they are claiming that his death broke the lease and are trying to make the family pay out the rest of the lease. Is this something that can happen?

David: The first thing to look at is if there is anything in the lease that would prevent the landlord from doing that, without that typically it is allowable. Traditionally the landlord and the tenant sign a contract and the contract binds the tenant to pay the rent through the course of the lease. However, if the tenant passes away in the middle of the lease, the landlord is entitled to pursue getting the rent from the estate of the tenant for the remainder of the lease. If you’re representing the estate, you could make the argument to keep paying it monthly rather than one lump sum. Unfortunately, there typically isn’t much room to negotiate the terms of the lease to protect you from this especially in cases where the property is owned by a large company that owns many properties.

Caller: A tenant who lives in an apartment complex was told he couldn’t use the kitchen sink or dishwasher going on three weeks now, does he still have to pay full rent on a partially functioning apartment?

David: With a lease there is a list of procedures that a tenant must follow if they want to break a lease or pay less. Three weeks is a long time for not getting a problem fixed, the tenant should first follow the rules for notifying the landlord that you are not getting access the way that you should to your unit. There is something called implied warranty of habitability when you rent in Colorado, meaning when you rent something it needs to be livable or habitable. While you can’t just knock off a portion of your rent because an appliance or maintenance issue occurred, you must first give the landlord notice and time to remedy the situation. At some point you can get out of the lease altogether if the issues are not fixed for a prolonged period of time, but moving can be a pain in the neck sometimes. It is best to have a good working relationship with your landlord, speak with your landlord about the situation and ask if they would be able to take a certain amount off of your rent that month for inconvenience and ensure that the problem gets fixed, and then also follow up in writing.

Caller: What legal rights as a tenant do you have to break the lease, if you are having safety concerns with the office staff not taking precautions with the maintenance of the complex?

David: This depends on the urgency of the safety issues; the most important thing is to put them on notice for what is going on. If this is life threatening and is important to get out altogether, you would be able to then backdate when you submitted notices to the landlords, if this is a situation that has been going on for a while with no remedy. If you had to move out because of serious safety concerns, you could make the argument to break your lease or not pay rent for the time that you were not living in the unit because it was unsafe, if you have followed all of the correct procedures.

Caller: A women fell from a ski gondola and was paralyzed due to her injuries, what can she do in this situation legally?

David: In Colorado there is an immunity act, the Colorado Ski Safety Act, that immunizes ski resort operators from a lot of liability. However, falling from a gondola may be a little different because there could be a maintenance issue involved.

Caller: A women slipped and fell in a parking lot hitting her head on the cement and hurt her wrists as well, she went to the hospital and had no major injuries. The section of the parking lot she slipped on was not properly taken care of and an uneven section had ice not marked with caution cones and was the second person to fall in that spot. Can the owner of the parking lot be held responsible for this?

David: Yes she would have a case, if there is a hazardous condition present and you slip on ice when going someplace to shop, the owners have a heightened duty to you because you are what they call an invitee. In Colorado we have what is called a premises liability mechanism, which means responsible ownership of property. If you are going to have people come on your property you may have a duty to keep people safe, if they is a trespasser that duty is very low, however if they have been invited on the property your duty is much higher to them. Therefore, the owner is responsible for making sure that their premises are safe for the people that have been invited onto them to do business. The biggest question is whether or not the owner of the parking lot took any action to rectify or notify invitees of the unsafe area of the parking lot.

Caller: A women was involved in a car accident where a rental vehicle turned left in front of her vehicle. She claims the light for her traffic was green, but the out of state driver claims it was red since the turning lane opposite of them was stopped. The paperwork for the out of state driver was an expired registration and no proof of insurance. Is there a case against the rental company or the vehicle driver to take responsibility or pay for damages taken to her vehicle?

David: Can she make a claim? Yes. However, just because they showed no proof of insurance and that the registration was expired at the time of the accident, does not mean that that is actually the case. Having an expired registration does not really affect the availability of insurance, she can still file a claim against the out of state driver. The next question is whether or not the out of state driver selected rental car insurance as well. Typically, the rental car company is responsible for at least the state minimum in a claim against the person who caused the crash. Then this goes back to who is responsible for the accident, this includes looking at the sequence of lights, speaking with witnesses, and calling police on the scene of the accident.

Caller: A women’s car was stolen, and she is still making car payments on it. The company that she is making payments to knows about the theft, does she still have to make payments?

David: Yes, because the company gave her the money to pay for her car, she still has to pay them back because it is not their fault that the car got stolen. If you have insurance with a comprehensive policy, the insurance company may reimburse the lienholder the remainer of the payment on the car, depending on your coverage of insurance.

Caller: A man works for a security company at a secured site dealing with classified information. The building is controlled access and the property and parking lot in not controlled access. One of his guards had an instance where an unknown individual left a backpack in the grass of their property lines. The guard eventually took the backpack and threw it in the dumpster on the property, the guy then showed back up and was angry and threatened the guard. Would the backpack be considered abandoned property?

David: A few things, it sounds like the backpack owner was trespassing on their property and the guard could have asked him to leave or put the backpack on the other side of their property line. There was probably a more civil way to deal with this situation, as it is his property and it doesn’t seem like there is a clear argument for it to be abandoned property since he set it down and went into a store, most likely he was coming back for it. If he went into the store and then ran in another direction you may be able to claim it as abandoned property. There is an argument that the backpack owner could say this was a civil theft and that the guard tried to deprive him of his civil property intentionally. With this question there are many arguments you could make and elements to consider regarding security and safety as well and is hard to give a definitive answer for.

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