Evictions in Colorado

Evictions in Colorado are governed by the forced entry and detainer (“FED”) statutes, C.R.S. § 13-40-101 to 126.  As discussed below, some are surprised that leases may waive the demand for compliance with respect to non-monetary defaults.

The FED statutes seek to strike a balance between the need of landlords to obtain possession of their real property when a tenant fails to pay rent or comply with other terms of the lease, and the need of tenants to be protected from heavy-handed and unfair actions by landlords. In striking this balance, the statutes define what constitutes “forced entry” by a landlord, and what constitutes “unlawful detention” by a tenant.

Basic Definitions

Forced Entry by a Landlord[1]

Landlords should not use non-legal means to obtain possession.[2] Such means includes actions that are either threatening or non-threatening, and whether the tenant is present or not. Actions that a landlord cannot take to recover property are those which would inspire a just apprehension of violence to take possession. Such actions might include building fences to block access to property and posting signs.[3]

Unlawful Detention by Tenants – Monetary and Non-Monetary

Tenants are liable for unlawful detention who fail to pay rent, who fail to remedy the violation of other covenants, or who hold over past the expiration of their lease,[4] as long as landlords have taken certain actions to provide the tenants with notice of their wrongful acts.

– Failure to pay rent: Landlords must give tenants three day’s notice in writing of a failure to pay rent prior to commencing an action to evict the        tenant. This notice typically gives the tenant the right to cure the default by paying the amount owed.

Leases cannot contain a provision that waives this three-day notice requirement.[5]

– Breach of Non-Rent Covenants: Landlords must give tenants three day’s notice in writing of a failure by the tenant to comply with non-rent covenants, such as restrictions of the number of occupants, pets, and restrictions on uses of the property.

In contrast to a failure to pay rent, leases may waive the right to the three-day notice for non-rent violations of the lease.[6] Such a provision in a lease allows the landlord to terminate the tenancy upon a non-rent violation of the lease.[7] In any event, even if the lease does not contain a waiver of the three-day notice for violation of non-rent covenants, if the landlord has once provided a three-day notice of a violation, Colorado statutes provide that the landlord may provide a three-day notice to quit.[8] The specific requirements governing a notice to quit are contained in the statutes.[9]

Criminal Activities by Tenants

 Landlords who can prove certain criminal activities on the property which are considered by statute to be “substantial violation[s]” of the lease can terminate the tenancy at any time upon service of a three-day notice to quit.[10] The statute generally defines the types of activities that justify termination of the lease under this section, which includes termination for willful endangerment of the landlord’s property, commission of certain drug-related felonies, violations of certain federal or state laws that carry a potential sentence of 180 days or more and which have been declared a public nuisance under state law or local ordinances.[11]

Damages, Attorney Fees and Costs

Prevailing parties under the FED statutes are entitled to recover damages, attorney’s fees and costs of the action.[12] However, these damages include only to damages related to the FED action itself, and not other damages that may arise out of the tenants’ actions on the premises, such as abnormal wear and tear and other actions by the tenant resulting in damages during the tenancy.[13]

Summary

 Careful compliance with applicable Colorado statutes governing FED action is required at every stage of the eviction process – the effectiveness of the notice to cure, the notice to quit and the ability to recover of damages and attorney fees all require proper actions by the landlord and the tenant to protect their respective interests in the property.

References:

[1] The statute prevents forcible entry by “any person,” who wrongfully attempts to take possession, and does not apply only to landlords.   This article addresses this in the context of actions by landlords, since this is the most common set of facts.

[2] C.R.S § 13-40-102 (preventing forcible entry as defined in § 13-40-101).

[3] Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2016)

[4] C.R.S § 13-40-104.

[5] C.R.S § 13-40-104 (1)(d).

[6] See Francam Building Corp. v. Fail, 646 P. 2d 345 (Colo. 1982).

[7] An example of a provision waiving the right of the tenant to the three-day notice for non-monetary breaches is identified in the Francam case, footnote 6, supra.

[8] C.R.S. §13-40-104(e.5)(I)and (II).

[9] C.R.S. §13-40-107.

[10] C.R.S. §13-40-107.5.

[11] C.R.S. §13-40-107.5(3).

[12] C.R.S. §13-40-123.

[13] Integra Fin. Inc. v. Grynberg Petroleum Co., 74 P.3d 347 (Colo. App. 2002).