Most tenancies, which involve residential properties are controlled by a written lease. To be legally effective, the lease must be signed by both the landlord and tenant. Most leases are for a 12-month period.
One question that comes up is what occurs when the period of the tenancy is over. After the lease period ends, the tenant becomes a holdover tenant, which entitles either party to terminate the lease. There may be language in the lease that converts it to a month-to-month lease. Then, either party can terminate the tenancy upon seven days written notice to the other party. The lease may also provide that renewal of the one-year period may occur when the tenant pays rent for the 13th month of the tenancy. If the lease is silent on this issue, if the tenant pays rent for the 13th month and the landlord accepts it, under Colorado law, the one-year lease is renewed for another year.
The most common reason a landlord attempts to evict a tenant is for nonpayment of rent. In this situation, the landlord can either post or hand-deliver to the tenant a Demand for Compliance or Possession stating that if the total amount of rent owed is not paid within three days, the landlord can proceed to the next step, which is a “forcible entry and detainer” action in County Court. This is a streamlined action, which can be heard seven days after the complaint is filed and served. The sole issue before the court is whether the landlord is entitled to possession of the property. If the landlord wins, the tenant has 48 hours to vacate the premises. Should the tenant fail to do so, the landlord can have law enforcement supervise the landlord moving the tenant’s property to the sidewalk or street – quite an extreme remedy.
Tenant’s defenses to the FED action: If the landlord accepts even partial rent after serving the three-day notice, the tenant will prevail in court. In addition, the FED action is hyper-technical, and mistakes by landlords and even attorneys are not uncommon. It is a good idea for the landlord to hire an attorney to ensure the eviction is done correctly. If the lease so provides, the prevailing party in the FED action is entitled to attorney fees and court costs.
In other eviction actions, sometimes landlords seek to evict tenants for loud parties, unauthorized pets, failure to maintain the lawn, etc. Assuming these are specified in the lease, the landlord cannot proceed to an FED action with only one three-day Demand for Compliance of Possession. After the first such notice is served, the tenant must violate the same condition of the lease before the landlord can provide him or her with a Notice to Quit. Then the landlord may proceed to an FED action.
Colorado has always been a pro-landlord state when contrasted with such states as California and New York. As such, the eviction process is streamlined, and a tenant who does not pay the rent can be ousted within two weeks if the landlord does everything properly.
In 2008, Colorado was one of the last states in the union to enact a warranty of habitability. A landlord must provide a tenant with amenities such as running hot and cold water, potable water, heat, electricity and a nonleaking roof. The warranty is activated by the tenant providing the landlord with written notice of the problem. The landlord has 15 to 35 days (including a five-day notice period) to repair the problem, and if he or she fails to do so, the tenant has several remedies, which include abatement of rent, termination of the lease if the tenant vacates the premises or a claim for damages. Unless written notice is provided, the warranty is not activated. Violation of the warranty may also constitute a defense to an FED action for nonpayment of rent.
One area where Colorado law is pro-tenant is in the security-deposit arena. After termination of the lease or the tenant vacating the premises, the landlord has 30 days, or 60 days if the lease so provides, to return the security deposit in full to the tenant, return part of the security deposit with a letter of explanation or retain the entire deposit with a letter of explanation. The deposit may be retained by the landlord for unpaid rent or damages caused to the premises by the tenant. It may not be retained for normal wear and tear to the residence – e.g., a nonsmoking tenant lives on the premise for 10 years and the landlord attempts to charge him or her for painting the interior walls.
Within the time period set forth above, should the landlord retain all or part of the security deposit without providing a letter of explanation, the tenant would be entitled to the unreturned portion of the deposit, plus triple damages and reasonable attorney fees and court costs.
To activate this statute, the tenant must provide the landlord with a seven-day written notice, providing the landlord with one last opportunity to return the entire security deposit to the tenant. If the landlord fails to furnish the tenant with the entire deposit during that period, the tenant is entitled to triple damages for any portion not returned. In a security deposit claim, the landlord is still entitled to any damages to the premises caused by the lessee.
Michael Wanger is an attorney practicing in Durango. Reach him at mwanger@gobrainstorm.net.
