Colorado Landlord & Tennant Law:
Frequently Asked Questions
What are the procedures for an eviction?
a. Eviction Procedures:
1. Three day “Notice to Quit”: Prior to commencing an eviction, a landlord must first post a three day notice to quit or pay rent (located at http://www.courts.state.co.us/chs/court/forms/fed/fed.html) giving the tenant 3 days to cure the stated default. This notice is not just for past due rent, but can also apply to other violations of the lease terms warranting eviction. This notice need not be personally served on the tenant, and can be posted on the rental property door after good faith efforts to personally serve the tenant are exhausted.
2. Suit, Summons and Complaint: If a tenant fails to heed the 3 day notice and does not cure the default, a landlord may commence a suit by filing a summons and complaint in the County Court where the rental property is located (called a Forcible Entry and Detainer, or FED, action). As with the 3 day notice, you may post this documentation on the door, after good faith efforts of personal service are exhausted (be advised, however, that service by posting is insufficient for the Court to award any money damages, and will only allow a landlord to regain possession of the rental property. To recover money damages, the tenant must be personally served).
Further, be advised that there is a very strict timeline between the filing of the eviction and when the Return Date must be scheduled, and the tenant must be served in some manner a certain number of days prior to the return date. Please contact Genet & Martinez at (303)623-3300 for more information.
3. Return date: The return date is the first hearing on any FED action, and it is to ensure proper procedure has been followed by a landlord as to the 3 day notice, filing of the complaint and summons, and to ensure proper service on the tenant. If a landlord has followed proper procedure, the case will be allowed to proceed.
The return date is also the tenant’s last opportunity to file an answer to the FED complaint. If a tenant files an answer, the case will be set for trial (unless the landlord and tenant come to another agreement). If the tenant fails to file an answer (and absent an agreement that says otherwise), the landlord can request a default judgment against the tenant.
4. Trial or default: If the tenant has filed an answer, ad the landlord and tenant have not come to any agreement settling the case, the case will be set over for trial. Be advised that in an FED case, the trial must be within 7 days unless there is good reason for an extension of that requirement. At the trial, it is the landlord’s burden to prove the default of the tenant warranting eviction. In some cases, it may even be necessary for the landlord to prove the right to possession (usually by proof of ownership) of the rental property.
If the tenant does not answer, or fails to show up for the trial, the landlord may request a default judgment against the tenant. For purposes of pure eviction (as opposed to any request for money damages), the court will enter the default judgment for possession in favor of the landlord. Once that is done, a landlord must get a copy of this judgment (and either post or serve it on the tenant) in order to get to the next step: the Writ of Restitution.
5. Writ of Restitution: A Writ of Restitution in an eviction case is the document issued by the Court that allows a landlord to physically retake possession of the rental property. A Writ of Restitution will not be issued by the Court for exactly 48 hours from the date and time of judgment. A copy of the form can be found at the link above.
Once a landlord has waited the 48 hours and received the Writ of Restitution, the landlord will need to take it to the County Sheriff where the rental property is located, and schedule an appointment for a “civil assist” on the writ. This means that the Sheriff will have deputies at the property to oversee the physical removal of the tenant’s property. Be advised that the landlord is responsible for the actual removal, as the deputy will only observe.
6. Storage or sale of removed possessions: In addition to simply placing the tenant’s property outside the rental property, a landlord may also either store the tenant’s property (at a charge), or sell the property to recover money owed in rent, court costs, or other damages. These procedures come with significant downfalls, and most landlords simply elect to place the removed property out on the curb for anyone to take.
Please contact Genet & Martinez at (303)623-3300 to discuss these options.
Can I lock out a tenant who does not pay rent?
No, a landlord may not “lock out” a non-paying tenant prior to a Court Order grating the landlord possession of the rented property. Colorado law makes lock outs illegal, and may award damages to a tenant for such a lock out. Further, a tenant may lawfully break into a rental property if the tenant has been locked out (though the tenant may be liable for any damages the break-in causes).
What must I do with a tenant’s security deposit?
Pursuant to Colorado law, a landlord has 30 days to return a security deposit to a tenant, or an accounting of any deposit money withheld along with a specific accounting of what money was withheld for what purpose. The law allows an extension of this time should the lease extend it, but it must not exceed 60 days.
This requirement is largely driven by the terms of the lease. For instance, if the lease states a security deposit, or the accounting thereof, will be sent within 60 days of the tenant vacating the premises or the end of the lease term, whichever is later. This provision is valid. However, if you have no lease, the 30 days applies.
Please contact Genet & Martinez at (303)623-3300 to discuss this matter further with one of our attorneys.
What are the penalties for failing to return the security deposit or account for it in the time allowed?
A landlord who does not return a tenant’s security deposit, or an accounting of what amount of the deposit was withheld and the portion of the deposit not withheld, within the time allowed by law may be subject to additional damages. These damages include up to three times the amount of the deposit withheld, and if a tenant is successful, the tenant’s reasonable attorney’s fees and costs associated with recovering the withheld deposit amount.
Be advised that, prior to commencing any lawsuit against a landlord for wrongful withholding of a security deposit, a tenant must give the landlord a 7 day notice of the intent to sue. No suit can be commenced until the expiration of that 7 day time period.
What constitutes normal “wear and tear”?
Normal wear and tear can be defined as many things, and usually changes from case to case. However, as a general argument, worn carpet is an example of normal wear and tear, though the age of the carpet and the length of the tenancy are factors that may change what is considered normal wear and tear.
Please contact Genet & Martinez at (303)623-3300 to discuss any questions concerning specific issues of normal wear and tear.
What must I do to “mitigate” my damages?
A landlord may seek to recover damages from a tenant for the entire lease terms, even if the tenant moved out, abandoned or was evicted from the rental property. However, a landlord must mitigate damages by making good faith efforts to re-rent the property prior to the end of the lease term. This may include advertising, or showing the property to potential tenants. It is good practice to keep a log of all showings, or a list of advertising, to show the Court the efforts at mitigating damages.
If the property is re-rented prior to the expiration of the lease term, a landlord may only recover from the old tenant up to the date of the new tenancy. If a landlord fails to mitigate damages, the Court may prohibit recovery of any amount due after the date the tenant moved out, abandoned or was evicted form the property.
What can I do to recover past and future rent?
In an FED case, the landlord can seek past due rent or other charges, as well as future rent and damages, up to the end of the lease term. Be advised, however, the tenant must be personally served with the complaint and summons in order for the court to award these money damages. Also, a landlord must mitigate damages as describe above. Further, as many evictions occur prior to the end of the lease term, you will need to continue the case in order to either mitigate damages by re-renting, or to have the lease term expire in order to know the full amount of damages.
What do I do if a landlord has withheld my security deposit?
If a landlord has withheld your security deposit, and it was not accounted for in the allowed timeline (30 days by state law, up to 60 days if specified in the lease) a tenant may have an actionable case against the landlord. If the landlord did not return the deposit or account for it in any way, a tenant must send a letter, certified mail return receipt, to the landlord demanding the return of the deposit. This letter must be sent at least 7 days prior to commencing any lawsuit for the withholding of the deposit.
Be advised that, if a landlord has not sent you anything in the time allowed, either an accounting form or the deposit, the landlord has waived all rights to withhold any portion of the deposit, for whatever reason.
As many factors go into a case for wrongful withholding of a security deposit, please contact Genet & Martinez at (303)623-3300 to discuss your case with one of our attorneys.
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