Terminating a Lease and Tenant's rights, Landlord-tenant

Too often, tenants fear that landlords will immediately evict them from the premises, change the locks, and remove their property without an opportunity to be heard.  Fortunately, Colorado has created a number of procedures to ensure that a tenant receives the proper notice and time necessary before an eviction can be finalized.   

A landlord may terminate a lease at any time, but must give proper notice prior to the termination of the lease.  The length of the lease (also known as the tenancy) determines the length of notice the landlord must provide to the tenant.  According to C.R.S. 13-40-107, the landlord may terminate the lease in writing, but must serve the written notice as follows:

• A tenancy of one year or longer, three months notice;
• A tenancy of six months or longer but less than a year, one month notice;
• A tenancy of one month or longer but less than six months, ten days notice; 
• A tenancy of one week or longer but less than one month, or a tenancy at will, three days notice;
• A tenancy for less than one week, one day notice.  

The Landlord may also evict a tenant for failing to pay rent or if the tenant committed a substantial violation of the lease, but even in these instances, the Landlord must provide 3 days written notice.  After the written notice, the Landlord must follow the statutory eviction procedures before a tenant may be removed from the property.  

Enforcing court orders in divorce cases: civil contempt

With every divorce, the court orders the parties to do (or refrain from doing) certain things.  For example, courts issue orders regarding the division of property and debts, the payment of child support and maintenance, and parenting plans and parental responsibilities.  Unfortunately, some parties refuse to follow the court's orders, which can cause serious hardship and pain to the opposing side.  To ensure that parties to a divorce follow all court orders, the court uses the procedure of civil contempt. 

In Colorado, Rule 107 of the Colorado Rules of Civil Procedure governs the rules and procedures for civil contempt.  There are two types of contempt: direct and indirect contempt.  Direct contempt consists of behavior that occurs in the presence of the court.  Examples of such behavior include disorderly and disruptive behavior, and boisterous conduct or violent disturbances toward the court.  Most often, direct contempt proceedings are initiated by the court and not by one of the parties in a case. 

The second type of contempt, indirect contempt, occurs outside of the presence of the court.  The most common example of indirect contempt is a party's disobedience or interference with an order of the court, such as a parent's failure to pay child support or the refusal to follow the parenting plan.  In most post-divorce disputes, the party utilizing the contempt rules usually claims that the person is acting in "indirect" contempt.

To begin an indirect contempt action, the initiating party much file a motion and supporting affidavit with the court.  The motion and affidavit include the rule or order that was violated, and the facts showing how the opposing party violated the order.  If there are sufficient facts in the motion and affidavit to show that indirect contempt occurred, the court will issue a citation to the offending party to show cause why the party should not be held in contempt.

Once the citation has been issued, the opposing party has an opportunity to admit or deny the contempt allegations.  Should the party deny the contempt allegations, the court will schedule a hearing to determine if the contempt allegations can be proven.

When a party seeks to hold the opposing party in contempt, the party may ask the court to impose remedial or punitive sanctions  The type of sanctions selected makes a significant difference in the manner in which the contempt proceeding is held.  If the party is asking for remedial sanctions, the party must prove to the court that the offending party (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order.  Punitive sanctions, on the other hand, are more criminal in nature, and therefore the moving party must show, beyond a reasonable doubt, that (1) an order of the court exists, (2) the offending party knew of the court order, (3) the offending party had the ability to comply with the order, and (4) the offending party wilfully refused to comply with the order.


For remedial sanctions, the court may order the offending party to correct the improper behavior, or to remedy the errors that were made.  The Court may also order the offending party to pay for the reasonable attorney fees and costs of bringing the contempt action.  For punitive sanctions, the Court may order the offending party to pay a fine or imprisonment (up to six months), but only if the Court finds that the party's conduct was offensive to the authority and dignity of the court. 

Tenant's Rights

The Landlord-Tenant relationship is a common, everyday legal occurrence that most, if not all, persons go through during their adult lives.  Unfortunately, it is often a source of contention and arguments that lead to court battles.  For some tenants, it seems that the landlord has more time, money, and experience to yield his or her power over the tenant.  This does not have to be the case, and Colorado has implemented statutes to protect both landlords and tenants from questionable and illegal practices.

Upon entering a lease agreement, the landlord must turn over possession of the property to the tenant.  Additionally, the tenant has the legal right to quiet enjoyment of the property (the legal term for this right is the "covenant of quiet enjoyment").  This means that, generally speaking, the landlord may not trespass onto the property and may not interfere with the tenant's use of it.  If the landlord violates this right to quiet enjoyment, the landlord may be responsible for any damages caused by the violation.

An important statutory right afforded to the tenant is the Warranty of Habitability (C.R.S. 38-12-503).  The warranty of habitability deals with the questions of repairs and damages to the property, ensuring that the landlord provides a safe and healthy premises for the tenant.  If the Landlord fails to abide by the terms of the warranty, the landlord may be responsible for damages, and it may allow the tenant to legally terminate the lease.  

With an eviction, the tenant still has a number of legal rights.  If a landlord is threatening to evict, the tenant's first step is to review the lease agreement.  In many lease agreements there are steps the landlord must do prior to evicting the tenant, and a failure to follow these steps may protect the tenant from an illegal eviction.
 
If the landlord wishes to terminate the lease, the landlord must provide the proper written notice to the tenant and follow the necessary time-frame for terminating the lease.  By statute, if the landlord seeks to terminate the lease, the landlord must provide a written notice to quit to the tenant (see C.R.S. 13-40-107).  The timing of how much notice must be given prior to the eviction depends upon the length of the tenancy agreement.  For example, if the tenancy agreement was for one year, the landlord must provide three months notice prior to terminating the lease.  If the tenancy agreement was a month-to-month lease, then only 10 days notice is necessary (C.R.S. 13-40-107 spells out the various time-frames).

The landlord may terminate the lease for a failure to pay rent or a substantial violation of the lease, but even in these circumstances, the landlord must give a three day notice.  In the case of failing to pay rent, the tenant has three days to pay the rent (it is called a Demand for Rent or Possession), and for a substantial violation, the tenant has three days to remedy the problem (it is called a Demand for Compliance).

Once notice is given and the time has expired, the Landlord still does not have the right to forcibly remove the tenant from the premises.  At this point, the Landlord must file a summons and complaint to legally evict the tenant.  In Colorado, this process is called a Forcible Entry and Detainer action, found at C.R.S. 13-40-101 et. al.  To begin the action, the Landlord will file a Complaint with the County Court.  Next, the Landlord will prepare a summons, which is a legal document informing the tenant of the time and place of court.  The summons and complaint must be properly served upon the tenant.  For proper service, the landlord must personally serve the tenant, or serve the summons and complaint by posting.  If service is completed by posting, the landlord must post the summons, complaint, and a blank answer form on a conspicuous location of the residence, and mail a copy of all three documents to the tenant's last known address.

Upon filing the complaint, the Court will hold a hearing not less than five days, but no more than 10 days after the summons has been issued.  If the tenant wishes to contest the allegations of the complaint, the tenant may file an answer to the Complaint.  Upon the filing of an answer, the Court will schedule a hearing to determine if the Forcible Entry and Detainer action should be upheld.  It is important to review the landlord's complaint against the tenant because there may be certain aspects of the Complaint that the tenant wishes to contest.  For example, the tenant may disagree with the amount of rent that is due or any alleged damage to the property.  To preserve these issues, the tenant should file an answer and appear in court to defend the case.  

If the Court rules in favor of the landlord, a judgment for possession will enter for the landlord.  Within 48 hours of the judgment, the Court will issue a writ of restitution.  This writ of restitution gives the landlord a legal right to remove the tenant's property from the residence.  The writ of restitution is executed by the Sheriff's Department, and depending upon the jurisdiction, is executed by the Sheriff within 2-3 weeks of the judgment.  It is at this point that the tenant, if the tenant is still living at the residence, will be escorted from the property.