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.
Saturday, June 11, 2011
Tuesday, May 17, 2011
Court and Courtrooms: Protocol and Etiquette
Many people have only seen the inside of a courtroom on television, in the movies, or in a history book. But if you are a litigant in a civil or criminal case, the courtroom suddenly becomes a real place, with real people, with real outcomes. Not surprisingly, people who attend court for the first or second time do so with some trepidation and fear. In fact, attorneys who regularly practice in the courtroom will some times admit that they too share those same fears when they walk through the courthouse doors. While it is understandable that people come to court with some hesitation, the courthouse is a place to ensure justice for all and to vindicate your rights. Hopefully this post can help alleviate your concerns and worries.
The first thing to remember is that the Courthouse is a public place. It is open to the public, and its function is to serve the community. The staff members at the courthouse recognize this important function, and they treat the community members with respect and courtesy. If you need helping finding a courtroom or filing a document, ask a staff member, and the staff member can point you in the right direction.
When attending court, it is important to take steps in preparation for your visit. First, make sure you know the date and time of your hearing. There are many cases and people involved in the courthouse, and the courthouse follows a set schedule of hearings. If you appear late for court, you may forfeit your opportunity to present a case or make an argument. Plan to appear at least 15 minutes before the scheduled court appearance. Call the court in advance of the hearing to learn of the date and time, review the document (such as the motion, petition, pleading, or summons) that tells you the date and time of court, or go to the Court's website to find the date and time.
As you prepare for court, make sure that your appearance is appropriate for the courtroom setting. Although the attorneys will appear in professional suits and attire, you are not required to wear the same professional outfit. You may, if you wish, wear a suit and tie, or a professional dress, but it is not mandatory. On the other hand, wearing a t-shirt and shorts likely does not portray the proper respect and dignity the court deserves. Perhaps the best advice is to wear something that is comfortable to you, but also shows the court that you are serious about the case and wish to be treated with respect. Wearing a hat in the courtroom is not permitted.
Once in the courtroom, listen for the Judge to call the case and invite you to speak. Some times people become anxious because they want to tell the Court every thing on their mind, and wish to do so when others are talking. Please be patient as every person gets an equal opportunity to speak. Because everything in the court proceeding is recorded, only one person may speak at a time. After the Judge is finished speaking, one party will have an opportunity to speak, followed by the opposing party. If the Court needs clarification, the Judge will likely ask follow-up questions and give you a chance to answer.
While in court, treat each opposing side with respect and dignity. A court appearance is not an opportunity to yell and scream at an angry neighbor or former spouse. It is a chance to present your case to the Court and to apply legal and equitable principles to each factual scenario. You will have an opportunity to be heard in a respectful and peaceful manner. At the end of the case, the Judge will either announce the ruling on the request, or inform the parties that a ruling will be issued in written form in the near future.
One last reminder: turn your cell phones off when you enter the courtroom. There is nothing more embarrassing then having a cell phone go off in the middle of a case.
The first thing to remember is that the Courthouse is a public place. It is open to the public, and its function is to serve the community. The staff members at the courthouse recognize this important function, and they treat the community members with respect and courtesy. If you need helping finding a courtroom or filing a document, ask a staff member, and the staff member can point you in the right direction.
When attending court, it is important to take steps in preparation for your visit. First, make sure you know the date and time of your hearing. There are many cases and people involved in the courthouse, and the courthouse follows a set schedule of hearings. If you appear late for court, you may forfeit your opportunity to present a case or make an argument. Plan to appear at least 15 minutes before the scheduled court appearance. Call the court in advance of the hearing to learn of the date and time, review the document (such as the motion, petition, pleading, or summons) that tells you the date and time of court, or go to the Court's website to find the date and time.
As you prepare for court, make sure that your appearance is appropriate for the courtroom setting. Although the attorneys will appear in professional suits and attire, you are not required to wear the same professional outfit. You may, if you wish, wear a suit and tie, or a professional dress, but it is not mandatory. On the other hand, wearing a t-shirt and shorts likely does not portray the proper respect and dignity the court deserves. Perhaps the best advice is to wear something that is comfortable to you, but also shows the court that you are serious about the case and wish to be treated with respect. Wearing a hat in the courtroom is not permitted.
Once in the courtroom, listen for the Judge to call the case and invite you to speak. Some times people become anxious because they want to tell the Court every thing on their mind, and wish to do so when others are talking. Please be patient as every person gets an equal opportunity to speak. Because everything in the court proceeding is recorded, only one person may speak at a time. After the Judge is finished speaking, one party will have an opportunity to speak, followed by the opposing party. If the Court needs clarification, the Judge will likely ask follow-up questions and give you a chance to answer.
While in court, treat each opposing side with respect and dignity. A court appearance is not an opportunity to yell and scream at an angry neighbor or former spouse. It is a chance to present your case to the Court and to apply legal and equitable principles to each factual scenario. You will have an opportunity to be heard in a respectful and peaceful manner. At the end of the case, the Judge will either announce the ruling on the request, or inform the parties that a ruling will be issued in written form in the near future.
One last reminder: turn your cell phones off when you enter the courtroom. There is nothing more embarrassing then having a cell phone go off in the middle of a case.
Wednesday, May 4, 2011
Modification of Parenting Time (Post-Decree Modification)
Once a divorce is final, people often wonder if the terms or orders of the divorce can ever be modified or changed. A common example occurs in parenting time. Children grow up, people move, and changes need to be made to accommodate a child's needs. This post will describe, briefly, the steps necessary to modify parenting time.
The first step is to determine if modification of the parenting time can occur without the assistance of a court. If the parties to the divorce agree on a modification, the parties can go forward without the need to ask the court to modify it. This is perhaps the simplest route to modifying a parenting plan. Most divorce decrees include a provision about modifying parts of the decree by mutual consent of the parties. Some decrees also discuss mediation steps prior to go to court.
A word of caution about modifying the parenting plan by mutual agreement. Be sure that the modification is by MUTUAL agreement, and not by unilateral self-help. In other words, a party to the divorce cannot simply modify the parenting time without notifying the other side of his or her intentions. Self-help modifications without mutual agreement is not allowed, and a Court will not permit this practice.
If the parties cannot agree on a modification, one party may ask the Court to modify the terms of the parenting plan. This is done by the filing of a Motion to Modify the Parenting Time, pursuant to C.R.S. 14-10-129. In the motion, the moving party is asking the Court to modify the parenting time. The must must include the reasons for modifying the parenting time, and most importantly, that the modification of the parenting plan is in the child's best interests. In fact, the best interests of the children is the guiding principle the Court will focus on when ruling upon a Motion to Modify Parenting Time.
The person filing the Motion with the Court must also serve the opposing side with a copy of the Motion. Serving the other side can be by personal service (handing the motion to the person), serving the opposing side's attorney, or by mailing it to the opposing side's last known address. The Court wants to make sure that you have served the opposing side a copy of the Motion, and therefore it is necessary to file a Certificate of Service with the Court verifying that a copy of the Motion was delivered.
As with any motion, the Court will await a response from the opposing side. After the opposing side responds (or fails to respond), the Court will usually require a hearing on the Motion. This hearing occurs before a Judge, who will hear evidence to determine if modification of the parenting time is in the child's best interest. At this hearing you have the opportunity to explain to the Court why it is in the best interest of the child to modify the parenting time. You may call witnesses, present evidence, and argue your case to the court. Remember, the opposing side also has an opportunity to be heard, and the opposing side has the right to question your witnesses and present a case. At the end of the hearing, the Court will either rule on the motion at the bench, or will issue a written order a couple of days after the hearing.
One final thought about modifications: review C.R.S. 14-10-129 very carefully. The statute discusses specific steps necessary to modify parenting time, particularly when the modification changes the status of the custodial parent, and when one parent is moving out of state. Also, subsection 4 of the statute discusses modifications of parenting time when a parent is alleging that the child is in danger of imminent physical or emotional danger due to the parenting time. In such instance, the Court must hear and rule upon the motion within seven days.
The first step is to determine if modification of the parenting time can occur without the assistance of a court. If the parties to the divorce agree on a modification, the parties can go forward without the need to ask the court to modify it. This is perhaps the simplest route to modifying a parenting plan. Most divorce decrees include a provision about modifying parts of the decree by mutual consent of the parties. Some decrees also discuss mediation steps prior to go to court.
A word of caution about modifying the parenting plan by mutual agreement. Be sure that the modification is by MUTUAL agreement, and not by unilateral self-help. In other words, a party to the divorce cannot simply modify the parenting time without notifying the other side of his or her intentions. Self-help modifications without mutual agreement is not allowed, and a Court will not permit this practice.
If the parties cannot agree on a modification, one party may ask the Court to modify the terms of the parenting plan. This is done by the filing of a Motion to Modify the Parenting Time, pursuant to C.R.S. 14-10-129. In the motion, the moving party is asking the Court to modify the parenting time. The must must include the reasons for modifying the parenting time, and most importantly, that the modification of the parenting plan is in the child's best interests. In fact, the best interests of the children is the guiding principle the Court will focus on when ruling upon a Motion to Modify Parenting Time.
The person filing the Motion with the Court must also serve the opposing side with a copy of the Motion. Serving the other side can be by personal service (handing the motion to the person), serving the opposing side's attorney, or by mailing it to the opposing side's last known address. The Court wants to make sure that you have served the opposing side a copy of the Motion, and therefore it is necessary to file a Certificate of Service with the Court verifying that a copy of the Motion was delivered.
As with any motion, the Court will await a response from the opposing side. After the opposing side responds (or fails to respond), the Court will usually require a hearing on the Motion. This hearing occurs before a Judge, who will hear evidence to determine if modification of the parenting time is in the child's best interest. At this hearing you have the opportunity to explain to the Court why it is in the best interest of the child to modify the parenting time. You may call witnesses, present evidence, and argue your case to the court. Remember, the opposing side also has an opportunity to be heard, and the opposing side has the right to question your witnesses and present a case. At the end of the hearing, the Court will either rule on the motion at the bench, or will issue a written order a couple of days after the hearing.
One final thought about modifications: review C.R.S. 14-10-129 very carefully. The statute discusses specific steps necessary to modify parenting time, particularly when the modification changes the status of the custodial parent, and when one parent is moving out of state. Also, subsection 4 of the statute discusses modifications of parenting time when a parent is alleging that the child is in danger of imminent physical or emotional danger due to the parenting time. In such instance, the Court must hear and rule upon the motion within seven days.
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