Landlord-Tenant Rights, and Obligations of Tenants

Tenants usually have questions around four basic areas:

1. What housing rights do I have based on the fact that I am disabled?

2. What is my landlord’s obligation to maintain my house or apartment?

3. How can I protect myself from an unfair eviction?

4. What do I need to do to get back my security deposit?

Advice on other issues is available from housing counselors, attorneys, or advocacy groups.

The relationship between a tenant and a landlord is defined in the lease, which is a legally binding agreement. It is very important, therefore, that a tenant read a proposed written lease very carefully, and that the tenant fully understand what is contained in the lease. If there is a later dispute about what is meant in the lease, a tenant will not have much luck relying on the defense that he or she did not understand or read the lease.

Disability-Based Discrimination

Landlords may not discriminate against tenants on the basis of disability. This means that a landlord cannot refuse to rent to a tenant because the tenant uses a wheelchair or has a certain disease, such as Alzheimer’s. In addition, landlords must make reasonable accommodation for persons with disabilities. For example, if a tenant uses a wheelchair, it would be a reasonable accommodation to place the tenant in a ground floor apartment, and to let him or her widen doorways to accommodate the wheelchair. New buildings must include wheelchair accessible units. Landlords may exclude individuals from housing if allowing them would endanger others, but may not base these rules on stereotypes and assumptions. Further, such people may be excluded if no reasonable accommodation will eliminate the risk they pose.

The Landlord’s Obligation to Repair

The terms of the lease determine the landlord’s obligation to repair the property. Otherwise, the landlord is obligated to repair the property only when:

• Gas burning equipment causes a hazard. A tenant is allowed to move out if repairs to defective and hazardous gas equipment are not made within 72 hours after notice to the landlord. (In such a situation, a tenant is entitled to a full refund of the deposit and a rent rebate)

• The landlord has made a binding agreement to repair the premises

• The landlord’s failure to repair the premises violates the covenant of quiet enjoyment of the premises (see explanation below)

• The repairs are for the common areas

• The repairs are necessary to correct a dangerous or hidden defect

Express Promise

If the tenant can show an express promise to repair by the landlord and a failure to fulfill that promise, the tenant has some options. In theory, he or she can move out without liability. However the tenant is encouraged to consult with an attorney before doing so, because the tenant who takes this approach should be prepared to defend his/her actions in a lawsuit commenced by the landlord. If the tenant has given the landlord money for advance rent and a security deposit, he or she is entitled to rescind the agreement and get the return of all the money paid to the landlord.

The tenant may also use the remedy of "repair and deduct," which means that the tenant can pay for the repair and then deduct the cost from the next month’s rent. This remedy should be used only in situations where the landlord has clearly promised to make repairs and has failed to do so, after a written demand from the tenants. The tenants should notify the landlord, again in writing, that the cost of the repairs will be withheld from the next payment of rent. The tenant should keep receipts and other necessary records to prove the amount deducted was necessary to perform the repairs.

Tenants who invoke this remedy should be prepared to defend their rent deductions in the event of an eviction based on non-payment of rent. The record of notices to the landlord and receipts or work orders for repairs made is essential to show the court that the repair and deduct remedy has been used correctly.

Covenant of Quiet Enjoyment of the Premises

Colorado landlord-tenant law holds that the landlord promises ("covenants") that the
tenant will have the quiet and peaceable possession and use of the premises, a condition called "quiet enjoyment."

Under the doctrine of the covenant of quiet enjoyment of the premises, where serious or long-standing repairs have not been made by the landlord, and the tenant has not expressly agreed to make such repairs, the landlord may be responsible for such repairs.

This is related to the doctrine of "constructive eviction" that has been applied in situations when a residence is not considered habitable. For example, courts have found a constructive eviction took place in situations where a commercial tenant complained of noise from another tenant and the landlord took no action to prevent the noise; where a landlord built an obstruction to a space rented for advertising purposes; where a landlord negligently hired a subcontractor who caused a fire in the tenant’s premises; and where a landlord added a second story to a building that interfered with a tenant’s use of his part of the building. In all these cases, the tenant moved out without liability for the remainder of the lease.

The tenant may also be entitled to damages in the form of a reduction in rent equal to the decrease in the fair rental value of the premises caused by the landlord’s breach. However, tenants who take this approach should be aware that they are risking eviction proceedings, that they may have to go to court to defend their actions, and that the judge may or may not agree that the needed repairs were serious enough to justify reducing or failing to pay rent.

Warranty of Habitability

The warranty of habitability is an implied promise that a rentable property is suitable to live in. Although at least 43 other states have accepted, in various forms, the doctrine of an implied warranty of habitability, the Colorado Supreme Court has not. The state legislature has also refused to enact any such legislation.

Therefore, in Colorado, there is no implied promise from a landlord that the apartment or house is in a livable condition. However, as discussed in the previous section, there may be circumstances in which the landlord’s failure to maintain the property breaches the covenant of quiet enjoyment if it interferes with the tenant’s right to quiet and peaceable possession and use of the premises.

Control of Common Areas

If a landlord retains control of parts of an apartment building for the use and benefit of all tenants, the landlord has a duty to keep those areas safe. For example, courts have required landlords to keep parking lots, sidewalks, and stairways in safe condition.

Dangerous Conditions and Latent Defects

In general, if a tenant is injured because of a defect in the property that was visible and obvious to the tenant before the property was rented, the landlord is not at fault, with exceptions discussed above.

But when a defect is not apparent, and the landlord fails to reveal it to the tenant, the landlord may be liable if the tenant is injured, or if the tenant discovers such a hidden major defect and moves out. If the landlord then sues the tenant for the remainder of the rent, the existence of the defect may provide a defense. If the tenant knew about the defect but rented the property anyway, the landlord is not responsible for subsequent injuries unless the landlord agreed to repair the defect.

What is an Eviction?

If a tenant and landlord do not end their relationship by agreement, the landlord may resort to eviction. In an eviction, the landlord obtains a court order to forcibly remove the tenant and the tenant’s possessions in order to re-rent the apartment or house to another tenant. Tenants have the right to present a defense to the eviction and, if successful, the court will not issue the requested court order to the landlord. A tenant served with a summons from his or her landlord should obtain legal advice and, if necessary, legal representation.

Colorado permits evictions "for cause" and "without cause." If the lease has not yet expired, the tenant can only be evicted for cause, usually non-payment of rent or violation of a condition of the lease.

A tenancy can be terminated without cause if the lease has expired, provided the landlord serves the tenant with an appropriate notice. There are different notice periods for different lengths of tenancies. For example, a lease of one year or longer requires that the landlord give a "notice to quit" at least three months before the end of the lease.

In the case of a month-to-month tenancy, a notice to quit must be given at least ten days before the next due date of rent and terminates the tenancy no earlier than the last day of the rental period. This means that if rent is due on the first day of the next month, the notice to quit must be served on the tenant at least ten days before the last day of the month. However, a notice to quit served in the middle of the month, telling the tenant that he or she has 10 days to move, would terminate the tenancy before the full month is over, and would be insufficient.

A lease with a specific, unconditional termination date ends on that date. A notice to quit is not required. The landlord can bring an action against the tenant if the tenant remains on the premises beyond the termination date. The typical example here is a tenancy governed by a written lease that establishes a specific date for termination without any provision for holding over by the tenant, and the landlord has not accepted rent for an additional rental period or otherwise acknowledged the holding over.

A tenant who wishes to terminate the tenancy is under the same notice requirements as a landlord. Failure to give the proper notice may result in liability for rent for another month.

In order to evict a tenant, the landlord must strictly adhere to the provisions of the eviction statutes. If the landlord fails to follow the procedures and if the tenant is removed from the premises, the landlord may be responsible for damages for a wrongful eviction.

Technical Requirements For Notices to Quit or Demands for Possession

The initial eviction notice, a demand for possession, must be in writing, specifying the grounds, describing the property, stating the time when the property must be delivered to the landlord, and be signed by the landlord or the landlord’s agent.

A demand made because of non-payment of rent must tell the tenant that he or she has three days to pay the rent or surrender possession of the premises. Lease provisions that waive a tenant’s right to the three-day notice are invalid.

An eviction notice based on an alleged violation of the lease must give the tenant the alternative of moving or complying with the lease within three days. The notice does not have to give the tenant this alternative if the tenant is accused of committing a "substantial violation" that endangers life or involves property or violent- or drug-related felonies. There is a second situation when the notice does not have to give the tenant the alternative of moving or complying with the lease. If the tenant previously had been given a three days notice to move or comply and the tenant, after such compliance and expiration of the first notice, commits the same breach of the lease, then no second notice to move or comply is required. The tenant must still be given a three-day notice to move.

The three-day notice may be served personally on the tenant or a member of the tenant’s family over 15 years of age. Service may be done by posting in a conspicuous place such as the front door on the premises if no one is home when service is attempted.

In Colorado, an eviction case moves quickly through the court system. A tenant who does not respond can be evicted in a matter of days. The tenant must be aware of the right to a trial to defend against the accusations of landlords and to ensure that the landlords have followed the requirements of the law. However, this right can easily be lost.

Summons and Complaint

The court proceeding in an eviction case is started with a summons and complaint. The summons must include these words: "If you fail to file with the court, at or before the time for appearance specified in the summons, an answer to the complaint setting forth the grounds upon which you base your claim for possession and denying or admitting all of the material allegations of the complaint, judgment by default may be taken against you for the possession of the property described in the complaint, for the rent, if any, due or to become due, for present and future damages and costs, and for any other relief to which the plaintiff is entitled."

The summons commands the defendant to appear in court at the time and date set in the summons by the landlord’s attorney. Typically, tenants have only a few days to respond to the summons after it has been served.

The complaint must contain certain information by law. It must describe the property with reasonable certainty, the grounds for the recovery of the property, the name of the person occupying the property, and a request for recovery of the property. It may contain the amount of rent due, the rate at which it is accruing, the amount of damages due, and the rate at which they are accruing, with an appropriate request for relief.

Service of the Summons and Complaint

The summons and complaint must be served on the defendant by a sheriff or other person over 18 who is not a party to the action. The summons can be given to anyone over 18 who lives at the same place.

If service cannot be made in person, the landlord may have the summons and complaint served by "posting." Service by posting can take place only after a diligent effort has been made to first make personal service.

When the summons and complaint are posted, a copy of the summons and complaint must be mailed to the tenant by first class mail no later than the day after the day that the complaint is filed with the court.

Posting allows the court to order eviction, but a judgment for rent, damages, attorney fees and costs is possible only after personal service has been made on the tenant, or the tenant has otherwise submitted to the personal jurisdiction of the court. If a tenant files an answer, he or she has submitted to the personal jurisdiction of the court, even if service was by posting. However, merely appearing in court on the specified date, in response to the summons, is not a submission to personal jurisdiction.

The court can enter a default judgment against non-appearing defendants, or defendants who choose not to file an answer. Default judgments entered against defendants who are not personally served can order only that possession of the premises be restored to the landlord. These "judgments for possession only" cannot include money damages for items such as unpaid rent.

Answer

The tenant may file an answer on or before the return date. The answer must admit or deny the allegations of the complaint and present all the tenant’s defenses. The defendant also is required to assert any counterclaim, that is, any claim the tenant may have against the landlord at this time or risk losing the right to counterclaim. If the court accepts the tenant’s answer, it will set a trial date.

Trial Setting

The trial date is usually within five business days. The court has discretion to require a bond if a party requests a delay in the trial of more than five days. Obviously, the purpose of this bond is to prevent tenants from unduly delaying eviction trials. County courts have traditionally treated this statute as mandatory and, often, tenants are advised by judges or court clerks that the trial must take place within five days. Some courts require a written waiver from the landlord if the trial is to be set past five days. However, the setting of trials within five days is discretionary with the court and the bond should be required only if good cause has been shown by the landlord for the imposition of such a bond.

The Trial

An eviction trial is governed by the Colorado Rules of Civil Procedure, the Colorado Rules of Evidence and the eviction statutes.

Both the landlord and tenant in an eviction trial are expected to make opening statements, present witnesses and other arguments. If a jury trial is requested, an additional jury fee must be paid, jury instructions must be prepared, and both parties must be prepared to pick a jury. Failure to file the jury fee by the party requesting the jury or prepare jury instructions on time can result in the loss of the right to a jury trial.

Writ of Restitution

If the landlord wins the trial, he/she obtains a default judgment, or enters into a settlement with the tenant, the judgment is enforced with a Writ of Restitution, which can be issued 48 hours after judgment is rendered. Execution of the writ means the sheriff comes to the property and removes the tenant’s belongings.

The sheriff must execute the writ between sunrise and sunset.

Sheriffs traditionally do not evict tenants during the weekend or Christmas week. The sheriff is required only to remove the tenant’s goods without damaging them more than is necessary to execute the writ. The sheriff has no duty to safeguard the possessions after they are removed.

The landlord is not responsible for how the sheriff executes the Writ. The landlord has no duty to safeguard or store the property. However, if the landlord takes control of the possessions afterward, the landlord may charge the tenant reasonable storage costs.

In some counties, a 24-hour advance notice of the eviction is left with the tenant by the sheriff, while in others there is no notice or warning to the tenant. A tenant may be able to learn from the sheriff’s office the date and time of the scheduled eviction. However, the eviction appointment can be moved ahead so a tenant has to be ready to move as soon as possible after a judgment for possession has been entered.

Attorney Fees and Costs

The winner in an eviction case is entitled to recover damages, reasonable attorney fees, and court costs.

Appeals

A person who is ordered evicted may appeal a county court’s decision to the district court. These appeals are complicated and will probably require the help of an attorney.

Security Deposits

The Colorado Security Deposit Act governs security deposits. From a deposit, landlords are entitled to deduct amounts owed by the tenant for rent, utility charges, repairs, cleaning contracted for by the tenant, and damages caused by abandonment, but not for normal wear and tear.

If a landlord decides to keep any of the deposit, he or she must provide the tenant a written statement listing the exact reasons and charges. This statement must be delivered to the tenant, at the tenant’s last known address, within one month after the tenant leaves the premises. A lease may expand this time period to 60 days. If the written statement is not provided, the landlord forfeits all rights to withhold any portion of the security deposit.

A tenant who disputes the landlord’s written statement should respond in writing. This response should notify the landlord that legal action will be filed in a minimum of seven days. This notice is a pre-condition for the tenant to sue the landlord for the deposit and the penalty of treble the amount of the deposit, plus attorney fees and costs. An action for the return of a deposit is often filed in Small Claims Court by the tenant. The landlord is liable for the penalty if the deposit has been retained in "willful" (deliberate) violation of the Act.

The Act says that any provision in a rental agreement, written or oral, that waives any section of the Act enacted for the benefit of the tenant, is "deemed to be against public policy and shall be void."

The treble damages section of the Act has a one-year statute of limitations. An action for simple recovery of the security deposit and attorney fees is limited by a six-year statute of limitations.