The Civil Litigator

JurisdictionColorado,United States
CitationVol. 11 No. 7 Pg. 1867
Publication year1982
11 Colo.Law. 1867
Colorado Lawyer

1982, July, Pg. 1867. The Civil Litigator


Vol. 11, No. 7, Pg. 1867

The Civil Litigator

Charles J. Kall, Denver---861-7000
Patrick F. Kenney & Richard P. Holme
Ad Hoc Editorial Committee
Colorado's Landlord Lien Statute:
Equal Protection and Due Process Infirmities

By statute,(fn1) landlords in Colorado are provided with a lien on their tenants' personal property for unpaid rent as well as for reasonable costs incurred in enforcing the lien. This article argues that C.R.S. 1973, § 38-20-102(3)(a) is unconstitutional because it deprives tenants the equal protection of the laws and due process of law.

Right of Landlords to Seize Tenant's Property

The landlord's lien is entitled "Lien on Personal Property,"(fn2) and is included with liens of common carriers and garagemen's liens. The statute gives any landlord a lien on the personal property of his tenants with a few exceptions for necessities. The provisions are primarily concerned with the method of asserting the lien. In summary, that method consists of the following:

1. The landlord determines that an amount is due for unpaid lodging, board or rent from the tenant.(fn3)

2. The landlord enforces his claim by entering the premises of the tenant, seizing the personal property of the tenant and demanding payment of the amount claimed as due.(fn4)

3. The tenant has thirty days from the date the rent was due to pay the amount claimed.(fn5)

4. If payment is made of the full amount claimed then, presumably, the tenant is entitled to the return of his property.

5. If payment is not made within the thirty days, the landlord has an additional thirty days to file an action in court seeking a judgment on the claim.(fn6)

6. If the landlord is successful and obtains a judgment, the landlord can then foreclose on his lien by selling the property after notice of the proposed sale in a local newspaper.(fn7)

These procedures for enforcing the lien give Colorado landlords rights in their tenants' property that were not available at common law.

In the early case of Herr v. Johnson,(fn8) the Colorado Supreme Court was confronted with the question of whether landlords had a right at common law, or otherwise, to enter a tenant's premises and take the tenant's property for nonpayment


of rent. The court found that "(t)he right of the landlord to distrain for rent, in the absence of express agreement therefore, has never existed in this state."(fn9) Herr is based on Colorado's statutory adoption of the English common law as it existed prior to the fourth year of the reign of King James I (1607). Before 1607 a landlord had no right to enter a tenant's premises for seizure of property for nonpayment of rent.(fn10) This adoption of the English common law by Colorado as it existed prior to 1607 is still a valid statute.(fn11) A string of early cases following Herr all recognized that the lien statute enacted after Herr was in derogation of the common law and that it gave rights to landlords they did not previously have.(fn12)

Denial of Equal Protection to Tenants
Expansion of the Traditional
Landlord- Tenant Relationship:

Colorado landlord-tenant law has been expanded by recent court decisions. The traditional, narrow view of the landlord-tenant relationship has been changed to a more modern approach--- an approach that places the landlord-tenant relationship in line with other creditor-debtor relationships.

The leading case is Shanahan v. Collins.(fn13) In Shanahan, a landlord sued a tenant for unlawful detainer and damages. The tenant had withheld rent because the tenant had the apartment repainted. The landlord had expressly promised to repaint the premises but had not done so. The lower court held that the failure to pay rent caused a default and that the landlord was entitled to possession. The tenant's covenant to pay rent was construed as independent of the landlord's covenant to repaint.(fn14) This traditional analysis was rejected by the Colorado Supreme Court.(fn15) The old view, based on real property law, was replaced by reasoning based on the law of contracts. Landlords and tenants were considered parties to a contract by the Supreme Court, and the covenants were held to be dependent. The Supreme Court held that the tenant had the right to set-off from rent all costs incurred as a result of the landlord's failure to perform an express covenant.(fn16)

In addition to analyzing the relationship between landlords and tenants in terms of the law of contracts, the Colorado Supreme Court has also ruled that landlords are not a special class that requires treatment different than other creditors or litigants. For example, Turner v. Lyon(fn17) was a case where the tenant brought suit against a landlord for the wrongful withholding of a damage deposit, contrary to the Colorado Security Deposit Act.(fn18)

In Turner, the landlord had failed to return the security deposit or provide a written statement of what was done with the deposit within thirty days as required by the Act. The landlord counterclaimed for damages to the house caused by the tenant. The trial court dismissed the counterclaim pursuant to a section of the Act that prohibited landlords from prosecuting actions for damages if the landlord had failed to comply with the Act.

On appeal, the landlord argued that the statute created an unreasonable and discriminatory class distinction between landlords who require security deposits and those who do not. The Colorado Supreme Court agreed, finding that there was no rational basis for the classifications created by the statute. The criticized portion of the Act was therefore declared unconstitutional.

More recently, Moore v. Johnson(fn20) struck down on equal protection grounds the statute which permitted landlords to collect attorneys fees if the landlord was successful in an action brought under the Forcible Entry and Detainer Statute.(fn21) The court reasoned that tenants, even if successful in the eviction action, were not


provided the reciprocal right of collecting attorney fees from the landlord. In Moore, the court quoted from Davidson v. Jennings,(fn22) a decision involving a similar section of the Mechanic's Lien Act by which a certain class of litigants was deprived of a right accorded to other litigants in the same kind of cases. The court there held that the imposition of a pecuniary penalty on one party for the benefit of his opponent, without granting him a corresponding right, violated the Fourteenth Amendment and Article 11, § 6 of the Colorado Constitution.(fn23)

The message of Shanahan, Turner and Moore is that landlords and tenants are not a special class of creditors and debtors. Moore declares that the state cannot treat landlords preferentially as opposed to tenants or other litigants; Turner holds that landlords cannot be treated by the state in a manner worse than that accorded other creditors; and Shanahan found the landlord-tenant relationship to be similar to other creditor-debtor, contractual...

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