Forcible Entry and Detainer: a Primer

• Publication year: 2000
• Pages: 89

29 Colo.Law. 89 Colorado Lawyer 2000.

2000, October, Pg. 89. Forcible Entry and Detainer: A Primer

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89

Vol. 29, No. 10, Pg. 89

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 89]

Specialty Law Columns
Real Estate Law Newsletter
Forcible Entry and Detainer: A Primer
by Alan Sweetbaum, E. James Wilder

Perhaps one of the greatest areas of conflict between landlords and tenants is the eviction proceeding. Commonly called a Forcible Entry and Detainer ("F.E.D.") action, an eviction is tricky business and several pitfalls must be avoided

This article describes some of the essentials practitioners need to know in order to deal with evictions.1 Although Colorado?s statute is named after the more dramatic sounding "forcible entry and detainer," the most common form of action is the "unlawful detainer."2 Because unlawful detainer actions dominate the practice, this article specifically deals with these situations and refers to all such actions as F.E.D.s

Notice of Violation

The first stage in an F.E.D. action is to provide original notice to the tenant that the tenancy will be terminated unless he or she complies with all provisions in the lease This is required in every case except those in which there is a holdover after the end of the lease term (and therefore, the right to possession already has terminated).3 Under most of the commonly used notice provisions of the statute, the notice required is three days, but this is not always controlling. The lease should be read with care to determine whether a different time for notice is required. A lease provision may extend the statutory time required,4 but cannot reduce it.5 The more common types of F.E.D.s and their notice provisions are discussed next.

Failure to Pay Rent and Other Lease Violations

The failure to pay rent under a lease is the most common reason for an F.E.D. Unless extended by the lease, the notice required for a rent default is a three-day demand.6 The demand must provide that the tenant either pay the full amount of rent due within the applicable time period or turn over possession of the premises.

Turning over possession during this time period may not relieve the tenant of the future obligation of rent, but may prevent the tenant from "unlawfully detaining" the property.7 Although it might not be required, landlords can include clear and specific language in their leases that provides for a continuing rental obligation.8 If no lease exists, however, the landlord will be limited to collecting only damages incurred while the tenant unlawfully detained the property.9

The F.E.D. statute also provides that a tenancy may be terminated for other violations of the lease, such as using the premises in an unauthorized manner or violating a no-pets provision. The notice required in these situations is similar to the failure to pay rent provision because it requires a party to serve a demand for compliance with the lease provision or for possession.10 Turning over possession may not relieve the party of the future obligations under the lease, but it will prevent the F.E.D. action.

The exceptions to this requirement to allow the tenant an opportunity to "cure" the failureby complying with the provisions of the lease during the notice period are for repeated violations under CRS § 13-40-104(1)(e.5) and for a substantial violation under CRS § 13-40-107.5. In these situations, a Notice to Quit is all that is necessary. This notice must inform the tenants of the grounds of the violation and that the tenancy will expire after three days from the date of the notice. These exceptions reflect the Colorado public policy that landlords should not be faced with the prospect of tenants who simply cure the defect during the time period only to begin the activity again once their tenancy is safe.

Service of the Demand Or Notice to Quit

Service of the Demand or Notice to Quit may be accomplished by handing the notice to someone on the property or posting it if no one is on the property.11 In the commercial context, this may not be exactly clear. For instance, is anyone "on the property" if an employee is present but no manager or other person normally authorized to accept service of process is there? While it would seem clear that in such circumstances "no one is on the property," the safest plan is to post the notice or demand and give a copy to whomever is on the property.

In a residential eviction, the Fair Debt Collection Practices Act ("FDCPA")12 may be implicated in serving a demand or notice. Although no Colorado court has addressed this issue yet, the U.S. Court of Appeals for the Second Circuit has held that such a demand is an attempt to collect a debt and must comply with the FDCPA.13 This seems completely contrary to the intent of the F.E.D. statute. The FDCPA requires that a debt collector give a debtor thirty days to contest a debt, whereas the F.E.D. statute is intended to give landlords an expeditious remedy for recovering their property by providing a three-day time limit. Nonetheless, attorneys and landlords should be aware of...