Residential Tenancies, Lease to Eviction—an Overview of Colorado Law
| Publication year | 2014 |
| Pages | 55 |
| Citation | Vol. 43 No. 5 Pg. 55 |
Real Estate Law
Residential Tenancies, Lease to Eviction—An Overview of Colorado Law
By Lindsay Miller.
Real Estate Law articles are sponsored by the CBA Real Estate Law Section.
Coordinating Editor
Lindsay J. Miller is a civil litigation associate with Folkestad Fazekas Barrick & Patoile, P.C. in Castle Pock—(303) 688-3045, miller@ffcolorado.com.
This article provides an overview of Colorado statutes and case law regarding residential lease agreements, the obligations of the landlord and tenant, and eviction procedure. The article does not discuss mobile home tenancies, which are governed by the Mobile Home Park Act, CRS§§ 38-12-200.1 to -221.
Landlord/tenant law is a complex and quickly changing area of Colorado law, and the clients seeking assistance are growing in number. Recently, Colorado experienced two natural disasters that affected a significant portion of the residential population. Homes were lost, occupants were displaced, and parties to residential lease agreements were at a loss for how to deal with their unfortunate situation. It is out of this experience that this article was written. This article is intended to give attorneys an overview of Colorado landlord/tenant law, in the hope that practitioners will be encouraged to respond to this rapidly expanding client base.
Overview of Leases
Most tenancies start with a written lease agreement between the landlord and tenant. In Colorado, a written lease is required if the length of tenancy is more than one year pursuant to CRS § 38-10-108.-[1] Some municipalities, such as the City of Boulder, require written leases regardless of length of tenancy. Attorneys are encouraged to check local laws to ensure compliance.[2]
The "note or memorandum" required to comply with CRS § 38-10-108 must include the following elements: (1) the names of the parties, vendor, and vendee; (2) the terms and condition of the contract; (3) the interest or property affected; and (4) the consideration paid therefor.[3] After this requirement has been met, the parties may include individualized provisions that address their particular situation.
Although parties are generally free to contract in a variety of ways with respect to the rented premises, a written lease may not contain any of the following provisions (in addition to any local restrictions):
1) a provision allowing landlord longer than sixty days to return security deposit;[4]
2) a provision requiring tenant to arbitrate wrongful withholding of security deposit;[5]
3) a provision allowing landlord to terminate lease or impose penalty on residential tenant for calls made by tenant to law enforcement or other emergency assistance in response to domestic violence or abuse situation; a residential tenant may not waive his or her right to contact law enforcement or other emergency assistance in domestic violence situation;[6]
4) with a few exceptions (noted in "Warranty of Habitability" section below), a waiver or modification of the Warranty of Habitability;[7]
5) a waiver of tenant's right to a 3-Day Demand for Compliance or Possession in case of nonpayment;[8] or
6) a waiver of the protections against unlawful detainer in domestic violence situations.[9]
Some additional considerations to note when drafting or reviewing a residential lease include anti-discrimination policies. The Federal Fair Housing Act prohibits discrimination on the basis of race, color, religion, sex, national origin, handicap, and familial status.[10] The protections afforded to residents under state law include the federal protections and add four protected classes (including sexual orientation). In Colorado, it is unlawful to "refuse ... to rent or lease [to any person] . . . because of disability, race, creed, color, sex, sexual orientation, marital status, familial status, religion, national origin, or ancestry. . . .[11]
Landlords should also note lead-based paint policies for houses constructed before 1978 and requirements regarding providing pamphlets to tenants.[12] Landlords of applicable properties are required to provide a lead-based paint information pamphlet, "Protect Your Family From Lead in Your Home," at the time the lease is signed.[13] This pamphlet can be found in various languages on the HUD website.[14]
With respect to smoking, landlords may permit smoking in a leased residence. However, doing so may expose the landlord to liability for interfering with property rights of neighbors.[15] For this reason, Colorado law clearly permits a landlord to ban smoking on the premises.[16] Additionally, despite current Colorado laws that permit the use of medical marijuana, the Federal Controlled Substances Act categorizes marijuana as an illegal substance and provides that the manufacture, possession, or distribution of said marijuana is a federal crime.[17] HUD has stated that the use of medical marijuana violates federal law.[18] Therefore, federal and state non-discriminatory laws do not prohibit landlords from refusing to accommodate current or prospective residents who seek to use medical marijuana.[19]
Colorado Amendment 64 permits individuals age 21 and older to consume or possess a limited amount of marijuana for recreational purposes.[20] However, Amendment 64 does not require landlords to permit recreational use or possession of marijuana on leased premises.[21] Practitioners are encouraged to check local laws to verify items that may impact the lease, the obligations of the parties, or the premises.
Obligations of the Parties to Each Other and to Visitors
This section discusses the general duties of the parties to each other under a typical lease agreement and the potential liability to others. Practitioners should pay special attention to the Premises Liability Act when drafting or seeking to enforce a residential lease agreement.
Rent
It is important to note at the outset that even if a tenant is experiencing a problem with the premises (such as a habitability issue, discussed below), the tenant has an ongoing obligation to pay rent.[22] Offsetting the monthly rent with an expense the tenant paid for, unless specifically allowed under the lease, is not advisable, and doing so may expose the tenant to an eviction action.[23]
Typically, a tenant will pay rent to the landlord as outlined and agreed to in the parties' lease agreement. The lease may allow the tenant a grace period for late payments, but it is always important to refer to the lease for proper payment methods and payment addresses to avoid possible eviction or late fees. From a landlord's perspective, it is important to carefully monitor the lease term. If a tenant remains in the premises after the lease has expired, and the landlord continues to accept rent from the tenant or otherwise treats the tenant as a tenant, a "holdover" tenancy has been created.[24] This will be important later if a problem arises and the landlord seeks to evict.
It is also important for the tenant to pay timely rent. Failure to do so and acceptance on the part of the landlord will only cause problems for both parties. The landlord may seek to collect timely rent, while the tenant may assert a waiver/estoppel defense.[25] Tenants should be aware that just because one tenant has paid his or her share of the rent, this does not absolve the tenant of liability if a roommate fails to pay his or her portion of the rent. A default will exist for the full amount of the monthly rent if not submitted timely and in full.[26]
Domestic Violence
In certain situations, such as domestic violence and lack of habitability, the tenant may terminate the lease on written notice to the landlord in accordance with Colorado statute. Once the lease has been terminated, the tenant's obligation to pay rent is limited. For example, in a domestic violence situation, if a tenant has provided statutorily compliant notification[27] to the landlord that he or she is a victim of domestic violence and can provide the landlord "evidence of domestic violence or domestic abuse in the form of a police report written within the prior sixty days or a valid protection order" and the tenant seeks to vacate due to fear of imminent danger to self or children, the tenant may terminate the lease and vacate the premises with limited obligations.[28]
Maintenance and Repair
For maintenance and repair obligations, the parties should refer to their lease. Tenants are cautioned to read this portion carefully, because the landlord may not be responsible for all maintenance items. Additionally, the Warranty of Habitability imposes certain restrictions and duties on tenants with respect to maintenance of property.
Notices
With regard to notices, again, parties should refer to their lease. A smart landlord will include a provision on how and when a party is to receive notification of a maintenance issue, for example, or when a party is late paying rent. If the lease is silent as to notification regarding nonpayment of rent, landlords must serve a "3-Day Demand for Compliance or Possession" in accordance with CRS §§ 13-40-104 et seq. (The 3-Day Demand is discussed in further detail below.)
Damages/Normal Wear and Tear
Tenants should be aware of how damages will be paid for, when, and by whom. Normal wear and tear of premises is allowable, and no security deposit deductions will be permitted under Colorado statute.[29] However, tenants are likely to have a much broader definition of this than landlords. "Normal wear and tear" is defined as
that deterioration which occurs, based upon the use for which the rental unit is intended, without negligence, carelessness, accident or abuse of the premises or equipment or chattels by the tenant or members of his household, or their invitees or guests.[3...
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