Chapter 18 - § 18.1 • INTRODUCTORY

• Jurisdiction: Colorado

§ 18.1 • INTRODUCTORY

§ 18.1.1—Historical Background of Landlord-Tenant Law

The law governing the relationship between landlord and tenant has ancient roots in the common law of England. The tenant was initially regarded as having rights that were solely contractual in nature. The tenant did not have a sufficient relationship to the land to permit him to avail himself of the common-law forms of action that could be utilized by freeholders to protect their interests against third parties. As a consequence, in its very early history a lease had primarily a contractual significance, rather than a property significance. With the passage of time, however, the tenant gradually was given the right to bring certain causes of action, such as ejectment, and the tenant came to be regarded as possessing an interest in land. By the beginning of the sixteenth century the law had undergone such change that the lease was asserted to be essentially a conveyance, rather than a contract.¹

In modern times, however, covenants in leases have become more numerous and complex, reflecting the growing importance of structures on the land and the burgeoning complexities of an increasingly urban society. Therefore, while the modern lease remains a conveyance of an interest in land, it typically possesses many of the characteristics of a contract. Particularly with regard to business or commercial leases, the contractual aspects of the landlord-tenant relationship have become increasingly important.²

The dual nature of a lease, as both a contract and a conveyance of an interest in land, contains important implications for resolving disputes between landlords and tenants. Courts and commentators have noted the difference between the results that flow from analyzing the rights and obligations of parties to a lease by use of property law principles and those that are achieved by recognizing contract principles as influential or controlling in the analysis. However, as a result of the dual nature of a lease, neither contract principles nor property principles can be exclusively relied upon to govern the resolution of all issues. Whether contract principles, property principles, or a blend of both control the resolution of a particular case depends largely on the intent of the parties, the interests of society, and the relative fairness of the results to be achieved through selection among the potentially applicable principles.

Thus, in Ruston v. Centennial Real Estate & Inv. Co.,³ the Colorado Supreme Court stated that a lease, like other contracts, is to be reasonably interpreted according to the apparent intention of the parties,⁴ and in Shanahan v. Collins,⁵ the court noted that at common law the real estate lease developed in the field of real property rather than contract law but that rigid adherence to the law of property to determine the duties and obligations of the parties, implied as well as expressed, was no longer the proper approach in resolving all landlord-tenant disputes. In that case, the court held, contrary to traditional property law analysis, that a tenant's obligation to pay rent is not independent of a landlord's covenant to make improvements or repairs, and that a tenant may set off against the rent the costs and expenses incurred in performing the landlord's covenant to make improvements or repairs.⁶

§ 18.1.2—Nature of Relationship of Landlord and Tenant

It is fundamental to the relationship of landlord and tenant that an estate passes to the tenant⁷ and that the tenant achieve possession and control of the property.⁸...