Chapter 21 - § 21.2 • LANDLORD DEFAULTS

• Jurisdiction: Colorado

§ 21.2 • LANDLORD DEFAULTS

At an Avalanche ice hockey game, when the home team scores, the announcer bellows "SCOORRE" and mayhem ensues among the home fans. When the opponent scores, however the announcer says in a soft, clipped voice, "score," and the home fans become quiet. The difference between the tenant's default provision and the landlord's default provision share the same stark contrast. The tenant's default provision usually continues for a full page or more; the landlord's default provision is lucky to get a paragraph, and most of it will be dedicated to limiting the rights of the tenant to exercise remedies against the landlord. Indeed, the provision is often found in the "Miscellaneous" section of the lease, as if an afterthought. Some landlord-oriented leases do not even have a landlord default/tenant remedies provision.

A tenant with good bargaining strength will want a default clause that sets a clear procedure for giving the landlord notice of a default and a time to cure (after which the tenant may exercise its remedies). Such a tenant will also want to expand the scope of the remedies it can exercise to a full menu, including rent offset, self-help, damages, the equitable remedies of injunction and specific performance, and the right to terminate the lease.

§ 21.2.1—If There is No Landlord Default Provision

If the lease contains no provision for a landlord default or the tenant's remedies, the tenant is not without any remedies against the landlord. The tenant will have all the usual remedies for a breach of contract, including the right to recover damages and, in a proper case, the equitable remedies of specific performance and injunction.³⁹ Indeed, the absence of a landlord default/tenant remedies clause may be better for the tenant than a clause that makes it very difficult to declare a landlord default or severely curtails the tenant's remedies.

§ 21.2.2—Landlord Notice and Opportunity to Cure

Almost every landlord default clause — if the lease contains one — contains a provision for notice from the tenant of the default and a period for the landlord to cure. Sometimes the notices clause requires the tenant to "state the default with specificity" or words of similar effect. The landlord's goal is to determine exactly what performance the tenant is requiring of the landlord, so the landlord can determine whether a default has occurred and what the landlord must do to cure.

It is quite common for the landlord to be given a "reasonable...