Chapter 26 - § 26.3 • FORCIBLE ENTRY AND DETAINER
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§ 26.3.1—In General49
The action for forcible entry and detainer is not a common-law action, but is purely statutory.50 The forcible entry and detainer statutory scheme is designed to provide a quick mechanism for resolving possession disputes between landlords and tenants.51 Although a county court may not resolve the issue of title to land in a forcible entry and detainer action,52 it is appropriate for a district court to do so.53 The defendant could show possession under an oral contract taken out of the Statute of Frauds by part performance.54
The action for forcible entry and detainer is not exclusive, and upon a breach of a lease resulting in forfeiture, the landlord may proceed under Rule 105,55 or may bring a common-law action for forfeiture for breach.56
The forcible entry and detainer law, insofar as it specifies reasons for termination of a tenancy,57 does not apply to owners of mobile homes who are tenants in mobile home parks.58 The Colorado Mobile Home Park Act59 states the reasons for termination of mobile home park tenancies.60 In an action for termination of a tenancy in a mobile home park, the complaint must specify the particular reasons for termination as they are stated in the Mobile Home Park Act.61
§ 26.3.2—Defmitions
Forcible Entry and Detainer
A forcible entry and detainer occurs when a person enters upon or into any lands, mining claims, or other possessions with force or strong hand or multitude of people, whether any person is actually upon or in the same at the time of such entry, or when a person by threats of violence or injury to the party in possession or by such words or actions as have a natural tendency to excite fear or apprehension of danger gains possession of any lands, tenements, mining claims, or other possessions and detains and holds the same.62 It is not sufficient to simply show that the entry was against the will of the possessor. An entry made with no more force that such as is implied in an ordinary trespass is not a forcible entry within the meaning of the statute.63
In an action of forcible entry and detainer, two questions are presented: (1) was the plaintiff, at the time of the entry by the defendant, exercising such acts of dominion over the property as constitute actual possession in law,64 and (2) did the defendant deprive the plaintiff of this possession in such manner as to create a statutory claim for relief.65
Forcible Detainer
A forcible detainer occurs when a person enters peaceably upon any lands, tenements, mining claims, or other possessions, whether any person is actually in or upon the same at the time of such entry and by force turns the party in possession out or, by threats or by words or actions which have a natural tendency to excite fear or apprehension of danger, frightens the party out of possession and detains and holds the same.66
Forcible Entry
A forcible entry occurs when a person enters upon or into any lands, tenements, mining claims, or other possessions by force or by threats of violence, or words or actions which have a natural tendency to excite fear or apprehension of danger, and intimidates the party entitled to possession from returning upon or possessing the same.67
Unlawful Detainer
An unlawful detainer occurs:
Vacant or unoccupied lands: When entry is made, without right or title, into any vacant or unoccupied lands or tenements.68
Public lands: When entry is made, wrongfully, into any public lands, tenements, mining claims, or other possessions which are claimed or held by a person who may have located, entered, or settled upon the same in conformity with the laws, rules, and regulations of the United States of or the State of Colorado.69
Holding over after expiration of term: When a lessee or tenant at will, or by sufferance, or for any part of a year, or for one or more years, of any real property, including a specific or undivided portion of a building or dwelling, holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of the term for which the same were leased, or after such tenancy, at will or sufferance, has been terminated by either party.70
Holding over after default in payment of rent and three-day notice: Where the tenant or lessee holds over without permission of his or her landlord after any default in the payment of rent pursuant to the agreement under which he or she holds, and three days' notice in writing has been duly served upon the tenant or lessee holding over, requiring in the alternative the payment of the rent or the possession of the premises.71 It is not necessary, in order to work a forfeiture of the agreement for nonpayment of rent, to make a demand for such rent on the day on which the same becomes due, but a failure to pay such rent upon demand, when made, works a forfeiture.72 After the 1983 amendment of the forcible entry and detainer statute,73 the agreement may not contain a waiver by the tenant of the three days' notice requirement.74
Holding over after "substantial violation" and notice: When the tenant or lessee holds over, without the permission of the landlord, contrary to any condition or covenant the violation of which is defined as a "substantial violation" and notice in writing has been served upon the tenant or lessee.75 It is an implied term in every lease of real property that the tenant will not commit a "substantial violation" while in possession of the premises.76 The term "substantial violation" means:
[A]ny act or series of acts by the tenant or any guest or invitee of the tenant that, when considered together:
(a) Occurs on or near the premises and endangers the person or willfully and substantially endangers the property of the landlord, any co-tenant, or any person living on or near the premises; or
(b) Occurs on or near the premises and constitutes a violent or drug-related felony prohibited under article 3, 4, 6, 7, 9, 10, 12, or 18 of title 18, C.R.S.; or
(c) Occurs on the tenant's leased premises or the common areas, hallway, grounds, parking lot, or other area located in the same building or complex in which the tenant's leased premises are located and constitutes a criminal act in violation of federal or state law or local ordinance that:
(I) Carries a potential sentence of incarceration of one hundred eighty days or more; and
(II) Has been declared to be a public nuisance under state law or local ordinance based on a state statute.77
Holding over after other breach and three-day notice: When a tenant or lessee holds over, without such permission, contrary to any other condition or covenant of the agreement under which the tenant or lessee holds, and three days' notice in writing has been duly served upon the tenant or lessee requiring in the alternative the compliance with the condition or covenant or the delivery of the possession of the premises so held.78
Holding over after subsequent violation: When a tenant or lessee has previously been served with the notice mentioned in the previous paragraph, and subsequent to that notice holds over, without permission of the landlord, contrary to the same condition or covenant.79 The tenancy may be terminated at any time on the basis of a subsequent violation. The termination is effective three days after service of written notice to quit.80
Holding over after sale under power of sale: When the property has been duly sold under a power of sale contained in a mortgage or trust deed that was executed by the person holding over, or any person under whom he or she claims by title subsequent to the date of the recording of the mortgage or trust deed, and the title under the sale has been duly perfected and the purchaser at the sale, or his or her assigns, has duly demanded the possession thereof.81 The court cannot, in a forcible detainer action, declare the public trustee's deed void.82
Holding over after judicial sale: When the property has been duly sold under the judgment or decree of a court of competent jurisdiction and the party or privies to such judgment or decree, after the expiration of the time of redemption when redemption is allowed by law, refuses or neglects to surrender possession thereof after demand has been duly made by the purchaser at such sale, or his or her assigns.83
Holding over after sale by personal representative: When an heir or devisee continues in possession of the premises sold and conveyed by a personal representative with authority to sell, after demand therefor is duly made.84
Holding over by vendee after default: When a vendee having obtained possession under an agreement to purchase lands or tenements, and having failed to comply with his or her agreement, withholds possession thereof from his or her vendor, or assigns, after demand therefor is duly made.85 (There is no difference between an "agreement to purchase" and an "agreement of purchase."86 ) A buyer is guilty of an unlawful detention only after the seller has made a demand for possession upon him or her.87 A vendee cannot question the vendor's title in an action to recover possession.88
It is not an unlawful detainer for holding over after "substantial violation" and notice,89 holding over after other breach and three-day notice,90 or holding over after subsequent violation91 if the tenant or lessee is the victim of domestic violence92 or of domestic abuse93 and the domestic violence or domestic abuse was the cause of or resulted in the alleged unlawful detention and has been documented by a police report or a valid civil or emergency protection order.94
§ 26.3.3—Prohibited Actions
Forcible Entry
No person may enter any real property, except in cases where entry is allowed by law, and in such cases not with strong hand or with a multitude of people, but only in a peaceable manner.95
Forcible Detainer
No person, having peaceably entered into or upon any real property without right to the possession thereof may...
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