The residential eviction process can be a daunting experience for both the tenant and the landlord. Often, eviction is a last resort for the landlord in an attempt to collect rent or enforce a lease provision. However, sometimes eviction is the only way that a landlord can successfully deal with a problem tenant.
The process of evicting a resident can be a stressful experience for a landlord. To properly evict a tenant, a specific process must be followed or the eviction will ultimately fail. Thus, an understanding of this process is essential.
When to Evict a Tenant
Evictions can only happen when the landlord proves that the tenant has broken a provision of the lease agreement. For example, if a tenant does not pay rent or obtains a pet in violation of the no pets’ provision of the lease, the landlord can evict the tenant. However, a landlord cannot just evict a tenant for no reason. The most common reasons for eviction include:
- Tenant is not paying rent
- Tenant violated a substantial provision of the lease
- Tenant has stayed past the lease term
When evicting a tenant, the landlord needs to remember that eviction is a drastic remedy. It will not be granted by the court unless the tenant has substantially breached the lease agreement. Additionally, the process of eviction and finding a new tenant can take a significant amount of time and money. Sometimes, it is better to negotiate with the tenant to resolve the issue rather than initiating a judicial eviction.
For example, if a tenant has a history of paying on time every month, but one month needs an extra week to pay the landlord, an eviction proceeding might not be necessary. So long as that tenant makes arrangements and follows through, it might not be worth the hassle for the landlord to start and go through eviction proceedings.
However, a tenant that is significantly behind on rent payments is unlikely to ever catch up. As such, the landlord may be wise to start an eviction proceeding and look for a better tenant next time.
The Importance of the Process
Colorado law details very specific steps that must be taken in order to evict a tenant from his or her home. If the steps are not properly followed, the court is unlikely to order the removal of the tenant. The dismissal of an eviction action is extremely frustrating and costly for landlords.
Because, having a tenant who does not pay rent can be detrimental for a landlord. It is not unusual for a landlord to use the rent money to pay the mortgage on the property. If the tenant does not pay rent, the landlord will struggle to make the mortgage payment. As such, the landlord will want to get the deficiency taken care of as quickly as possible by getting the tenant to pay the delinquent rent and/or finding a new tenant who will pay rent on time.
However, if the landlord does not follow the appropriate steps to evict that tenant, the landlord will lose more money and time because the eviction will likely fail. For example, the first step in a residential eviction process is to properly serve the tenant with a notice stating that the tenant is deficient. This notice inform the tenant that he or she must either cure the deficiency or return possession of the premises to the landlord. If the tenant fails resolve the deficiency during the period allowed in the notice the landlord can then initiate the formal eviction process through the court process. However, if the notice is improper (legally insufficient) or improperly served, the landlord will have to start over again. This delay can cost a landlord substantial money.
The first step to any eviction or FED action is notice. There are several different forms of Notice and this is where many do-it-yourself landlords lose their eviction case. If the notice is not legally sufficient then nothing following the notice will be enforced. Tenants many times are very well educated regarding how to defend themselves against and eviction. Maybe that is because they have had more practice? A tenant can only be evicted after he or she no longer has the right of possession which normally occurs as a result of a default and proper notice, in most cases the notice must contain an opportunity to cure. A few of the most common Notices and there proper uses are:
- Notice to Quit. Is normally used to terminate a holdover tenancy or a month to month tenancy. It must be delivered before the beginning of the next rental period. The notice must be timely delivered this could vary from three days to months.
- Notice to Quit for Substantial Violation. A substantial violation is generally a violent or anti-social act by which makes the tenant unsuitable for tenancy. For a Substantial Violation there is no defense and this notice only requires three days of notice before termination of the tenancy.
- Demand for Compliance. This is a warning to the tenant that if he or she does not come into compliance with the terms of the lease his right to possession will be terminated. This notice is generally used in instances where the tenant has obtained an unauthorized pet, or unauthorized roommates, or even when the tenant has failed to pay the rent.
- Demand for Possession. This notice should only be used after a property has been properly sold following a foreclosure or following the probate of an estate.
These notices are generally referred to as a three-day notice because the most common notice period is three days. The notices may be posted to the premises or delivered personally. Personal service is preferred because it will allow the landlord to proceed against the tenants for money damages in addition to possession of the premises.
What a Landlord can Expect
The eviction process is laid out in detail in Colorado Statute. Below are some important steps that all landlords need to be aware of:
- Notice to Tenant. Before starting eviction proceedings, the landlord must notify the tenant of the breach. When the tenant is given this notice, he or she will have three days to come into compliance with the breach, e.g., pay the delinquent rent. If the tenant does not come into compliance at the end of the three days, the landlord can proceed with the eviction.
- Forcible Entry and Detainer. This is a formal court proceeding where the landlord obtains a summons from the court and files a complaint initiating the formal process. The summons informs the tenant of the initial court date and the complaint describes the breach for which the landlord will ask the court to return possession of the leased premises to him.
- Court Hearing. If the tenant and the landlord do not come to an agreement before the hearing date, the court will then hear the case to determine if the tenant has the right to remain in possession or if the landlord should recover possession of the property.
When the landlord recovers possession of the premises if the tenant left the property in a damaged condition, normal wear and tear excepted, the landlord may proceed against the tenant in additional court proceedings to attain a money judgment for the damages. A well-crafted initial complaint will make this second proceeding much easier otherwise the tenant will have to be reserved and additional court costs will have to be paid.
Tenants Can Defend Against Eviction
In an eviction proceeding, the tenant will have an opportunity to defend against the eviction. If a court determines that the tenant has not breached the lease or has not been afforded due process, the court will not evict the residents.
For example, a landlord might be trying to evict a tenant for having an unauthorized pet on the premises. However, the tenant could produce evidence showing that the presence of the pet is not a violation of the lease. In this instance, the court might find that the landlords stated reason was not a breach of the lease agreement and the tenant has the right to remain in possession of the property.
Additionally, the tenant may counterclaim for attorney fees. Thus, if a landlord initiates an eviction action which ultimately fails and the tenant hires an attorney to defend him, the landlord will likely be ordered by the court to pay the tenants attorney fees.
How to Protect Yourself in the Future
- Always require a written application and make sure the application is completed fully and signed. A sloppily or incomplete application should be a hint about the person submitting the application.
- Charge an application fee. Professional property managers charge a fee for applications and so should do-it-yourself landlords.
- Call the applicant’s references. Is the best reference he can come up with his Mother? Red Flag!
- Run a background check which includes bankruptcy, criminal and credit.
- Don’t let the tenant hurry you into a decision. A tenant that shows up to the showing with a U-Haul is very unlikely to be a good tenant.
- Demand the security deposit in full before surrendering the keys.
- Check the applicant’s photo ID against his application.
- Most importantly, call the previous landlord!
These are just a few of the ideas that will help to ensure that your rental property does not turn into a financial nightmare.
Do NOT take Matters into Your Own Hands
One of the most important things that a landlord needs to know about evictions is not to evict or attempt to evict a tenant without going through the formal legal process. Doing so might solve the landlord’s problem more immediately; however, it will likely subject the landlord to thousands of dollars of litigation and judgments.
Robinson & Henry has years of experience in landlord tenant matters, evictions, leasing, screening and property management. Contact us for a free, no obligation consultation at (303) 688-0944. We have offices throughout the Front Range, including Colorado Springs, Castle Rock, and Denver.