If you own and rent-out real estate, chances are you have had to deal with a difficult tenant. Recent changes in the eviction laws may affect how you remove a tenant who has breached your lease agreement. Importantly, in Colorado, the only way to legally remove a tenant who is in default of a lease and refuses to deliver possession of property (residential or commercial property) back to the landlord, is to go through the court eviction process. In an eviction action, the court determines who is entitled to legal possession of the property, and what damages are due because of the breach of a lease. Eviction court procedures must be strictly followed or the case could be dismissed – leaving a landlord with lost time and money. Recent changes in the law have, in some circumstances, lengthened the notice/cure period a landlord must provide a tenant before an eviction action can be started.
There are two types of notices in an eviction action: 1) Demand for Compliance or Possession (which gives the tenant a right to cure during the demand period); and 2) Notice to Quit (tenant has no right to cure). The Demand for Compliance or Possession (“Demand”) is typically used when a tenant has failed to pay rent on time. The Demand gives the tenant the right to cure the rent within the notice period, and if the tenant fails to cure, a landlord may proceed with an eviction action. With regard to the Demand itself, the new law changed the notice periods as follows (HB 19-1118 (C.R.S. § 13-40-104), effective May 20, 2019):
- Changed the residential Demand from 3 days to 10 days. A residential tenant must now be given at least 10 days’ notice to pay back rent before an eviction action can be started;
- A category was created for an exempt residential agreement – which allows for a 5-day Demand if a landlord is leasing a single-family home, owns 5 or fewer single-family homes, and provides for the shortened notice period in the lease;
- A category was created for employer-provided housing. Where an employer leases residential property to an employee, the employer is required to provide a 3-day Demand for lease default; and
- Commercial (non-residential) property requires a 3-day Demand (no change from prior law).
Other changes to the law were made with regard to a “subsequent violation.” A subsequent violation is the situation where a tenant has repeatedly breached a provision in the lease (other than failure to pay rent). For example, if a lease specifically prohibits pets, and the tenant pays rent on time, but refuses to remove dogs at the property after receiving a Demand to remove them by the landlord, a Notice to Quit may be subsequently provided to terminate the lease. Upon a subsequent violation, a Notice to Quit does not provide the tenant the ability to cure. The tenant must vacate the property upon the notice date, or risk eviction. Recent changes in the law with regard to the notice periods for the Notice to Quit for subsequent violation are as follows (HB 19-1118 (C.R.S. § 13-40-104(1)(e.5)), effective May 20, 2019):
- 10 days for residential property (instead of 3)
- 5 days for exempt residential property
- 3 days for employer provided housing
- 3 days for commercial property
Determining the proper notice to provide a tenant upon a lease default can be tricky, and providing the wrong notice can prove catastrophic for an eviction case. Recent changes in the law have made the process more complicated for landlords, and in general, these changes will likely lengthen the eviction process itself, depending on the circumstances. As a tenant or landlord dealing with the eviction process, retaining an attorney is highly recommended to ensure that your interests are protected. Lyons Gaddis Real Estate Group is always here to help!