Most residential landlords will, at one point another, find themselves in need of evicting a tenant. In Colorado, a legal action for eviction is called “forcible entry and detainer,” or often referred to as an “FED”. It is a process by which a landlord may obtain a court order, called a writ of restitution, which entitles the landlord to retake possession of a property from a tenant. While it is important to consult with an attorney about the nuances of each specific case, below is a general outline for what landlords should expect when it becomes necessary to evict a tenant.
On what grounds can I evict a tenant?
A landlord may evict a tenant for either nonpayment of rent or a material breach of the lease. Although both of these grounds are acceptable under Colorado law, it is easier to evict a tenant because of non-payment of rent. It is relatively easy for a landlord to prove that a tenant did not the rent called for in the lease. Conversely, it is harder to establish that the tenant breached some other provision of the lease, e.g., if the tenant kept a dog in the house when the lease states that no pets are allowed. Not only must the landlord prove that the tenant kept the dog in the house, the landlord must convince the judge that the prohibition against pets is a material term of the lease. A landlord may also evict a tenant for the commission of certain criminal acts on the premises; the procedure for this type of eviction is slightly different than the one described in this article.
How does the eviction process begin?
After a tenant fails to pay rent, or breaches a material term of the lease, the landlord must post a three day demand for compliance or possession. This demand must be conspicuously posted on the leased property. The tenant has three days from the posting of this notice to either cure the defect (which means the tenant must bring the rental payments up to date or cease breaching the lease) or surrender possession of the property. If the tenant does not do one of those two things within three days then the landlord may file a claim in county court for forcible entry and detainer. This begins the formal eviction process.
What is the return hearing?
Once the complaint for the forcible entry and detainer has been filed, the court will set a date and time for the return hearing. The return hearing is usually set for a date 7 to 14 days after the filing and service of the complaint. The tenant must either attend this hearing or file a written response, called an “answer,” with the court, in advance of the hearing date. If the tenant does not attend the return hearing and does not file an answer, the landlord can obtain a default judgment. The return hearing is often the best time for a landlord and tenant to sit down and discuss possible amicable resolutions, and most courts encourage it. If the landlord and tenant are able to agree on a resolution, then a stipulation memorializing that agreement should be filed with the court.
The tenant and I did not settle, what happens now?
If the landlord and tenant are unable to reach an agreement at the return hearing, the court will set a date and time for a trial. Usually, this is set for a day that is within 5 to 10 days after the return hearing date. In some instances, if the landlord is seeking damages as well as possession of the premises, the court will set one hearing on possession and another on damages. This allows the hearing on possession to occur immediately while allowing the parties more time to prepare to go to trial on the question of monetary damages.
At the trial, the landlord must prove to the court that the tenant failed to pay rent or breached a material term of the lease. The landlord may present documentary evidence and witness testimony in support of his or her claim. The tenant will have an opportunity to offer rebuttal evidence. The tenant may have a number of defenses which he or she is entitled to present. For example, the tenant may attempt to prove that the landlord is simply mistaken and that the rent was paid or the lease was not breached. The tenant may also argue that the landlord and tenant had reached a different agreement which changed the terms of the original lease. The tenant may have a defense under the Colorado warranty of habitability statutes. These statutes require the landlord to maintain the premise and give the tenant certain rights if the landlord fails to do so. If the tenant is claiming that the landlord’s failure to repair the residence is a defense, the tenant will be required to deposit with the court, at the time of filing the answer, the rent due less any expenses that the tenant has incurred based upon the landlord’s failure to repair.
If the landlord is successful at trial, the court will issue a writ of restitution. This writ entitles the landlord to possession. The writ becomes effective 48 hours after the court enters the order granting the writ.
I have the Writ, how do I make the tenant leave?
Sometimes, a tenant will vacate the property as soon as they know that a writ has been issued; other times, the tenant may simply refuse to leave. In either event, the landlord’s best, and most prudent, course of action is to have the sheriff’s office execute the writ. This means that the landlord coordinates with the sheriff’s office to have a sheriff present when the landlord re-enters the property for the first time. This can usually be scheduled within a week or two, depending on which county the property is located in and the sheriff’s schedule. When the landlord re-enters the property with the writ, the landlord is entitled to remove any of the tenant’s items that remain in the property. These items may simply be placed on the curb. If the landlord anticipates that the tenant will still have a significant amount of belongings in the property then the landlord should arrange for movers to be present to move these items from the house to the curb. The reason why it is so important to have the sheriff execute the writ is that this provides protection for the landlord. If the sheriff is present during the execution of the writ, the tenant cannot sue the landlord for damage to any of tenant’s property.
Although the eviction process is relatively straight forward and, for a lawsuit, moves relatively quickly, there are a number of specific steps that a landlord must follow in order to successfully evict a tenant. The process can take more than a month depending on the schedule of the court and the sheriff’s office. Therefore, landlords should take care to consult with legal counsel before beginning an eviction in order to streamline the process as much as possible. Landlord should also seriously consider possible settlement options early on in the case to avoid the time and expense associated with the FED process.
For questions, please contact Roger Bock.