There are many reasons a tenant may vacate their apartment before the end of their lease and without the consent of the landlord. When this happens, the law describes this as an “abandonment” of the lease and rental premises. In some cases, a tenant may have legal justification to abandon their home, such as to escape domestic violence or as a result of the landlord breaching the warranty of habitability. This article discusses the law of abandonment in Colorado and the legal risks that may be involved.
Abandonment Defined
Abandonment was long been defined by case law in Colorado. In Martinez v. Steinbaum, a tenant left town and became stranded out of state for a prolonged period. 623 P. 2d 49 (Colo. 1981). During this time, the landlord commenced an eviction, changed the locks to the home, and had the tenant’s car towed. The Court ruled that an abandonment requires two showings: actual abandonment of the premises and an intent to abandon the premises. Intent to abandon can be inferred from the circumstances. In Martinez, the Court found the tenant did intend to abandon their home because, in a call between the landlord and tenant, the tenant only expressed an interest in returning to town to recover his personal property, left rent unpaid for two months, and made no statements regarding his intent to pay rent.
In more recent years, Colorado’s legislature enacted C.R.S. § 38-12-510 to provide specific remedies and penalties against landlords that unlawfully remove or exclude tenants from a rental premises. Under this law, a landlord may deem a rental unit as abandoned if any of the following are true:
- The return of keys by a tenant;
- The substantial removal of a tenant’s property;
- Notice of abandonment by the tenant; or
- An extended absence accompanied by unpaid rent.
Even if a landlord is able to show one of these situations existed, a tenant may rebut the claim of abandonment by showing that the landlord was unreasonable in concluding the unit was abandoned. For example, a landlord who asks a tenant to borrow the keys to allow a maintenance worker into the home would likely not be able to use this as pretext to declare an abandonment by construing it as a return of keys.
There is currently no case law according Martinez with the unlawful removal or exclusion statute. However, on its face, the statute appears to be more-or-less a codification of the rule in Martinez rather than a replacement for it.
Liability and the Duty to Mitigate
The general rule is that a tenant is on the hook for the full lease term even if they abandon the home early. That is to say, when a tenant abandons a lease a landlord can pursue them for the full amount of rent that would be due under the rest of the lease. There are exceptions to this rule that could reduce or even eliminate liability.
First, landlords have a duty to mitigate their damages. The Court in Schneiker v. Gordon ruled that a landlord may be denied future rent following abandonment by a tenant where the landlord has not taken reasonable steps to try to re-rent the premises. 732 P. 2d 603 (Colo. 1987). This rule reflects a desire to prevent waste resulting from a landlord leaving a home empty while also attempting to collect unpaid rents from a now-gone tenant. Further, the holding shows how modern courts see leasing issues as implicating both property and contract law principles.
Second, tenants have a right to abandon their home in some circumstances with little or no liability for future rent. Under C.R.S. § 38-12-402(2), a residential tenant who is the victim of unlawful sexual behavior, stalking, domestic violence, or domestic abuse and fears imminent danger for themselves or their children may terminate their rental agreement unilaterally and with their liability for rent being limited to no more than one month’s rent. (More information is available at the Rocky Mountain Victim Law Center’s website.) Similarly, some tenants may be able to unilaterally terminate their lease where the landlord has breached Colorado’s warranty of habitability. C.R.S. § 38-12-507(1)(a)-(b).
A tenant who abandons their lease should expect the possibility that the landlord will file a money damages claim with the courts for unpaid rent, even if the tenant has legally terminated their lease as described above. In the latter cases, tenants must be prepared to show the court that they followed the law and that their lease was properly terminated.
If you are facing an eviction or have questions about abandonment, contact Lipscomb Law today for a brief consultation.
Authored by Andrew Lipscomb