Colorado evictions–also known as actions for “unlawful detainer” and sometimes referred to as “forcible entry and detainer” (or FED)–are a legal remedy for removing an individual from property whose right to be on that property has allegedly been terminated. The procedures in an eviction case and timelines are standardized and relatively inflexible. This article focuses on eviction procedures and timelines for non-payment of rent or for lease violations in the residential tenant context.
Stage 1: The Written Demand
When a landlord believes a tenant has fallen behind on rent or is not in compliance with their lease, or “in default,” a written demand for compliance or possession must be sent to the tenant before an eviction can be filed. The demand must provide a specific description of the alleged lease violation and a deadline by which the tenant must fix the violation. In most situations, the deadline is 10 days; however, this deadline is different for landlords alleging a “substantial violation” under C.R.S. § 13-40-107.5, tenants with an “exempt residential agreement” under C.R.S. § 13-40-104(5)(b), and tenants in “employer-provided housing.”
A more complete list of requirements for a written demand can be found here: C.R.S. § 13-40-106.
When a tenant receives a written demand for compliance or possession, it gives the tenant two options to prevent the landlord from commencing an eviction. First, the tenant can fix the lease violation or pay the alleged unpaid rent. Second, the tenant can vacate the premises and surrender possession back to the landlord, however, this does not necessarily alleviate the tenant’s obligations to pay rent and could result in financial liability for unpaid rent or liquidated damages. Note that tenants in Colorado have a right to pay rent to avoid eviction until the moment a court enters judgment against them.
Step 2: Pre-Trial Court Procedure
If a landlord’s written demand expires and the tenant has not complied or surrendered possession, then the landlord may file a complaint in a district or county court located in the county in which the property sits. A copy of the complaint must be served on the tenant along with a summons, a blank answer form, information for pro se tenants, and a document request form (Denver County requires additional information to be served with the summons). In cases where landlords are represented by an attorney, the complaint and summons is typically served on the tenant before it is filed with the courts. When this happens, the documents will not have a case number listed because the case had not been assigned a number at the time of service. Service of the complaint and summons in an eviction may also be done by posting, as opposed to being personally served on the tenants. Colorado law requires that landlords make “diligent efforts” to attempt to personally serve tenants before serving process by posting, however, courts across the state have held this to mean anything from knocking once to attempting personal service on multiple days. There is currently no Colorado Supreme Court decision defining “diligent efforts” in this context.
Once served, the summons will command the tenant to file an answer with the courts by a specific date. Although not required by state law, some courts request that tenants appear on the date and time in their summons, and sometimes they offer useful services such as free mediation to help parties resolve their dispute. Similarly, the answer can be filed at any time before the date listed in the summons. Once an answer is filed, the court will set the case for trial between seven and ten days out. For this reason, many tenants benefit by waiting until the day on their summons to file an answer instead of filing it early.
A motion for judgment on the pleadings may be filed by either party after an answer is filed. This motion is appropriate where no set of facts, if proven by the non-moving party, could ever result in a judgment in their favor. For example, a court may dismiss an eviction if the landlord admits in their complaint that they filed their eviction before the expiration of their written demand. Similarly, courts may enter judgment against tenants before trial where the tenant files an answer that admits to violating the lease but fails to allege a legal defense to the eviction.
Motions for continuances filed by tenants in eviction cases are not generally granted. Evictions are “expedited” actions and courts rarely give tenants leeway to delay proceedings. Landlords and their attorneys likewise often fight hard to preserve the expedited nature of evictions. Further, if a tenant requests a delay of more than five days, the court can require payment of bond by the tenant as a condition for granting the request. See C.R.S. § 13-40-114.
Step 3: Trial
When a tenant arrives for trial, it almost never hurts to speak with the landlord or their attorneys to see if a last-minute deal can be worked out. If the landlord wins at trial, they will still have to wait 10 days until the sheriff can be scheduled to remove a tenant from the premises. This 10-day stay following the trial is a common source of leverage for tenants who negotiate a settlement with their landlord before (and sometimes even after) trial.
Tenants who wish to show documents, photos, or other exhibits at trial should bring with them three copies: one for the court, one for the opposing party, and one for the tenant to refer back to. Often, courts require all exhibits to be sent to the opposing party before trial and usually at least 48 hours in advance thereof. Litigants who fail to comply with this requirement may have their exhibits excluded by the judge at trial, meaning that they will not be considered when the court issues its judgment.
Tenants typically defeat evictions in one of two ways: by attacking the procedure or by winning on the facts. Since evictions are statutory actions, courts are only empowered to enter judgment against a tenant if the landlord has strictly complied with all requirements for an eviction. Missed deadlines, failure to include mandatory language in demands or the summons, filing the case prematurely, improper service of process, and the issuance of subsequent demands are examples of ways in which a landlord may fail to strictly comply with the statute, resulting in dismissal of the eviction. If a landlord has complied with all the statutory requirements, then tenants must win on the facts. Proving that the alleged non-payment is an accounting error, that lease violations did not occur, that non-payment was justified by withholding under the warranty of habitability, or that the eviction was brought in part as unlawful retaliation are all examples of ways tenants could win on the facts.
If the tenant loses at trial, then the court will issue a “writ of restitution” after at least 48 hours has passed since judgment entered. This writ is an order that commands the sheriff to remove all unauthorized persons from the property. The sheriff must wait until 10 days has passed since judgment entered before any move-out can occur. The electronic case file, which is hidden from public view until a judgment enters, is “un-suppressed” and can be viewed by the public unless both the landlord and tenant agree to keep the case suppressed.
The following organizations may be able to provide free legal assistance for tenants facing eviction:
- Colorado Poverty Law Project: (303) 532-2641 or copovertylawproject.org
- Community Economic Defense Project: (303) 838-1200 or cedproject.org
- Colorado Legal Services: (303) 837-1313 or coloradolegalservices.org
- Colorado Affordable Legal Services: (303) 996-0010 or coloradoaffordablelegal.com
More information on the eviction process can be found in the Denver County resource guide.
If you are facing an eviction or have questions about the eviction process, contact Lipscomb Law today for a brief consultation.
Authored by Andrew Lipscomb