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Eviction - Nonpayment of Rent, Private Housing

Authored By: Colorado Legal Services
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Frequently Asked Questions about Eviction and Non-payment of Rent

How can I try to keep my housing?

If you have a lease and you comply with it (meaning 'do what it reads you will do') by paying your rent and following the rules as set out in the lease, you have a right to remain in your home at least until the lease expires, even if the landlord wants you to move out before then.

Once the lease expires, if you don't move when the landlord asks you to leave, the landlord can't remove you from the property without a court order authorizing an “eviction”. However, if the landlord follows the proper procedures to ask you to move, there is no defense to the eviction. Likewise, if you have not complied with the terms of your lease, the landlord will be able to evict you if the landlord follows the proper procedure.

As you can see from the information provided below, presenting a defense and following the court process all the way through is the only way you can seek to keep your housing if your landlord is unwilling to agree to allow you to remain. However, even if you are unsuccessful defending the eviction action, presenting a defense and following through with the court process may have the benefit of allowing you to remain in the property for a longer period (usually a few days to a few weeks, depending upon court schedules). On the other hand, if you have someplace to move, or do not want to remain in your current housing, you may wish to move prior to your landlord filing an eviction action in court. Once your landlord files a court action, there will always be a public record showing that a landlord filed an eviction action against you. Future landlords will have access to this public record, and may use it to deny you housing.

Can you tell me what an Eviction Notice and Filing of a Court Action is?

The first step in an eviction action for nonpayment of rent is for your landlord to give you a three (3) day demand for the payment of the rent. This notice is also sometimes referred to as a "Demand for Compliance or Possession" or "Demand for Payment or Possession."

The notice must have the following information in it:

1. It must demand that you pay the rent or leave the premises within three (3) days of service of the notice;

2. It must contain the address of the premises;

3. It must have the date by which you must pay or get out;

4. It must state the amount claimed due; and

5. It must be signed by a person who is authorized to claim possession of the premises (typically the owner or landlord), or his/her attorney.

If the rent is not paid within the three (3) days, and if you have not moved out of the property within that three (3) days, then your landlord is required to file an eviction case in court if the landlord wants to remove you from the premises. The landlord may not remove you from the property, turn off the utilities or heat, or lock you out of the property without a court order. The court case cannot be filed until the three (3) days are up.

Once the landlord files an eviction action, you must be served with a Summons and Complaint. The Summons will tell you when you have to appear in Court. It will also tell you the location of the court and the courtroom where you should appear if you want to defend the case. It must contain the following language addressed to you, the tenant: "If you fail to file with the court, at or before the time for appearance specified in the summons, an answer to the complaint setting forth the grounds upon which you base your claim for possession and denying or admitting all of the material allegations of the complaint, judgement by default may be taken against you for the possession of the property described in the complaint, for rent, if any, due or to become due, for present and future damages and costs, and for any other relief to which the plaintiff is entitled." In other words, if you do not appear at the courthouse, in the correct courtroom at the correct time, you will lose your case without having the opportunity to tell a judge why you should not be evicted.

If you are claiming that the landlord's failure to comply with the "Warranty of Habitability" by maintaining the property in habitable condition is a defense to the landlord's allegation of nonpayment of rent, the court will require you to pay into the registry of the court, at the time of filling your answer, the rent due less any expenses you have incurred based upon the landlord's failure to repair the residentials premises. Be aware that not every failure to repair the property is a violation of the Warranty of Habitability. You should consult an attorney (if possible) before trying to make a claim under the Warranty of Habitability law. The Complaint will tell you the reason the landlord has filed the eviction action.  

The landlord, through an adult who is not a party to the eviction, must make a diligent effort to personally hand you or an adult member of your family who lives with you a copy of the Summons and Complaint.  If such personal service cannot be accomplished, delivery can be made by posting a copy of the Summons and Complaint in a conspicuous place upon the premises of your home.  Personal service or service by posting must be accomplished at least seven days before the return date specified in the Summons.  In addition, if the Summons and Complaint are not personally served on you or an adult member of your family at your place of residence, the landlord must mail you a copy of the Summons and Complaint no later than the next business day after the Summons and Complaint are filed with the Court.

How do I file an Answer in Court?

On the first court date, you will have an opportunity to discuss your case with the landlord or the landlord's attorney in an attempt to reach an agreement. If you do not reach an agreement with the landlord, you will have the chance to file a written response, called an Answer, to your landlord's Complaint.

You must pay a filing fee to file an Answer (the fee will be more if you are asserting a counterclaim against your landlord). If you cannot afford to pay the filing fee, you must ask and receive permission from the court to file without having to pay the filing fee. You can request permission on a form you can get from the Clerk of the Court.

If you file an Answer that states a legal defense, the Court will set a trial date some time after the first appearance date, but usually within five (5) business days. You must present a legal defense to the claim of the landlord in your Answer and at your trial.

Some examples of legal defenses in nonpayment eviction cases are:

1) the landlord failed to serve a three (3) day demand for payment or possession; or, the three (3) day demand was defective because it did not have all of the information that is required;

2) you were not given full three (3) days to pay rent; You paid the rent; You offered the rent to the landlord before the three (3) day notice expired, but the landlord refused to accept it;

3) the landlord has taken some action that should result in the landlord having waived its right to collect the rent;

4) the amount of rent demanded is incorrect and you offered or paid the proper amount;

5) the landlord breached the Warranty of Habitability because the landlord was required to repair the premises after written notice of a condition that caused the premise to be uninhabitable or otherwise unfit for human habitation. Note: under Colorado law, if you assert this defense, you are required at the time you file your answer to deposit with the Clerk of the Court the rent due less any expenses you have incurred based upon the landlord's failure to repair the premises. The person or entity that filed suit against you has no right to claim possession of the premises; and

6) the Summons and Complaint were not properly served upon you, were not served within the proper time limits, or the Summons did not contain the required language.

What if I am locked out without a Court Order?

You are entitled to stay in your present place until the judge orders you to move. In Colorado, it is illegal for a landlord to lock out a tenant unless the landlord has an order from a judge. If you are locked out, call the police immediately. Try to show the police some evidence that you are the lawful tenant of the premises (a lease, electricity bill, mail, ID). If the police are of no assistance, contact Colorado Legal Services again or contact a private attorney.

What if I don't File an Answer?

If you do not file an Answer on or before the court date on the Summons, you will lose the case. If you received the Summons and Complaint by posting (taping to your door) and by mail, then the Judge can only enter a judgment against you for possession of the premises. This means that the judge can only order you to move out or give the landlord or owner the right to move you out, but the judge can't enter a judgment against you for money. If the landlord wants to get a money judgment against you, you or an adult member of your family who lives with you will have to be served with the Summons and Complaint personally for the court to have the power to decide that you owe your landlord money.

If you were served the Summons by posting and mail (but not in person), and the landlord also is suing you for money, and you are willing to move out, you may choose not to appear at Court on the date stated on the Summons. If you do not appear, a default judgment will be entered against you for possession, as mentioned above. If that happens, the landlord must wait 48 hours before having the Sheriff remove you from the property, and the Sheriff may appear at the property any time after the 48 hours have expired. By not going to court, however, you avoid the possibility of being personally served for a money judgment. On the other hand, you will still have an eviction on your record.

What about Negotiations?

If you want to stay in your home, or you need more than 48 hours to move, you may want to attempt to reach an agreement with the landlord or his/her attorney. You may be able to reach an agreement by going to Court, and meeting with the landlord or his/her attorney before Court begins.

If you do reach an agreement, you should make sure that the agreement clearly states what you have agreed to do, and what the landlord has agreed to do in exchange for your agreement. If you are to pay some part or all of the overdue rent, make sure the agreement is clear that you can remain in your home (and for how long) if you pay the rent by an agreed upon date (obviously, your best bet would be to have the money owed with you in Court). 

You should also try to make sure that the agreement indicates that if you pay the money by the agreed upon date, the action that was brought against you will be dismissed.  It is extremely important to make sure that you remain in the courtroom and wait until your case is called by the judge to let the judge know about your agreement.

If there is anything in the agreement that you do not completely understand, ask the judge to explain it to you. You should get a written copy of the agreement. If the agreement is in writing and is to be filed with the Court, the agreement is called a Stipulation.  Make sure that the written agreement or Stipulation has everything that was orally agreed to by you and your landlord or his/her attorney. Do not be satisfied with "side agreements" or promises. If there is every a question about what the agreement was, the written agreement or Stipulation will control.

In other words, if your agreement is that you will pay the money owed and then be able to stay in your housing, the written agreement or Stipulation better say that you will be able to stay in the housing and the case will be dismissed if you pay the money. You will be bound by any agreement that you enter into, so make sure that you fully understand it. Remain in Court until you tell the judge about your agreement, even if the landlord or the landlord's attorney tells you that you can leave.As you negotiate, remember that the landlord or landlord's attorney represents the landlord's interests. He or she is not your friend and may confuse you or provide you with information that is different than that which you have obtained in this information sheet.  Again, question anything that is said by the landlord or his attorney.

Feel free to ask the Judge about anything that you are confused about before you sign a written agreement or Stipulation that you will be bound to follow. 

Be aware that if you sign a written agreement or Stipulation that requires you to confess judgement and for a Writ of Restitution to be entered, you will not be able to stay in your home beyond the date specified in the written agreement or Stipulation, if any, and the public record will show that you have been evicted. Many landlords or their lawyers will not enter into an agreement with you unless you agree to have a judgment for possession entered at the time you make the agreement, because they want to be able to get the order for the Sheriff to remove you from the property immediately, just in case you fail to make a requirement payment. If so, many courts will accept an alternative provision allowing the judgement to be vacated or withdrawn and the case to be dismissed once you have complied with your obligations under the agreement.

What can I expect at the Eviction Trial?

If you take your case to trial, it will be your landlord's burden to prove that:

1.  the landlord is the proper party that is entitled to recover the premises;

2.  there was an agreement (either a written lease or an oral rental agreement) for you to pay rent and follow other terms, such as not smoking on the premises

3.  you failed to pay rent as agreed, or have failed to comply with another agreement contained in the lease or oral rental agreement; and

4   you were properly served with a three-day Demand for Compliance or Possession.

The landlord presents his or her case first, by testifying, having other people testify (you may be called by the landlord to be a witness), and introducing documents, photos or physical evidence into evidence.

After each of the landlord's witnesses testify, you are allowed to ask questions (cross-examination) of the witness. During cross-examination of witnesses, you must actually ask questions (as opposed to arguing with the witness or making statements o your own behalf).

Once the landlord finishes his or her case, you have the chance to present your case. You and/or other witnesses may speak, and you can show the judge any papers that help prove your case. Try to keep your case simple, and only present testimony and papers that are related to your landlord's allegations and the legal defenses that you wrote in your Answer. In any event, it is important to fully prepare before your trial. You should consider writing out questions for witnesses and notes for what you want to say ahead of time. If there are witnesses that you want to appear on your behalf at the trial, you may need to subpoena them into court. A subpoena is a court order requiring persons to appear in court on your behalf. If you think that you may need to subpoena witnesses, you should speak to the judge or clerk of the court on the Answer date to find out how to subpoena witnesses. If you win the case at trial, you will be able to remain in your home.

What is a Writ of Restitution?

If you lose your case at trial, or sign a written agreement or Stipulation confessing judgement, or if you do not appear at court on the Answer date or trial date, a court judgment will be entered against you. Unless you have a written agreement or Stipulation that specifies a different time, your landlord can get a Writ of Restitution from the court 48 hours after judgment is entered. The Writ of Restitution is the court order that allows the landlord, with the assistance of the Sheriff to remove you from your home. After getting the Writ of Restitution, the landlord can schedule the eviction at any time with the county sheriff. In some counties, the eviction can be scheduled within a day or so; in others it may take more than a week. Contact your county sheriff's office for more information about their policies.

What is a typical Timetable for an Eviction?

Eviction for Non-Payment of Rent Typical Eviction Timetable (County Court)

1. The tenant is served with three-day demand to pay rent or move. The Demand may be served any time or after the date the rent is due, regardless of any "grace period" provided for in the lease;

2. The tenant must pay the delinquent rent or move out within three days after the Demand is served; 

3. If the tenant does not pay or move, the landlord may file in court and serve on the tenant a Summons and a Complaint

The "return date" specified in the Summons must be at least 7 days after the date the Summons and Complaint are servedThe Answer must be filed on or before the "return date." The trial date usually within 5 business days after the return date is set by court. OR If the tenant does not file an Answer. Default judgment enters against the tenant on the "return date." If default judgment enters, the landlord can obtain a Writ of Restitution 48 hours later. 

The Writ of Restitution is taken to the County Sheriff and removal of the tenant's possessions can happen any time thereafter that the Sheriff can schedule a move out.  If the tenant filed Answer, trial will usually be scheduled within five business days of the return date. However, if the tenant requires additional time to arrange for evidence or witnesses to be present, or for other legitimate reasons, the court may continue the trial to a later date. If the tenant requests to delay the trial to be more than 5 business days after the return date, the court may grant that request on the condition that the tenant deposit money (usually one month's rent) with the court.

Judgment may enter against the tenant after trial (if the tenant loses) or upon default if the tenant does not appear for trial.  Once judgment enters against the tenant, a Writ of Restitution may issue 48 hours after the judgment is entered. The Writ of Restitution is taken to the County Sheriff and removal of the tenant's possessions can happen any time thereafter that the Sheriff can schedule a move out. 

 

This communication is made available by Colorado Legal Services, Inc., (CLS), as a public service and is issued to inform not to advise. No person should attempt to interpret or apply any law without the assistance of an attorney. The opinions expressed in this communication are those of the authors and not those of CLS or its funding sources.

If you need advice on this or any other legal problem, consult an attorney of your own choosing. If you cannot afford an attorney, talk to Colorado Legal Services, 303.837.1313. If you think you may qualify for Colorado Legal Services, go to applyonlinecls.org to complete your application online.

Last Review and Update: Dec 19, 2016