CO Code § 13-40-104 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 40 - Forcible Entry and Detainer - General Provisions|§ 13-40-104. Unlawful Detention Defined

  Any person is guilty of an unlawful detention of real property in the following cases:   When entry is made, without right or title, into any vacant or unoccupied lands or tenements;    When entry is made, wrongfully, into any public lands, tenements, mining claims, or other possessions which are claimed or held by a person who may have located, entered, or settled upon the same in conformity with the laws, rules, and regulations of the United States, or of this state, in relation thereto;    When any lessee or tenant at will, or by sufferance, or for any part of a year, or for one or more years, of any real property, including a specific or undivided portion of a building or dwelling, holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of the term for which the same were leased, or after such tenancy, at will or sufferance, has been terminated by either party;    When such tenant or lessee holds over without permission of the tenant's or lessee's landlord after any default in the payment of rent pursuant to the agreement under which the tenant or lessee holds, and, ten days' notice in writing has been duly served upon the tenant or lessee holding over, requiring in the alternative the payment of the rent or the possession of the premises; except that, for a nonresidential agreement or an employer-provided housing agreement, three days' notice is required pursuant to this section, and for an exempt residential agreement, five days' notice is required pursuant to this section. No such agreement shall contain a waiver by the tenant of the notice requirement of this subsection (1)(d). It is not necessary, in order to work a forfeiture of such agreement for nonpayment of rent, to make a demand for such rent on the day on which the same becomes due; but a failure to pay such rent upon demand, when made, works a forfeiture.  (d.5) When such tenant or lessee holds over, without the permission of the landlord, contrary to any condition or covenant the violation of which is defined as a substantial violation in section 13-40-107.5 , and notice in writing has been duly served upon such tenant or lessee in accordance with section 13-40-107.5 ;     When such tenant or lessee holds over, without such permission, contrary to any other condition or covenant of the agreement under which such tenant or lessee holds, and ten days' notice in writing has been duly served upon such tenant or lessee requiring in the alternative the compliance with such condition or covenant or the delivery of the possession of the premises so held; except that, for a nonresidential agreement or an employer-provided housing agreement, three days' notice is required pursuant to this section, and for an exempt residential agreement, five days' notice is required pursuant to this section.    (e.5) (I) When a tenant or lessee has previously been served with the notice described in paragraph (e) of this subsection (1) requiring compliance with a condition or covenant of the agreement, and subsequent to that notice holds over, without permission of the tenant or lessee's landlord, contrary to the same condition or covenant.    A tenancy pursuant to a residential agreement may be terminated at any time pursuant to this subsection (1)(e.5) on the basis of a subsequent violation of the same condition or covenant of the agreement. The termination of a residential tenancy is effective ten days after service of written notice to quit. Notwithstanding any other provision of this subsection (1)(e.5)(II), a tenancy pursuant to a nonresidential agreement, an exempt residential agreement, or an employer-provided housing agreement may be terminated at any time pursuant to this subsection (1)(e.5) on the basis of a subsequent violation. The termination of a nonresidential tenancy or an employer-provided housing tenancy is effective three days after service of written notice to quit, and the termination of a tenancy pursuant to an exempt residential agreement is effective five days after service of written notice to quit.       When the property has been duly sold under any power of sale, contained in any mortgage or trust deed that was executed by such person, or any person under whom such person claims by title subsequent to date of the recording of such mortgage or trust deed, and the title under such sale has been duly perfected and the purchaser at such sale, or his or her assigns, has duly demanded the possession thereof;    When the property has been duly sold under the judgment or decree of any court of competent jurisdiction and the party or privies to such judgment or decree, after the expiration of the time of redemption when redemption is allowed by law, refuse or neglect to surrender possession thereof after demand therefor has been duly made by the purchaser at such sale, or his or her assigns;    When an heir or devisee continues in possession of any premises sold and conveyed by any personal representative with authority to sell, after demand therefor is duly made;    When a vendee having obtained possession under an agreement to purchase lands or tenements, and having failed to comply with his agreement, withholds possession thereof from his vendor, or assigns, after demand therefor is duly made.          Repealed.      It shall not constitute an unlawful detention of real property as described in paragraph (d.5), (e), or (e.5) of subsection (1) of this section if the tenant or lessee is the victim of domestic violence, as that term is defined in section 18-6-800.3, C.R.S., or of domestic abuse, as that term is defined in section 13-14-101 (2), which domestic violence or domestic abuse was the cause of or resulted in the alleged unlawful detention and which domestic violence or domestic abuse has been documented by the following:   A police report; or    A valid civil or emergency protection order.       A person is not guilty of an unlawful detention of real property pursuant to paragraph (a) of this subsection (4) if the alleged violation of the rental or lease agreement is a result of domestic violence or domestic abuse against the tenant or lessee.    A rental, lease, or other such agreement shall not contain a waiver by the tenant or lessee of the protections provided in this subsection (4).    Nothing in this subsection (4) shall prevent the landlord from seeking judgment for possession against the tenant or lessee of the premises who perpetuated the violence or abuse that was the cause of or resulted in the alleged unlawful detention.       As used in this section, unless the context otherwise requires:   “Employer-provided housing agreement” means a residential tenancy agreement between an employee and an employer when the employer or an affiliate of the employer acts as a landlord.    “Exempt residential agreement” means a residential agreement leasing a single family home by a landlord who owns five or fewer single family rental homes and who provides notice in the agreement that a ten-day notice period required pursuant to this section does not apply to the tenancy entered into pursuant to the agreement.        History. Source: L. 1885: P. 224, § 3. R.S. 08: § 2603. C.L. § 6369. CSA: C. 70, § 4. CRS 53: § 58-1-4. C.R.S. 1963: § 58-1-4. L. 79: (1)(h) amended, p. 648, § 4, effective July 1. L. 83: (1)(d) amended, p. 631, § 1, effective July 1. L. 86: (1)(c), (1)(f), and (1)(g) amended and (2) added, p. 434, § 7, effective April 18. L. 87: (1)(e) amended, p. 565, § 1, effective March 13; (2)(a)(I), (2)(a)(II), and (2)(b) amended and (3) added, p. 1356, § 6, effective July 1. L. 94: (1)(d.5) added, p. 1467, § 1, effective May 31. L. 95: (1)(e) amended and (1)(e.5) added, p. 271, § 1, effective July 1. L. 98: (1)(c), (1)(f), and (1)(g) amended, p. 819, § 15, effective August 5. L. 2005: (4) added, p. 401, § 1, effective July 1. L. 2019: (1)(d), (1)(e), and (1)(e.5)(II) amended and (5) added,(HB 19-1118), ch. 230, p. 2316, § 1, effective May 20. History. Source: L. 1885: P. 224, § 3. R.S. 08: § 2603. C.L. § 6369. CSA: C. 70, § 4. CRS 53: § 58-1-4. C.R.S. 1963: § 58-1-4. L. 79: (1)(h) amended, p. 648, § 4, effective July 1. L. 83: (1)(d) amended, p. 631, § 1, effective July 1. L. 86: (1)(c), (1)(f), and (1)(g) amended and (2) added, p. 434, § 7, effective April 18. L. 87: (1)(e) amended, p. 565, § 1, effective March 13; (2)(a)(I), (2)(a)(II), and (2)(b) amended and (3) added, p. 1356, § 6, effective July 1. L. 94: (1)(d.5) added, p. 1467, § 1, effective May 31. L. 95: (1)(e) amended and (1)(e.5) added, p. 271, § 1, effective July 1. L. 98: (1)(c), (1)(f), and (1)(g) amended, p. 819, § 15, effective August 5. L. 2005: (4) added, p. 401, § 1, effective July 1. L. 2019: (1)(d), (1)(e), and (1)(e.5)(II) amended and (5) added,(HB 19-1118), ch. 230, p. 2316, § 1, effective May 20.    Editor's note:   Subsection (2)(b) provided for the repeal of subsection (2), effective January 31, 1989. (See L. 87, p. 1356 .) Subsection (3)(b) provided for the repeal of subsection (3), effective July 1, 1991. (See L. 87, p. 1356 .)   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. PARAGRAPH (b).    III. PARAGRAPH (c).    IV. PARAGRAPH (d).    V. PARAGRAPH (e).    VI. PARAGRAPH (f).    VII. PARAGRAPH (i).    VIII. SUBSECTION (2).    II. GROUNDS FOR ISSUANCE.   A. In General.    B. Rights Protected.       III. DUTIES OF COURT.   A. In General.    B. Action on Petition.    C. Jurisdiction.        I. GENERAL CONSIDERATION.   Law reviews. For article, “Remedies of a Landlord Following Default by a Tenant”, see 11 Colo. Law. 2588 (1982). For article, “Representation of the Landlord in an Unlawful Detainer Action”, see 12 Colo. Law. 69 (1983). For comment, “Francam v. Fail: Waiver of Statutory Notice Under Colorado's Forcible Entry and Detainer Statute”, see 55 U. Colo. L. Rev. 125 (1983). For article, “A Review of Agricultural Law: Hard Times and Hard Choices”, see 15 Colo. Law. 629 (1986). For article, “The Colorado Farm Homestead Protection Act”, see 15 Colo. Law. 1642 (1986). For article, “The Agricultural Credit Act of 1987”, see 17 Colo. Law. 611 (1988). For article, “An Analysis of the Effect of S.B. 123 on Foreclosures”, see 17 Colo. Law. 845 (1988).   No force is necessary to complete a cause of action in unlawful detention. Northrup v. Nicklas, 115 Colo. 207 , 171 P.2d 417 (1946).   The only question to be determined in an action for unlawful detainer is the right to possession of the premises, and no demand for damages or rent can be joined in such action. Tyler v. McKenzie, 43 Colo. 233 , 95 P. 943 (1908); Beman v. Rocky Ford Nat'l Bank, 100 Colo. 64 , 65 P.2d 708 (1937); Stone v. Lerner, 118 Colo. 455 , 195 P.2d 964 (1948).   Title cannot be tried. In ordinary actions of forcible entry and detainer, title to the property is not involved and cannot be tried. Kelly v. E. F. Hallack Lumber & Mfg. Co., 22 Colo. 221 , 43 P. 1003 (1896); Wise v. Schimmel, 76 Colo. 184 , 230 P. 786 (1924).   Where a determination of the right of possession cannot be had without a trial of title, the plaintiff must fail. Hamill v. Bank of Clear Creek County, 22 Colo. 384 , 45 P. 411 (1896).   Muniments of title may be put in evidence. In an action of forcible entry and detainer, title may not be tried, but muniments of plaintiff's title may be put in evidence to show the character of his possession. Jenkins v. Tynon, 1 Colo. App. 133, 27 P. 893 (1891).   As a bearing on right of possession, title may indirectly be a subject of inquiry. When the action is for unlawful detention, under subsection (1)(f), equitable defenses may be interposed, and indirectly, but only as bearing on the right of possession, title to the property may be a subject of inquiry. Hamill v. Bank of Clear Creek County, 22 Colo. 384 , 45 P. 411 (1896).   Lessee cannot deny lessor's title. In an action of unlawful detainer, plaintiff having proved the execution of a lease and defendant's possession under it, defendant offered to show that his wife had erected buildings on the leased premises and claimed ownership. The court held that, as lessee of plaintiff, defendant could not deny his title, nor set up an outstanding title in another, and the evidence was properly rejected. Eckles v. Booco, 11 Colo. 522 , 19 P. 465 (1898).   Specific performance of a verbal agreement to execute a lease of lands cannot be had in an action for the wrongful detainer of the lands. Adcock v. Lieber, 51 Colo. 373 , 117 P. 993 (1911).   Court may sustain motion for judgment on the pleadings. Where, in an action in forcible entry and detainer, defendant raised no issue and none was shown by the pleadings, there was nothing left for a jury to determine, and regardless of any contention otherwise, the county court could, and did, properly sustain the motion for judgment on the pleadings. Jorden v. Ellis, 128 Colo. 350 , 262 P.2d 275 (1953).   Contempt sanction available in forcible entry and detainer (FED) proceedings in appropriate circumstances. Nothing in C.R.C.P. 107 or the FED statute precludes the remedy of contempt in an FED action under appropriate circumstances. Hartsel Springs Ranch v. Cross Slash Ranch, 179 P.3d 237 (Colo. App. 2007).   Applied in Burrows v. Greene, 198 Colo. 167 , 599 P.2d 258 (1979); Hoffman v. Brown, 42 Colo. App. 444, 599 P.2d 959 (1979); Maxwell v. District Court, 641 P.2d 931 (Colo. 1982); Christensen v. Hoover, 643 P.2d 525 (Colo. 1982).   II. PARAGRAPH (b).   For evidence of title being admissible when possessor's title comes from the public domain, see Kelley v. Andrew, 3 Colo. App. 122, 32 P. 175 (1893).   III. PARAGRAPH (c).   Paragraph (c) provides that any tenant shall be deemed guilty of an unlawful detention who shall hold over, and continue in possession of, the demised premises, after the expiration of the term of occupancy. MacKenzie v. Porter, 40 Colo. 340 , 91 P. 916 (1907).   The holding over itself constitutes an unlawful detention. This paragraph itself does not say that a holding, only after refusal to surrender on demand, or notice to quit, but that such a holding over itself, constitutes an unlawful detention. Dulmaine v. Reed Bldg. Co., 46 Colo. 469 , 104 P. 1038 (1909).   It is inapplicable where tenancy fixed and certain. Where a lease is not from year to year or for an indefinite term, but is a lease where the tenancy is fixed and certain, the provisions of this section do not apply. Koch v. Monaghan, 119 Colo. 557 , 205 P.2d 652 (1949), citing Millage v. Spahn, 115 Colo. 444 , 175 P.2d 982 (1946).   Notice to quit not necessary when term ends at a certain time. The applicable rule would seem to be that notice to quit is not required where, by the express words of the contract, the term is to end at a certain time. Dulmaine v. Reed Bldg. Co., 46 Colo. 469 , 104 P. 1038 (1909); Swaim v. Swanson, 118 Colo. 509 , 197 P.2d 624 (1948); July Bldg. Corp. v. Heathrow & Co., Ltd., 679 P.2d 1120 (Colo. App. 1984).   Action under this paragraph does not bar action for rent. Although each party should bring forward all demands existing at the time of bringing an action in a justice court which can be consolidated, and, upon failure so to do, shall be debarred from afterwards suing for any such demand, a landlord is not barred from bringing an action for rent, which was due at the time of bringing an action of unlawful detainer for the premises under this paragraph (c). MacKenzie v. Porter, 40 Colo. 340 , 91 P. 916 (1907).   Demand for rent cannot be joined in action for possession of premises. The action of unlawful detainer is not a common-law action, but is purely statutory, and, in the absence of statutory provisions therefor, a demand for damages or rent cannot be joined in an action for possession of the premises. MacKenzie v. Porter, 40 Colo. 340 , 91 P. 916 (1907).   Nor is landlord's right to bring action of unlawful detention affected because tenant must bring action for forcible entry. The right to immediate possession being in the tenant, the action for forcible entry must be brought by her; but that by no means interferes with the right of the landlord to bring the action of unlawful detention upon the determination of the tenancy for any of the causes for which that action will lie under this section. Mageon v. Alkire, 41 Colo. 338 , 92 P. 720 (1907).   Complainant alleging tenancy and holding over cannot recover on evidence showing occupation under agreement to purchase. In an action of unlawful detainer where the complainant alleges a tenancy and a holding over, and there is evidence tending to show that the defendant is in occupation under an agreement to purchase, it was not error to instruct the jury that, if they should find the defendant went in under an agreement to purchase, the plaintiff could not recover. Keller v. Klopfer, 3 Colo. 132 (1876).   For action not being commenced prematurely, see Beman v. Rocky Ford Nat'l Bank, 100 Colo. 64 , 65 P.2d 708 (1937).   IV. PARAGRAPH (d).   Paragraph (d) relates only to cases of forfeiture by tenants for nonpayment of rent. Getty v. Miller, 10 Colo. App. 331, 51 P. 166 (1897).   Tender of rent renders attempt to terminate lease ineffectual. A tender of rent due under the terms of a lease, if properly made and kept good, renders an attempt to terminate it for nonpayment of rent ineffectual, the tender being equivalent to payment so far as the term of the lease is concerned. Barlow v. Hoffman, 103 Colo. 286 , 86 P.2d 239 (1938).   Tender must be sufficient. A tender of rent due on leased premises is ineffectual where the amount of the tender is insufficient to cover the amount in default. Barlow v. Hoffman, 103 Colo. 286 , 86 P.2d 239 (1938).   Landlord may forfeit lease even if he has a deposit. Deposit of funds to be applied to the payment of rent for the last eight months of a five-year lease does not deprive the landlord of his right to forfeit the lease if currently accruing rent becomes overdue. Barlow v. Hoffman, 103 Colo. 286 , 86 P.2d 239 (1938).   Service of notice constituting election of remedies. Service of notice on a tenant in possession under lease to quit with a demand for possession, made for the express purpose of terminating the lease, constitutes an election of remedies and after such service the landlord has no right to ignore it or to bring an action based on any other theory than that the lease was terminated. Barlow v. Hoffman, 103 Colo. 286 , 86 P.2d 239 (1938).   The general rule in Colorado is that a notice to pay or quit constitutes an election by the landlord to terminate the lease unless the notice is rendered ineffective by the tenant's payment of rent. Aigner v. Cowell Sales Co., 660 P.2d 907 (Colo. 1983).   Bringing of suit for rent is an irrevocable election to waive the forfeiture. Perry v. White, 69 Colo. 234 , 193 P. 543 (1920).   A judgment in a forcible detainer suit cannot go beyond an adjudication of the right to possession as between the parties except when suit is brought under paragraph (d). Hendron v. Bolander, 101 Colo. 414 , 74 P.2d 706 (1937).   A dismissed unlawful detainer case is not res judicata as to the defendant in a subsequent suit involving the same cause of action, and he is not bound by the position he took in the original case where the dismissal was without prejudice. Barlow v. Hoffman, 103 Colo. 286 , 86 P.2d 239 (1938).   Complaint must show three days' notice in writing. A complaint under the forcible entry and detainer act, where the only breach is failure to pay rent, is deficient, if it does not show three days' notice in writing requiring in the alternative the payment of rent or possession of the premises. Perry v. White, 69 Colo. 234 , 193 P. 543 (1920).   Alternative demands required. A notice sent for alleged default in rental payment, under subsection (1)(d), must include in the alternative a demand for payment within three days or possession of the premises. If it does not include the alternative demands it is insufficient to work a forfeiture for nonpayment of rent. Tumbarello v. Byers, 37 Colo. App. 61, 543 P.2d 1278 (1975).   Waiver of notice. The notice requirement of subsection (1)(d) may be waived by lease provisions. Francam Bldg. Corp. v. Fail, 646 P.2d 345 (Colo. 1982).   Sufficiency of service of notice. The posting of a notice pursuant to the provisions of § 13-40-108 was sufficient to satisfy the three-day notice requirement under paragraph (d) and provide jurisdiction for entry of the judgment for possession. Magliocco v. Olson, 762 P.2d 681 (Colo. App. 1987).   A failure to serve the demand three days before filing suit is not cured by the mere act of appending a copy of the demand to the complaint. Rocky Mtn. Props. v. Purified H20, 3 P.3d 485 (Colo. App. 2000).   Statutory notice provision complied with where landlord did not file an unlawful detainer action until ten days after his demand notice was served upon lessee. W. Cities Broad. v. Schueller, 830 P.2d 1074 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 849 P.2d 44 (Colo. 1993).   An unlawful detention action sounds in tort. Federal court predicted that the Colorado supreme court would conclude that an unlawful detention action under subsection (1)(d) sounds in tort. Plaintiff's action for unlawful detention is thus subject to the Federal Tort Claims Act and its administrative remedies, which must be exhausted before an action in district court may be filed. Boehme v. United States Postal Serv., 343 F.3d 1260 (10th Cir. 2003).   V. PARAGRAPH (e).   Where the lessees failed to put the premises to the use required by the lease, the lessees were in breach of the lease and an unlawful detainer action was proper. Edlen Co. v. Nashville Mgmt., Inc., 680 P.2d 1331 (Colo. App. 1984).   Return of rent matured and collected is not required. The landlord, declaring a forfeiture of the lease for the tenant's violation of its conditions, is not required to return any part of the rent matured and collected. The tenant violating the conditions of the lease loses both the term and the rent. Hepp Wall Paper & Mercantile Co. v. Deahl, 53 Colo. 274 , 125 P. 491 (1912).   Landlord's acceptance of rent in ignorance of tenant's violation of conditions of lease is no waiver of the condition, or the breach of it. Hepp Wall Paper & Mercantile Co. v. Deahl, 53 Colo. 274 , 125 P. 491 (1912).   Three-day notice required before commencement of unlawful detainer action. W. Cities Broad. v. Schueller, 830 P.2d 1074 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 849 P.2d 44 (Colo. 1993).   Statutory notice provision complied with where landlord did not file an unlawful detainer action until ten days after his demand notice was served upon lessee. W. Cities Broad. v. Schueller, 830 P.2d 1074 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 849 P.2d 44 (Colo. 1993).   VI. PARAGRAPH (f).   Where grantor in trust deed does not unlawfully detain mortgaged premises after trustee's sale, the purchaser has no occasion to resort to the provisions of the forcible entry and detainer statute. Lane v. Morris, 77 Colo. 343 , 237 P. 154 (1925).   The recovery provided for in paragraph (f) was not intended as a penalty for the unlawful withholding of mortgaged premises by the owner after foreclosure sale, but as compensation for the use thereof. Lane v. Morris, 77 Colo. 343 , 237 P. 154 (1925).   Deed of trust, trustee's deed, and demand for possession with officer's return make prima facie case. In an action for possession under a foreclosure sale, when the plaintiff had introduced in evidence the deed of trust, the trustee's deed, and demand for possession with the officer's return on the demand, he had proven a prima facie case, and upon defendant's failure to offer any evidence, plaintiff was entitled to judgment. Ensley v. Page, 13 Colo. App. 452, 59 P. 225 (1899).   Foreclosure and sale in violation of contract is a defense. It is a defense to an action for unlawful detention brought under paragraph (f) against the grantor of a deed of trust that it was foreclosed and a sale made thereunder in violation of a contract between him and the beneficiary that a foreclosure should not take place until the happening of certain contingencies, and then only in a certain manner. Hamill v. Bank of Clear Creek County, 22 Colo. 384 , 45 P. 411 (1896).   VII. PARAGRAPH (i).   Law reviews. For article, “Must Colorado Real Property Installment Sale Contracts Be Foreclosed as Mortgages?”, see 9 Dicta 320 (1932). For note, “Vendor's Remedies Under Colorado Executory Land Contracts”, see 22 Rocky Mt. L. Rev. 296 (1950). For note, “Relief upon Default Under a Contract for Purchase and Sale of Land”, see 29 Dicta 7 (1952).   It is immaterial whether the contract to convey is designated a “contract to purchase” or a “contract of purchase”. Schiffner v. Chicago Title & Trust Co., 79 Colo. 249 , 244 P. 1012 (1926).   Vendor may sue for unlawful detainer or in ejectment. Unlawful detainer will lie where a vendee in possession under a contract to purchase withholds possession from the vendor after default and demand. Schiffner v. Chicago Title & Trust Co., 79 Colo. 249 , 244 P. 1012 (1926).   Vendee cannot question vendor's title. Where a vendee went into possession of real estate in pursuance of a contract of sale, he cannot be heard to question his vendor's title in an action by the vendor to recover the premises for a failure on the part of the vendee to comply with the contract, and a complaint that alleges such contract of sale and the failure of the vendee to comply therewith is sufficient as against a general demurrer without an allegation of ownership. Ruth v. Smith, 29 Colo. 154 , 68 P. 278 (1901).   VIII. SUBSECTION (2).   The language of subsection (2)(a) refers to § 13-40-124 for the definition of a qualified farm owner-tenant and the circumstances under which the attendant rights can be exercised. Fed. Land Bank of Wichita v. Needham, 759 P.2d 799 (Colo. App. 1988) (decided prior to repeal of subsection (2)).