A recent law passed by the Colorado legislature and signed by Governor Polis affecting residential tenancy and eviction rights went into effect on April 19, 2024. This will have a profound impact on both landlords and tenants. The changes seem intended to protect tenants and reduce turnover in residential leasing.[1] Knowledge of these changes can assist landlords in navigating the requirements to evict problem tenants, and to set rents knowing that tenants rather than landlords will have the right to decide whether they remain in the premises at the end of a lease term. These changes can be found in Part 13, Article 12 of Title 38 of the Colorado Revised Statutes (C.R.S.).
The new tenancy laws apply to all residential property being leased in Colorado, with a few exceptions.[1] The new laws do not apply to short-term rental property leases,[2] or leases of residential premises in which the landlord (or a master tenant) also resides or maintains as his or her primary residence.[3] Also exempt are leases of residential premises on adjacent property to the landlord’s primary residence[4] if the leased premises is (1) a single-family home on the same lot as the landlord’s home,[5] (2) a duplex,[6] (3) a triplex,[7] and (4) is not classified as a multifamily property of four or more dwelling units.[8] Additionally, leases of mobile home space on a lease-to-own or purchase option basis,[9] and residential premises leased pursuant to an employer-provided-housing agreement,[10] are likewise, exempt from the new law. Finally, the law exempts residential tenants who have not been tenants for at least 12-months,[11] and tenant squatters/sublessees of whose presence the landlord is unaware.[12]
What are tenants’ renewal rights under the new law?
The new law effectively grants residential tenants a right to lifetime possession of the rented premises, provided tenants are willing to agree to reasonable lease renewal terms. Additionally, the tenant must not act in a manner that would give rise to a for-cause eviction, discussed below. Finally, the landlord does maintain the right to evict a tenant under the no-fault provisions but may only do so at the end of the tenant’s current lease term. However, traditional causes of action for eviction such as non-payment of rent and breach of material terms of the lease by tenants remain available to landlords.
What are landlords’ re-defined eviction rights?
The new law creates two classifications of evictions: evictions for-cause and no-fault evictions. Under the rule, a landlord is prevented from serving notice to terminate a lease, making a demand for possession, or taking legal action to evict a tenant unless there is cause to do so.[13] No-fault evictions act as exceptions to that rule.[14]
For-Cause Evictions
C.R.S. § 38-12-1303 lists several triggers that constitute evictions for-cause:
- Entering unoccupied or vacant property without legal right or ownership;[15]
- Wrongfully entering public lands, leased premises, mining claims, or other possessions;[16]
- Remaining in possession of the leased premises after expiration or termination of the lease (but see tenant’s right of renewal, above);[17]
- Remaining in possession of the leased premises after failing to pay rent and receiving notice from the landlord;[18]
- Committing any substantial violations identified by C.R.S. 13-40-107.5, including substantially endangering the leased premises, co-tenants, or neighbors,[19] committing violent or drug related felonies,[20] or committing acts in a leased premises or common areas that are punishable by 180 days or more in jail or that are declared a public nuisance;[21]
- Remaining in possession of the leased premises after material violations of any other covenant or condition in the lease;[22]
- Remaining in possession of the leased premises after repeated violations of a condition or covenant in the lease having previously received notice of the violation;[23]
- Remaining in possession of the leased premises after a Landlord has properly initiated a no-fault eviction by satisfying the notice and other requirements;[24]
- Remaining in possession of the leased premises after the property is duly sold under any power of sale,[25] or following a decree or order from a court and after the expiration of the period of redemption;[26]
- Remaining in possession of the leased premises as an heir or devisee after a premises is sold by a representative with authority to sell or convey the premises;[27]
- Remaining in possession of the leased premises after agreeing to purchase lands or tenements, but failing to comply with the agreement;[28]
- Remaining in possession of the leased premises after engaging in conduct that creates a nuisance or disturbance that interferes with the landlord’s or any other tenant’s quiet enjoyment, or negligently damaging the property.[29]
No-Fault Evictions
In addition to the for-cause evictions listed above, the new law permits landlords to evict tenants for certain no-fault situations. The legislature seemingly recognized that certain life-events arise which require a landlord to terminate a lease, even though the tenant is not in breach of any lease terms and desires to continue leasing. The list of no-fault evictions can be found under C.R.S. § C.R.S. 38-12-1303(3). In all cases, a landlord needs to comply with specific statutory requirements before initiating a no-fault eviction, first among which is giving notice, properly served, at least ninety days before the date on which the tenant must vacate the leased premises and listing the reason for the eviction. Interestingly, the statutes seemingly imply that once a long-term lease is entered into by the landlord, the specific evictions identified under for-cause and no-fault evictions are the only legally acceptable reasons for removing a tenant. This means that in the no-fault context, evictions may only occur after the current lease term expires; in other words, these situations generally concern lease renewals, and do not permit a landlord to terminate an existing lease early, unless for-cause.[30]
The first situation arises when a landlord finds it necessary to demolish a dwelling, or convert the residential premises to non-residential or short-term rental use at the end of the current term of the rental agreement.[31] A landlord is required to provide written notice of the non-fault eviction at least 90 days prior to the end of the lease term,[32] which must include (1) the date on which the tenant must vacate,[33] (2) a description and timeline of the demolition or conversion of the residential premises, (3) a “material demonstration” of the date on which the demolition or conversion is to begin,[34] and (4) must allow the tenant 90 days following notice to move out.[35]
The second situation revolves around the need for the landlord to make substantial repairs to the dwelling.[36] “Substantial repairs” are defined as repairs or renovations which cannot be reasonably accomplished in a safe or efficient manner with the tenant in place and require the tenant to vacate the residential premises for at least thirty days.[37] Ninety days prior to the end of the current lease term, the landlord needs to provide notice to the tenant,[38] must state the date on which the tenant must vacate,[39] the expected completion date for repairs, and a general description of the repair or renovation.[40] The notice must allow the tenant 90 days to move out.[41] Once the landlord regains possession, he or she must immediately begin repairs or renovations[42] and, to the extent any work is expected to last less than 180 days, provide the tenant written notice of the expected completion date.[43] The new law grants the tenant an option within 10-days of receiving notice of expected completion date to exercise a right of first refusal to enter into a new rental agreement to return to that rental unit,[44] provided the tenant agrees to occupy the unit within 30 days of completion or repairs.[45] Of importance, eviction for renovations or repairs under this section cannot be initiated by landlord if the purposes of those renovations/repairs stem from landlord’s breach of the warranty of habitability,[46] or are initiated solely for the purpose of retaliation against a tenant.[47]
The third situation occurs when a family member of a landlord, or the landlord themselves, assumes occupancy of the leased unit.[48] The landlord can imitate a no-fault eviction at the end of the current lease term, so long as the landlord or the landlord’s family member occupies the rental unit within 3 months of the tenant vacating the premises,[49] which can be extended in the event that the landlord’s family member is disabled to allow for accommodations to be made to the unit.[50] The landlord must serve the tenant notice allowing at least 90 days for move-out.[51] To initiate this type of no-fault eviction, no other equivalent vacant unit must be available in the same building,[52] and the landlord cannot re-list the residential premises for lease for at least 90 days after the tenant vacates the unit.[53] In other words, the landlord cannot use the prospect of a landlord’s family member moving into a unit to evict a tenant, only to immediately return the unit to the rental market.
The fourth situation arises when a landlord desires to sell the rental unit at the end of the rental term, rather than re-lease the premises.[54] The landlord is required to provide the tenant with 90 days’ notice,[55] and the notice must identify the intent to list the premises for sale.[56] Additionally, the landlord cannot relist the unit for rent for at least 90 days after the date the tenant vacated, unless the landlord can provide evidence that the rental was listed for sale on multiple listing sites after the tenant vacated and did not sell.[57]
The fifth situation arises when the tenant refuses to sign a reasonable lease to renew possession. In the event the tenant refuses to sign a reasonable rental renewal agreement, which may include increased market-based rent, then the landlord can initiate a no-fault eviction so long as landlord properly serves written notice of the landlord’s intent to terminate the tenancy and identifies the date the tenant must vacate.[58] The tenant is permitted to remain in possession of the leased unit until the remainder of the term under the rental agreement lapses.[59] While not completely clear from the statute’s plain language, we interpret this section to mean the landlord should be negotiating lease renewal starting 120 days prior to the end of lease term, so that landlord can give 90 days’ notice under this section if the tenant does not agree to a reasonable increase in rent under a renewed lease within 30 days.
The sixth and final situation arises when a tenant is late paying rent more than two times during the lease period. A landlord may initiate a no-fault eviction at the end of the written lease term,[60] so long as the landlord allows the tenant 90 days to vacate,[61] the notice identifies the landlord’s intent to terminate the tenancy for late payment of rent, and the date the tenant must vacate is clearly stated.[62] “Late rent” is defined as rent payment being made more than 10 calendar days after the lease’s required due date, and the landlord must have provided the tenant notice of the past-due rent and made demand for payment or possession.[63] If the tenant subsequently pays the overdue rent within the 10-day cure period, then the right to a no-cause termination is extinguished.[64] The best practice for landlords under this section will be to serve notice to cure or quit by posting on the 10th day following the due date for rent (e.g., on May 11th if rent was due on May 1st), and to photograph the posted notice. Objective proof of at least three such postings will be needed to support an eviction claim under this section.
Additional Changes and Findings
The new eviction law makes a number of additional modifications to existing statutes. For one, proceedings for a no-fault eviction by filing a court action under C.R.S. § 13-40-101, et seq., requires providing proper service of the written notice of the no-fault evection as a threshold issue, and the tenant must have remained in possession beyond the noticed date to vacate before the cause of action arises.[65] In addition, all no-fault eviction notices must identify the legal and factual basis for the eviction to the tenant, as described under C.R.S. 12-12-1303(3).[66] Compliance with all the notices and requirements under Part 13 is critical, as the new law now grants all tenants an affirmative defense to that extent, automatically dismissing any action where a landlord cannot prove its compliance.[67]
What should tenants do?
Tenants do not need to take action at this time, unless they become the subject of an attempt to terminate their tenancy after at least 12 months of occupancy for a reason other than for cause reasons or no fault reasons set forth in the revised statutes. The end of the lease term pursuant to the written lease, standing alone, is no longer grounds for eviction unless the tenant has received and declined a reasonable offer to renew the lease. The new law is specifically designed to allow tenants to remain a tenant in a unit, year after year, until the tenant desires to vacate, provided the tenant complies with all material lease terms, pays rent on time, and does not engage in behavior that might result in eviction under the statute. Tenants should understand that the new law does allow for no-fault evictions under the circumstances highlighted above, but it appears that this can only happen at the end of the written lease term.
What should landlords do?
While the statutory changes restrain the landlord’s right to choose his or her tenants once a lease is signed and possession held for a year or more, the majority of historical causes of action for eviction, e.g., non-payment of rent and material breaches of lease terms, are still intact.[68] If a tenant isn’t paying rent, destroys property, or engages in behavior that constitutes a nuisance, then a landlord can still get rid of that tenant. As to the new causes of action, compliance with all statutory notice requirements is key. The first thing a landlord should do is review its current lease agreement. Any lease provision which purports to waive or modify provisions of Part 13 are void and unenforceable.[69] In addition, landlords will need to be more diligent with notices. Landlord will need to list the legal reason for the eviction under the code and must meet the timing requirements for the specific eviction (generally, 90 days). A landlord cannot avoid compliance by proposing discriminatory rent increases.[70] The landlord will need to show compliance with all new requirements if it pursues an eviction action in court. If a landlord evicts a tenant without a court order in violation of part 13 of the statute, then the tenant can seek relief under C.R.S. § 38-12-510, which permits a tenant to file suit against the landlord for damages, costs, and attorney fees related to the eviction. The court can also restore the tenant to possession of the premises.[71]
BHGR attorneys stand ready to discuss the new legislation, and how it impacts a landlord’s rental operations. Please contact Patrick Haines, Peter Schaub, Juliana Massaro, Kevin Falvo, or Geoffrey Gardner for more information.
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[1] C.R.S. 38-12-1302(1).
[2] C.R.S. 38-12-1302(1)(a).
[3] C.R.S. 38-12-1302(1)(b).
[4] Id.
[5] C.R.S. 38-12-1302(1)(b)(I)(A).
[6] C.R.S. 38-12-1302(1)(b)(I)(B).
[7] C.R.S. 38-12-1302(1)(b)(I)(C).
[8] C.R.S. 38-12-1302(1)(b)(II).
[9] C.R.S. 38-12-1302(1)(c).
[10] C.R.S. 38-12-1302(1)(d).
[11] C.R.S. 38-12-1302(1)(e).
[12] C.R.S. 38-12-1302(1)(f).
[13] C.R.S. 38-12-1303(1).
[14] See C.R.S. 38-13-3(1)(c).
[15] C.R.S. 38-12-1303(2)(a).
[16] C.R.S. 38-12-1303(2)(b).
[17] C.R.S. 38-12-1303(2)(c).
[18] C.R.S. 38-12-1303(2)(d) (citing C.R.S. 13-40-104(1)(d)).
[19] C.R.S. 38-12-1303(2)(d.5) (citing C.R.S. 13-40-107.5)).
[20] C.R.S. 38-12-1303(2)(e) (citing C.R.S. 13-40-107.5(3)(b)).
[21] C.R.S. 13-40-107.5(3)(c).
[22] C.R.S. 38-12-1303(2)(f) (citing C.R.S. 13-40-104(1)(e)).
[23] C.R.S. 38-12-1303(2)(g) (citing C.R.S. 13-40-104(1)(e.5)).
[24] C.R.S. 38-12-1303(2)(h) (citing C.R.S. 13-40-104(1)(e.8)).
[25] C.R.S. 38-12-1303(2)(i) (citing C.R.S. 13-40-104(1)(f)).
[26] C.R.S. 38-12-1303(2)(j) (citing C.R.S. 13-40-104(1)(g)).
[27] C.R.S. 38-12-1303(2)(k) (citing C.R.S. 13-40-104(1)(h)).
[28] C.R.S. 38-12-1303(2)(l) (citing C.R.S. 13-40-104(1)(i)).
[29] C.R.S. 38-12-1303(2)(m) (citing C.R.S. 13-40-104(1)(j)).
[30] See C.R.S. 38-12-1303(3)(d)(II). (But, since this appears only under §1303(3)(d) related to sale of a unit, it might be construed that no-fault terminations might be allowed early under other no-fault exceptions due to ambiguity in the text).
[31] C.R.S. 38-12-1303(3)(a).
[32] C.R.S. 38-12-1303(3)(a)(I).
[33] C.R.S. 38-12-1303(3)(a)(II)(A).
[34] C.R.S. 38-12-1303(3)(a)(II)(B) (Note, “material demonstration” could include copies of an application or permit for short-term rental or a building permit).
[35] C.R.S. 38-12-1303(3)(a)(II)(A).
[36] C.R.S. 38-12-1303(3)(b).
[37] C.R.S. 13-12-1301(13).
[38] C.R.S. 13-12-1303(3)(b)(I)(A).
[39] C.R.S. 13-12-1303(3)(b)(I)(B).
[40] C.R.S. 13-12-1303(3)(b)(I)(C).
[41] C.R.S. 13-12-1303(3)(b)(I)(A).
[42] C.R.S. 13-12-1303(3)(b)(I)(D).
[43] C.R.S. 13-12-1303(3)(b)(I)(E).
[44] Id.
[45] Id. (Note – this period can be modified by landlord and tenant agreement).
[46] C.R.S. 13-12-1303(3)(b)(II)(A).
[47] C.R.S. 13-12-1303(3)(b)(II)(A).
[48] C.R.S. 13-12-1303(3)(c).
[49] C.R.S. 13-12-1303(3)(c)(I)(A).
[50] C.R.S. 12-12-1303(3)(c)(III).
[51] C.R.S. 13-12-1303(3)(c)(I)(B).
[52] C.R.S. 13-12-1303(3)(c)(I)(C).
[53] C.R.S. 13-12-1303(3)(c)(I)(D).
[54] C.R.S. 38-12-1303(3)(d)(I).
[55] C.R.S. 38-12-1303(3)(d)(I)(A).
[56] C.R.S. 38-12-1303(3)(d)(I)(B).
[57] C.R.S. 38-12-1303(3)(d)(I)(C).
[58] C.R.S. 38-12-1303(3)(e)(I) and (II).
[59] Id.
[60] C.R.S. 38-12-1303(3)(f)(I).
[61] C.R.S. 38-12-1303(3)(f)(I)(A).
[62] C.R.S. 38-12-1303(3)(f)(I)(B).
[63] C.R.S. 38-12-1303(3)(f)(II).
[64] C.R.S. 38-12-1303(3)(f)(III).
[65] C.R.S. 38-12-1303(5)(a).
[66] C.R.S. 38-12-1303(5)(b).
[67] C.R.S. 38-12-1306.
[68] See for-cause evictions under C.R.S. 38-12-1303.
[69] C.R.S. 38-12-1305.
[70] See C.R.S. 38-12-1307.
[71] C.R.S. 38-12-1304 (citing C.R.S. 38-12-510).