Colorado law sets out specific rules and procedures for evicting tenants beginning with the landlord providing a written demand or Notice to Quit to terminate a lease agreement (see the Nolo articles Eviction Notices for Lease Violations in Colorado and Eviction Notices for Nonpayment of Rent in Colorado for details). In many cases, a tenant will move out after receiving an eviction notice, such as a three-day written demand for nonpayment of rent. But that is not always the case. After receiving an eviction notice from a landlord, a tenant may attempt to fight the eviction by making a defense argument at the eviction hearing in an attempt to stay in the rental property longer.
This article summarizes defenses a tenant may use to stop or delay an eviction in Colorado, as well as key information landlords need to know before even starting the eviction process.
Colorado landlord-tenant law eludes to defenses a tenant may raise which may prevent an eviction judgment from being entered by the judge. If, at an eviction hearing, the judge finds any of the following situations to be true, the judge may not enter a judgment in favor of the landlord (this means the judge will not make the tenant move out of the rental property when the landlord is trying to evict the tenant).
It is illegal for a landlord to evict a tenant in retaliation against the tenant’s attempt to enforce the tenant’s legal rights under the lease or rental agreement, or other laws – for example, if the tenant reported a health or safety violation to authorities, or exercised a lawful act, such as joining a tenant organization (Colo. Rev. Stat. § 38-12-509). See the Nolo article Colorado State Laws Prohibiting Retaliation for details.
If the landlord attempted to adopt a new rule or regulation concerning the conduct of the tenant and the use and enjoyment of the rental unit, and the tenant did not consent to the new policy in writing, a judge may deny an eviction for a tenant’s violation of the new rule. Examples of how a landlord may attempt to adopt a new rule or regulation include increasing the tenant’s monthly rent (without a provision in the lease allowing the landlord to do so), or requiring the tenant to perform certain maintenance or repairs (without having this responsibility agreed to in the lease or rental agreement).
Finally, a judge may deny a landlord’s request for an eviction of the tenant if the landlord used prohibited self-help measures like changing the locks on the rental property, or causing an interruption of heat, running water, hot water, electric, gas, or other essential services to the tenant in an effort to force the tenant to move out (Colo. Rev. Stat. § 38-2-510).
There may be situations when an action or inaction by the landlord excuses the tenant’s payment of rent under the law or by the terms of the lease or rental agreement – in which case, the landlord would not have grounds to evict the tenant. A tenant may file a counterclaim for damages to offset the rent due to the landlord because the rental property is not fit for living (Colo. Rev. Stat. § 38-12-507). Examples of an unfit rental unit include a rodent infestation, a leaking roof causing damage inside the rental property living space, a broken furnace during cold temperatures, or the shut off of utilities, such as water or electricity, that is not the fault of the tenant. See the Nolo article Colorado Tenant Rights to Withhold Rent for details.
The tenant may ask the judge for more time to prepare a defense or to hire an attorney. Colorado law provides that if either party requests a delay longer than five days, the court may require either of the parties to give bond or other security in an amount equal to the damage caused by the delay (Colo. Rev. Stat. § 13-40-114). For example, a judge may order a tenant to pay as security an amount equal to the rent lost to the landlord during the period of the delay.
Any delay by the tenant in the eviction proceeding, past the five days prescribed by Colorado law, including the filing of a counterclaim, may result in months passing before the court rules on the eviction. In the case of long delays, a landlord may ask the court to order the tenant to pay the monthly rent to the court during the delay or stay of the proceedings. This type of escrowed rent prevents the tenant from living rent-free during the pendency of the lawsuit and can act as a bond or security, as discussed above.
In many cases, landlords will want to hire an attorney, particularly if a tenant is not only fighting an eviction but also claiming damages against the landlord. If the tenant demands a trial, it will be important for the landlord to hire an attorney who can present evidence and question the landlord on the witness stand so the judge or jury is able to hear the landlord’s side of the facts.
Tenants who have questions about their eviction case or are dealing with a landlord who has already retained a lawyer, should also consider contacting a lawyer. A lawyer can handle the whole case or give the tenant advice on how to proceed. A lawyer can also let a tenant know how likely he or she is to win their case. Tenants may especially want to hire an attorney if they have a complicated case, or if they are confident of their case and their lease or rental agreement entitles them to attorney fees if they win in court.
For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Lawyer.
Landlord-tenant law is not always straightforward or simple and advanced legal knowledge may be needed in many unique situations. Nolo’s Lawyer Directory includes landlord-tenant lawyers in Colorado who may be helpful in this regard.
Helpful self-help legal resources for landlords and tenants include the Colorado Department of Local Affairs Division of Housing and Colorado Legal Services. Also, landlords and tenants both will find The Colorado Renter’s Guideuseful for a complete overview of tenant’s rights and responsibilities.