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Tenant Defenses to Evictions in Colorado

Learn how to fight an eviction in Colorado.

Colorado law sets out specific rules and procedures for evicting tenants. The first step in the eviction process is for the landlord to terminate the tenancy with a written notice. Sometimes, the notice provides tenants with the opportunity to fix whatever problem prompted the notice, such as unpaid rent or a lease violation. In other situations, the notice might not give the opportunity to remedy the problem.

Often, tenants simply move out when they receive a notice to cure or quit. Sometimes, though, tenants refuse to fix the situation or move out by the deadline in the notice. When this happens, the landlord can file an eviction suit.

Not all eviction lawsuits are justified. As a tenant, you might have a defense to the eviction suit—in other words, you might have reasons why a court should either dismiss or deny your landlord’s efforts to evict you.

Reasons a Judge May Deny an Eviction in Colorado

Under Colorado landlord-tenant law, judges may refuse to order an eviction in the following situations.

Improper Procedures

To terminate a tenancy and ultimately evict a tenant, landlords must closely follow state and local laws. When a landlord makes procedural mistake, the court must dismiss the eviction suit, meaning that the landlord must start the process all over. Some examples of common procedural mistakes include not providing the correct amount of time to cure a problem, improperly serving the notice to quit on the tenant, and errors in court filings. Often, courts notice procedural errors on their own, but tenants should be sure to point out potential problems—this can be done in the answer or at the hearing.

Retaliation

It is illegal for a landlord to threaten to evict or bring an eviction suit against a tenant in retaliation for complaining to the landlord or governmental agency about a health and safety violation, or for organizing or becoming a member of a tenants’ association. (Colo. Rev. Stat. § 38-12-509.) If you can demonstrate that your landlord filed a retaliatory eviction suit, the court will dismiss the suit, and might even award you money damages and your attorneys’ fees and costs from defending the lawsuit.

Victim Status

Colorado landlords may not terminate the tenancy and evict a tenant solely because the tenant is the victim of unlawful sexual behavior, stalking, domestic violence, or domestic abuse. Landlords also cannot evict a tenant for making calls to the police or other emergency assistance in response to a domestic violence or similar situation. (Colo. Rev. Stat. § 38-12-402.)

Added Rules Not in Lease

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).

Self-Help Eviction

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. § 38-12-510).

When Nonpayment of Rent May Be Legally Justified in Colorado

Occasionally, a landlord’s action (or inaction) excuses the tenant’s payment of rent under the law or by the terms of the lease or rental agreement. In these situations, a landlord cannot evict the tenant for failing to pay rent.

If a landlord fails to provide habitable premises (as defined by Colo. Rev. Stat. § 38-12-507), a tenant may file a counterclaim to an eviction suit 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. In order to claim this as a defense, though, tenants must follow specific guidelines set forth in Colorado Revised Statute section 38-12-507. The article Colorado Tenant Rights to Withhold Rent provides more detail. Any tenant who believes their landlord has breached the warranty of habitability should consider consulting with a local landlord-tenant attorney before withholding rent or taking other self-help measures.

What if the Tenant Asks for More Time?

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 to delay the trial for 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 could order a tenant to pay an amount equal to the rent lost to the landlord during the period of the delay.

Escrowed Rent

Any delay by the tenant in the eviction proceeding, past the five days prescribed by Colorado law, including the filing of a counterclaim, might 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 until the matter goes to trial. By collecting and holding rent in escrow, the court prevents the tenant from living rent-free while the lawsuit is pending.

When to Hire a Lawyer

Many landlords handle routine, uncontested evictions without the assistance of a lawyer. However, when a tenant counterclaims or asserts a defense to an eviction suit, even the savviest landlords should consider hiring an attorney. If the tenant demands a trial, a lawyer is trained to present the necessary evidence at trial to ensure the judge or jury fully understands the landlord’s arguments.

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 give tenants a realistic evaluation of their chances of winning the lawsuit. Legal representation is especially helpful when the landlord is seeking a large sum of money or when the tenants have complicated defenses. Tenants should always read their lease or rental agreement to see if they are entitled to attorneys’ fees and court costs if they win their lawsuit.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Lawyer.

Resources on Evictions in Colorado

Helpful self-help legal resources for landlords and tenants include the Colorado Department of Local Affairs Division of Housing and Colorado Legal Services. Also, the Apartment Association of Metro Denver provides resources for renters and landlords.

Visit UC Colorado Springs’ Locate Statutes website to access the latest Colorado Revised Statutes.

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