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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11526
Experience:  Licensed Texas General Practice Attorney
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I am in Colorado: I am evicting a tenant from a commercial

Resolved Question:

I am in Colorado:

I am evicting a tenant from a commercial building. The tenant has over 3000 sq ft of merchandise in the building.

I have given the three day notice for possession for not paying rent for three months, and now have date to get judgement to regain the property.

The tenant is making no effort to remove any of the merchandise. My questions are:

How long after I receive a judgement allowing me to the use of the property, does the tenant have a right for access to the property?

Unlike a residential property where the sheriff stands by while personal property is placed on the curb, this would be impossible. If he continues to make no attempt to remove his property, how long before it can be considered abandoned?

If I remove and sell the merchandise to cover my expenses and to allow me to re-lease the property, is he entitled to any of the proceeds from the sale? Can I I be held liable for the disposal of his property?
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

So long as you have a writ of restitution after the judgment, you have NO duty to store or maintain a tenant's personal property that is removed from the premises. See Colorado statutes § 13-40-122. Writ of restitution after judgment


(3) A landlord has no duty to store or maintain a tenant's personal property that is removed from the premises during or after the execution of a writ of restitution. Regardless of whether a landlord elects to store or maintain the personal property so removed, the landlord shall have no duty to inventory the personal property or to determine ownership of or the condition of the personal property. Such storage shall not create either an implied or express bailment of the personal property, and the landlord shall be immune from liability for any loss or damage to the personal property.

ScottyMacEsq :

Colorado is the only state that explicitly states that the landlord has no duty to the tenant after receiving such a writ of restitution (which is obtained after the judgment).

ScottyMacEsq :

So you would not have any liability to the tenant, and if he were to sue you for anything, you could point to this statute as your absolute defense.

Customer:

That would indicate that I am not required to obtain a lien in order to sell the property and keep all the proceeds!

ScottyMacEsq :

That would be an argument that you could use, but the problem with that is that would constitute "conversion". That is, taking control and ownership of the property is different than throwing it away.

ScottyMacEsq :

He could sue you for the proceeds, although he couldn't sue you for anything else. That is, if you sold a $10,000 car, arms length transaction, for $1, he couldn't sue you for more contending that you should have gotten more.

ScottyMacEsq :

Now if you "sell" it to your brother, that would not be an arms length transaction, and could be an argument for conversion.

Customer:

I can not dispose of the property in another way. It is floor to ceiling in a 3000 sf building. Could I have a public sale or have a auction co. remove it and sell at their location. Until it is gone, I am unable to re-lease the building.

ScottyMacEsq :

That is, you would still need to give notice of the sale, opportunity to reimburse, etc....

Customer:

How do I get Lien rights?

ScottyMacEsq :

So a sale of the property is more problematic than just disposing of the property, but if you can't dispose, then I suppose that this is your only option.

ScottyMacEsq :

Lien rights automatically attach (a landlord lien is the costs incurred in storage, sale, etc... of the property...) Follow the link to find out more about the notice of sale for abandoned property.

ScottyMacEsq :

You can also store the property, charging the owner with the costs of storage, and you're able to sell the property to satisfy the costs of storage.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Would that imply that, he does nothing, I remove and dispose of the property to allow use of the property, and that I am responsible for storage and if I sell the property, he would get any proceeds over and above my actual costs. Why would he ever want to go to all the work to remove it?

ScottyMacEsq :

If you're going to throw it away, it might be worth more to him to remove it.

ScottyMacEsq :

That is, he gets nothing if you throw it away. He has the property if he removes it.

Customer:

He has no place to move it or funds to store it. I believe it would be morally wrong to just trash the property in a landfill. Thanks for your answers, I will give you property credit in the rating system. Do I get a copy of this infromation by e-mail

ScottyMacEsq :

I'm not sure if you will (I don't have any control over that, and don't even have access to your email). The system sometimes does send it, but I don't think it does all the time. But after you rate the answer, it will switch to Q&A, at which point you'll be able to print it, copy and paste, etc...

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11526
Experience: Licensed Texas General Practice Attorney
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