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LawTalk
LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 37639
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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I would need to ask the question about my rental property

Customer Question

Hello ,
I would need to ask the question about my rental property tents that are breaking the contract . Is there anybody that could help me ?
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

I am sorry that you are having difficulties with your tenants, there are usually 2 different avenues to deal with tenants breaking contracts (3 if you include failure to pay rent).

  • "Curable notices" - usually minor lease violations that the tenant can correct (things like parking in the wrong spot, noise complaints, or having a pet that they are not permitted)
  • "Non-Curable notices" - more significant lease violations (things such as multiple "curable" violations, conducting criminal activity on the property, causing significant damage to the property (called "waste") or similar activity).
  • "Non-payment of rent"

This link here gives you some more details on each of these: http://www.nolo.com/legal-encyclopedia/eviction-notices-lease-violations-colorado.html

Expert:  CalAttorney2 replied 1 year ago.

An excellent self help site can be found here: http://www.coloradolegalservices.org/lawhelp/resource/questions-and-answers-about-eviction

And the CO Courts have forms (and more information) here: https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=28

The general procedure works like this:

  • 1) Notice: The first step in any termination is giving notice, the landlord can simply give notice that they no longer want the tenant to live there (this is usually 30 days, or 60 days, and it can be done for no reason whatsoever, there is no fault, and while the tenant must relocate, they are not being "evicted" and there is no blemish on their rental history), they can give a "notice to pay or quit" (usually 3 day or 5 day depending on the state, and the tenant has this amount of time to pay rent that they missed or move out), "notice to "cure or quit" (the tenant has breached the lease - broken something, noisy, etc. and must stop it or fix it within the notice period, again 3 days, 5 days, or 10 days), or a "notice to quit" (this is a 3 day or 5 day notice that says the tenant has messed up so badly they can do nothing but move out within the notice period - there is no chance to "cure" - this often happens when there is illegal activity on the property).

    2) Unlawful detainer/forcible entry and detainer (this is the legal proceeding where the landlord goes to court and sues the tenant to get possession - the tenant has an opportunity to appear and defend the action, common defenses include improper notice, breach of the lease (such as failure to maintain the property - "inhabitable conditions"). If the tenant answers the complaint, the parties can take "discovery" from one another and get additional information before a court trial before a judge.

    3) A judgment of possession/writ of eviction - if the landlord wins the trial, they get a judgment of possession and the court will issue a "writ of eviction."

    4) Forcible eviction - this happens when the Sheriff or Constable serves the writ of eviction - some jurisdictions give a courtesy notice the day or two before the eviction, others do not, but the end result is the sheriff overseeing the landlord's movers removing all of the tenant's possessions from the property and placing them on the curb, and the tenants are forcibly removed from the property. At that point, the landlord can change the locks and the tenant can no longer return (They have been "evicted").

Customer: replied 1 year ago.
we dealing with non-payment issue . We met at the court and they were ready to return us a key but i refused as i think they where trying to get away with no responsibilities .
Expert:  CalAttorney2 replied 1 year ago.

If you rejected a keys in lieu settlement, you are entitled to go forward with your trial on the matter, and pursue them for non-payment.

If you do not yet have possession, you need to go through the remainder of the eviction process (this will include a money judgment for the past due rent).

If you already have possession, but did not get a money judgment, or if you did not get a money judgment for all amounts owed, you will then need to sue them in small claims court for breach of contract.

(Just because you have to sue for Forcible Detainer (in order to get possession) does not mean you cannot also sue in small claims for money judgment, remember, the Forcible Entry procedure is a "summary proceeding" designed to ensure that property owners have a swift way to regain possession of their property, so the process moves with that goal in mind as opposed to a money judgment goal).

But you are not obligated to settle with the tenant if you do not want to.

Customer: replied 1 year ago.
One thing is , we have hearing on Monday . The clerk told me i can not ask for money judgment as this court was only for possession . I still did not agree and that is why we have hearing . Can i ask the judge for money judgment or only for possession of the property ?
Expert:  CalAttorney2 replied 1 year ago.

If your Forcible Entry complaint is only for possession, that is all you can ask the court for in this hearing.

If you want to pursue your tenant for money, you can do so, but you have to do it in a separate suit (small claims action).

Customer: replied 1 year ago.
Also because they wanted to return the keys will they have eviction on their record ?
I want to make sure they do as I feel like i have more rights to go after them for money if they would have the eviction ?
Is it up to the judge now since they where there with the key and wanted to return it ?
Customer: replied 1 year ago.
Also , they told as they can not afford the rent and they will not pay .
A little after we went to the house with a notice for access and demand of payment .
Nobody responded . We asked neighbors around , they said nobody was leaving there for a month or so .
Also the electricity was turned off so a day after not receiving any respond we decided to change the locks as we where 100 % sure they left and they do not leave in the house .
Few hours after , they arrived and called police we broke in to their house .
We give them a key and then we filed paperwork for possession in court .
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,
I know you are asking about your legal rights here, but I would strongly encourage you to approach the matter from a business judgment perspective (as opposed to a punitive or emotional one). It will greatly help you in making cost/benefit analysis of how you proceed with the matter.

(I am offering this as advice I give to my clients as well).

Your tenant's rental history is already marked by the fact that you filed a Forcible Entry and detainer against them (this is a public record) - many landlords refuse to rent if an action is filed regardless of the outcome. If you pursue the matter to judgment, the court would enter one, but if the tenants already offered the keys, and you limited your complaint to just possession, the court may be reluctant to enter a judgment at that point if you have already been offered everything you sought (possession of your property).

(Again, you can still pursue them for money damages for past due rent. I do recommend waiting until you identify any damage to the property to make this claim only once).

Customer: replied 1 year ago.
right now they want to use that in hearing agains us and mention we enter the house .
Does that matter ?
I do streakily look at it from business side , just that i was told if they do not have eviction on their record i can not get money judgment .
Customer: replied 1 year ago.
If the hearing is scheduled can we make an agreement before the court or we still need to go threw hearing ?
Expert:  CalAttorney2 replied 1 year ago.

Yes, they probably will bring up the fact that you forced entry into the unit.

I'm not sure who told you that you required an eviction in order to get payment for the rent during this time.

The only thing I can tell you is that you need to carefully check the terms of any settlement. Many landlords will accept keys and allow the tenant to walk away from any debt they owed (the goal is gaining possession of the property).

If you want to pursue your past due rent, you can negotiate a "keys for dismissal of the Forcible Detainer" but ensure that the settlement does not include any waiver of past due rent. (So the wording is important).

You can still negotiate a settlement with the tenant anytime before the court issues judgment.

Customer: replied 1 year ago.
Not sure if i understand it correctly as you use a lot of not familiar wording....
1. I can settle before the hearing - settle for possession or settle for money ?
2. What do you mean ; negotiate ; negotiate with judge or tenants ?
3. "key for dismissal of the Forcible Detainer " in a different words ?
4. Possession of the property is not a problem from what i understand .
5. Can they ask judgment agains us ( company LLC ) ?
Expert:  CalAttorney2 replied 1 year ago.

You can negotiate with the tenants. In those negotiations you can settle for anything you like, there is no reason why you couldn't settle for both possession and money at the same time (expect to reduce your claim if you want to settle - coming in and saying "I want 100% and I'm not moving" is not negotiating).

However, with regards ***** ***** pertinent issues (resolving the forcible detainer action), they key issue right now is possession of the property. The judge does not negotiate, the judge issues rulings. You are hoping that the judge will issue a ruling for possession in this matter, and if you have to file a second small claims case, a money judgment.

Yes, they can ask for money damages against you for "illegal eviction" (you changed the locks on the property, this is a form of self help, and it is not permitted).

Customer: replied 1 year ago.
If they ask for money damages , then how does that work ? They also made up a story, they had a lot of money in the house and we stoled it . Another thing ; there was nothing in the house , not even electricity and no sign of leaving . After that we return them the key .
Also we tried to mediate and they said they not giving us a penny . No negotiation at all .
So when we meet in the court ; can i ask for possession of the property ?
If this court is strictly for possession then what other issues matter?
Expert:  CalAttorney2 replied 1 year ago.

They can counter-claim against you for illegal eviction.

See: http://www.coloradolegalservices.org/lawhelp/resource/landlords-and-lockouts

Customer: replied 1 year ago.
What is the best way to handle that situation now ?
Customer: replied 1 year ago.
What are the consequences of the illegal eviction ?
Expert:  CalAttorney2 replied 1 year ago.

Negotiations and mediation both require the two parties to come to a "mutually agreeable resolution" - this does not mean that the parties come to an "optimal" or a "fair" or a "judicially determined" resolution, it simply means that the parties both come to a resolution that both can live with.

I cannot provide you with formal or specific legal advice (I cannot tell you what to do), you need a local attorney for those services.

Customer: replied 1 year ago.
If we settle before the court , can we avoid the court hearing ? or we still need to go threw hearing ?
Expert:  CalAttorney2 replied 1 year ago.

You need to notify the court ahead of time.

You can always "no show" and allow the court to dismiss the case for failure to appear, but I don't recommend it.

If you cannot notify the court ahead of time, I would at least appear and notify the court that you reached a settlement and ask to take the matter off calendar.

Customer: replied 1 year ago.
But we can only reach the settlement if we talk to tenants ?
Is it legal to call them out or court ?
Again what are the consequences of "unintentional illegal eviction ?
Expert:  CalAttorney2 replied 1 year ago.

Yes, negotiations for settlement have to occur with the other party.

I do not have an easy formula for illegal evictions in CO. Some states have a minimum daily damage claim (such as $250.00 per day) to which a court can include additional damages.

Customer: replied 1 year ago.
what kind of lawyer should i look for ?
Is it still real estate attorney ?
Expert:  CalAttorney2 replied 1 year ago.

You want a landlord tenant attorney.

If you cannot find a specialist, look for a civil litigation attorney.

(A real estate attorney is usually going to be a transactional attorney as opposed to a litigator).

You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

Customer: replied 1 year ago.
Thank you very much !
Expert:  CalAttorney2 replied 1 year ago.

You are welcome, and I do wish you the best with this matter.

Thank you for using our forum, and please do not forget to rate my service (the series of 5 stars next to the chat window) so that I can receive credit for assisting you.

If you would like to direct future questions to me specifically, you can do so by starting your new question with "For William B. Esq." and a moderator will notify me.

Thank you again, and again I wish you the best.

Bill

Expert:  LawTalk replied 7 months ago.

You requested a phone call and I have been trying to reach you. Please let me know a good time to call. I look forward to speaking with you.

Doug