Josh Long’s Legal matters: Frustrated landlords should consider counsel

Longmont attorney Josh Long explores legal topics monthly. The column is for informational purposes only and is not an adequate substitute for legal advice.

Unscrupulous property management companies occasionally disregard tenants’ rights, ignoring legitimate claims for home repairs and mercilessly enforcing one-sided contracts.

However, the victims in a landlord-tenant relationship often are second homeowners who have little experience managing a property as a landlord. Exasperated by their tenants’ broken promises to pay rent and honor other obligations under a verbal agreement or written contract, these second homeowners must turn to local courts to regain possession of their home and obtain a judgment for money damages.

Governed by Colorado’s Forcible Entry and Detainer Statute (Colorado Revised Statutes 13-40-101, et seq.), the eviction process is expedited and fairly straightforward compared to most civil lawsuits. But even this statute features language and requirements that can be as obscure as computer code to a layperson.

That is why a landlord should wait to take any legal action until he has decided whether to retain an attorney or represent himself as a “pro se” party. The advantages of counsel are relatively obvious: the landlord is entrusting a professional with the tasks of following court procedures, meeting deadlines and advancing substantive legal theories that could effectively respond to the tenant’s defenses and maximize the award of a money judgment.

Courts will expect a landlord to strictly comply with procedures that, if not followed, will result in delays in the eviction process, additional expenses and bigger headaches. The nuances of the law make it easy to overlook a step in the eviction process.

For example, a pro se landlord may fail to draft a proper demand notice (that is required, for example, in order to give the tenant an opportunity to avoid an eviction by paying the back rent) or neglect to serve a tenant with a complaint within the time required under the statute. Furthermore, pro se parties often are unfamiliar with legal precedent, including landlord-tenant cases decided by Colorado appellate judges, and related statutes that could affect the outcome of their case.

But in truth, even the most untrained person in the law is capable of filing an eviction and recovering a judgment for possession of the property and money damages. The Colorado State Judicial Branch Web site is a tremendous resource for pro se parties, featuring detailed instructions on filing an eviction and recovering money damages.

Landlords should bear in mind that the legal process demands time and patience. For example, a tenant may file an answer to a landlord’s complaint for non-payment of rent, raising defenses and asserting counterclaims that complicate the issues and prolong a final resolution until a judge has heard all the evidence at trial and ruled. In a contested eviction proceeding, a court generally will hold two separate hearings: one hearing on the landlord’s alleged right to possession, and if the landlord prevails, a second trial on the amount of back rent and other damages owed by the tenant.

A tenant might refuse to budge from the home even after a landlord obtains a court order for possession of the property. The landlord must then serve a court-issued “writ of restitution” on the local sheriff’s department, making arrangements with the authorities to oversee the actual ouster of the tenant from the home. If the renter is really uncooperative, the landlord might even be forced to arrange for the tenant’s furniture to be moved from the house.

Which leads me to crux of this column: second homeowners should carefully screen their potential tenants and enter into a written lease agreement that adequately protects their interests before handing over the keys.

Josh Long is a Longmont-based attorney with Greer & Long, LLP and can be reached at josh@greerandlong.com.