Owning and managing a rental property can be a great secondary or even primary source of income. Colorado’s booming real estate market has made this even more of a reality for many people who own rental properties. But a tenant that doesn't pay rent or violates lease terms can put a damper on that venture. Here are some questions to answers to get you ready for evicting your problem tenant and back to making significant second income.
1. Why do you want to evict the tenant?
Determine why you are evicting this tenant. Are they behind on rent? Are they paying rent at all? Have there been substantial or subsequent violations of the lease agreement? Each of these situations will play out differently depending on the actions you have taken so far. Find which one best suits your situation and look below at that section for more details on how to best prepare for eviction for that reason.
2. Has there been a "substantial violation" of the lease agreement?
A substantial violation is actually a very specific violation and is defined by Colorado statute. Suffice it to say, there must have been some kind of police action or egregious criminal offense that you not only have knowledge of, but can prove took place. Your proof might be a police or arrest report, video, or witness statements. If there has been criminal activity taking place on your rental property by either a tenant or guest of your tenant (with the tenant's knowledge) then you may have a right to evict under the "substantial violation" principle.
3. Has there been a subsequent violation of the lease agreement?
Subsequent violations can be tricky. Namely, they require written notice of the first violation. Sometimes property managers or landlords get frustrated because while the violation is indeed a subsequent violation, the first warning given to the tenant may have been verbal, or even if written, not contain the requisite details to be considered sufficient notice under law. If you have given adequate notice regarding a previous violation of the lease, and the tenant has refused to comply and continues in violation, (additional, unapproved tenants, unauthorized pets, accumulating trash or creation of unsafe environment, etc.) then you are ready to proceed under the "subsequent violation" principle.
4. How far is the tenant behind on rent?
The answer to this one is, honestly, it doesn't matter. If rent payments are late, you as the landlord are entitled to demand the amount due or possession of the premises. This includes all past due rent, such as from partial payments from previous months, as well as full rental payments for the current lease term. When you make your demand of the amount currently due, be sure to include all back-owed amounts as well as the current outstanding rent. For example, if a 1 year lease tenant who pays monthly rent of $1,000 on the first of each month per the lease, has fallen behind in their rent $100 for each of the past three months, AND has failed to pay the current month's rent by the 3rd of the month, the demand would be for $1,300 (the back-owed rent plus the current owed rent) plus any applicable late fees and charges. Under this option, the tenant will have the option to pay up the full amount and become current on their payments and remain on the property.
5. What if the tenants say they are not paying because I have failed to fix/maintain the property?
In Colorado, if the tenant alleges as a defense that they are not paying the rent because the landlord has failed to fix something, then they must pay the money to the court. When the landlord fixes the problem, the money is released to him. Tenants DO NOT have a right to not pay at all, but rather must put the money into escrow or place the funds with the court until the problem is fixed. A tenant will not be allowed to use this as a defense to an eviction unless the disputed funds are paid into the court or an approved escrow account.
6. Am I ready to evict this problem tenant?
If any of the above sections apply to you--YES! Depending on the complexity of the case, an experienced property management attorney or eviction attorney for landlords can have your eviction rolling the same day you bring them all the information and documents they need. It is absolutely essential that you hire an attorney for this process--the slightest misstep or inadequate service or notice can hold up an eviction and further put your investment at risk.
Evicting a tenant is a complicated and heavily regulated process that can often be overwhelming for landlords to take on by themselves. Hiring an experienced attorney to help the eviction go smoothly and efficiently may mean paying for something you feel as though you may be able to do yourself, but the peace of mind that comes with having an experienced advocate may well be worth the cost. Denver Eviction Attorney Nathaniel Gilbert has represented both landlords and tenants in residential, commercial, and agricultural lease evictions and knows the common obstacles and boundaries in Colorado eviction laws and processes. Consult with your local attorney for landlords early on in the eviction process, even if you think you may do it yourself, to help answer your questions regarding the process.