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Domestic Violence Exception in Colorado Eviction Cases
Under Colorado law, victims of domestic violence have a defense to unlawful detainer actions in certain circumstances. Unlawful detainer actions are more commonly known as eviction actions and where the domestic violence exception applies, the tenant cannot be evicted despite otherwise being in breach of certain terms of the lease.
Specifically, the circumstances of unlawful detention are what form the basis for an eviction and, under Colorado Revised Statute (“C.R.S.”) § 13-40-104, unlawful detention is defined to include:
(1) Entry, without right or title, into any vacant or unoccupied lands or tenements;
(2) Wrongful entry into any public lands, tenements, mining claims, or other possession which are claimed or held by a person who may have located, entered, or settled upon the same in conformity with the laws, rules, and regulations of the United States, or of this state;
(3) When any lessee or tenant at will holds over and continues possession of the premises, or any portion thereof, after the expiration of the term for which the premises were leased or after such tenancy has been terminated by either party;
(4) When a tenant or lessee holds over without permission of his landlord after any default in the payment of rent pursuant to the agreement under which he holds, and three days’ notice in writing has been duly served upon the tenant or lessee holding over;
(5) When a tenant or lessee holds over without permission of the landlord contrary to any condition or covenant of the violation that consists of a substantial violation within the meaning of C.R.S. § 13-40-107.5. Substantial violations under C.R.S. § 13-40-107.5 include actions on the premises by the tenant or any guest or invitee of the tenant that:
– willfully and substantially endangers the property of the landlord, any co-tenant, or any person living on or near the premises;
– constitutes a violent or drug-related felony under the Colorado criminal code;
– or constitutes a criminal act in violation of federal or state law or local ordinance that carries a potential sentence of incarceration of at least 180 days and has been declared to be a public nuisance under state law or a local ordinance;
(6) When a tenant or lessee holds over, without permission of the landlord, in breach of any other condition or covenant of the lease or agreement which entitled the tenant or lessee to possession of the premises;
(7) When the property has been duly sold under any power of sale, contained in any mortgage or trust deed that was executed by such person, or any person under whom such person claims by title subsequent to date of the recording of such mortgage or trust deed, and the title under such sale has been duly perfected and the purchaser at such sale, or his or her assigns, has duly demanded the possession thereof;
(8) When the property has been duly sold under the judgment or decree of any court of competent jurisdiction and the party or privies to such judgment or decree, after the expiration of the time of redemption when redemption is allowed by law, refuse or neglect to surrender possession thereof after demand therefor has been duly made by the purchaser at such sale, or his or her assigns;
(9) When an heir or devisee continues in possession of any premises sold and conveyed by any personal representative with authority to sell, after demand therefor is duly made; and
(10) When a vendee having obtained possession under an agreement to purchase lands or tenements, and having failed to comply with his agreement, withholds possession thereof from his vendor, or assigns, after demand therefor is duly made.
Where an individual is in violation of one of the above conditions, that person may subject to a forcible entry and detainer action, otherwise known an eviction action, to remove him from the premises.
Importantly, the most common bases for eviction actions are usually under numbers (4), (5), (6), and (7) above which include circumstances where the tenant has failed to pay rent; is committing or has committed a crime on the premises; or has otherwise violated another term of the lease, such as having an individual not on the lease stay on the premises.
Requirements for the Domestic Violence Exception
Where a tenant is guilty of unlawful detention and subject to an eviction action, if the tenant is a victim of domestic violence he or she may have a defense to the eviction under particular circumstances. Importantly, the domestic violence exception is not applicable to all evictions and is not a blanket defense that will prevent any eviction.
In particular, the circumstances where the domestic violence exception applies are enumerated under C.R.S. § 13-40-104(4). Specifically, the statute indicates a victim of domestic violence or domestic abuse may not be evicted where the reason for the eviction is based on:
(1) unlawful detention is a substantial violation in violation of C.R.S. § 13-40-107.5;
(2) or breach of a condition or covenant of the lease other than non-payment of rent; and
(3) the domestic violence or domestic abuse was the cause of or resulted in the reason for unlawful detention.
Accordingly, the domestic violence generally only applies where a domestic violence or abuse crime has been committed, or where the domestic violence or abuse resulted in a breach of the lease other than non-payment of rent. Where the reason for eviction is non-payment of rent, the domestic violence exception will not apply even if the remaining tenant is, in fact, a victim of domestic violence or abuse.
In addition to the domestic violence exception only applying in very specific circumstances, in circumstances where the exception does apply, the tenant will also need to meet the statutory definitions of domestic violence or domestic abuse under C.R.S. § 18-6-800.3 or C.R.S. § 13-14-101(2) in order to qualify.
In particular, domestic violence is defined under C.R.S. § 18-6-800.3 as:
. . . an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship [and] any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.
With intimate relationship defined as:
. . . a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.
Similarly, domestic abuse is defined under C.R.S. § 13-14-101(2) as:
. . . any act, attempted act, or threatened act of violence, stalking, harassment, or coercion that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. . . . For purposes of this subsection (2), “coercion” includes compelling a person by force, threat of force, or intimidation to engage in conduct from which the person has the right or privilege to abstain, or to abstain from conduct in which the person has a right or privilege to engage. “Domestic abuse” may also include any act, attempted act, or threatened act of violence against:
(a) The minor children of either of the parties; or
(b) An animal owned, possessed, leased, kept, or held by either of the parties or by a minor child of either of the parties, which threat, act, or attempted act is intended to coerce, control, punish, intimidate, or exact revenge upon either of the parties or a minor child of either of the parties.
Lastly, in order for a tenant to be able to exercise the domestic violence exception, the domestic violence or domestic abuse must have been documented by either a police report or a valid civil or emergency protection order. See C.R.S. § 13-40-104(4)(a).
Overall, the domestic violence exception rarely applies in eviction cases, especially where the primary reason for eviction cases filed in Colorado are due to non-payment of rent. Instead, and as discussed above, the domestic violence exception is primarily applicable where other breaches of the lease or criminal activity have occurred as the result of the domestic violence. In essence, the domestic violence exception is designed to protect the victims of domestic violence where the reason for eviction stems from domestic violence occurring on the lease premises.
Alternatives to Eviction Where Domestic Violence Has Occurred
While a tenant who is the victim of domestic violence or abuse may be protected from eviction under the right circumstances, there are other alternatives the tenant may be entitled to in addition to defending against an eviction action. One particular action is that the tenant may terminate the lease without having to worry about charges or damages for breaking the lease early.
Specifically, C.R.S. § 38-12-402 provides that a tenant who is the victim of domestic violence or abuse may opt out of a lease immediately due to the fear of imminent danger to self or children without having to worry about traditional liability for breaking a lease. If the tenant wishes to exercise this option, the tenant must:
(1) Notify the landlord in writing that he or she is the victim of domestic violence or domestic abuse; and
(2) Provide the landlord evidence of domestic violence or domestic abuse in the form of a police report written within the prior 60 days or a valid protection order.
If the tenant properly notifies the landlord, he or she may immediately terminate the lease agreement and vacate the premises; however, the tenant will be responsible for one month’s rent following that date. The one month’s rent must be paid within 90 days after the tenant has left the premises.
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.