Faced with a defaulting tenant, it can be tempting for a landlord to try to enforce the lease without court assistance. Can a landlord engage in this kind of “self help”?
Many leases contain provisions that allow the landlord to take self-help action against a defaulting tenant. A typical provision would state that, in the case the tenant defaults under the lease, the landlord can re-enter the premises and change the locks, all without liability to the landlord. For many years, courts were divided about whether this sort of self help was permitted. The Colorado legislature finally resolved the issue, at least with regard to residential leases, in 2008. The law is now clear that it is illegal for landlords to evict a tenant (including lock-outs, cutting off utilities, removing doors and windows, and related actions) without going through a court process no matter what the lease says. There are only three exceptions:
1. The tenant consents to the eviction;
2. The premises are being used for an illegal drug laboratory (e.g. meth lab, marijuana grow operation) as defined by law; or
3. The tenant has abandoned the premises.
If a landlord wrongfully engages in self help, a residential tenant may sue for damages and, if the lease allows either party to recover attorney fees for a breach of the lease, the successful tenant will be entitled to an award of attorney fees.
The law defines when a tenant is deemed to have “abandoned” the premises for purposes of the third exception above. This includes any of the following circumstances:
1. The return of keys;
2. The substantial removal of the tenant’s personal property;
3. Notice by the tenant; or
4. The extended absence of the tenant while rent remains unpaid.
A common occurrence is that the landlord is also the tenant’s employer. This may be case with ski area employees, on-site managers or maintenance personnel. A landlord who is also an employer need not follow normal eviction procedures after termination of the employment. Rather, so long as there is a written employment agreement meeting certain requirements, the employer is allowed to follow a streamlined process in which the employee receives three days’ written notice to vacate and, if the employee fails to vacate, the sheriff can summarily remove the employee and the employee’s personal property.
In what other circumstances may a landlord seize or otherwise dispose of a tenant’s personal property? If a landlord goes through the normal eviction process, it is clear that the landlord may remove the tenant’s personal property from the premises or store it and charge the tenant for the reasonable cost of storage, all without liability. Apart from this process, there is something called a landlord lien that can allow a landlord to seize certain of the tenant’s personal property and sell it, but the process is so complicated and costly that it is rarely used. In the case of a drug laboratory, the tenant generally has ten days to claim any personal property or the landlord may dispose of it without liability. There is also a special process under which a residential landlord may dispose of personal property abandoned by the tenant without court process after giving proper notice.
Whenever a landlord chooses to engage in self help, there is a risk that the action would later be deemed improper by a court and the tenant would be entitled to recover damages, including court costs and attorney fees. For this reason, it is often advisable for landlords to go through the formal eviction process even if it might not be required. Any self-help remedies should be pursued only with the advice of an experienced attorney.
Noah Klug is the owner of The Klug Law Firm, LLC, in Summit County, Colorado. His practice focuses on business, real estate, and litigation. He may be reached at Noah@TheKlugLawFirm.com or 970-468-4953.