Filed Under (Eviction, Leases and Landlord Tenant) on 04-17-2012
The rent is late. Your tenant is smoking in a non-smoking house. Whatever the cause, the first step in the eviction process is to serve your tenant a 3-day notice (also called an eviction notice, pre-litigation notice or notice to pay or quit). Under Colorado law it is technically called the “Demand for Compliance or Possession.”
It gives your tenant three days to fix the problem or move out.
For instance, if you find unauthorized pets living in the house, your tenant has three days to relocate these animals to a new home. If the problem is overdue rent, your tenant has three days to pay or move out.
And, while you might not plan on evicting your tenant right now, if you don’t serve the demand, you won’t later be able to proceed in an eviction until you do thus delaying the process even more.
Also: while 3 days is the default deadline set forth in Colorado law, please review your lease agreement and see if it requires a longer notice deadline. Note that the notice period can be no less than 3 days, no matter what your lease says.
What’s in the 3-Day Notice, aka Demand for Compliance or Possession?
The demand is a formal document with two parts, a top and bottom. The top spells out the tenant’s name, the property and the problem. You date and sign it.
The bottom part describes how you delivered, or “served,” the notice to your tenant. As you’ll read below, serving the notice correctly is quite important.
How Do I Serve the 3-Day Notice?
Colorado law sets out very specific ways for you to “serve” or deliver the 3-day notice. Make sure to follow these rules, because if you don’t, your eviction process could be considered invalid. You can:
• Personally deliver the notice to the tenant. In the case of multiple tenants, it’s a good idea to make copies for everyone on the lease;
• Personally deliver the notice to someone in the tenant’s family aged 15 or older, who lives on the property; or
• Post the notice in a conspicuous place on the property, and firmly adhere it using staples, tape and/or glue. If your tenant always uses the back door, consider posting it on both the front and back doors.
No matter what method you use, make photocopies of the notice. It’s also a good idea to take a photo (camera phone okay) of the served notice, either on the door or to the person. While this is not required under the law, it certainly would help if there were a dispute about whether the document was actually served.
When Do I Serve the 3-Day Notice?
Many leases include a provision that says that if the rent is not paid within five days, there will be a penalty or late fee (such as 5 percent of the monthly rent or $50).
That’s a good idea, but this provision can lead to confusion about when the rent is officially due. Some tenants may think that the rent’s really due 5 days after the first of the month. But despite the penalty for late rent, the rent becomes late the moment it is past due. Once again, read the specific provisions and language in your lease.
So if your lease says: “Rent is payable by twelve o’clock noon on the first day of each calendar month at the address below…” Rent not received by 12 Noon on the first day of the month is then officially past due. The tenant is technically in default under the terms of the lease and you can serve the 3-day notice that afternoon, or the next day.
If your tenant has violated lease terms, you can serve the 3-day notice as soon as you become aware of the violation.
How Do I Calculate the 3 Days After Service?
Timing the notice can be confusing. Using a conservative rule of thumb, when counting your three days, consider that:
– The day that the notice is served does not count;
– Saturdays, Sundays and legal holidays do count as the first and second day; and
– If the third day is a Saturday, Sunday or legal holiday, then the “third” day is the first business day after the Sunday or legal holiday.
So, if you served a notice on Monday, the date for compliance or possession is Thursday of that week. If you served on Friday, the last date for compliance or possession is the following Monday.
For more information, see the Landlord & Tenant Guide to Colorado Leases and Evictions, 5th Edition, by Victor M. Grimm, Esq. and Denise E. Grimm.