Filed Under (Eviction) on 11-01-2012
Once you’ve completed your eviction forms and filed them in court, it’s time to serve – or notify – your tenant.
Each defendant in the case, or person on the lease (other than minors occupying the premises), must get his or her own copy of the Summons, Complaint, and blank answer form. This is known as “service of process” or simply, “service.” These documents must be served no fewer than seven days before the court date.
Service is a legal act because the courts must ensure that the defendant received the Summons. If the defendant/tenant is not served, he or she will not be subject to the court’s orders.
Do service correctly. Improper service can hold your case up or cause it to be dismissed.
Step One: Mail
The day after you file the Complaint, mail it along with the Summons and blank answer form to the defendant’s last known address. Retain evidence of the mailing, such as mailing by certified by mail. Regardless of what type of service you use, this mailing will protect you.
Step Two: Personal Service
Personal service is the best way to deliver the paperwork because it gives the courts the ability to enter a judgment for possession and monetary damages such as back rent, damages and attorney’s fees. Personal service simply means that a live person delivered the papers to the defendant, or at least, tried to. Personal service is achieved in the following ways:
• By delivering the paperwork to the defendant personally.
• By leaving a copy of the Summons, Complaint and answer form at the defendant’s home with a person aged 18 or over.
• By leaving a copy of the paperwork with the defendant’s secretary, administrative assistant, bookkeeper or managing agent.
• By delivering a copy to the tenant’s lawyer (provided that the lawyer is the tenants’ counsel of record and has agreed to accept service on behalf of the client).
Who Performs Personal Service?
You, as the landlord, cannot play messenger. The delivery person must be a neutral, disinterested person. It’s best to use the County Sheriff because:
• A law officer lends an air of authenticity to the proceedings;
• Sheriffs are inexpensive and cost-effective; and
• If there is a dispute, a law officer makes a credible witness.
Fees and mileage charges are available on County Sheriff’s websites.
You may also hire a private process server to effect service (find a private process server by Googling “private process server and Colorado.”) There are many services in the Denver metro area to choose from.
Step Three: Constructive Service or “Nail and Mail”
If personal service doesn’t work, turn to the second, less optimal method: service by posting, otherwise known as “nail and mail.” Service by this method will allow the court to enter a judgment allowing you to retake possession of your house or property, but the judgment won’t award you monetary damages from your tenant.
In this method:
• A copy of the Summons and Complaint must be posted in a conspicuous place on the property, and
• A copy must be mailed by first class to the tenant no later than one day after you filed the Complaint in court (recall that you have already mailed a copy if you followed the instructions above).
Due to the short timeline on Constructive Service, you can see why it’s important to first mail out the paperwork, and then try various ways to serve your tenant.
For more information about the eviction process, see the Landlord & Tenant Guide to Colorado Leases and Evictions, 5th Edition, by Victor M. Grimm, Esq. and Denise E. Grimm.