Phone: (719) 471-7958
My assistant: Adrienne Belton at (719) 226-7745
University of Denver (J.D., 2005)
Colorado State University (B.A., Political Science – International and Comparative Studies, cum laude, May 2001)
“Random Unique Lease Agreement Issues to Consider”
By Virjinia (“Jina”) Koultchitzka
August 2, 2015
Issue No. 1
If you want to be able to recover attorneys’ fees in a possession matter, consider the following provision:
The prevailing party in any action brought under the provisions of C.R.S. § 13-40-123, as amended, shall be entitled to recover damages, reasonable attorneys’ fees, and costs of suit. Without limiting the above provision herein, if any action at law or in equity shall be brought by the Landlord to recover any rent under this lease or for or on account of any breach hereof, or to enforce or interpret any of the covenants, terms or conditions of this lease, or for the recovery of the possession of the premises, the Landlord, if the Landlord is a prevailing party, shall be entitled to recover from the Tenant as part of the Landlord's costs, reasonable attorneys’ fees, the amount of which shall be made a part of any judgment rendered
Without the above-suggested language, if a landlord proceeds to a forcible entry and detainer action (“FED”) with a pro-landlord provision for recovery of attorneys’ fees, the court will not award the landlord attorneys’ fees incurred as a result of the possession hearing therein. The landlord will recover attorneys’ fees incurred as a result of the damages hearing only, if any. The catch-22 with regard to the proposed language above is that by taking advantage of this statutory provision (allowing the landlord to recover attorneys’ fees incurred as a result of a possession hearing), the landlord is allowing the tenant to recover attorneys’ fees if the tenant is the substantially prevailing party.
Issue No. 2
Always have a jurisdiction and venue provision in your lease agreement; sample, as follows:
APPLICABLE LAW. This lease and all amendments or extension hereafter, if any, shall be governed by the laws of the State of Colorado. Venue for any action arising out of this lease shall be proper in El Paso County, Colorado. Jurisdiction for any action arising out of this lease shall be proper in State Court in El Paso County, Colorado.
Issue No. 3
Marijuana? What? Then, consider the following:
ZERO TOLERANCE FOR MARIJUANA USE OR POSSESSION. Colorado Amendment 64 permits individuals age 21 and older to consume or possess a limited amount of marijuana for recreational purposes. However, Amendment 64 does not require landlords to permit recreational use or possession of marijuana on the leased premises. The Tenant has been advised that the Landlord has zero tolerance for marijuana use or possession by the Tenant on the premises.
Issue No. 4
Consider the following:
DISCLAIMER. The Landlord has transferred control of the premises to the Tenant and, as a result, is no longer a "person in possession" of the premises and is not liable for injuries resulting from a danger on the premises unless the Landlord had actual knowledge of the danger before the transfer.
To discuss the above-referenced issues further, please contact Jina K.
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