2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 40 - Forcible Entry and Detainer - General Provisions
§ 13-40-101. Forcible Entry and Detainer Defined

1. If any person enters upon or into any lands, tenements, mining claims, or other possessions with force or strong hand or multitude of people, whether any person is actually upon or in the same at the time of such entry, or if any person by threats of violence or injury to the party in possession or by such words or actions as have a natural tendency to excite fear or apprehension of danger gains possession of any lands, tenements, mining claims, or other possessions and detains and holds the same, such person so offending is guilty of a forcible entry and detainer within the meaning of this article.
2. If any person enters peaceably upon any lands, tenements, mining claims, or other possessions, whether any person is actually in or upon the same at the time of such entry and by force turns the party in possession out or, by threats or by words or actions which have a natural tendency to excite fear or apprehension of danger, frightens the party out of possession and detains and holds the same, such person so offending is guilty of a forcible detainer within the meaning of this article.
3. If any person enters upon or into any lands, tenements, mining claims, or other possessions by force or by threats of violence, or words or actions which have a natural tendency to excite fear or apprehension of danger, and intimidates the party entitled to possession from returning upon or possessing the same, such person so offending is guilty of a forcible entry within the meaning of this article.

History. Source: L. 1887: P. 271, § 2. R.S. 08: § 2600. C.L. § 6366. CSA: C. 70, § 1. CRS 53: § 58-1-1. C.R.S. 1963: § 58-1-1. History. Source: L. 1887: P. 271, § 2. R.S. 08: § 2600. C.L. § 6366. CSA: C. 70, § 1. CRS 53: § 58-1-1. C.R.S. 1963: § 58-1-1.

Analysis

• I. GENERAL CONSIDERATION.
• II. NECESSARY ELEMENTS.

Law reviews. For article, “A Lawyers' Guide to OPA”, see 20 Dicta 195 (1943). For article, “Enforcement of Security Interests in Colorado”, see 25 Rocky Mt. L. Rev. 1 (1952). For article, “One Year Review of Property”, see 37 Dicta 89 (1960). For note, “Holdover Tenants in Colorado”, see 34 Rocky Mt. L. Rev. 320 (1962). For article, “The Rights of Landlords in Tenants' Personal Property”, see 57 Den. L.J. 685 (1980). For article, “Remedies of a Landlord Following DeFault by a Tenant”, see 11 Colo. Law. 2588 (1982). For article, “Representation of the Landlord in an Unlawful Detainer Action”, see 12 Colo. Law. 69 (1983). For comment, “Francam v. Fail: Waiver of Statutory Notice Under Colorado's Forcible Entry and Detainer Statute”, see 55 U. Colo. L. Rev. 125 (1983). For article, “Self-Help for Commercial Landlords”, see 19 Colo. Law. 479 (1990). For article, “Enforcement of Leases Through Unlawful Detainer Actions”, see 20 Colo. Law. 251 (1991). For article, “Forcible Entry and Detainer: A Primer”, see 29 Colo. Law. 89 (Oct. 2000).

Constitutionality. The forcible entry and detainer statute, as applied, neither deprives the tenant of property without due process of law nor violates his right to equal protection of the laws. Hurricane v. Kanover, Ltd., 651 P.2d 1218 (Colo. 1982).

Doctrine of retaliatory eviction not applicable. Where a landlord sought to evict a tenant in retaliation for the tenant's claim of water damage to her apartment, the case did not involve retaliation for reporting a housing code violation to a governmental authority and does not create a case for applying the retaliatory eviction doctrine, if this doctrine is even available in Colorado. W.W.G. Corp. v. Hughes, 960 P.2d 720 (Colo. App. 1998).

The modern form of the common-law action of ejectment is forcible entry and detainer as provided in this article. Baumgartner v. Schey, 143 Colo. 373 , 353 P.2d 375 (1960).

Common-law principles govern it. The nature of the action as one in ejectment has not been changed by statutes abolishing fictions or regulating procedure, not even by those adopting a substitute form of action, and resort must still be had to the common law for the principles which govern it. Baumgartner v. Schey, 143 Colo. 373 , 353 P.2d 375 (1960).

This section is “separate and apart” from the general provisions relating to procedure before justices of the peace. General Am. Indus., Inc. v. County Court, 136 Colo. 86 , 316 P.2d 565 (1957).

It is sui generis. The forcible entry and unlawful detainer provision are sui generis. General Am. Indus., Inc. v. County Court, 136 Colo. 86 , 316 P.2d 565 (1957).

When equitable defense is asserted the action acquires an equitable character. Where an equitable defense is interposed in an action in forcible entry and detainer, the action acquires an equitable character as to the plaintiff, who then becomes entitled to such equitable relief as the facts indicate. White v. Widger, 144 Colo. 566 , 358 P.2d 592 (1960).

Delay in bringing the action may disqualify action. Where plaintiff had unreasonably delayed exerting his claim in a forcible entry and detainer action until defendant had changed his position, the legal consequence of such delay was disqualification to maintain the action. White v. Widger, 144 Colo. 566 , 358 P.2d 592 (1960).

Trial by jury. Where the predominant issues to be tried in an action under this section are legal, the defendant is entitled to a trial by jury. Husar v. Larimer County Court, 629 P.2d 1104 (Colo. App. 1981).

Applied in People v. Bement, 193 Colo. 435 , 567 P.2d 382 (1977); Francam Bldg. Corp. v. Fail, 646 P.2d 345 (Colo. 1982).

The force contemplated by this section is actual force, and an entry made with no more force than such as is implied in an ordinary trespass is not within the meaning of the section. Goshen v. People, 22 Colo. 270 , 44 P. 503 (1896).

Evidence of force or appearances tending to inspire just apprehension of violence is essential. To constitute a cause of action for forcible entry and detainer, it is necessary to keep that force or appearances tending to inspire a just apprehension of violence was used by defendant in obtaining possession. Such requirement is not satisfied by simply showing that the entry was against the will of the possessor. Goad v. Heckler, 19 Colo. App. 479, 76 P. 542 (1904).

Defendant's actions of building a fence to block property access without consulting plaintiffs, using guns in various ways, and posting signs were properly held to have a natural tendency to excite fear and apprehension of danger such that defendants forcibly entered and detained plaintiffs' property. Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006).

Action lies where possession is maintained with force. Whether the facts stated in the complaint constitute a forcible entry or not is immaterial, as the action lies where the possession is maintained with force and strong hand, although the entry may have been peaceable. Miller v. Sparks, 4 Colo. 303 (1878).

It is necessary to show in the complaint that the defendant entered upon the possession of the plaintiff. Miller v. Sparks, 4 Colo. 303 (1878).

This need not be expressly averred. But that which is apparent to the court and appears from a necessary implication out of the record is the same as if it were expressly averred. Miller v. Sparks, 4 Colo. 303 (1878).

That the complaint alleges a demand of possession, when no demand was necessary, does not affect its sufficiency, or render it obnoxious to the objection that two causes of action are stated in one and the same count. Miller v. Sparks, 4 Colo. 303 (1878).

Section gives no right to tenant forcibly evicted by one having better title. Our forcible entry statute is like that of Richard II, and not that of Henry VI, in that it gives no right of restitution to a tenant forcibly evicted by one having a better title. Rudolph v. Thompson, 66 Colo. 98 , 179 P. 151 (1919).

Color of title is sufficient as against one having no title whatever. In an action of forcible entry and detainer, it appeared that plaintiff was in possession under a deed from a railroad company which had received a grant of the land; but the patent was withheld pending a question as to the rights of the company. Defendant applied for the land under the homestead act, and was refused, but went on a part of the land, and built a house, and both parties were living on the land when action was commenced. Held, that plaintiff's color of title entitled him to his action against one having no title whatever. Jenkins v. Tynon, 1 Colo. App. 133, 27 P. 893 (1891).

Owner of fee may be guilty of forcible entry. The owner of the fee, as well as a stranger to the title, may be guilty of an unlawful and forcible entry upon premises demised to his own tenant. Farncomb v. Stern, 18 Colo. 279 , 32 P. 612 (1893).

Tenant may complain of entry which destroys his possession. Forcible entry which disturbs the possession of the tenant can be complained of by the tenant or by a lessee entitled to possession. Mageon v. Alkire, 41 Colo. 338 , 92 P. 720 (1907).

Unless lease retains right of entry. This article takes away the right that existed at common law to make entry by force, although the right to possession may exist. Yet a license reserved in the lease to make such an entry does not contravene it, and, under such a provision, the landlord may enter and remove a tenant upon condition broken, if he uses no unnecessary force to accomplish his purpose. Goshen v. People, 22 Colo. 270 , 44 P. 503 (1896).

One who is in the lawful possession of premises may defend such possession. Possessor will not be held liable criminally for the use of force in defending such possession unless the force used was excessive or unnecessary. Goshen v. People, 22 Colo. 270 , 44 P. 503 (1896).

For acts which constitute forcible entry, see Potts v. Magnes, 17 Colo. 364 , 30 P. 58 (1892).