RE: EVALUATION OF ROOM RENTAL AGREEMENT AND SUGGESTED

REMEDIES FOR ITS PREMATURE TERMINATION BY THE TENANT

After a careful examination of the contract and thorough research on Colorado

laws regarding Lease Termination, I am respectfully rendering my comments
and suggestions on the matter as follows:

Generally, a contract of lease between a landlord and a tenant is a legally-

binding and enforceable between the parties. By entering into a contract for a
specific period, the parties intend to be bound by the contract for the stipulated
duration unless there is an express provision made for earlier termination or
there is a justifiable circumstance to do otherwise. Hence, if a party
prematurely terminates a contract, such party risk legal and financial
repercussions for the other party may sue him in court and be liable for
payments for the entire term of the contract. There are however justifying
circumstances under the Colorado landlord-tenant law wherein a party may
not be held liable for prematurely terminating a contract, to wit:

1. Starting Active Military Duty

If a party enters active military service after signing a lease he has a right
to break the lease under federal law. (War and National
Defense Servicemembers Civil Relief Act, 50 App. U.S.C.A. § § 501 and
following.) The party must be part of the "uniformed services," which
includes the Armed Forces, Commissioned Corps of the National Oceanic
and Atmospheric Administration (NOAA), commissioned corps of the
Public Health Service, and the activated National Guard. He must give
his landlord written notice of his intent to terminate the tenancy for
military reasons. Once the notice is mailed or delivered, the tenancy will
terminate 30 days after the date that rent is next due, even if that date is
several months before his lease expires.

2. Victims of Domestic Violence

Colorado law provides early termination rights for tenants who are

victims of domestic violence, so long as specified conditions are met
(such as the tenant providing a copy of a police report). (Colo. Rev. Stat. §
38-12-402.)

3. Rental Unit Is Unsafe or Violates Colorado Health or Safety Codes

If the landlord does not provide habitable housing under local and state

housing codes, a court might conclude that the tenant has been
"constructively evicted." This means that the landlord, by supplying
unlivable housing, has for all practical purposes "evicted" the tenant, and
 thus tenant has no further responsibility for the rent. Colorado law sets
specific requirements for the procedures tenants must follow before
moving out because of a major repair problem. (Colo. Rev. Stat. § 38-12-
507.) The problem must be truly serious—for example, the presence
of hazardous mold in the rental or lack of running water, heating, or
electricity.

4. Landlord Harasses or Violates Tenant’s Privacy Rights

No state law in Colorado specifies the amount of notice a landlord must

give a tenant before entering a rental property. If the landlord repeatedly
violates the tenant’s rights to privacy or does things like removing
windows or doors, turning off the utilities, or changing the locks, a court
might consider the tenant to be "constructively evicted”.

5. Landlord Fails to Repair a Gas-Related Hazardous Condition

If the tenant becomes aware of any hazardous condition of a gas

appliance, piping, or other gas equipment, the latter is required under
Colorado law to immediately inform the landlord or the landlord's agent
in writing of the existence of the hazard. (Colo. Rev. Stat. § 38-12-104(2).)
The landlord then has 72 hours (excluding Saturdays, Sundays, and
legal holidays) to have the condition repaired by a professional. If the
landlord doesn't make the repairs within 72 hours, and the building is
still hazardous, the tenant can vacate the rental, and the lease becomes
void and thus the tenant is released from all responsibility under the
lease. The tenant can also demand the return of his security deposit
minus any allowable deductions. (Colo. Rev. Stat. § 38-12-104(3)-(4).

Apparently, the lease contract (Room Rental Agreement) signed by the landlord
and the tenant expressly provides for a starting and ending date thus, making
it a fixed-term tenancy for a period of twelve (12) months beginning February 1,
2002 to January 31, 2023. This is clearly contrary to the claim of the tenant in
her Written Notice that the contract is a month-to-month term. The fact that
the tenant pay in monthly installments does not change the fact that she owes
the landlord for the entire amount for the remaining period of the agreement.
Further, the tenant's reason for terminating the contract is not falling under
the justifiable circumstances as discussed above.

Hence, in this case, the tenant cannot rescind the agreed period of the contract
as this constitutes a breach of contract and is legally actionable. It is submitted
therefore the following suggestions and/or recommendations the landlord may
take to vindicate his rights:
1. SEND A DEMAND LETTER TO THE TENANT

The landlord can send a demand letter to the tenant asking her to pay
the entire amount of rentals for the remaining period of the contract.
Court litigation can be a complex, expensive, and time-consuming
process hence, the landlord should try to resolve the problem out of
court by sending a demand letter to the tenant. The demand letter
should notify the tenant of the breach of contract. While it might seem
logical that the tenant is in breach, you might be wrong as in this case,
the tenant thought that her contract is a month-to-month. This can be
used as evidence in court to show that the landlord had tried to resolve
the issue before starting the lawsuit in case the desired result of the
demand letter becomes futile. The landlord should collect and list
everything that proves the breach has occurred. It will let the tenant
know that the landlord is serious and he can use all the presented
evidence for a lawsuit.

2. NEGOTIATE TO MITIGATE DAMAGES

If the tenant cannot afford to pay the entire obligation for the remaining
period you ask the tenant to suggest a particular solution. In one case,
the Court rule that the landlord may re-rent the premises abandoned by
the tenant on the tenant's account and hold the tenant liable for the
difference between the rent required by the original lease and the rent
paid by the substitute tenant. Ruston v. Centennial Real Estate, 166
Colo. 377, 445 P.2d 64 (1968). Accord McArthur v. Rostek, 483 P.2d
1351 (Colo.App.1971) (not selected for official publication); Grolier
Society, Inc. v. International Realty Co., 482 P.2d 394 (Colo.App.1971)
(not selected for official publication). In Ruston, we stated that "[a] lease,
like other contracts, is to be reasonably interpreted according to the
apparent intention of the parties." In fact, the term of the contract
provides for a provision in this situation. Under Section 15 of the Room
Rental Agreement, in case of default by the tenant, the tenant is
responsible for the landlord's cost of re-renting. Tenant shall be
responsible for fees, attorney's fees, advertising, and preparation for
renting. The tenant shall continue to be responsible for rent,
expenses, damages, and losses. Any rent received from the re-
renting shall be applied to the reduction of money the Tenant owes.

Once the landlord re-rents the property, the tenant is no longer legally
responsible for the rent after the new tenant starts paying rent. However,
 if the landlord is unable to secure a substitute tenant after making
reasonable efforts to do so or if the premises have been rendered
unmarketable, the landlord is entitled to an amount equal to the full
amount of rent reserved in the lease, plus any other consequential
damages. See Grayson v. Mixon, 176 Ark. 1123, 5 S.W.2d 312 (1928). Cf.
Kulm v. Coast-to-Coast Stores Central Organization, Inc., 248 Or. 436,
432 P.2d 1006, 1009 (1967) (breach of an agreement to renew the lease).

3. FILE A LAWSUIT AGAINST THE TENANT

If no negotiation shall be reached, the landlord now may file a lawsuit

against the tenant in Colorado country court. No one can stop the
landlord to file a case in court against a tenant for breach of contract.

Early cases, reflecting this traditional property law analysis, recognized

the present case directs our attention to the law of landlord and tenant
as it relates to abandonment and surrender of a leasehold and the
obligation of a lessee for rent following abandonment. Under the common
law view of a lease as a conveyance, a tenant's obligation to pay rent was
based upon the ownership of the leasehold estate. See,
e.g., Love, supra, at 535. The rent was said to issue from the land.
Therefore, so long as the tenant owned the leasehold estate the rental
obligation continued, but when the leasehold was extinguished, for
whatever reason, the obligation ceased. As a result, if the landlord
elected to accept the surrender of the premises upon abandonment by
the lessee, the lease was terminated and there was no continuing
obligation for rent. Id. at 535-36. See also 1 American Law of Property,
supra, § 3.99; 3A G. Thompson & J. Grimes, Thompson on Real
Property §§ 1343-45 (1981 repl. vol.); 4 H. Tiffany, The Law of Real
Property § 963 (3d ed. 1975). On the other hand, the landlord could
decline to accept the offer of a surrender that was implicit in
abandonment and could continue to hold the tenant liable for the
rent as it became due. 3A G. Thompson & J. Grimes, supra, § 1345, at
641; Love, supra, at 535. These two alternatives are available to the
landlord upon abandonment of the premises by the tenant. E.g., Ruple v.
Taughenbaugh, 72 Colo. 171, 210 P. 72 (1922); Carson v. Arvantes, 10
Colo.App. 382, 50 P. 1080 (1897), aff'd, 27 Colo. 77, 59 P. 737 (1899).