Colorado § 13-40-105 - Crops of possessor.

§ 13-40-105. Crops of possessor.

In all cases arising under section 13-40-104 (1)(c) to (1)(i), the person in possession is entitled to cultivate and gather the crops, if any, planted or sown by him previous to the service of the demand to deliver up possession, and then grown or growing on the premises, and shall have the right to enter such premises for the purpose of cultivating or removing such crops, first paying or tendering to the party entitled to the possession of said premises a reasonable compensation for the use of the land before removing such crops.

Source: L. 1885: p. 225, § 4. R.S. 08: § 2604. C.L. § 6370. CSA: C. 70, § 5. CRS 53: § 58-1-5. C.R.S. 1963: § 58-1-5.

ANNOTATION

Where a tenancy is from year to year this section is applicable and under it the tenant has the right to "away-going" crops sown by him previous to the service of the demand to deliver up possession of the premises, unless there is a specific agreement providing otherwise. Millage v. Spahn, 115 Colo. 444, 175 P.2d 982 (1946).

But not where tenancy is for a fixed term. But where the tenancy is fixed certain, that is, where the tenant knows when he sows crops precisely when the lease will end, and it is plain he cannot reap before the lease terminates, he has no right to the crops remaining unharvested, or at least not to those that do not mature until after the termination of the lease. Millage v. Spahn, 115 Colo. 444, 175 P.2d 982 (1946).

This section does not apply to a lease that is extinguished upon the foreclosure of a deed of trust. Rather, it applies only to forcible entry and detainer actions where a landlord has evicted a tenant after a crop has been planted, but before it has been harvested. Elrick v. Merrill, 10 P.3d 689 (Colo. App. 2000).

Lessee will not be entitled to crops after fixed term expires. Thus, where tenancy was for a five-year period, and lessee knew the date of termination of the lease at the time he planted his crop and was cautioned in regard thereto, the provisions of this section did not apply, and lessee was not entitled to the crops remaining unharvested at the termination of the lease. Koch v. Monaghan, 119 Colo. 557, 205 P.2d 652 (1949), citing Miliage v. Spahn, 115 Colo. 444, 175 P.2d 982 (1946).

Where notice of termination is given after tilling, tenant may harvest. Where tenant summer-tilled some of the land before receiving notice of termination of the tenancy, he was entitled to his share of the crop on the acres tilled before receiving the notice. Hemberger v. Hagemann, 120 Colo. 431, 210 P.2d 995 (1949).

Right to crops is not a defense to forcible entry and detainer. The right of a tenant under certain circumstances to growing crops is not in and of itself a valid defense to a complaint in forcible entry and detainer. Orebaugh v. Doskocil, 145 Colo. 484, 359 P.2d 671 (1961).