Colorado § 13-40-123 - Damages.

§ 13-40-123. Damages.

The prevailing party in any action brought under the provisions of this article is entitled to recover damages, reasonable attorney fees, and costs of suit; except that a residential landlord or tenant who is a prevailing party shall not be entitled to recover reasonable attorney fees unless the residential rental agreement between the parties contains a provision for either party to obtain attorney fees. Nothing in this section shall be construed to permit the entry of judgments in any single proceeding in excess of the jurisdictional limit of said court.

Source: L. 1885: p. 231, § 25. R.S. 08: § 2625. C.L. § 6391. CSA: C. 70, § 26. CRS 53: § 58-1-26. L. 61: p. 394, § 9. C.R.S. 1963: § 58-1-25. L. 84: Entire section amended, p. 467, § 4, effective July 1. L. 2008: Entire section amended, p. 1819, § 2, effective September 1.

Cross references: For assessment for expense and inconvenience in litigation, see C.R.C.P. 3(a); for awarding of attorney fees in civil actions generally, see § 13-17-102.

ANNOTATION

Former provisions violated constitutional rights. Provisions of this section prior to the 1984 amendment, by imposing a pecuniary penalty on defendants for the benefit of prevailing plaintiffs without granting defendants a corresponding right, violated the defendants' fourteenth amendment right to the equal protection of law and was contrary to art. II, § 6, Colo. Const. More v. Johnson, 193 Colo. 489, 568 P.2d 437 (1977).

In a case involving multiple issues, the prevailing party for purposes of this section is the party adjudged to have the right to possession. Integra Fin. Inc. v. Grynberg Petroleum Co., 74 P.3d 347 (Colo. App. 2002).

The definition of "action" for purposes of this section excludes claims and counterclaims relating to nonpossessory issues. Integra Fin. Inc. v. Grynberg Petroleum Co., 74 P.3d 347 (Colo. App. 2002).

Damages are recoverable where lessee retains land after termination of the lease. Where possession of leased property is wrongfully retained by the lessee after termination of the lease, damages are recoverable against him. Strauss v. Boatright, 160 Colo. 581, 418 P.2d 878 (1966).

It seems to be well settled that the measure of such damages is the reasonable rental value for the time that possession was wrongfully withheld. Strauss v. Boatright, 160 Colo. 581, 418 P.2d 878 (1966).

Allowance of attorney's fees as part of judgment where not pursuant to contract expressed or implied. Gulf, Colo. & Santa Fe v. Ellis, 165 U.S. 150 (1897); Los Angeles Gold Mining Co. v. Campbell, 13 Colo. App. 1, 56 P. 246 (1899); Davidson v. Jennings, 27 Colo. 187, 60 P. 354 (1900); Pacific Mut. Life Ins. Co. v. Van Fleet, 47 Colo. 401, 107 P. 1087 (1909); Commodore Mining Co. v. People, 82 Colo. 77, 257 P. 259 (1927); Denver Bldg. & Construction Trade Council v. Henry Shore, 132 Colo. 187, 287 P.2d 267 (1955).

This section provides for an award of attorney fees as damages for injury sustained during time landlord is deprived of possession of property. Allmer v. Andrews, 153 Colo. 487, 386 P.2d 705 (1963).

In a separate or supplemental proceeding. This section provides for such an award of attorney fees to be determined either in a separate action or in supplemental proceedings in the principal action and are in the nature of damages for injury sustained during the time he shall have been deprived of possession of the premises. Allmer v. Andrews, 153 Colo. 487, 386 P.2d 705 (1963).

Claims that do not bear on the right to possession are not part of a forcible entry and detainer action for purposes of awarding attorney fees. Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006).

It is proper, however, to award attorney fees concerning an ownership claim if it is necessary for the court to determine ownership of the property prior to making a determination regarding possession. Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006).

The amount of damages a prevailing plaintiff may recover in an F.E.D. action is the reasonable rental value of the premises during the time the other party continued an unlawful detainer. Behr v. Burge, 940 P.2d 1084 (Colo. App. 1996).

Where property was sold at a tax sale, the court erroneously awarded damages to plaintiffs for the rental value of property from the time the tax lien was recorded until dispossession of defendants since those damages could not begin to accrue at least until the execution and delivery of the director's deed. Behr v. Burge, 940 P.2d 1084 (Colo. App. 1996).

When this section is read with § 13-40-115, it is clear that the award of attorney fees in a forcible entry and detainer action is in the nature of compensatory damages. Thus, any prevailing party in a forcible entry and detainer action is entitled to attorney fees, and the trial court erred in refusing to award them. Wilcox v. Clark, 42 P.3d 29 (Colo. App. 2001).

Applied in Torres v. Portillos, 638 P.2d 274 (Colo. 1981); Cronk v. Bowers, 2023 COA 68M, 537 P.3d 401.