Evictions are always time consuming and can be expensive if done haphazardly. The only thing worse than going through the process of evicting a tenant, is failing to adhere to a detailed step in the process and having to repeat it. One common pitfall in the eviction process is improper service.
The best scenario is if your process server can locate the tenant and personally serve them. However, it is not always that easy. If personal service cannot be achieved on the defendant, the law provides an avenue to proceed “in rem” or against the property itself. This enables the landlord to regain possession of their property without pursuing a tenant who may be avoiding personal service. Proceeding “in rem” can be accomplished with service by posting. C.R.S. § 13-40-112 (2) provides the necessary elements for proper service by posting in a forcible entry and detainer action (commonly known as an eviction).
One specific element for effective service by posting is that a “diligent effort” must be made to effect personal service on the tenant prior to posting. “Diligent effort” is a subjective term which can give a judge leeway to deny your case for improper service. I recently heard a County Court Judge ask a landlord’s attorney whether or not the process server “called the tenant’s name out when they were attempting service.” It made no difference that a sheriff was the process server in this matter or that another process server had previously tried and failed to accomplish personal service. The Judge denied the eviction because, in his mind, a “diligent effort” had not been made.
When you are attempting to serve the tenant by posting, have your process server make detailed notes on his attempts. These notes should include the date, time and location of when service failed. While the case mentioned above was likely an isolated instance, it doesn’t hurt to request that the process server take the additional step of calling out the tenant’s name. These steps should help you avoid at least one potential pitfall in the eviction process. The Colorado Bar Association offers helpful information with respect to landlord-tenant issues including service of process requirements.
If you would like more information regarding an eviction, your rental properties, or would like us to review your rental agreement, please contact our Business Law Group partner, David A. Closson at [email protected].