*1 gross receipts further which orado. This section would otherwise be from sources within Colorado in- apportioned income to states in which the corpora- any “income from activities carried cludes tion is not It is applied taxable. state, regardless of whether requiring specific finding this by the director intrastate, interstate, carried on in or for- the method of allocation or apportion- eign commerce.” ment set 39-22-303(2)(b) forth properly fails to reflect the amount of in- 1973, 39-22-303(4), Section come derived from sources in Colorado. of the allocation of income comport does not with the provides: statute. 303(4). ments of section “(4) In case where appears By regulation the satisfaction of the executive director promulgating appor- the method of allocation or 39-22-303(3)(a), inconsistent with section (1) tionment set forth in and C.R.S.1973, subsections Department attempts (2) properly section does not expand existing Only amend and tax laws. flect the amount of income derived from legislature power has the to amend laws sources within Colorado or if for rea- Colo.Const., taxing and enact statutes. son it is that the provisions Ill; determined V, 31; Art. Art. Colo.Const. Sec. Cohen (1) inopera- subsection of this section are Revenue, Department supra; v. Weed v. reason, tive for the executive director Occhiato, supra. Accordingly, regula- is authorized in his discretion to deter- applied against is void and cannot be mine a method of allocation apportion- Miller. fairly ment calculated to determine the The judgment of the district court is af- net income derived from or attributable firmed. to sources within Colorado.” regulation

We fail to see how the

promulgated by the director of Depart

ment can be supported by these two statu all,

tory 301(1) sections. First of

a general provision which specifi does not

cally address the issue at It provides hand. authority

no for the here chal regulation lenged. 303(2)(b) sections CORPORATION, FRANCAM BUILDING 303(3)(a) do specifically assigna- address the Petitioner, corporation, a Colorado bility of certain Nei receipts Colorado. ther of adopts these relevant sections FAIL, Larry Respondent. F. throwback rule. No. 80SC281. Department’s reliance 39-22- C.R.S.1973, 303(4), misplaced. is likewise Colorado, Supreme Court That section is narrowly to be construed En Banc. employed only in unusual situations. Department May See Donald M. Drake Co. v. Revenue, 263 Or. June Rehearing Denied

(interpreting a similar contained Warren, UDITPA); Keesling & Cali- fornia's Uniform of Income for Division I, Purposes

Tax Act —Part 15 U.C.L.A.L. (1967); Pierce,

Rev. 170-71 The Uni-

form Division of Income for Tax Pur- State case,

poses, Taxes 747 In this

regulation sets forth a rule which is to be case,

applied every allocating to Colorado

Myrick, Sullivan, C., Newton & P. Mi- Serruto, chael Nearen, Jr., P. James W. Denver, E. Myrick, William petitioner. Chanzit, Caskins & Richard Chanzit, M. Denver, for respondent.

ROVIRA, Justice. Petitioner, Francam Building Corporation (Francam), against commenced an action Larry (Fail) F. Fail in the County Arapahoe County to regain possession premises for failure to pay rent. The trial court dismissed the complaint because of Francam’s failure to a three-day serve “pay or vacate” pursuant demand Fail to sec- tion 13-40-104(l)(d), ap- C.R.S. 1973. On peal, the District Court in and for the Coun- ty Arapahoe We granted affirmed. cer- tiorari and now reverse the district court.

In 1977 Francam and Fail entered into a space written lease for office which re- quired payment of rent on the first each dispute month. A arose between the parties, and in June Fail tendered a check in an amount less than the full rental due. Francam accept partial refused to Fail, payment and writing, notified the lease was terminated and demanded possession. immediate Fail refused va- cate and Francam initiated an action to recover by filing a com- plaint county court in which it al- leged failure to pay election to termi- nate, possession, demand for and waiver of pursuant to the lease

Fail denied the allegations material complaint by way of affirmative defense, claimed that attempted termi- nation of the lease was invalid because give Francam did not Fail three no- tice rent or vacate the premises to section 40—104(l)(d),C.R.S. 13—

During trial, the bench the lease between the parties was introduced into evidence. The provision upon by relied Francam to support its argument there was a waiver of statutory that: court, The trial expressly agreed, relying upon “It understood and section 13- aforesaid, and between the 104(l)(d), ruled that Fran- reserved, if the rent above or any cam comply failed to with the statute by thereof, arrears, shall be in ifor Fail three days’ notice in default shall be made in any of the cove- requiring, *3 agreements contained, nants or herein to rent or possession premises.2 of the lessee, kept by be the said it shall and court further ruled that the waiver of no- may be lawful for the said lessor to de- tice provision in the lease only related to ended, clare said term and enter into the rights that had after termina- thereof, any part said or either tion of the lease and that such termination law, with process or without to re-en- had not occurred here. The court then dis- ter, and the any person said lessee or or missed complaint for noncompliance same, persons occupying the expel, to re- with the statutory precedent. condition move, out, put and using such force as affirmed, The district court holding may necessary be in doing, so without the waiver provision of notice contained in being prosecution liable to damages or in applicable was not until the lease therefor, and the premises again said had been terminated Francam by and repossess enjoy, and as in the first and an effective termination could not be ac- former estate of the said lessor. And if complished the requirements unless of sec- time said term shall be ended as 40—104(l)(d) tion had been met. 13— or way, aforesaid in the said lessee hereby covenants and agrees to I. surrender and deliver up premises said The issues in this presented case are: peaceably to said lessor. Immediately whether the notice requirement of section upon term, the termination of said if and 40—104(l)(d), 1973, may C.R.S. be waived the lessee shall remain in 13— possession of lease; and, so, (2) in a by provision thereof, the same after the termination whether in the lease between said lessee shall be deemed of a guilty parties effectively waived the notice forcible detainer 'of said [sic] requirements of the statute. statute, under the hereby waiving ail no- tice, and shall be to eviction and II. removal, forcibly otherwise, with or without process 40—104(l)(d), as above stated.” Section C.R.S. (emphasis supplied).1 Entry of the Colorado Forcible 13-40-101(2), 1. Section C.R.S. defines mean unlawful detention rather than forcible forcible detainer as follows: detainer. any person peaceably upon any “If enters C.R.S.1973, 13-40-104(l)(d), pro- 2. Section lands, tenements, mining claims, or other vides: possessions, any person actually whether “(1) Any person guilty of an unlawful de- entry in or the same at the time of such tention of real cases: in the by party possession force turns the in or, by out threats or words or actions tendency which have a natural to excite fear (d) tenant or over When such lessee holds apprehension danger, frightens par- permission of his landlord after ty possession out of and detains and holds payment default rent same, person offending so holds, agreement under which he meaning of a forcible detainer within the days’ duly has been this article.” holding served the tenant or lessee presented The facts in this case do not consti- over, requiring payment in the alternative the tute a forcible detainer as it is defined premises. rent or the of the par- statute. The trial court decided and both necessary, It shall not be in order to work a presented arising ties have this case as one agreement, nonpayment forfeiture of such under the unlawful detention of the of the a failure to when to make a demand for such rent on Entry Forcible and Detainer Statute. See sec- due; on which the same becomes but 13-40-104(l)(d), 1973; see also note such rent 2 infra. we construe the lease to made, forfeiture;” works a Statute, defines unlawful deten- Detainer common-law he make rent prior declaring the situation where the demand for the tion. addresses forfeiture if the lease so per- expressly provides. holds without the landlord’s lessee over See R. American Law of Land- mission after default lord and Tenant 3A G. statute, lessee is guilty rent. Under the Thompson, (J. Property Real 1336 Grimes is in only of an unlawful detention 1981). rev. duly served three writing requiring, that, like the We believe common- requirements, provisions law terms Sheetz, See Jones Entry The Forcible and Detainer (waiver (D.C.1968) A.2d designed Statute was landlords *4 30-day notice not unfair or unrea an expeditious pos of gaining with method tenant land sonable where could control premises following session of their a termi ability lord’s to invoke lease waiver clause tenancy nation of a or a breach of a lease. lease); by complying with covenants the Further, it offers tenants a remedy against Hinchcliffe, 468, Espen v. 131 Ill. 23 N.E. landlords entry. who are of forcible (1890). Schoshinski, 592 also R. See Ameri American Law of Landlord 6:3, can Law Tenant of Landlord and §§ (1980). and Tenant 6:10 § (1980). This conclusion based provisions of 104(l)(d), requir- First, the several considerations. demand ing notice to either rent pay the notice requirement or due deliver possession of the modern, counterpart is the the statutory are, part, requirements derived from requirement; common-law demand for rent which existed at common law. At common noted, as already and we have the common- law, a required lessor was de- make a rent law demand for can be waived mand for due exercising any rent before provisions. Hughes, supra. Lewis v. See right of reentry reserved for breach of a Second, that, it is well established to pay Sparks, covenant rent. Miller v. 4 statutory provision absence of express an 303 (1878). Colo. barring countervailing public poli waiver or law requirement common was con- parties may cy,3 enter into contracts abro 208, sidered in v. 12 Hughes, Lewis Colo. 20 gating limiting statutory provisions P. (1888). 621 There the court was called right which confer a or benefit one or upon to interpret a lease provision parties. Nonpareil both v. Creek Inv. See that, the if rent was not paid Co., 550, (1919); 66 185 re Colo. P. 473 due, it was the lessor could declare Johnson, 198, Marriage 42 591 Colo.App. the term ended and repossess reenter and Estoppel 1043 28 P.2d Am.Jur.2d “without first making any demand (1966). Capitol and Waiver See also 164 rent, elsewhere, either upon premises Fixture & Co. v. Fire Ins. Supply National and without any notice of the forfei- Co., (con (1955) 131 279 435 Colo. P.2d ture of the lease.” Id. at 20 P. at bring tract time within which limiting The court enforced the al- provision and months, suit to twelve of limita statute lowed forfeiture without requiring prior unreasonable). notwithstanding, tions demand rent. Here, statutory provision requiring Lewis is in conformity with the general rent or posses- alternative demand for A tenant; rule. landlord need comply not with the is for sion the benefit of the legislatures adopted Assembly noteWe that some have The Colorado General requirements preclude the view that notice not evidenced an intent waiver of E.g., requirements by legis- enacting residential leases. (West Ann. Mass.Gen.Laws ch. 186 15A lation similar to Massachusetts statute 1977); by adopting Uniform Residential Landlord and Ten- Uniform Residential Landlord 1.403, 4.201, ant Act §§ 7A U.L.A. 547 and Tenant Act.

349 benefit, moval ... with or process to waive the agrees the tenant legisla- to his bargain. should be held as above stated.” of the ture has not forbidden a waiver provision provides above for the ter- requirement in the absence of mination of the lease. public policy evidence of to the con- post-termination gaining pos- remedies for no reason to trary, ignore we see valid premises session of the if the tenant refuses waiver and rewrite vacate termination. We believe that the words of procedure provided The termination the United Court in Balti- States express lease does not contain an waiv- Ry. Voigt, more & Ohio Southwestern er of the common-law of a 498, 505, 385, 387, 44 L.Ed. U.S. S.Ct. However, demand for rent. in the present are apt: case, agent appeared Franeam’s no right private contract “[T]he leased and made a demand for citizen, liberty small past due. Fail tendered check for important and that the usual and most monthly claiming less than the a set- justice function of courts of is rather to off for Francam improvements. refused contracts, maintain and enforce than to partial payment and exercised its con- enable thereto to from escape tractual to declare lease terminat- obligation their on the pretext public by giving quit ed Fail written notice to policy, clearly appear they unless it complied Francam with public right public contravene or the wel- *5 forth in the procedures termination set fare.” at procedures lease and with established common law.4 III. established that

Having provides post-termina- The lease then for 13-40-104(l)(d), section that once clearly tion remedies. It states waived, may be we now con the lessee C.R.S. the lease has been terminated pro whether the all “waiving sider notice” possession shall deliver accomplished vision of the lease effectively to so shall constitute a “forci- any failure do statute, a requirement. waiver of that We conclude hereby ble detainer ... under the ” that it does. waiving all notice .... The latter clause requirements waived the notice effectively The lease that pertinent 104(l)(d). clearly provides It that of section arrears, “if the . .. shall be in ... the premises if the tenant fails to surrender shall and be lawful for the said lessor ” of a forcible detainer guilty shall be to declare said term ended .. .. Further: he waives all under the statute and that any time said term shall be ended “[I]f notice. any way, as aforesaid or in other the said require- agrees lessee ... to surrender and deliver inapplicable were up Immediately upon said .... ments of section term, properly The landlord present the termination of said and if the to the case. his con- shall terminated the lease and invoked lessee remain Forcible employ Entry to right same ... said lessee shall be deemed tractual the. being obligat- without guilty of a forcible detainer . .. un- and Detainer Statute [sic] statute, notice, notice thereunder. hereby waiving give any der the all ed to the case. dismissing re- erred in subject county and shall be to eviction and court right right to Utah held the reservation of a 4. We to note that Francam reserved reenter, repossess, and terminate declare the lease terminated the tenant failed pay was breach of a covenant rent or breached covenants. the tenant’s any right a demand a sufficient to waive further reserved the to reenter prior of termi- to a declaration termination and to remove the tenant. In of rent Invs., Shoemaker v. Pioneer 14 Utah 2d nation. (1963), reversed, property. 13-40-104(l)(c) is and the cause section a determination on the remanded who tenant holds over after the controversy. merits of expiration of the term of his a tenancy after at will or sufferance DUBOFSKY, QUINN, JJ., LOHR and guilty terminated either party dissent. detention, unlawful require- contrast, ment of additional notice. Justice, LOHR, dissenting. where tenant holds over My respectfully dissent. review the section 13-40- Statute, Detainer Entry Forcible sec- 104(l)(d) provides that the tenant seq., apparent et and its 13-40-101 guilty unlawful detention unless he fails legislative convinces purpose, me to comply prescribed with the statutorily 13-40-104(l)(d), three Fi- quit notice to rent.1 C.R.S. 1973 contractual nally, 13-40-104(l)(e) creates a Therefore, I would affirm the sidual category applicable to tenants who judgment of the trial court. hold over in violation of condi- apparent purpose of our Forcible En- tions covenants of the lease try particu- Detainer more Statute cases, In such tenant is unlawful larly, 13-40-104, is to detention if he fails the prem- to surrender summary proce- the landlord with a ises within days after the landlord dure for recovering proper- of his delivery serves notice requiring pos- ty. See American Law of session. Landlord and Tenant 3A G. The legislature’s careful distinctions Thompson, (J. Real Property 1370 Grimes among these various forms of unlawful de- rev. 1981). The perceived benefits flow tainer for purposes actions of the notice from a procedure include avoidance of requirement convinces me that expense delay incident to the more ment is an important part cumbersome of ejectment formerly action *6 scheme, op- considered essential to the fair employed at common and an induce- eration of summary procedure. ment this rely judicial for the upon landlord to conclusion by is also reinforced more gener- remedies rather disruptive than the and al of consideration the nature and effect of remedy sometimes hazardous self-help. of an Id. unlawful detainer action. However, in Because the unlawful creating this detainer action is expeditious remedy, designed a legislature summary procedure, the be an explicitly limited expedited procedure conditions it of under which could be in- for return summons here, provided, 13-40-111, voked. As is relevant legislature specified carefully the type of notice re- and continuation of the trial date for a quired in an unlawful period longer detainer action de- than days five is conditioned pending upon the bond, asserted basis for chal- the posting of section 13-40- lenging the tenant’s of C.R.S. 1973. the issues which 1. The full text S.1973 is as over, requiring cases: three served tention (d) Any When agreement sH permission person follows: such real notice ^[*] of section the tenant or lessee in the alternative under which he tenant or lessee ^[*] of his of rent : n of an 40—104(l)(d), landlord has been ^[*] unlawful de- holds, holds holding ^[*] over duly C.R. fect The The applicability, when forfeiture of such a failure to It shall of the rent majority day made, the final sentence of on which the same to make a demand for such do not I do not be works pay any, necessary, agreement, address court does not address such rent to the consider forfeiture; in facts becomes order to of for subsection purpose of this nonpayment due; dissent. work case. but (d). ef- its a forfeiture of remedy basis for the harsh detainer in an unlawful litigated the leasehold. historically. limited quite action have of affirmative defenses the assertion Furthermore, 13-40-104(l)(d) proscribed has often been or counterclaims The provision. more than a mere notice generally, substantially restricted. See three notice in accordance days of Landlord American Law is an essential element with that statute (1980). Consequently, and Tenant of unlawful detention. There the definition the landlord has accorded legislature in the statute that waiver of is no indication an action. benefits in such substantial for the surrogate will as a notice serve element. It is the commis- three notice simple of those benefits is a price detention, by satisfying sion of an unlawful that, the action requirement where includ- statutory requirements the specific rent, the land- a failure to brought for notice, triggers the days three ing opportunity the tenant with an lord ability to invoke landlord’s or cure his default to vacate the posses- recovery summary procedure after written notice. days within property.2 sion of the leased to cure his de- opportunity The tenant’s summary, I find avoid the premises may fault or vacate the 13-40-104(l)(d) to be an ment of section disruption expense litigation. prescribed statutorily integral part of equitable an opportunity to cure is also actions. That unlawful detainer scheme for to the disadvantages counterbalance to the be- preserves a balance his in the face preparing tenant in defense remedies of the land- rights tween the expedited procedure. impor- of an More actions, and in such lord and the tenant to cure is a reflec- tantly, opportunity public considerations furthers broader general disapproval tion of the law’s this, I that the Because of conclude policy. forfeitures, which has principle played intend the notice legislature did not shaping landlord and ten- important role to contractual to be quirement Giordano, ant law. Beck v. 144 Colo. E.g., result that the undesirable I fear today proliferation will be of the decision incorporating leases importance of strict adherence to the of standard form waiver, resulting destruction and a 13-40-104(l)(d) remedies that rights delicate balance of in Tumbar is demonstrated the decision Assembly. the General was intended 61, 543 Byers, Colo.App. ello v. P.2d (1975). There, Ap the Colorado Court of however, note, the nar- further would in an un peals held that the notice served majori- by the of the issue resolved rowness failure brought lawful detainer action lease at issue case. The ty present *7 it fatally rent was deficient because space. of office the rental here concerned only demanded that the tenant vacate same reach the court would Whether this within three and failed to waiver of days, the contractual result where is a a residential to notice concerned an- reserved for I question rent. The court concluded that such defec believe day. tive notice was insufficient to establish provide specifically Assembly 13-40-104(l)(d) respect, General dif- 2. 13-40-104(l)(d) corresponding statutes of other the notice fers from the per- contractually jurisdictions majority opin- waived cited in n. 3 of the cannot be ion, concluding that such a waiv- see §§ Ann. ch. 186 suasive reason for Mass.Gen.Laws (West By making 1977); permissible. Land- 15A Uniform Residential er is 1.403, 4.201, element of quirement 7A U.L.A. an essential lord and Tenant Act of the statute §§ 13-40-104(l)(d) implicit- detention, legislature has While our unlawful and has ly notice an essen- makes the service not be detention, provision, unnecessary the Massa- tial element of unlawful an additional rendered phrase statute and the Uniform Act chusetts in Massachusetts that found such as Act, as a mere no- precluding Uniform provision. Consequently, failure of our tice of the trial would affirm court. say

I am authorized to that Justice DU- QUINN join and Justice me in

BOFSKY

this dissent. Colorado,

The PEOPLE of the State of

Plaintiff-Appellee,

Cheryl MANN, Cheryl Adems, a/k/a

Defendant-Appellant.

No. 80SA466. Colorado,

En Banc.

June

As Modified on Denial of Rehearing

June