## Facts

- Marc P. Mishkin (landlord) and Dean Young (tenant) entered a residential lease requiring return of a $1,625 security deposit within 45 days after surrender.
- Young surrendered the premises on August 3, 2001.
- Mishkin neither returned the deposit nor provided an accounting within the 45-day period.
- On September 20, 2001, Young sent a written notice under Colo. Rev. Stat. § 38-12-103(3)(a) stating he would sue for treble damages if the deposit was not returned within seven days.
- On September 26, 2001, Mishkin sent an itemized statement claiming $1,574.60 in damages and tendered $50.40 as the balance.
- Young sued under the Wrongful Withholding of Security Deposits Act seeking return of the deposit and treble damages; Mishkin counterclaimed for property damage.
- The county court found Mishkin forfeited the right to withhold by missing the 45-day deadline, but denied treble damages because the notice did not specify an exact amount.
- The district court reversed on treble damages and awarded treble damages and attorney’s fees; Mishkin sought review.

## Issues

1. Whether Colo. Rev. Stat. § 38-12-103(3)(a) allows a landlord who missed the statutory/contractual deadline to avoid treble damages by providing an accounting within seven days after the tenant’s notice of intent to sue.
2. Whether a tenant’s notice must state a precise dollar figure for the landlord’s continued retention to be “willful” under § 38-12-103(3)(a).

## Decision

- The Colorado Supreme Court affirmed the district court.
- A landlord who fails to return or account for the security deposit within the time required by § 38-12-103(1) (as extended by a lease, up to 60 days) cannot avoid treble damages by later providing an accounting during the seven-day notice period in § 38-12-103(3)(a).
- The Court rejected the view that the seven-day period operates as a cure window that eliminates treble-damages exposure for an already late return/accounting.
- The Court also rejected the idea that the tenant’s notice must specify an exact sum to support a finding of willful retention.

## Legal Principles

- Under § 38-12-103(1), a landlord must return or provide an accounting for a security deposit within one month after surrender unless the lease sets a longer period not exceeding 60 days.
- Failure to comply with § 38-12-103(1) triggers § 38-12-103(2), which forfeits the landlord’s right to withhold the deposit.
- Treble damages and attorney’s fees are available under § 38-12-103(3)(a) when retention is “wrongful and willful” after the tenant provides seven days’ written notice of intent to sue.
- The seven-day notice requirement functions as notice and an opportunity to avoid litigation; it does not restore a forfeited right to withhold or create a statutory safe harbor for late accounting.
- “Willful” retention does not depend on the tenant stating a precise dollar amount in the notice; continued noncompliance after notice can support willfulness.

## Conclusion

The court held that once a landlord misses the statutory/lease deadline to return or account for a security deposit, a later accounting within the tenant’s seven-day notice period does not prevent treble damages and fees when the withholding is wrongful and willful.


Mishkin v. Young, 107 P.3d 393 (Colo. 2005)