dissenting:
I respectfully dissent.
In applying landlord tenant remedies we must distinguish between traditional property concepts and contract concepts and then analyze the factual situation to which these concepts are to be applied. The territorial legislature of Colorado adopted the common law concept that a landlord’s remedy for unpaid rent was a suit for rent due. Further, the territorial legislature, in holdover situations, required that a landlord who wished to regain possession of the premises serve a written demand for delivery thereof upon the tenant. Doss v. Craig, 1 Colo. 177, 179 (1869). In Doss, the court said that the legislative intent was to give the tenant an opportunity to surrender possession and thereby avoid expensive litigation.
The legislation now controlling landlord-tenant relationships was adopted in 1885. The specific statute here involved is § 13-40-104(l)(d), C.R.S. 1973. A defaulting tenant during the term of a lease is not guilty of unlawful detention until the landlord chooses to force the issue by serving a three day notice demanding, alternatively, possession or rent. The law does not allow the landlord to work a forfeiture of the tenant’s possessory rights absent written demand and the alternative rights set forth in the statute.
When a defaulting tenant, prior to service of a three day notice, vacates or abandons the premises, a landlord may retake possession of the property and pursue his contractual rights. See Carson v. Arvantes 10 Colo.App. 382, 50 P. 1080 (1897); Grolier Society, Inc. v. International Realty Co., 482 P.2d 394 (1971) (Not Selected For Official Publication); Tumbarello v. Byers, 37 Colo.App. 61, 543 P.2d 1278 (1975).
In Colorado, service of notice pursuant to § 13-40-104(l)(d), C.R.S. 1973 constitutes an election of remedies in law by the landlord which terminates the lease unless the notice is rendered ineffective by payment or tender of the rent. Barlow v. Hoffman, 103 Colo. 286, 86 P.2d 239 (1938). See also Nelson & Tudor, Landlord Remedies 5 Colo. Lawyer 1257 at 1260 (1976).
*999We find no reported case in Colorado allowing the collection of rent after surrender due to receipt of a three day notice. Nelson and Tudor, supra, question whether a clause so providing would be enforceable. Such a clause would be contrary to the policy which encourages peaceful surrender of leased property.
Once a lease is terminated by notice and surrender of possession, absent a clause in the lease holding the tenant liable for rent in spite of termination, the tenant’s liability is limited to mesne profits or damages. Where special damages do not exist, the landlord is entitled to recover the reasonable value of the use of the premises during the period the tenant continues in possession after termination of the lease. The stated rent may be used as evidence of damages, but the landlord may not recover rent as rent after the lease has been terminated. Barlow v. Hoffman, supra.
Here, as in Barlow, supra, the landlord demanded overdue rent, or as an alternative, possession of the premises pursuant to the unlawful detainer statute, § 13-40-104(l)(d), C.R.S. 1973. Further, here as in Barlow supra, the landlord sued for rent due prior and subsequent to termination. The notice served in this case is identical to the one served in Barlow. Because the tenant vacated on May 5, the landlord’s recovery is limited to the rent due on that day.
The cases cited by the landlord are inap-posite in that they deal with possession regained after vacation, surrender, or abandonment by the tenant but prior to service of a three day notice. In that circumstance, the question of termination is one of the landlord’s intent in accepting the tenant’s surrender of the premises. See, e. g., Ruple v. Taughenbaugh, 72 Colo. 171, 210 P. 72 (1922). Such is not the case here.
The majority bases its opinion on a clause in the lease which gives the landlord the right to retake possession of vacated or abandoned premises without terminating the lease and to rerent the premises on behalf of the tenant. That clause applies only when the tenant unilaterally vacates or abandons the premises and the landlord does not accept the premises as a surrender. The lease does provide that when the tenant refuses to pay or vacate after notice, “the landlord may . . . repossess the premises ... without prejudice to any remedy allowed by law .. . . ” Since the tenant promptly vacated within the notice period, the sole remedy of the landlord under the lease is termination thereof.
I would reverse the judgment and remand the cause to the trial court to enter judgment for the landlord in an amount reflecting the rent due on May 5, 1979.