dissenting.
I respectfully dissent. My review of the Forcible Entry and Detainer Statute, section 13-40-101 et seq., and its apparent legislative purpose, convinces me that the notice provision of section 13-40-104(l)(d), C.R.S. 1973 is not subject to contractual waiver. Therefore, I would affirm the judgment of the trial court.
The apparent purpose of our Forcible Entry and Detainer Statute and, more particularly, section 13-40-104, C.R.S. 1973, is to provide the landlord with a summary procedure for recovering possession of his property. See R. Schoshinski, American Law of Landlord and Tenant § 6:10 (1980); 3A G. Thompson, Real Property § 1370 (J. Grimes rev. 1981). The benefits perceived to flow from such a procedure include avoidance of the expense and delay incident to the more cumbersome action of ejectment formerly employed at common law, and an inducement for the landlord to rely upon judicial remedies rather than the disruptive and sometimes hazardous remedy of self-help. Id.
However, in creating this expeditious remedy, the legislature explicitly limited the conditions under which it could be invoked. As relevant here, the legislature carefully specified the type of notice required in an unlawful detainer action depending upon the asserted basis for challenging the tenant’s right to possession of the property. Thus, section 13-40-104(l)(c) provides that a tenant who holds over after the expiration of the term of his lease or after a tenancy at will or by sufferance has been terminated by either party is guilty of an unlawful detention, without any requirement of additional notice. In contrast, where a tenant holds over after a default in the payment of rent, section 13-40-104(l)(d) provides that the tenant is not guilty of unlawful detention unless he fails to comply with the statutorily prescribed three day notice to quit or pay rent.1 Finally, section 13-40-104(l)(e) creates a residual category applicable to tenants who hold over in violation of any other conditions or covenants of the lease agreement. In such cases, a tenant is guilty of unlawful detention if he fails to surrender the premises within three days after the landlord serves notice requiring the delivery of possession.
The legislature’s careful distinctions among these various forms of unlawful de-tainer actions for purposes of the notice requirement convinces me that this requirement is an important part of the statutory scheme, considered essential to the fair operation of this summary procedure. This conclusion is also reinforced by more general consideration of the nature and effect of an unlawful detainer action.
Because the unlawful detainer action is designed to be a summary procedure, an expedited procedure for return of summons is provided, section 13-40-111, C.R.S. 1973, and continuation of the trial date for a period longer than five days is conditioned upon the posting of bond, section 13-40-114, C.R.S. 1973. Further, the issues which *351may be litigated in an unlawful detainer action have been quite limited historically. Thus, the assertion of affirmative defenses or counterclaims has often been proscribed or substantially restricted. See generally, R. Schoshinski, American Law of Landlord and Tenant § 6:17 (1980). Consequently, the legislature has accorded the landlord substantial benefits in such an action.
The price of those benefits is a simple requirement that, where the action is brought for a failure to pay rent, the landlord provide the tenant with an opportunity to vacate the premises or cure his default within three days after written notice.
The tenant’s opportunity to cure his default or vacate the premises may avoid the disruption and expense of litigation. The opportunity to cure is also an equitable counterbalance to the disadvantages to the tenant in preparing his defense in the face of an expedited procedure. More importantly, the opportunity to cure is a reflection of the law’s general disapproval of forfeitures, a principle which has played an important role in shaping landlord and tenant law. E.g., Beck v. Giordano, 144 Colo. 872, 356 P.2d 264 (1960).
The importance of strict adherence to the notice provision of section 13-40-104(l)(d) is demonstrated by the decision in Tumbarello v. Byers, 37 Colo.App. 61, 543 P.2d 1278 (1975). There, the Colorado Court of Appeals held that the notice served in an unlawful detainer action brought for failure to pay rent was fatally deficient because it demanded only that the tenant vacate the premises within three days, and failed to demand, in the alternative, the payment of rent. The court concluded that such defective notice was insufficient to establish a basis for the harsh remedy of forfeiture of the leasehold.
Furthermore, section 13-40-104(l)(d) is more than a mere notice provision. The giving of three days notice in accordance with that statute is an essential element of the definition of unlawful detention. There is no indication in the statute that waiver of notice will serve as a surrogate for the three day notice element. It is the commission of an unlawful detention, by satisfying the specific statutory requirements including three days notice, which triggers the landlord’s ability to invoke the statutory summary procedure for recovery of possession of the leased property.2
In summary, I find the notice requirement of section 13-40-104(l)(d) to be an integral part of the statutorily prescribed scheme for unlawful detainer actions. That notice requirement preserves a balance between the rights and remedies of the landlord and the tenant in such actions, and furthers broader considerations of public policy. Because of this, I conclude that the legislature did not intend the notice requirement to be subject to contractual waiver. I fear that the undesirable result of the decision today will be a proliferation of standard form leases incorporating such a waiver, and a resulting destruction of the delicate balance of rights and remedies that was intended by the General Assembly.
I would further note, however, the narrowness of the issue resolved by the majority in the present case. The lease at issue here concerned the rental of office space. Whether this court would reach the same result where the contractual waiver of right to notice concerned a residential lease is a question that I believe is reserved for another day.
*352I would affirm the judgment of the trial court.
I am authorized to say that Justice DU-BOFSKY and Justice QUINN join me in this dissent.
. The full text of section 13 — 40—104(l)(d), C.R. S.1973 is as follows:
(1) Any person is guilty of an unlawful detention of real property in the following cases:
sH * * ⅝: * *
(d) When such tenant or lessee holds over without permission of his landlord after any default in the payment of rent pursuant to the agreement under which he holds, and three days’ notice in writing has been duly served upon the tenant or lessee holding over, requiring in the alternative the payment of the rent or the possession of the premises. It shall not be necessary, in order to work a forfeiture of such agreement, for nonpayment of rent, to make a demand for such rent on the day on which the same becomes due; but a failure to pay such rent upon demand, when made, works a forfeiture;
The parties do not address the purpose or effect of the final sentence of subsection (d). The majority of the court does not address its applicability, if any, to the facts of this case. Accordingly, I do not consider it in this dissent.
. In this respect, section 13-40-104(l)(d) differs from the corresponding statutes of other jurisdictions cited in n. 3 of the majority opinion, see Mass.Gen.Laws Ann. ch. 186 §§ 11, 15A (West 1977); Uniform Residential Landlord and Tenant Act §§ 1.403, 4.201, 7A U.L.A. 521, 547 (1978). While section 13-40-104(l)(d) makes the service of statutory notice an essential element of unlawful detention, the Massachusetts statute and the Uniform Act phrase the statutory notice requirement as a mere notice provision. Consequently, the failure of our General Assembly to provide specifically that the notice provision of section 13-40-104(l)(d) cannot be contractually waived is not a persuasive reason for concluding that such a waiver is permissible. By making the notice requirement of the statute an essential element of unlawful detention, our legislature has implicitly provided that it may not be waived and has rendered unnecessary an additional provision, such as that found in Massachusetts and in the Uniform Act, precluding such waiver.