Colorado injunctions: a mandatory order can put you back in possession

Colorado says something most injunction rules leave to case law: when stopping conduct is not enough, the order can require conduct instead, and one named use of that power is putting an ousted party back in possession.

When restraint is not enough

Rule 65(f):

If merely restraining the doing of an act or acts will not effectuate the relief to which the moving party is entitled, an injunction may be made mandatory. Such relief may include an injunction restoring to any person any property from which he may have been ousted or deprived of possession by fraud, force, or violence, or from which he may have been kept out of possession by threats or words or actions which have a natural tendency to excite fear or apprehension of danger.

Two things to take from it.

The test is functional. Mandatory relief is available where restraint "will not effectuate the relief to which the moving party is entitled" — not where the applicant prefers it, and not only in extreme cases.

Restoration of possession is named. Ousted by fraud, force or violence, or kept out by threats or by "words or actions which have a natural tendency to excite fear or apprehension of danger" — the rule contemplates a self-help lockout or an intimidated occupant being restored by injunction rather than by a separate possessory action.

That last clause is unusually broad. It does not require actual violence; a natural tendency to excite fear is enough.

Timing: any time after the action is commenced

Rule 65(g) is permissive about when: relief "may also be granted on the motion of any party at any time after an action is commenced and before or in connection with" the judgment. So an injunction is not confined to the opening days of a case.

Family-law cases are outside the rule entirely

Rule 65(h):

This Rule shall not apply to suits for dissolution of marriage, legal separation, maintenance, child support, or custody of minors. In such suits, the court may make prohibitive or mandatory orders, without notice or bond, as may be just.

This is a clean carve-out rather than an exemption from one requirement. In those proceedings the court may make prohibitive or mandatory orders, without notice or bond, as may be just — so none of the machinery below applies, and a practitioner reaching for Rule 65 in a dissolution case is in the wrong place.

Security, and what happens when it becomes inadequate

Rule 65(c) requires security before a restraining order or preliminary injunction issues, "in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained."

The exemption is broad: "No such security shall be required of the state or of any county or municipal corporation of this state or of any officer or agency thereof acting in an official capacity."

And the security is reviewable throughout:

If at any time it shall appear to the court that security given under this Rule has become impaired or is insufficient, the court may vacate the restraining order or preliminary injunction unless within such time as the court may fix the security be made sufficient.

Impaired or insufficient, at any time — and the remedy is vacation unless the security is topped up within a period the court sets. Like Ohio, Colorado treats the bond as a live condition of the order rather than a formality completed at the start.

When the same suit is pending in federal court

Rule 65(i) addresses a situation few state rules mention — "State Court's Jurisdiction When Suit Commenced in Federal Court; Stay of Proceedings; Notice; Appeal." If your dispute has a federal counterpart, read that subdivision before assuming the state court will simply proceed.

What the order itself must say

Rule 65(d) sets the drafting requirements and the reach together:

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

That matters especially for a mandatory order under Rule 65(f). An order restoring possession will be carried out by people who were never parties, so the description of what must happen has to be complete on the face of the order.

Testimony counts, and the certificate can be made on the record

Colorado's without-notice test differs from the federal version in two small, useful ways:

It clearly appears from specific facts shown by affidavit or by the verified complaint or by testimony that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing or on the record the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required.

Testimony is a permitted basis. Most versions of this rule name only an affidavit or a verified complaint. Colorado adds live testimony, which is worth knowing when the emergency arrives faster than a signed affidavit can.

And the certificate may be made on the record. Counsel does not have to file a written certification of the efforts made to give notice; saying it on the record at the hearing satisfies the rule.

Both changes point the same way: Colorado's rule is drafted for a lawyer standing in front of a judge on short notice, not only for a paper filing.

Two business days to move against it

The route back into court is measured in business days:

On two (2) business days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

Nearly every other state writes "two days." Colorado writes two business days, which over a weekend or a holiday is a materially different figure — and a restrained party planning its response should count the right kind of day.

The court may prescribe shorter notice. And once the motion is before it, the court proceeds "as expeditiously as the ends of justice require."

There is a matching duty on the applicant: if the party that obtained the order does not proceed with the preliminary injunction application when the motion comes on for hearing, "the court shall dissolve the temporary restraining order."

A short checklist

Applying:

1. Ask whether restraint alone gets you the relief. If not, plead for a mandatory injunction and say why.
2. Use the restoration language where possession was lost to fraud, force, violence, threats or intimidation.
3. Do not use Rule 65 in a family-law case — it does not apply, and the court has separate power there.
4. Be ready on security, and remember it may be revisited.
5. Move at any stage. Relief is available at any time after the action is commenced.
6. Check Rule 65(i) if a federal case covers the same ground.

If you are enjoined:

1. Test the mandatory element. Mandatory relief needs a reason restraint would not suffice.
2. Challenge the security if it is impaired or insufficient — the order is vacated unless it is topped up in time.
3. Check the exemptions before assuming a public body must post security.
4. Read the order for specificity and for whether it binds anyone beyond the parties.

Where these rules live

• C.R.C.P. 65 — Injunction
• C.R.C.P. 6 — Time
• Filing a Colorado civil complaint
• Colorado motion to dismiss
• Colorado depositions
• Colorado subpoenas

This page explains what the rules say. It isn't legal advice, and the substantive showing required for injunctive relief is developed in case law this site doesn't cover.