Jerry Kopel

Warranty of Habitability

Mar. 29, 2008

By Jerry Kopel

Finally, a landlord-tenant measure providing for warranty of habitability has been introduced by Democrats Rep, Mike Merrifield and Sen. Ron Tupa. HB 1356 begins life in House Business Affairs.

The definition, in this 18-page measure, of warranty of habitability is:

"In every rental agreement , the landlord is deemed to warrant that the residential premises is fit for human habitation and the uses reasonably intended by the parties."

The reason why a definition is needed is because the Colorado Supreme Court has consistently held there is no "common law" right in Colorado to warranty of habitability. The court stated we are still covered by the feudal of England (land is held from a Lord on condition of rendering his feudal services) going back to medieval times under the doctrine of "caveat emptor" or "buyer beware".

This 2008 bill actually has eight concepts which makes it easier for opponents to raise objection to one concept and feel good about themselves. On the other hand, it makes it easier to remove portions and thus turn the objector into a proponent.

The concepts are (1) loser pays attorney fees (2) warranty of habitability (3) tenant's right to repair (4) mobile housing rights and duties (5) damages for breach of warranty and landlord's defenses (6) prohibition of retaliation for tenant's actions (7) unlawful removal or exclusion of tenant (8) and exemptions from the new law.

Colorado is one of only two states, the other being Arkansas, not to have either a statutory warranty law or one well-developed by a state's judiciary, providing that right for tenants who pay rent. Even Wyoming has a warranty of habitability statute.

This type of bill will cross party lines. Legislators, whether Democrats or Republicans, might vote for or against such a measure based on whether they are landlords or tenants.

In 1975, I was chief sponsor and with Sens. Dennis Gallagher (D) and Barbara Holme (D) introduced the landlord-tenant bill based in large part on the 1974 Uniform Commissioners Residential Landlord-Tenant Act. That Act did become law in about 15 states, but not in Colorado in 1975, nor in 1976.

In 1979, 80, and 81, the tenant bill was carried unsuccessfully by Kopel and Holme. In 1982, 83, 84, and 85, bills supporting tenants rights were introduced by the following Republicans: Sens. Martha Ezzard and Jim Beatty, Rep. Bill Artist and Sens. Claire Traylor and Bonnie Allison, and Sen. Sally Hopper. In 2001 and 2002, the tenant bill was carried by Rep. Richard Decker, which should have provided credibility, since he was listed in the press directory as a landlord.

The 1983 bill by Rep. Artist died by one vote in the House, cast by David Bath, who was then a Democrat. After he voted, fortunately for the Democrats, Bath switched parties.

In 2002, Sen. Mary Ellen Epps, shaken by viewing a Colorado Springs TV documentary entitled "Hall of Shame" introduced SB 118 which would allow tenants (such as families of soldiers stationed in El Paso county) unaware of major defects in the space they were renting, to terminate the lease 15 days after the landlord was notified and failed to remedy the defects.

The Epps bill wasn't a strong bill, but it was better than nothing. Sen. Epps met her match in Freda Poundstone, lobbyist for the Apartment Owners Assn., who stopped the Epps bill on a 36 to 27 vote in the House, with 34 Republicans and two Democrats voting to kill it. From 1975 on, almost all of the dead landlord-tenant bills through 2002 were on Poundstone's plate.

Bills seeking rights for tenants in Colorado have a history going back to one in1969, sponsored by Sen. Joe Shoemaker (R) and Sen. John Birminghan (R). It got nowhere.

In 1971, three Legal Aid attorneys, including future state Supreme Court Justice Jean Dubofsky, asked me to carry a tenant measure. I divided it up into four parts: (1) Security deposits carried by Rep. Reuben Valdez (D), (2) landlord's lien not allowed to cover tenant's personal exempt property, carried by Rep. Dennis Gallagher (D), (3) longer period for notice for eviction carried by Rep. Leo Lucero (D), and (4) warranty of habitability, carried by myself.

The Valdez bill was placed under a Rep. Wad Hinman (R) bill title, and the Gallagher bill under the title of a Rep., Lowell Sonnenberg (R) measure. Both passed. The other two did not.

The habitability bill of 1971 actually died in a closed Republican House caucus (there was no Sunshine law then) at the instigation of Rep. Ralph Cole (R). While there was a second reading in the House right after the caucus, there was no debate from opponents and the bill died 28 to 32, basically dying by negative votes from Republicans printed on the bill as House sponsors.

In total, between 1969 and 2007, there have been 17 to 20 tries, Democrat and Republican, but no winners on habitability, tenant repair, etc.

The courts do recognize "constructive eviction" in the 1984 case of Kirkland vs. Allen by the state Court of Appeals. The case provided the tenant with the right to damages, stating being bitten at night by rats triggered the right to withhold rent based on constructive eviction because the landlord failed to provide basic necessities.

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