Jerry Kopel

Colorado's New Warranty of Habitability


April 11, 2010

By Jerry Kopel


It took the Colorado legislature 50 years to pass a law stating that in return for rent paid by a residential tenant to a landlord, the tenant is entitled to have a place fit for a human to live in.

HB 1356 adopted in 2008 was damaged as much as possible by the landlord associations making it almost impossible to enforce, especially for tenants who were living in the worst of places.

Real estate attorney Victor M. Grimm and his certified paralegal spouse Denise Grimm examined the new law in 2009 and wrote about their findings for the May 2009 issue of the Colorado Lawyer, a publication of the Colorado Bar Association. In a July 17, 2009 column I urged legislators considering amending the law read the Grimm's non-partisan article.

The law goes beyond requiring a habitable dwelling. It must also be "the premise is in condition that is materially dangerous or hazardous to the tenant's life, health or safety".

That is NOT an alternative proof of "unfit for habitation". It is an ADDITIONAL proof required from the tenant. And the statute fails to define "materially dangerous or hazardous".

Sen. Brandon Shaffer (D-Longmont) and Rep. Michael Merrifield (D-El Paso) are attempting to fix the law through SB 185, to be voting on in the Senate April 12th. There are 18 Senate sponsors including one Republican. In the House are 25 Democratic sponsors.

SB 185 would change the breach language from "materially dangerous or hazardous to the tenant's life, health or safety" to "materially affects health or safety".

Colorado is the 49th state to adopt habitability for tenants, but the additional language places Colorado at the bottom of the United States in protection of tenants.

The Grimm article remarks that the present law does "seems apparent that a merely uninhabitable premises is not sufficient to invoke the remedies provided under the act. The premises must be both uninhabitable and dangerous or hazardous".

"Retaliation" is always a stumbling block for a tenant to cross when a claim by tenants is that the landlord violated the statute or the rental agreement by terminating the lease. Present law sets up a presumption in favor of the landlord and the tenant first has the duty to prove the landlord breached the warranty of habitability before retaliation can be considered by the court.

SB 185 repeals the landlord's presumption and the need to prove an actual statute of warranty breach. It provides money damages for tenant and attorney costs and court fees. This should be amended to provide the same recovery of funds if the landlord wins in the court hearing.

Where does the tenant go presently to obtain injunction relief for breach of warranty of habitability? Only to the district court which usually means a lag time for a court hearing. SB 185 would allow county court or small claims court to hear such matters.

Another tool useful to trip up the tenant is the "written notice" to landlord of the need to repair. In many instances this would require the use of certified mail. Add actual knowledge as an alternative to written notice. And eliminate "notice" to a "local government" without defining what the term means. Does it include a fire station or the city swimming pool attendant?

Meanwhile the construction/contractor companies and the Denver Metro Chamber of Commerce have indicated their opposition to SB 185 and have their lobbyists working to kill the bill.

Below is opposition language in newspaper ads to SB 185 with my response in parenthesis.

"This bill modifies residential warranty of habitability laws which are currently implied into every residential rental agreement. Existing law was put into place less than two years ago following extensive mediation process." (Legislators have tried to get a law passed since 1959. Requiring materially dangerous conditions for the law to apply is NOT what the rest of the nation has done in order to meet the by-state definitions.)

"The bill changes the policy by removing the requirement for a tenant to provide written notice prior to a breach of the warranty" (actual knowledge by the landlord should be added as an alternative) "...and it modifies the standard of condition that would constitute a breach" (by making the Colorado law not at the same level as the average warranty language adopted elsewhere. In Colorado a breach doesn't mean anything today unless it is materially dangerous or hazardous to life, health or safety.)

"Additionally it creates a right of action for tenants including disciplinary action and treble damages. This bill would lead to an increase in rental housing costs as well as limit the building of new properties due to possible litigation" (if the housing is in condition to house humans, the landlord has done what the law should require. If not done the tenant should be entitled to be made whole as should the innocent landlord. Legislative staff has determined there is no fiscal impact to state government.)

* * * *

The legislature can avoid a cost to the court system by making the changes. The conclusion by the Grimms was "the act contains its share of ambiguities and unanswered questions which presumably will be addressed by the courts and/or the Legislature in the years to come." Or in 2010.

(Jerry Kopel served 22 years in the Colorado House and carried a number of bills that attempted unsuccessfully to adopt a warranty of habitability.)

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