What are the New Warranty of Habitability Laws in Colorado?

Posted May 23, 2024 in Landlord Tenant and Leasing, Real Estate, Uncategorized

As discussed in our summary blog here, landlord tenant law in Colorado has seen significant change since the pandemic era. Below we have provided a summary of the new laws that every landlord, property manager, and tenant needs to know. If you are a landlord, owner, or property manager, read carefully, and do your own research, as these changes may impact how your leases need to be drafted. Some changes have been repealed and re-enacted differently, so we left them in here with strike-outs.

2021 Changes (2021 Colo. S.B. 173)

New Tenant remedies for breaches of the warranty of habitability include asserting habitability as an affirmative defense in an eviction proceeding, reduction of the fair rental value of the unit, and attorney’s fees/costs if allowed (See C.R.S. 38-12-507).

2023 Changes (2023 Colo. H.B. 1254 and 2023 Colo. S.B. 206)

Natural/Environmental Disasters

• Added definitions including “environmental public health events,” such as wildfires that could impact tenants, and “vulnerable populations.” (repealed/re-enacted in 2024 updates below).
• Added habitability standards for remediation after an environmental public health event (See C.R.S. 38-12-503(2)(a)(III)). Remediation protocol must meet standard set forth in American National Standards Institute (See C.R.S. 38-12-505(1)(b)(XIII)) (repealed/re-enacted in 2024 updates below).
• Landlord must now provide documented proof to the tenant that the landlord has complied with the remediation standard noted above after an environmental public health event remediation. (See C.R.S. 38-12-503(2.7)). (repealed/re-enacted in 2024 updates below).
• Tenant may terminate the lease if the public health event damage was unable to be remediated within 60 days of notice, proper tenant notice, and inadequate alternative housing accommodations during remediation. (See C.R.S. 38-12-507(4)). (repealed/re-enacted in 2024 updates below).
• If tenant provides medical documentation that Tenant is a member of a vulnerable population, in addition to the above, tenant may terminate the lease without the 60-day requirement. (See C.R.S. 38-12-507(5)). (repealed/re-enacted in 2024 updates below)

Tenant notice of habitability breach

• In the case of a habitability issue, tenant notice standards are broadened (See C.R.S. 38-12-503(2.3)). (repealed/re-enacted in 2024 updates below).
• Added extra notice/disclosure requirements from the landlord after receipt of notice of a habitability condition from the tenant. Landlord must now tell the tenant what landlord’s legal duties are. (See C.R.S. 38-12-503(2.5)). (repealed/re-enacted in 2024 updates below).
• Clarification that habitability remediation is at Landlord’s expense (not tenant’s).

Repair/Maintenance Agreements

• Landlord/tenant agreements for tenant to perform repairs & maintenance of the premises are prohibited when the conditions needing repair or maintenance endanger the health and safety of tenant. (See. C.R.S. 38-12-506(3)).

Retaliation amendments

• Broadened what might constitute landlord “retaliation” against a tenant for reporting a habitability issue. Note that the legislature in one area has defined “retaliation” as “retaliating” and added language to allow very subjective viewpoints to argue as to what it means. (See C.R.S. 38-12-509(1)(b)).
• Specifically enumerated that retaliation is now an affirmative defense a tenant may use against an eviction. (See C.R.S. 38-12-509(1.5)).

Radon Disclosures now required

The Radon updates implicate significant lease revisions and procedures that need to be implemented

• The new senate bill set forth a whole new set of statutes about radon disclosure. This new law impacts both buying/selling real estate and leasing residential real estate. The new statutes regarding disclosure of radon in residential real estate sales are found at C.R.S. 38-35.7-112. The new statutes on radon disclosure in residential leases are found at C.R.S. 38-12-803.
• In short, failure to disclose radon per statute is now a per se breach of the warranty of habitability. (See C.R.S. 38-12-503(2.4)). (repealed/re-enacted in 2024 updates below).
• Landlords must provide specific radon disclosure language and have tenant sign it prior to signing the lease agreement. Landlords must also disclose any knowledge of radon levels in the unit, any tests done, what the results were, and a description of the mitigation system. A radon brochure published by the Department of Public Health must also be provided to the tenant. (See C.R.S. 38-12-803).
• Tenants may terminate the lease and vacate if the disclosures and/or remediation was not provided or done within 180 days of a test showing certain levels.

2024 Changes (24 Colo. S.B. 094) – significant OVerhaul of habitability statutory scheme

Miscellaneous Items

• Habitability statutes should be “BROADLY INTERPRETED” by courts. (See C.R.S. 38-12-501). This means courts will likely feel inclined to interpret any ambiguities in the statute in favor of tenants.
• Expanded/new definitions of disasters, extreme heat events, hotels, landlords, tenants, maintenance services, tenant organizing, portable cooling devices, remedial actions, and writing. (See C.R.S. 38-12-502(1)).
• Warranty of Habitability amended to clarify it includes an ongoing maintenance obligation during the entire lease. (See C.R.S. 38-12-503).

Burdens of Proof and Disputes

• Breaches of Warranty of Habitability re-defined and broadened to essentially include any violations of the new habitability laws. (See C.R.S. 38-12-503).
• Includes a new “rebuttable presumption” of a breach if tenant shows the court the premises is uninhabitable, notice was given, landlord failed to communicate about it, the condition persisted for 7 or 14 days depending on the condition.
• Landlord may rebut the presumption by showing that the landlord tried its best to remediate the issue and circumstances beyond its control caused it to persist, remedial action was impossible due to tenant denying access or causing the delay.
• Otherwise, tenant bears burden of proof to establish the breach.
• Regardless of the dispute, landlord must still act in good faith to remedy the habitability issue
• Tenants behavior to delay or stall the remediation tolls the landlord’s deadlines for performance of remediation.

Notice Requirements

• Notice requirements broadened to include basically any medium and notice sender. This appears to make notice provisions in leases useless. Leases or rules that allow verbal notice operate to waive a landlord’s right to any written notice. (See C.R.S. 38-12-503(3)).

Duties regarding alternative housing during remediation of habitability conditions

• Alternate Housing During Remediation: for conditions that materially interfere with health, life, safety, and within 24 hours of tenant’s request, the landlord must provide a comparable dwelling unit or hotel room at landlord’s cost.
• Comparable dwelling units are defined in detail now. The statute spells out what must be included in different circumstances.
• When displacement exceeds 48 hours: Full-use kitchens must be included, otherwise, landlord must pay per diem for daily meals and incidentals of tenant. The law also spells out how far away the comparable dwelling unit may be in various circumstances (5 miles, 10 miles, or closest available). Reasonable costs must be reimbursed for storage, travel, etc. However, tenant must continue paying rent as normal. (See C.R.S. 38-12-503(4)).
• When the displacement lasts beyond 60 days: If circumstances beyond landlord’s reasonable control cause the remediation to still not be done within 60 days, landlord is relieved of obligation to continue providing hotel upon notice to tenant that the condition is no longer a material life/safety issue, the date the paid accommodations cease, and that tenant may terminate the lease. Landlord must also return the full security deposit. (See C.R.S. 38-12-503(4)).

Landlord Record-Keeping

• Landlord must keep complete records of all correspondence and documentation regarding the uninhabitable condition and retain such records for 3 years after the lease ends. This file is available to tenant within 10 days of a request. (See C.R.S. 38-12-503(5)).

Landlord duties upon notice of habitability condition

• Contact the tenant within 24 hours of conditions that materially interfere with health/life/safety and within 72 hours of an environmental public health event including intentions and timeline for repairs, landlord’s duties/obligations, date of entry, and duration. (See C.R.S. 38-12-503(6)).
• When remediation must begin: within 24 hours of conditions that materially interfere with health/life/safety and within 72 hours of any other conditions covered by the statute. (See C.R.S. 38-12-503(4)).
• Habitability repairs are at landlord’s expense unless the issues are caused by misconduct of the occupants, with the exception of domestic violence victims. (See C.R.S. 38-12-503(7), (9)).
• For environmental events, Remediation protocols must meet standard set forth in American National Standards Institute (See C.R.S. 38-12-505(1)(b)(XIII)). Landlords must grant tenant re-entry if government officials deem it safe for tenants to retrieve personal belongings. Landlords must provide tenant documented proof of compliance with ANSI standards in remediation. (See C.R.S. 38-12-503(8)).
• Landlords may terminate the lease due to a sudden environmental event that renders occupancy impossible or unlawful under certain circumstances and with 30 days’ notice to tenant and return of security deposit and return of pro-rated rent for any time a comparable dwelling wasn’t provided. (See C.R.S. 38-12-503(11)).

Mold and Moisture Rules

• Statute includes mold and dampness or leak conditions in the normal habitability remediation timelines and lays out mitigation, testing, filtration, and containment protocols within a 72 hour deadline. And, landlord is not permitted to force tenant to file a claim with renters’ insurance. (See C.R.S. 38-12-503(12)).

New items added to enumerated habitability requirements (Air conditioning is now considered)

• Requirement for functioning appliances extends to existing air conditioning/cooling systems. (See C.R.S. 38-12-502(1)). However, they are not required to be installed if they are not already installed, unlike heating, which is required no matter what.
• Running water and hot water required as basic habitability condition; Common areas free of pests/insects; appropriate waste/trash receptacles and removal service; elevators maintained (if they exist); building, fire, health, housing, and cleanup code compliance; radon compliance; compliance with requirements for cooling devices. (See C.R.S. 38-12-505(1)).
• Catchall provision added to include “otherwise unfit for human habitation.” (See C.R.S. 38-12-505(1)).
• Cannot restrict portable cooling devices unless violates law, code, safety, or damages the premises, or exceeds electrical capacity.  Landlords must prioritize requests from disabled tenants who need cooling for their disability. (See C.R.S. 38-12-505(7)). Oddly, this does not seem to cover the situation where an HOA disallows window air conditioners.
• If properly restricted, landlord must disclose the restriction in writing, provide info about whether cooling will be available in a common area in a heat event, and if not, provide information on community cooling spaces within 10 miles of the premises that can be accessed during an extreme heat event. (See C.R.S. 38-12-505(7)).

New Lease Requirements

• Every lease must include a statement in twelve-point bold-faced type that states that every tenant is entitled to safe and healthy housing under Colorado’s Warranty of Habitability and that a Landlord is prohibited by law from retaliating against a tenant in any manner for reporting unsafe conditions in the tenant’s residential premises, requesting repairs, or seeking ton enjoy the tenant’s right to safe and healthy housing. (See C.R.S. 38-12-505(3)).
• Also, every lease must also state in the same font/typeface in both English and Spanish an address where a tenant can mail or personally deliver written notice of a habitability issue and an e-mail address or online portal to do so. If an online portal exists, the statement must also appear on the online portal.

Rebuttable presumption of a list of conditions that materially interfere with tenant life, health, or safety

1. 1. Lack of weatherproofing; hazardous gas utility conditions; inadequate running water; lack of heat October through April; electrical conditions; lack of electricity; plumbing issues; lack of exterior security; pests; inaccessible fire exits; issues with chimneys/vents; elevator issues and accessibility issues with disabled tenants (See C.R.S. 38-12-505(4)).
   2. Landlord may rebut the presumptions these conditions are habitability violations through clear and convincing evidence they do not materially interfere with life/health/safety. (See C.R.S. 38-12-505(5)).

Tenant remedies for breach of warranty of habitability (C.R.S. 38-12-507 repealed and re-enacted):

• Lease Termination

  • Unremedied conditions and recurring conditions allow tenant to terminate lease on ten-sixty days’ notice with some requirements.
  • Recurring conditions require notice within 30 days of the recurrence.
  • Parties may rescind the termination on agreement if the landlord is able to fix the issue

• Rent Deduction

  • Tenant may deduct cost of repair of habitability condition on 10 days’ notice prior to hiring a contractor to repair, but on 48 hours’ notice if it is a condition that materially interferes with health/life/safety, the landlord fails to repair or provide comparable dwelling unit, the repair person hired is not related to tenant and provides a reasonable estimate, the receipt is provided to the landlord within a certain time frame.
  • Tenant may replace appliances and deduct from rent (instead of repairing) if 3 days’ notice given, landlord fails to repair, comparable replacement purchased, and receipt provided to landlord within a certain time frame.
  • Landlord Remedy for wrongful deduction of rent: if tenant wrongfully deducts, landlord may be awarded double the amount in bad faith deducted.

• Tenant Claims and Counterclaims (Watch out for new attorney fee shifting provisions and landlord penalties)

  • For landlord’s breaches, tenant may recover actual damages including fair rental value, court costs, attorney fees, and punitive damages. Tenant may also seek temporary restraining orders and injunctive relief against landlord to remedy habitability issues. Tenant does not have to post bond or prove irreparable injury to obtain relief.
  • Habitability breaches may be raised as affirmative defenses by tenant in FED cases and at any time pre-trial. Tenant does not have to post bond. If tenant raises affirmative defense of habitability, Court must order parties to provide any relevant documentation to each other no less than 3 days prior to trial. If tenant proves the affirmative defense at trial, the court must deny possession to landlord, order landlord to repair condition, order damages, costs, and attorney fees to tenant, and offset any rent found to be owed.
  • If Landlord is a prevailing party in the litigation and the lease agreement allows for attorney fees, court is only allowed to award attorney fees to landlord on a finding that the tenant has filed a frivolous complaint or claim regarding habitability.

Landlord Defenses (C.R.S. 38-12-508 amendments)

• Tenant interference / obstruction causing landlord difficulty in remediation. (not much here)

Anti-Retaliation (C.R.S. 38-12-509 amendments) and Penalties against landlords

• Protected tenant activities also include exercising or attempting to exercise in good faith any right or remedy in these statutes.
• Lease non-renewal appears to now be considered retaliation. (you read that right)
• Harassment, charging fees, costs, penalties.
• Retaliation is an affirmative defense to FED cases, if proven, court must award tenant damages, the greater of up to 3 months’ rent or 3 times the actual damages, plus attorney fees/costs. Tenant may terminate the lease at that point.

No Preclusive Effect on future litigation against same landlord. (C.R.S. 38-12-511 amendments)

Attorney General Enforcement Power (new C.R.S. 38-12-512)

• Attorney general may intervene in these cases and transfer to district court for further litigation.
• Attorney general has power to obtain injunctive relief as well as civil penalties up to $20,000 for each violation, as well as up to $10,000 penalty for violating court orders.

FED Summons language changed. (See C.R.S. 13-40-111)

CONTACT AN ATTORNEY IN COLORADO TODAY

For further information and advice regarding new landlord tenant laws or habitability laws, reach out to Volpe Law today to request a consultation. We can be contacted through our online form, or you call us directly at (720) 441-3328. Our team of dedicated attorneys are here to listen and identify the best legal options for you.

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.