The Warranty of Habitability – No longer Waivable in Colorado.

Most landlords have a vague knowledge of the implied warranty of habitability but don’t have firm understanding of what it actually means for them or their tenants.  Originally an implied warranty in the truest sense: i.e., one implied by precedent handed down by courts, today the implied warranty of habitability is defined by statute in 49 of 50 U.S. states.  Colorado became the 2nd to last state to adopt a statutory implied warranty of habitability in 2008.  On first blush, this may seem like old news but I frequently talk with landlords and even other attorneys who are unaware of the addition to Colorado’s landlord-tenant statute.  This may be due to the upheaval in the real estate world that manifested in 2008.  

Waivers of The Implied Warranty of Habitability Are Ineffective in Colorado.

On October 1, 2008, Colorado’s legislature enacted the Colorado Implied Warranty of Habitability Act. CRS 38-12-501, et.  By doing so it required residential landlords to provide and maintain premises that are suitable for human habitation. As mentioned, case-law has long provided some degree of protection for tenants against by holding landlords to an implied warranty of habitability, unless of course the lease document provides for a waiver of such implied warranties.  Most standard apartment complex leases in Colorado, contained such waivers and it is my experience that many still do.  Under the new Colorado law, the warranty cannot be waived.     

The law specifies numerous conditions that constitute uninhabitable premises per se.  These include: a lack of water-proof and weatherproof windows, doors and roofing;  non-functional plumbing or gas facilities; lack of running water, sewage disposal or a reasonable amount of hot water; non-functioning and non-compliant heating systems; non-working electrical systems; common areas that are not free of garbage, filth, rodents or vermin; lack of appropriate extermination in response to infestations on the Premises; lack of adequate exterior waste receptacles; floors, stairs and railings not in good repair; and non-compliance with applicable building, housing and health codes.  The list is not exhaustive and the law contains a catch all clause providing that premises may be uninhabitable if found to be otherwise unfit for human habitation.

In Addition to Establishing A Condition Rendering Uninhabitable, Premises Must Be Materially Dangerous and the Condition Must Remain Un-Remedied.

The presence of one or more of the per-se conditions does not alone, render a landlord in violation of the habitability statute.  In addition to the conditions being present, those conditions must actually be materially dangerous or hazardous to the tenant’s life, health or safety.  Further, the condition must remain un-remedied after two notices by the tenant.  The tenant must deliver one notice specifying the conditions rendering the premises uninhabitable and demanding that Landlord cure the conditions.  If the Landlord does nothing or fails to cure the condition within a reasonable time after receiving this first notice then the tenant may deliver a second notice, terminating the lease at least 10 days after the date of the second notice and at most 30 days after the date of the second notice.  The landlord still has a chance to save the lease by curing the situation within 5 business days after receiving the second notice. If it fails to do so then the tenant may terminate the lease.  The statute provides that the Landlord can cure the situation by relocating the tenant into comparable space that is habitable and that is not dangerous.   If the landlord opts for the relocation remedy them the landlord is obligated to pay the tenant’s moving expenses.

In certain situations, the tenant’s only remedy under the statute is termination.  If the landlord cannot control the situation causing the uninhabitable state of the premises and has made reasonable and timely efforts to resolve the uninhabitable condition, the only remedy available to the tenant is termination of the lease.  The law also provides that a tenant may ask a court to award an injunction, effectively ordering the landlord to remedy the situation. Additionally, tenants may request damages and pursuant the statute, the court must determine the amount of actual damages due and owing to the tenant at the time it awards any injunction.  The damages may include the reduction of rent to the fair market rental value of the premises.  Under the statute, if a landlord tenders the amount of damages to the Court within two (2) business days after the order is issued, then the court will not enforce the injunctive relief under the order and will release the damages to tenant upon application.   Effectively, a damages award is an alternative to an injunction under the statute.  This makes sense, if the condition is quantified and offset against the rent pursuant to the Court’s order.

The Colorado statute also addresses circumstances where uninhabitable conditions are actually caused by the tenant and affords some protection for landlords.  I will explain that aspect of Colorado’s implied warranty of habitability statute in a future blog-post.