Colorado Implied Warranty of Habitability for Residential Tenancies: an Overview
| Publication year | 2009 |
| Pages | 59 |
| Citation | Vol. 38 No. 5 Pg. 59 |
2009, May, Pg. 59. Colorado Implied Warranty of Habitability for Residential Tenancies: An Overview
May 2009
Vol. 38, No. 5 [Page 59]
Real Estate Law articles are sponsored by the CBA Real Estate Law Section.
Coordinating Editor
Joseph E. Lubinski, Denver, of Ballard Spahr Andrews & Ingersoll-(303) 299-7359, lubinskij@ballardspahr.com
About the Authors
Victor M. Grimm has been practicing in the area of real estate law for approximately twenty years, the last fifteen in Colorado. He and his wife, Denise E. Grimm, a certified paralegal, maintain a practice in Boulder, where they focus on real estate transactions, real estate litigation, and general commercial practice. The authors have published several books with Bradford Publishing Company.
Colorado's new law, the Implied Warranty of Habitability Act, creates minimum residential housing standards for rental units, with narrow exceptions. The statute also imposes additional requirements on tenants and clarifies certain ambiguities in the Forcible Entry and Unlawful Detainer Act. This law brings Colorado in line with forty-eight other states that already have adopted similar standards.
Colorado recently became the forty-ninth state to recognize an implied warranty of habitability affecting residential tenancy and imposing on landlords a duty to provide housing that is "fit for human habitation."(fn1) The new law, House Bill 08-1365 (Act), took effect on September 1, 2008, and pertains solely to residential tenancies, with few exceptions as discussed below.(fn2)
The Act imposes certain statutory duties on the landlord for ensuring compliance with the Act as to the condition of the leased premises (premises) throughout the tenancy (which standards must be met prior to commencement of the lease); specifically articulates the physical characteristics of a premises that must be in compliance with the Act; and allows the tenant specific remedies in the event the landlord fails to comply with the Act.(fn3) These remedies can include termination of an existing lease agreement, imposition of actual damages, and injunctive relief.(fn4) Under the Act, the tenant also has new duties to maintain the premises in good, safe, and reasonable condition(fn5) and, in certain circumstances, may assume some of the duties that otherwise would be imposed on the landlord in the event certain preconditions have been met.(fn6)
This article examines the duties imposed by the Act on both landlords and tenants. It also describes the process by which a tenant may assert a breach of this implied warranty.
The Act first provides that in every rental agreement for residential premises,(fn7) the landlord is deemed to warrant that the premises are fit for human habitation. This is referred to as the warranty of habitability.(fn8) A landlord will not be liable for breach of the warranty of habitability unless each of the following elements exist:
1) the premises is uninhabitable as defined in subsection 505(1) of the Act or is otherwise unfit for human habitation;
2) the premises is in a condition that is materially dangerous or hazardous to the tenant's life, health, or safety; and
3) the landlord has received written notice of the condition making the premises uninhabitable and dangerous and has failed to cure the problem within a reasonable time.(fn9)
The Act specifies what constitutes an "uninhabitable" condition that would give rise to a claim for breach of the warranty of habitability. Under the Act, a premises is deemed uninhabitable if it "substantially lacks" any of the following characteristics:
1) waterproofing and weather protection of roof and exterior walls maintained in good working order, including unbroken windows and doors;
2) plumbing and gas facilities that conformed to applicable law in effect at the time of installation and that are maintained in good working order;
3) running water and reasonable amounts of hot water at all times furnished to appropriate fixtures and connected to a sewage disposal system approved under applicable law;
4) functioning heating facilities that conformed to applicable law at the time of installation and that are maintained in good working order;
5) electrical lighting, with wiring and electrical equipment that conformed to applicable law at the time of installation, maintained in good working order;
6) common areas and areas under the control of the landlord that are kept reasonably clean, sanitary, and free from all accumulations of debris, filth, rubbish, and garbage and that have appropriate extermination in response to the infestation of rodents or vermin;
7) appropriate extermination in response to the infestation of rodents or vermin throughout the premises;
8) an adequate number of appropriate exterior receptacles for garbage and rubbish in good repair;
9) floors, stairways, and railings maintained in good repair;
10) locks on all exterior doors and locks or security devices on windows designed to be opened that are maintained in good working order; or
This list is not exhaustive, and it must be noted that uninhabitability also may exist if the premises are found to be "otherwise unfit for human habitation."(fn11)11) compliance with all applicable building, housing, and health codes, which, if violated, would constitute a condition that is dangerous or hazardous to the tenant's life, health, or safety.(fn10)
As noted above, uninhabitability is not the sole requirement for breach of the warranty of habitability. The premises also must be "materially dangerous or hazardous to the tenant's life, health or safety."(fn12) No further detail or definition is provided by the lawmakers as to what is materially dangerous or hazardous. However, with this...
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