Chapter 3 - § 3.2 • DUTY TO REPAIR BEFORE THE WARRANTY OF HABITABILITY

• Jurisdiction: Colorado

§ 3.2 • DUTY TO REPAIR BEFORE THE WARRANTY OF HABITABILITY

§ 3.2.1—Contract or Property Law?

Except for the payment of rent, no other aspect of the landlord-tenant relationship breeds as many problems as the question of repairs. The landlord's duty to repair may arise from the following situations:

1) A hazardous condition is caused by gas-burning equipment;
2) The landlord has made a binding agreement to repair the premises;
3) The landlord's failure to repair the premises violates the covenant of quiet enjoyment of the premises;
4) The repairs are for the common areas;
5) The repairs are necessary to correct a dangerous or latent defect; or
6) The premises are in a condition that is materially dangerous or hazardous to a tenant's life, health, or safety, thus triggering the protections of Colorado's warranty of habitability legislation.

Colorado case law historically limited a landlord's obligation in this area. Before 2008, attempts to legislate such a duty into the landlord-tenant relationship consistently met defeat at the state legislature and in local forums such as the Denver City Council.

The manner in which the courts have interpreted the landlord-tenant agreement has been at the root of the difficulties faced by tenants when they tried to enforce a duty to repair against landlords. The lease traditionally has been regarded as a conveyance of an interest in land, which means that property law principles rather than contract principles apply. This property law approach has produced some misguided decisions from courts. In Blackwell v. Del Bosco, 558 P.2d 563 (Colo. 1976), for example, the Colorado Supreme Court rejected the application of an implied warranty of habitability on the basis of the common law doctrine of caveat emptor (buyer beware). The decision was made even though the court acknowledged that a number of other courts had treated residential leases as contracts and implied a warranty that the residence was habitable.

With the advent of more complicated commercial leases, Colorado courts have had to recognize the limitations of property law in defining the rights and obligations of parties to the leases. Since Blackwell, at least as far as commercial leases are concerned, courts have been more receptive to arguments based on contract principles. In Schneiker v. Gordon, 732 P.2d 603 (Colo. 1987), the Colorado Supreme Court stated that a lease had a dual nature as both a contract and a conveyance of an interest in land, and that in order to "achieve a just result," contract principles had to predominate in the analysis of the lease. In so holding, the court overruled a number of long-standing landlordtenant cases. Id. at 611 n. 5.

In Dinnerware Plus Holdings, Inc. v. Silverthorne Factory Stores, LLC, 128 P.3d 245, 246-47 (Colo. App. 2004), the court stated, "Like other contracts, leases are to be construed to give effect to the intent of the parties." The court went on to interpret the phrase "provided that all other tenants are similarly obligated" as creating a condition precedent to the tenant's obligation to pay certain pass-through charges. Because the condition precedent did not occur, the tenant was not obligated to pay the pass-through charges and, therefore, could not be in default of the lease.

In the context of a residential lease, the court in Lakeview Associates, Ltd. v. Maes, 907 P.2d 580 (Colo. 1995), cited Schneiker. In deciding the scope of Colorado's premises liability statute, C.R.S. § 13-21-115, the supreme court held:

An apartment lease represents more than a unilateral obligation on the part of the tenant to pay rent. It reflects an agreement mutually obligating the tenant and the landlord. Milton R. Friedman, Friedman on Leases § 1.1 (3d ed. 1990); see Schneiker v. Gordon, 732 P.2d 603, 606, 608 (Colo. 1987) (lease is both contract and a conveyance). A lease "contemplates a continuous flow of services from landlord to tenant [including] . . . access through space not under tenant's control." Friedman, supra, § 1.1.

Id. at 584.

For more on the contract/property law debate, see Thomas W. Merrill and Henry E. Smith, "The Property/Contract Interface," 101 Colum. L. Rev. 773 (2001).

§ 3.2.2—Defective and Hazardous Gas Equipment

If a provider of gas service to a residential building becomes aware of any hazardous condition of a gas appliance, piping, or other gas equipment, and the provider informs the customer in writing of the hazardous condition, a tenant in the hazardous building may opt to vacate the premises. C.R.S. §§ 38-12-104(1) and (4).

C.R.S. § 38-12-104(4) allows a tenant to vacate premises if repairs to defective and hazardous gas equipment are not made within 72 hours after notice to the landlord. Saturdays, Sundays, and legal holidays are excluded from the computation of the 72 hours. The repair work must be done by a "professional," defined in this statute as "a person authorized by the state of Colorado or by a county or municipal government through license or certificate where such government authorization is required." C.R.S. § 38-12-104(3). Where no such authorized person is available or there are no local requirements for government authorization, "a person who is otherwise qualified and who possesses insurance with a minimum of one hundred...