Chapter 3 - § 3.3 • COLORADO'S WARRANTY OF HABITABILITY

• Jurisdiction: Colorado

§ 3.3 • COLORADO'S WARRANTY OF HABITABILITY

Although at least 44 other states accepted, in various forms, the doctrine of an implied warranty of habitability of the premises, the decision in Blackwell v. Del Bosco, 558 P.2d 563 (Colo. 1976), left the adoption of such a warranty in Colorado to the state legislature, which for three decades refused to enact any such legislation. Thomas W. Merrill and Henry E. Smith, "The Property/Contract Interface," 101 Colum. L. Rev. 773, 823 n. 159, 826 n. 175 (2001). The court feared announcing a holding that might negatively influence the housing market. Apparently, landlord advocates raised the specter of increased rents and the loss of affordable housing for low-income tenants.

However, a 1987 unpublished report prepared for the Legal Aid Society of Metropolitan Denver concluded that empirical studies that addressed this question had not found any statistically significant increase in rents attributable to the recognition of the warranty. The report also concluded that "subjective assessments of the warranty's impact upon rents and low-income housing stock by tenants' advocates and landlord representatives in five selected cities have shown no perception that the warranty has significantly increased rents or substantially reduced housing stock." S. Chambers, The Warranty of Habitability and Its Effects on Rents and Housing Stock: A Summary of Studies, Observations and Opinions, at 2 (1987). Chambers's report provides a listing of the most important law review articles dealing with this subject, to the date of the report, including Duncan Kennedy, "The Effect of the Warranty of Habitability on Low Income Housing: 'Milking' and Class Violence," 15 Fla. St. U. L. Rev. 485 (1987).

Nevertheless, the tenant's request for damages based on the implied warranty of habitability was rejected in Bedell v. Los Zapatistas, 805 P.2d 1198, 1200 (Colo. App. 1991), because of the continuing applicability of Blackwell.

This history dramatically changed in 2008 with the adoption of several statutes by the Colorado legislature, which together created a warranty of habitability for Colorado. These statutes were amended in 2019 to provide additional requirements for both tenant and landlords.

Colorado's warranty of habitability is a major change in landlord-tenant relationships. Although the legislation obviously is the result of negotiation and compromise among tenant groups and advocates, landlord representatives, and the legislators who wanted to get a bill passed, the overall result is positive — for both tenants and landlords. Respective responsibilities and obligations for maintaining the premises are spelled out, and it is clearly stated that the legislature wanted to encourage landlords and tenants to maintain and improve the quality of Colorado housing, a laudable intent.

In addition to the important issues of repairs and habit-ability, the broad scope of the legislation encompasses other areas of landlord-tenant law. The warranty of habitability creates a statutory claim for wrongful eviction (see § 1.4); changes the law for awards of attorney fees in F.E.D. actions (see § 2.11); adds notice requirements to the summons for an F.E.D. action (see § 2.4); implements the doctrine of retaliatory eviction in Colorado (see § 3.2.4); and narrowly defines tenant abandonment of dwelling units (see § 4.1.2).

A summary of this legislation follows.

§ 3.3.1—Legislative Intent

The underlying purposes of the warranty of habitability are to simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants; to encourage landlords and tenants to maintain and improve housing quality; and to make uniform throughout Colorado the law regarding the obligation to maintain premises and the unlawful removal of tenants from a dwelling unit. C.R.S. § 38-12-501.

§ 3.3.2—Definitions of the Warranty of Habitability and Breach of the Warranty

Every rental agreement in Colorado entered into, extended, or renewed on or after September 1, 2008, contains an implied warranty of habitability, which means that the landlord is deemed to warrant that the residential premises are fit for human habitation. C.R.S. § 38-12-503(1).

A dwelling is uninhabitable if it substantially lacks any of the following:

(I) Functional appliances that conformed to applicable law at the time of installation and that are maintained in good working order;
(II) Waterproofing and weather protection of roof and exterior walls maintained in good working order, including unbroken windows and doors;
(III) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation and that are maintained in good working order;
(IV) 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;
(V) Functioning heating facilities that conformed to applicable law at the time of installation and that are maintained in good working order;
(VI) Electrical lighting, with wiring and electrical equipment that conformed to applicable law at the time of installation, maintained in good working order;
(VII) 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;
(VIII) Appropriate extermination

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