Warranty of Habitability, CRS §§ 38-12-501 et seq., 0918 COBJ, Vol. 47, No. 8 Pg. 10

AuthorLINDSAY J. MILLER, J.
PositionVol. 47, 8 [Page 10]

47 Colo.Law. 10

Warranty of Habitability, CRS §§ 38-12-501 et seq.

Vol. 47, No. 8 [Page 10]

The Colorado Lawyer

September, 2018

August, 2018

AS I SEE IT

LINDSAY J. MILLER, J.

As we approach the 10-year anniversary of "Part 5" of Title 38, Article 12,1 find myself reflecting on my experience in landlord/tenant law and the various "habitability" issues that have come across my desk over the past several years. As a landlord attorney, you'd think I would love a statute that seemingly spells out the maintenance and repair obligations of both the landlord and tenant, specifying what can happen if those obligations aren't met (especially because Part 5 is, in my humble opinion, deceptively pro-landlord in practice). But I don't.

Part 5 as written isn't working and, in my experience, creates more confusion than clarity. The complete lack of case law interpreting any portion of Part 5 is equal parts maddening, unsurprising, and enlightening. It simply needs work—and after 10 years, it's time. For example, practitioners need guidance on whether verbal notice to a landlord could ever be considered adequate actual "notice" under Part 5, thus triggering a landlord's obligation to repair a habitability issue under CRS § 38-12-507. Perhaps you all see areas for improvement too.

I get a number of calls and inquiries from tenants who don't realize I handle cases mainly for landlords. Many of these calls relate to critical matters of health or safety (pest infestations, significant mold and water damage, lack of basic necessities, etc.) and are especially concerning when young children reside in the rental property. These tenants—the very people Part 5 was seemingly designed to protect—are probably not thinking about the statutory requirements for having the best chance at lodging a habitability defense when they inevitably get sued by their landlord for failure to pay rent. These tenants also probably don't have the resources needed to litigate the extent of the protections of Part 5; their time and money are being dedicated toward securing safe housing.

The complete lack of case law interpreting any portion of Part 5 is equal parts maddening, unsurprising, and enlightening. It simply needs work—and after 10 years, it's time.

Of course, it's only a matter of time before the landlord contacts a real estate attorney (like me) to sue the tenants for breaching the lease. The story at...

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