Colorado Warranty of Habitability

The Colorado Warranty of Habitability, established in 2008, outlines conditions that rental properties must meet to be considered fit for human habitation.

In 2024, Senate Bill 24-094 was enacted to strengthen and clarify these laws, with a focus on protecting tenants' rights and ensuring safe housing conditions.

This bill aims to establish a more comprehensive and enforceable framework for rental properties in Colorado, balancing landlords' and tenants' rights and responsibilities.

In Colorado, every rental lease carries an implied warranty of habitability, which means the landlord is legally obligated to maintain the property in a habitable state, regardless of whether it is explicitly stated in the rental agreement.

The Warranty of Habitability in Colorado imposes specific livability standards on landlords. It requires them to proactively maintain the property, address issues promptly, and keep detailed records of repairs. It provides clearer definitions, expands tenant remedies, and sets specific timeframes for landlords to address habitability issues.

Key Components of the Warranty of Habitability

The bill specifies what conditions constitute habitability, including:

• Waterproofing and Weather Protection: This means maintaining the roof, exterior walls, windows, and doors effectively to keep out rain, snow, and other elements.
• Functioning Plumbing and Gas Facilities: These systems must conform to applicable laws in effect at the time of installation and be maintained in good working order.
• Adequate Running Water and Hot Water: The property must have a consistent supply of running water, including hot water, connected to a proper sewage disposal system.
• Proper Heating and Lighting: Heating facilities must function and conform to applicable laws, while electrical lighting must be maintained in good working order.
• Clean Common Areas and Pest Control: Landlords must keep common areas clean and implement appropriate pest control measures.
• Sanitation and Waste Management: There must be adequate facilities for sanitation and waste disposal.
• Maintained Floors, Stairs, and Railings: These elements must be kept in good repair to ensure safety.
• Functional Locks on Doors and Windows: All exterior doors and windows designed to be opened must have working locks or security devices.
• Compliance with Building, Housing, and Health Codes: The premises must adhere to all applicable local and state codes. This encompasses:
  • Absence of Mold: The property should be free from harmful mold growth.
  • Functioning Appliances: Any appliances provided by the landlord must be in good working order.

Tenants Expanded Rights and Remedies

Under Senate Bill 24-094, Colorado tenants have expanded rights and remedies when facing uninhabitable conditions in their rental properties. If a landlord breaches the warranty of habitability, tenants can now exercise several options.

• If the issue remains unresolved, tenants may terminate the lease without penalty by providing 10 to 60 days' written notice.
• They can also withhold rent after giving the landlord written notice and a three-day period to address the problem.
• If the landlord fails to act, tenants can either terminate the lease or continue withholding rent until repairs are made.
• Tenants can make necessary repairs themselves and deduct the costs from their rent, provided they follow specific notification procedures.
• The bill also allows tenants to seek injunctive relief in court, including orders for specific performance.

Affirmative Defense in Eviction Proceedings

Under Senate Bill 24-094, tenants in Colorado now have the right to use a breach of warranty of habitability as an affirmative defense in eviction proceedings, including cases based on non-payment of rent. Here's how this process works:

• Raising the Defense: A tenant can raise the breach of warranty of habitability as an affirmative defense in their answer to an eviction lawsuit or in a pretrial court filing. The court is required to interpret these filings liberally to determine if the tenant is raising this defense.
• Timeframe: To use this defense, the tenant must show that the landlord breached the warranty of habitability either within 60 days before or during the period when the tenant allegedly owes rent or at any time during the tenancy if the condition continued into the period of alleged non-payment.
• Burden of Proof: The tenant needs to prove the affirmative defense by a preponderance of the evidence. They don't need to show that the uninhabitable condition still exists at the time of trial.
• Documentation: The landlord must provide any relevant documentation about the alleged breach at least 96 hours before the trial.
• Court's Decision: If the tenant successfully proves their case, the court can deny possession to the landlord, order repairs, reduce rent, award damages to the tenant, and require the landlord to pay the tenant's attorney fees and costs.
•  Partial Defense: Even if the tenant fails to prove the defense fully, they may be given 14 days to pay any owed rent before an eviction judgment is entered.

This provision gives tenants a powerful tool to ensure their right to habitable housing is protected, even in the face of eviction proceedings. It encourages landlords to maintain their properties properly and address habitability issues promptly to avoid potential defenses in eviction cases.

Anti-Retaliation Provisions

Senate Bill 24-094 significantly strengthens protections against landlord retaliation when tenants exercise their rights under the warranty of habitability. Here's an explanation of these enhanced protections:

• Expanded Definition of Protected Activities: The bill expands the list of tenant actions protected from retaliation. These now include:
  • Making good faith complaints about habitability issues to the landlord, nonprofit organizations, or government agencies
  • Organizing or joining tenants' associations
  • Exercising or attempting to exercise any right or remedy provided under the warranty of habitability law
• Prohibited Retaliatory Actions: The bill clearly defines actions that constitute retaliation, including:
  • Increasing rent or decreasing services
  • Terminating or not renewing a lease
  • Bringing or threatening an eviction action
  • Taking actions that intimidate, threaten, discriminate against, or harass a tenant
  • Charging or seeking to collect any fee, cost, or penalty from the tenant
• Retaliation as a Defense: Tenants can assert retaliation as a defense against various landlord actions, including:
  • Eviction actions based on monetary or non-monetary lease violations
  • Actions based on notice to quit or vacate
  • Non-renewal of lease
  • Non-payment of rent resulting from a retaliatory rent increase
• Burden of Proof: The bill lowers the burden of proof for tenants. They only need to show that their protected activity was a motivating factor in the landlord's decision, not the sole reason.
• Remedies for Retaliation: If a court finds that a landlord retaliated, the tenant can:
  • Recover damages of up to three months' rent or three times the actual damages, whichever is greater
  • Recover reasonable attorney fees and costs
  • Terminate the rental agreement
• No Waiver Allowed: The bill prohibits any agreement that waives or modifies these protections, ensuring tenants can't be pressured into giving up their rights.

The enhanced protections aim to ensure that tenants can exercise their rights under the warranty of habitability without fear of negative consequences from their landlords.

Documentation Requirements:

Senate Bill 24-094 introduces new requirements for landlords to maintain records of habitability-related communications and actions. Here's an outline of these requirements:

• Record Keeping Obligation: Landlords must maintain accurate and complete records of all written notices, correspondence, and documentation relevant to habitability issues and remedial actions.
• Types of Records to Maintain:
  • Written notices from tenants about habitability issues
  • Correspondence with tenants regarding these issues
  • Documentation of inspections and assessments
  • Records of repairs and maintenance actions taken
  • Invoices and receipts for work performed
  • Any agreements made with tenants regarding habitability claims
• Duration of Record Retention:
  • Records must be kept for the entire period of the tenant's occupancy
  • Records must be maintained for at least one year after the tenant vacates the property
• Accessibility of Records:
  • Landlords must provide these records to tenants upon request
  • Records must be furnished within seven calendar days of the tenant's request
• Scope of Records:
  • Include all communications described in the bill that could constitute notice of a habitability issue
  • Cover any documentation related to remedial actions taken to address habitability problems
• Format of Records: While not explicitly stated, it's advisable to keep records in both physical and digital formats for ease of access and preservation
• Use in Legal Proceedings: These records may be used as evidence in any legal proceedings related to habitability claims
• Consequences of Non-Compliance: Failure to maintain or provide these records could potentially be used against the landlord in a habitability dispute

This new record-keeping requirement aims to create a clear paper trail of habitability-related issues and actions, promoting transparency and accountability in landlord-tenant relationships. It also provides a valuable resource for both parties in case of disputes or legal proceedings related to the warranty of habitability.

Provisions for Environmental Public Health Events

Senate Bill 24-094 includes specific provisions for situations where dwelling units become uninhabitable due to environmental public health events, such as wildfires or floods. Here's a description of these provisions:

• Definition of Environmental Public Health Event: The bill defines this as a natural disaster or environmental event that could create negative health and safety impacts or make a residential premise uninhabitable.
• Landlord Responsibilities:
  • Landlords must comply with standards for remediation and cleanup of residential premises following an environmental public health event.
  • They must adhere to applicable American National Standards Institute standards and all relevant building, fire, health, and housing codes.
• Timeframe for Landlord Response: Landlords have up to 72 hours to contact tenants after becoming aware that the residential premises are inaccessible due to an environmental public health event.
• Tenant Access to Property: Once a governmental entity or official deems the dwelling unit safe for reentry, the landlord must grant the tenant or their representative access to retrieve personal property, even if the premises are still considered uninhabitable.
• Documentation of Compliance: After remedying or repairing the premises following an environmental public health event, landlords must provide tenants with documentation demonstrating compliance with required standards.
• Insurance Claims: A landlord's submission of an insurance claim for an uninhabitable or contaminated residential premises is not considered evidence of remediation.
• Termination of Rental Agreement: In cases of sudden environmental public health events that make continued occupancy impossible or unlawful, landlords may terminate the rental agreement without further liability if:
  • The landlord was not already in breach of the warranty of habitability.
  • It would be impracticable to remedy or repair the premises.
  • The landlord provides at least 30 days' written notice to the tenant.
  • The landlord grants the tenant access to retrieve personal property.
  • The security deposit is returned.
  • A prorated refund is provided for any rent paid during the uninhabitable period.
• Tenant Rights: Tenants retain the right to terminate the lease if the premises become uninhabitable due to an environmental public health event.

These provisions aim to balance the rights and needs of both landlords and tenants in extraordinary circumstances, ensuring that tenants are protected while also recognizing the challenges landlords may face in remedying damage from significant environmental events.

Cooling Devices Regulations:

Senate Bill 24-094 introduces new rules regarding tenants' rights to install and use portable cooling devices, particularly during extreme heat events. Here's an explanation of these new regulations:

• General Right to Use Cooling Devices: Landlords cannot prohibit or restrict tenants from installing or using portable cooling devices, including air conditioners or evaporative coolers.
• Definition of Portable Cooling Device: The bill defines these as air conditioners or evaporative coolers that can be mounted in a window or designed to sit on the floor. It excludes permanent cooling devices or those requiring permanent alterations to the dwelling unit.
• Exceptions to Tenant Rights: Landlords may prohibit or restrict the use of portable cooling devices if:
  • It would violate building codes, state law, or federal law.
  • It would violate the manufacturer's safety guidelines.
  • It would damage the premises or render it uninhabitable.
  • The electrical capacity of the premises cannot accommodate the device's power requirements.
• Prioritization for Tenants with Disabilities: If electrical capacity limits the use of cooling devices, landlords must prioritize allowing tenants who require cooling devices for disability accommodations.
• Landlord Disclosure Requirements: Landlords who restrict cooling devices must:
  • Disclose any restrictions to tenants or prospective tenants in writing.
  • Provide information about cooled common spaces that are available during extreme heat events.
  • If no cooled common spaces are available, provide information on nearby community cooling spaces.
• Definition of Extreme Heat Event: The bill defines this as a day when the National Weather Service has declared, predicted, or indicated a heat advisory, excessive heat watch, or excessive heat warning for the county.
• Community Cooling Spaces: Defined as public spaces within 5 miles of the residential premises that maintain a temperature no higher than 80°F. May include recreation centers, community centers, and public libraries.

These new rules aim to protect tenants' health and safety during periods of extreme heat while balancing landlords' property rights and safety concerns. They ensure that tenants have access to cooling options, either within their units or nearby, especially during dangerous heat events.

Expanded Jurisdiction:

Senate Bill 24-094 expands the enforcement capabilities for warranty of habitability laws in Colorado, particularly by empowering the attorney general and expanding county court jurisdiction. Here's a summary of these changes:

• Attorney General's New Powers: The bill grants the Colorado Attorney General the authority to independently initiate and bring civil and criminal actions to enforce the warranty of habitability laws.
  • This new power is added explicitly to the list of the Attorney General's enforcement responsibilities in the Colorado Revised Statutes.
  • It allows for state-level enforcement of habitability standards, potentially leading to more consistent and widespread compliance.
• Expanded County Court Jurisdiction:
  • The bill expands the jurisdiction of county courts in matters related to the warranty of habitability.
  • County courts are now explicitly authorized to issue injunctions in cases involving breaches of the warranty of habitability.
  • This expansion includes the ability to handle cases seeking preliminary or permanent injunctive relief for habitability issues.
• Significance of These Changes: These provisions create a multi-tiered approach to enforcing habitability standards:
  • At the local level, through expanded county court powers
  • At the state level, through the Attorney General's office This may lead to more efficient and accessible legal remedies for tenants facing habitability issues.
  • It also provides additional resources and legal avenues to ensure landlord compliance with habitability standards.
• Potential Impact:
  • These changes could result in more proactive enforcement of habitability laws.
  • They may serve as a deterrent to landlords who might otherwise neglect their properties.
  • Tenants may find it easier to seek legal remedies for habitability issues with these expanded enforcement options.

These new enforcement mechanisms strengthen the overall framework of the warranty of habitability in Colorado, potentially leading to improved housing conditions and better protection of tenants' rights.

Landlord Defenses:

Senate Bill 24-094 outlines several defenses that landlords can use against claims of breach of warranty of habitability. Here's a discussion of these defenses:

• Tenant's Actions Preventing Repairs: Landlords can defend themselves if they can demonstrate that the tenant's actions or inactions prevented them from curing the condition. To succeed with this defense, landlords must show that:
  • The tenant refused to provide or accept a reasonable alternative date and time for entry into the dwelling unit.
  • The tenant unreasonably denied entry to the dwelling unit.
  • The tenant engaged in any other action that unreasonably delayed or prevented the landlord from commencing, maintaining, or completing the remedial action.
  • The landlord must also prove that these actions made it impracticable to remedy or repair the condition reasonably.
• Tenant-Caused Damage: If the condition was substantially caused by the misconduct of the tenant, a member of the tenant's household, a guest, an invitee, or a person under the tenant's control, it does not constitute a breach of the warranty of habitability.
  • However, this defense does not apply if the condition results from domestic violence, domestic abuse, unlawful sexual behavior, or stalking, and the landlord has been notified of these circumstances.
• Conditions Caused by Third Parties: If the condition results from the action or inaction of a tenant in another dwelling unit or another third party not under the landlord's control, and the landlord has taken reasonable, necessary, and timely steps to address the condition but is unable to do so due to circumstances beyond their control, the tenant's only remedy is termination of the rental agreement.
• Compliance with Entry Protocols: Landlords can defend against claims if they can show they followed proper protocols for entering the dwelling unit to make repairs, including providing appropriate notice and attempting to schedule at reasonable times.
• Timely Response and Ongoing Efforts: Landlords can defend themselves by demonstrating that they responded to the issue within the required timeframes and have been making continuous, good-faith efforts to remedy the condition.
• Environmental Public Health Events: In cases of sudden environmental public health events that make the premises uninhabitable, landlords have specific defenses if they meet certain conditions, including providing proper notice and access for tenants to retrieve belongings.
• Challenging the Severity of the Condition: Landlords can argue that the condition does not significantly affect the tenant's ability to live in the dwelling and, therefore, does not constitute a breach of the warranty of habitability.

These defenses provide landlords with ways to contest claims of breaches of the warranty of habitability. However, the bill emphasizes the importance of landlords maintaining proper documentation and making good-faith efforts to address habitability issues promptly to support their defenses if needed.

Specific Timelines for Repairs:

Senate Bill 24-094 establishes specific timeframes that landlords must adhere to when addressing different types of repairs related to habitability issues. Here's a detailed breakdown of these timeframes:

• Initial Response Time:
  • Landlords must contact the tenant within 24 hours of receiving notice of a habitability issue.
  • Exception: For issues related to environmental public health events that make the premises inaccessible, landlords have up to 72 hours to contact the tenant.
• Communication Content:
  • The initial communication must indicate the landlord's intentions to remedy or repair the condition.
    • It must include an estimate of when remedial action will commence and when it's expected to be completed.
• Commencement of Remedial Action:
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    • For conditions that materially interfere with the tenant's life, health, or safety, remedial action must commence within 24 hours of receiving notice.
    • Remedial action must commence within 72 hours of receiving notice for other uninhabitable conditions.
• Completion of Repairs:
  • 
    
    • Conditions materially interfering with life, health, or safety must be completely remedied or repaired within 7 days of the landlord receiving notice.
    • Other uninhabitable conditions must be completely remedied or repaired within 14 days of the landlord receiving notice.
• Mold and Dampness Issues: 
  • 
    
    • Landlords must take immediate mitigation steps within 72 hours of notice, including installing containment, stopping water sources, and installing air filtration devices.
    • A complete remediation process, including post-remediation testing, must be carried out within a reasonable time.
• Entry for Repairs:
  • 
    
    • Landlords must provide at least 24 hours written notice before entering the dwelling unit for repairs.
    • Exception: No advance notice is required when the condition threatens life, health, or safety.
• Tenant's Right to Withhold Rent: 
  • 
    
    • If a landlord fails to commence repairs within 3 days of receiving notice, tenants may begin withholding rent.
• Tenant's Right to Terminate Lease:
  • 
    
    • If a condition recurs within 6 months of being repaired, tenants can terminate the lease with 14 days' notice.

Specific Timelines for Repairs:

Landlord's Opportunity to Remedy:

Senate Bill 24-094 outlines several defenses that landlords can use against claims of breach of warranty of habitability.

• Tenant's Actions Preventing Repairs:
  • Landlords can defend themselves if they can demonstrate that the tenant's actions or inactions prevented them from curing the condition.
  • To succeed with this defense, landlords must show that:
    • The tenant refused to provide or accept a reasonable alternative date and time for entry into the dwelling unit.
    • The tenant unreasonably denied entry to the dwelling unit.
    • The tenant engaged in any other action that unreasonably delayed or prevented the landlord from commencing, maintaining, or completing the remedial action.
• The landlord must also prove that these actions made it impracticable to remedy or repair the condition reasonably.
• Tenant-Caused Damage: If the condition was substantially caused by the misconduct of the tenant, a member of the tenant's household, a guest, an invitee, or a person under the tenant's control, it does not constitute a breach of the warranty of habitability.
• However, this defense does not apply if the condition results from domestic violence, domestic abuse, unlawful sexual behavior, or stalking, and the landlord has been notified of these circumstances.
• Conditions Caused by Third Parties: If the condition is the result of the action or inaction of a tenant in another dwelling unit or another third party not under the landlord's control, and the landlord has taken reasonable, necessary, and timely steps to address the condition but is unable to do so due to circumstances beyond their control, the tenant's only remedy is termination of the rental agreement.
• Compliance with Entry Protocols: Landlords can defend against claims if they can show they followed proper protocols for entering the dwelling unit to make repairs, including providing appropriate notice and attempting to schedule at reasonable times.
• Timely Response and Ongoing Efforts: Landlords can defend themselves by demonstrating that they responded to the issue within the required timeframes and have been making continuous, good-faith efforts to remedy the condition.
• Environmental Public Health Events: In cases of sudden environmental public health events that make the premises uninhabitable, landlords have specific defenses if they meet certain conditions, including providing proper notice and access for tenants to retrieve belongings.
• Challenging the Severity of the Condition: Landlords can argue that the condition does not significantly affect the tenant's ability to live in the dwelling and, therefore, does not constitute a breach of the warranty of habitability.

These defenses provide landlords with ways to contest claims of breaches of the warranty of habitability. However, the bill emphasizes the importance of landlords maintaining proper documentation and making good-faith efforts to address habitability issues promptly to support their defenses if needed.

Provision of Alternative Accommodation:

If repairs make the unit uninhabitable, landlords must provide alternative accommodation within 24 hours of the tenant's request. These timeframes are designed to ensure prompt attention to habitability issues while allowing landlords reasonable time to address different types of problems. Adherence to these timeframes is crucial for landlords to maintain compliance with the warranty of habitability and avoid potential legal consequences.

Penalties for Non-Compliance:

Senate Bill 24-094 outlines several potential consequences for landlords who fail to meet the warranty of habitability standards. Here's an explanation of these consequences: Tenant Remedies: Lease Termination: Tenants can terminate the lease without penalty if habitability issues remain unresolved. Rent Withholding: Tenants may withhold rent until repairs are made. Repair and Deduct: Tenants can make necessary repairs themselves and deduct the cost from rent. Legal Actions: Injunctive Relief: Courts can order landlords to make specific repairs or modifications to their practices. Damages: Landlords may be required to pay actual damages to tenants, which can include: Reduction in fair rental value during the period of uninhabitability Costs incurred by tenants due to the uninhabitable conditions Any other damages directly arising from the breach Punitive Damages: In cases of willful or grossly negligent violations, courts may award punitive damages to tenants. Attorney Fees and Costs: Landlords may be ordered to pay the tenant's attorney fees and court costs if the tenant prevails in a habitability claim. Rent Abatement: Courts can order a reduction in rent for the period during which the property was uninhabitable.

Affirmative Defense in Evictions:

Under Senate Bill 24-094, tenants in Colorado now have the right to use a breach of warranty of habitability as an affirmative defense in eviction proceedings, including cases based on non-payment of rent. Here's how this process works: Raising the Defense: A tenant can raise the breach of warranty of habitability as an affirmative defense in their answer to an eviction lawsuit or in a pretrial court filing. The court is required to interpret these filings liberally to determine if the tenant is raising this defense. Timeframe: To use this defense, the tenant must show that the landlord breached the warranty of habitability either within 60 days before or during the period when the tenant allegedly owes rent or at any time during the tenancy if the condition continued into the period of alleged non-payment. Burden of Proof: The tenant needs to prove the affirmative defense by a preponderance of the evidence. They don't need to show that the uninhabitable condition still exists at the time of trial. No Bond Required: Importantly, tenants are not required to deposit a bond to assert this defense. Documentation: The landlord must provide any relevant documentation about the alleged breach at least 96 hours before the trial. Court's Decision: If the tenant successfully proves their case, the court can deny possession to the landlord, order repairs, reduce rent, award damages to the tenant, and require the landlord to pay the tenant's attorney fees and costs. Partial Defense: Even if the tenant fails to prove the defense fully, they may be given 14 days to pay any owed rent before an eviction judgment is entered. This provision gives tenants a powerful tool to ensure their right to habitable housing is protected, even in the face of eviction proceedings. It encourages landlords to maintain their properties properly and address habitability issues promptly to avoid potential defenses in eviction cases.

In Conclusion

The Colorado Warranty of Habitability, as strengthened by Senate Bill 24-094, is fundamentally designed to address and prevent deplorable living conditions in rental properties. It aims to ensure all tenants have access to safe, healthy, and habitable housing. While the bill provides important protections and remedies for tenants, it's crucial to remember that these provisions address serious habitability issues, not minor inconveniences or normal wear and tear.

Tenants should exercise their rights responsibly and in good faith, understanding that the warranty is a tool for maintaining decent living standards, not a means to burden landlords unreasonably. Misuse or abuse of these protections could have unintended consequences.

Landlords faced with excessive or unfounded claims might be compelled to sell their properties rather than continue operating them as rentals, potentially reducing the overall availability of rental housing. Therefore, a balanced approach that respects both tenants' rights to habitable housing and landlords' ability to maintain and manage their properties reasonably is essential for a healthy rental market in Colorado.