Warranty of Habitability (Updated 2024)

There will be substantial lease revisions and procedures that need to be implemented in response to the Radon updates.

• With the new senate bill, radon disclosure laws were overhauled. In addition to buying/selling real estate, this new law also affects leasing residential properties. C.R.S. 38-35.7-112 regulates the disclosure of radon in residential real estate sales. Radon disclosure in residential leases is now governed by C.R.S. 38-12-803.
• It is now per se a breach of the warranty of habitability if radon is not disclosed as per statute. C.R.S. 38-12-503(2.4). Repealed/reenacted in 2024 updates.
• Before tenants sign a lease agreement, landlords must provide specific radon disclosure language. Moreover, landlords must provide information about radon levels in the unit, any tests they have conducted, the results, and a description of the mitigation system. It is also necessary to provide the tenant with a brochure published by the Department of Public Health about radon. 38-12-803 of the Colorado Revised Statutes).
• Upon seeing certain levels in a test, tenants are entitled to terminate their lease and vacate if they are not provided with disclosures and/or remediation within 180 days.

• Courts should "BROADLY INTERPRET" habitability statutes. The statute can be found in Colorado Revised Statutes 38-12-501. Tenants are likely to benefit from interpretations of any ambiguities in the statute.
• The definitions of disasters, extreme heat events, hotels, landlords, tenants, maintenance services, tenant organization, portable cooling devices, remedial actions, and writing have been expanded or revised. 38-12-502(1) of the Colorado Revised Statutes).
• Amendment to Warranty of Habitability to clarify that maintenance obligations continue throughout the lease term. It is governed by Colorado Revised Statute 38-12-503.

• Breach of Warranty of Habitability has been redefined and widened to include any violation of the new Habitability Laws. The statute is 38-12-503 in the Colorado Revised Statutes.
• Tenant may rebut a rebuttable presumption of breach if the landlord fails to communicate about the condition for seven or fourteen days, tenants fail to show the premises are uninhabitable.
• Defendants may rebut the presumption by demonstrating that they tried to resolve the problem and circumstances beyond their control prevented them from taking action, or that they were prohibited from doing so by tenants who denied access.
• It is the tenant's responsibility to establish the breach if this is not the case.
• No matter what the dispute is, landlords must act in good faith to rectify habitability problems
• In the event that the tenant delays or stalls the remediation, it tolls the landlord's deadlines for completing the remediation.

• A wide variety of media and notice senders are now required to comply with notice requirements. As a result, lease provisions regarding notice seem to be irrelevant. When a landlord gives verbal notice, it waives his right to receive a written notice. 38-12-503(3) of the Colorado Revised Statutes).

• In the case of material interference with health, life, and safety during remediation, the landlord must provide a comparable dwelling unit or hotel room at the landlord's expense within 24 hours of the tenant's request.
• There is now a detailed definition of comparable dwelling units. Various circumstances are outlined in the statute.
• If the tenant is displaced for more than 48 hours, full-use kitchens must be included, or else the landlord will be responsible for paying per diems to cover daily meals and incidentals. It also specifies how far away a comparable dwelling unit can be in different circumstances (5 miles, 10 miles, or closest available). It is necessary to reimburse reasonable costs associated with storage, travel, etc. Nevertheless, tenants must continue to pay their rent as usual. 38-12-503(4) of the Colorado Revised Statutes).
• After a displacement of more than 60 days, the landlord is not obligated to provide the hotel until the remediation is completed. Once the landlord informs the tenant that the condition is no longer a material life/safety issue, the date the paid accommodations cease, and the tenant may terminate the lease, the landlord is relieved from obligation to provide the hotel. It is also the landlord's responsibility to return the entire security deposit. As per Colorado Revised Statutes 38-12-503(4).

Upon termination of the lease, the landlord must retain all correspondence and documentation regarding the uninhabitable condition for a period of three years. Upon request, this file will be made available to tenant within 10 days. 38-12-503(5) of the Colorado Revised Statutes).

When a habitability condition is noticed by a landlord, landlord duties apply

• When conditions materially affect health/life/safety or an environmental public health event occurs, contact the tenant as soon as possible with details about your intentions, timeline for repairs, landlord's responsibilities, date of entry, and duration. 38-12-503(6) of the Colorado Revised Statutes).
• In the event of conditions that materially interfere with the health, safety, or welfare of individuals, remediation must begin within 24 hours. In the event of any other conditions covered by the statute, remediation must begin within 72 hours. The Colorado Revised Statutes 38-12-503(4) apply.
• A landlord is responsible for habitability repairs, except for domestic violence victims, unless the issue is caused by the occupant's misconduct. 38-12-503(7), (9) of the Colorado Revised Statutes.
• Environmental events must be remedied according to standards set forth by the American National Standards Institute (See C.R.S. 38-12-505(1)(b)(XIII)). The landlord must grant re-entry to tenants if government officials deem it safe for them to retrieve their personal belongings. In order to ensure tenant compliance with ANSI standards, landlords must provide documented proof. 38-12-503(8) of the Colorado Revised Statutes.
• Under certain circumstances, a landlord may terminate the lease if an unexpected environmental event renders occupancy impossible or illegal. The landlord must give the tenant 30 days' notice and return the security deposit and prorated rent if no comparable dwelling was available. 38-12-503(11) of the Colorado Revised Statutes.

• A 72-hour deadline is specified for mitigation, testing, filtration, and containment of mold, dampness, and leak conditions within the normal habitability remediation timelines. Renters' insurance claims cannot be forced by landlords. See Colorado Revised Statutes 38-12-503(12).

• Air conditioning and cooling systems must function as well. As per the Colorado Revised Statutes 38-12-502(1), it is not mandatory to install them if they are not already installed, unlike heating, which is always required.
• In addition to running water and hot water, common areas must be pest-free and insect-free; appropriate waste and trash receptacles must be available; elevators should be maintained (if any); compliance with building, fire, health, housing, and cleanup codes; compliance with radon regulations; compliance with cooling device requirements. 38-12-505(1) of the Colorado Revised Statutes).
• "Otherwise unfit for human habitation" was added to the catchall provision (See C.R.S. 38-12-501).
• It is not possible to restrict portable cooling devices unless they violate the law, code, safety, damage the premises, or exceed the electrical capacity of the premises. In order to provide cooling for disabled tenants, landlords must prioritize their requests. In accordance with C.R.S. 38-12-505(7). Interestingly, the law doesn't seem to cover window air conditioners that are prohibited by HOAs.
• Whenever a landlord restricts access to a property, he or she must provide information about whether cooling will be available in a common area during a heat event, and if so, if not, information about community cooling centers within ten miles of the premises. In accordance with C.R.S. 38-12-505(7).

• There must be a statement in bold-faced twelve-point type that states every tenant has a right to safe and healthy housing under the Colorado Warranty of Habitability and that landlords are prohibited by law from retaliating against tenants for reporting unsafe conditions in their residential properties, requesting repairs, or attempting to enjoy their right to safe and healthy housing. C.R.S. 38-12-505(3).
• As well as the address for mailing or personally delivering written notices concerning habitability issues, each lease must also include an e-mail address or online portal for delivering them.

It has poor weatherproofing; unsafe gas utility conditions; inadequate running water; inadequate heat October through April; electrical conditions; lack of electricity; plumbing problems; inaccessible fire exits; problems with chimneys/vents; elevator problems and accessibility issues for disabled tenants (see C.R.S. 38-12-505(4)).

• A landlord may rebut the presumption that these conditions are habitability violations by demonstrating that they do not materially interfere with life, health, or safety. 38-12-505(5) of the Colorado Revised Statutes.

• An interference or obstruction by the tenant causing difficulties for the landlord in resolving the issue.

• Among these protected tenant activities are exercising the right or remedy in these statutes in good faith or attempting to do so in good faith.
• There is now a legal definition of retaliation for non-renewal of a lease.
• Charges, costs, and penalties associated with harassment.
• Retaliation is an affirmative defense to FED cases, meaning that the court must award tenants damages of the greater of 3 months' rent or three times the actual damages, plus attorney fees and costs, if proven. Upon termination of the lease, the tenant may end the lease.

• In accordance with new C.R.S. 38-12-512, the Attorney General has the power to enforce the law
• It is possible for the attorney general to intervene in these cases and transfer them to district court for further litigation.
• Injunctions and civil penalties are available to the attorney general, as well as penalties for violations of court orders up to $10,000.