Know your Obligations: Colorado’s Statutory Expansions of the Implied Warranty of Habitability Are Now in Effect

The Colorado legislature had a busy session this year.  Among the several significant bills it enacted, HB1170 strengthens tenant protections under the implied warranty of habitability.  It became effective on August 2, 2019, so landlords and tenants alike are now subject to its requirements.

The bill makes numerous changes to Colorado’s implied warranty of habitability, and interested parties should review the bill in detail.  Landlords in particular may want to consider retaining legal counsel to make sure they have proper procedures in place to promptly deal with any habitability complaints within the new required timelines.  This posting is not intended to provide a comprehensive guide to the changed law, but simply to highlight some of the most significant changes.

With that caveat, landlords and tenants should be aware that as of August 2, 2019:

• The following conditions are now deemed to make a residential residence uninhabitable for the purposes of the implied warranty of habitability:

• The presence of mold, which is defined as “microscopic organisms or fungi that can grow in damp conditions in the interior of a building.”

• A refrigerator, range stove, or oven (“Appliance”) included within a residential premises by a landlord for the use of the tenant that did not conform “to applicable law at the time of installation” or that is not “maintained in good working order.”  Nothing in this statute requires a landlord to provide any appliances, but these requirements apply if the landlord either agreed to provide appliances in a written agreement or provided them at the inception of the tenant’s occupancy.

• Other conditions that “materially interfere with the tenant’s life, health or safety.”

• A tenant may now satisfy her obligation to notify her landlord of any habitability issues electronically.  Electronic notice means “notice by electronic mail or an electronic portal or management communications system that is available to both landlord and tenant.”  If the lease specifies an email address, phone number, or electronic portal for communications with the landlord, the notice must be sent only to that specified location.

• A landlord that receives proper notice of a habitability issue must respond within 24 hours of receiving the notice.  The response must indicate the landlord’s intentions for remedying the condition, including an estimate of when the remediation will commence and when it will be completed.

• Landlords no longer have an undefined “reasonable time” to cure the problem.  Instead, upon receiving reasonably complete written or electronic notice of a habitability condition, the landlord must commence remedial action by employing reasonable efforts within the following specified time periods:

• 24 hours for conditions that “materially interfere with the tenant’s life, health or safety.”

• 96 hours for issues concerning habitability requirements that are specifically identified in C.R.S. § 38-12-505, or where the premises is “otherwise unfit for human habitation,” if the tenant included within her notice permission to the landlord or its agent to enter the residential premises.  These specific requirements include:

• Functioning appliances, if they were provided by the landlord

• Weather protection

• Plumbing or gas facilities

• Running water and reasonable amounts of hot water

• Functioning heating facilities

• Electrical lighting, with wiring and electrical equipment that complies with applicable law

• Properly maintained common areas

• Appropriate extermination of rodents or vermin infestations

• Adequate exterior receptacles for garbage and rubbish

• Properly maintained floors, stairways, and railings

• Locks on all exterior doors, and either locks or security devices on all windows that are designed to open

• Compliance with applicable building, housing, and health codes, the violation of which would constitute a condition that materially interfere with the life, health or safety of the tenant

• Lack of mold.  This provision imposes detailed obligations on a landlord that receives reasonably complete notice of mold, and a landlord receiving such notice should review these requirements or consult an attorney immediately. See C.R.S. 38-12-503(2.2).

• When a landlord receives proper notice of a condition that materially interferes with the tenant’s life, health, or safety, the landlord is now required to provide a comparable dwelling unit or hotel upon request, at no cost to the tenant, until the condition is remediated.  The tenant remains responsible for rent and any other expenses that arise after the relocation period.

• Tenants must follow detailed procedures to legally deduct the costs of repairing unaddressed habitability breaches. See 38-12-507(1)(e).  A tenant is not required to take this step, but if she opts to have the issue repaired and deduct those costs from her rent payments, she must now follow the procedures outlined in this section.

• Written rental agreements must include statements indicating the name and address of the landlord or the landlord’s authorized agent, and landlords must provide notice to tenants of any change of the landlord or its agent within one business day.

In sum, HB 1170 changes the legal landscape for habitability obligations and disputes between landlords and tenants.  These obligations are now in effect, and landlords and tenants alike should familiarize themselves with their new rights and obligations.