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New Warranty of Habitability law includes many changes

Zoë Fedde
Law clerk, Robinson & Henry

The amended Warranty of Habitability law goes into effect Aug. 3. The revisions impose new responsibilities on residential landlords and could spark increased litigation due to some of the language chosen by the Legislature. For this reason, it is important for landlords to familiarize themselves with the many changes.

◼︎ Change from “materially dangerous or hazardous” to “materially interferes.”The old Warranty of Habitability law required two criteria to deem a dwelling uninhabitable: The residential premises had to be unfit for human habitation; and it had to be materially dangerous or hazardous to the tenant’s life, health or safety.

The revised law, in its attempt to provide increased tenant protection, significantly lowered the criterion for a breach of habitability. The new law now only requires one or the other condition, rather than both, changing “and” to “or.”

What’s more, the new law amended the language of the second requirement.

C.R.S. § 38-12-503 of the new law will now only require that a home’s condition “materially interfere” with the tenant’s life, health or safety. The change from “materially dangerous or hazardous” to “materially interfere” can potentially generate increased litigation as tenants will have varying tolerance for what materially interfere means. The new bill does not define material interference, which leaves the interpretation up to the tenant and ultimately a judge.

◼︎ Option to provide electronic notice or “in a manner previously used.” In order to be afforded protection from a habitability issue, a tenant must provide a “reasonably complete” notice to the landlord of the issue in either written or electronic form.

If the tenant chooses to give the notice in electronic form, the tenant must send the notice only to the email address, phone number or electronic portal specified by the landlord in the rental agreement.

If this information is not provided in a rental agreement, the tenant then can communicate with the landlord in a manner that the landlord has previously used to communicate with the tenant. This means that if the landlord did not provide a provision in the rental agreement containing instructions for electronic communication, the tenant may use text messaging or any other electronic communication so long as the landlord previously communicated to the tenant in this medium.

The landlord then has 24 hours to respond to the communication, indicating how he will remedy the condition and an estimate of when the remediation will commence.

◼︎ New section for mold. The law will now afford rental tenants with protection against mold.

C.R.S. § 38-12-505 will state that mold associated with dampness that would materially interfere with the health or safety of the tenant if not remedied, will deem the premises uninhabitable.

◼︎ Requirement to maintain functioning appliances. If a landlord provided an appliance to the tenant or promised to provide an appliance as part of a written agreement, the appliance must be in good working order.

To be considered “functioning,” the appliance must conform to applicable law at the time of installation and remain in good working order throughout the leasing period. The new law defines “appliance” to include: a refrigerator, range stove or oven.

◼︎ Tenants can now request housing accommodations if a condition materially interferes with their life, health or safety. Prior to the changes, a landlord only had to provide a comparable unit in his discretion if the warranty of habitability was breached. With the new law, a tenant may now request comparable accommodations and the landlord can select either a comparable dwelling unit or hotel room.

The costs of the boarding will be the financial responsibility of the landlord, while the tenant will incur no expense. During this time, however, the tenant will still be responsible for the rent under their own rental agreement.

◼︎ Exception for certain single-family residences. If the residence is a single-family home and the landlord did not receive a subsidy from any governmental source, the landlord and tenant may agree in writing that the tenant is to perform specific repairs, including bringing the premises up to habitability.

If the tenant and landlord agree to this arrangement and the landlord fails to commence remedial action, as long as the tenant informs the landlord of a plan to do so at least 10 days prior, the tenant may deduct the costs of remediation from one or more rent payments.

◼︎ Requirement to provide updated landlord information to tenant at all times. All rental agreements now must include a statement indicating the name and address of the person who is the landlord or landlord’s authorized agent.

If the identity of the landlord or the agent changes, the new point of contact must be provided to the tenant no later than one business day after the change. The information can be given to the tenant either by written or electronic notice, or by posting the notice in a conspicuous location on the residential premises.

◼︎ Conclusion. While this summary includes most of the pertinent changes to the law, it is not an exhaustive list. For the full signed act, see House Bill 19-1170 on the Colorado General Assembly website.

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Edited by the Colorado Real Estate Journal staff.