What is the Warranty of Habitability?

Posted on: April 16th, 2014 by sashworth No Comments

What is the Warranty of Habitability?

Written by Peter McFarland, Esq. on 4/2/2014

Prior to 2008, whether a property was fit to be rented to a tenant was left up to the landlord.  In September of 2008, however, the legal landscape changed with the enacting of the implied Warranty of Habitability.  Colorado is the 49th state to enact such legislation, joining the vast majority of jurisdictions in regulating rental property.

What is it?

Basically, the law is a double-edged sword meant to protect both landlords and tenants.  On the one hand, it imposes a duty on the landlord.  The landlord is required to provide housing that is “fit for human habitation.”  The premises must comply with this standard before it may be leased and the condition of the property must also be maintained during the tenancy.

On the other hand, the law also imposes duties on tenants.  The tenant, under the statute, has an affirmative duty to maintain housing in good, safe and reasonable condition.

What Violates the Warranty of Habitability?

The following three conditions must be met before the law is violated:

1)     The residence must be uninhabitable

2)     The residence must be materially dangerous

3)     The landlord must have received written notice of the condition and failed to cure the problem.

So looking at that first requirement, what makes a residence uninhabitable?  The residence must lack any of the following (and this list is not exhaustive):

  • Waterproofing, including unbroken windows and doors
  • Properly maintained plumbing and gas
  • Running water and reasonable amounts of hot water, which is also connected to a sewage disposal system
  • Properly maintained and functioning heat
  • Electrical lighting
  • Locks on exterior doors
  • Security devices on windows which can be opened
  • Compliance with applicable building, housing and health codes

Moving on to the second requirement, what is “materially dangerous” under the Act?  The Act is actually silent as to what would satisfy this requirement.  If you feel that a violation listed above is materially dangerous, I highly recommend you reach out to an attorney at Estill & Long, LLC or another competent professional to help you decide how to proceed and if this requirement is met.

Finally, the landlord must have received written notice of the condition and failed to cure the problem.  If you are a tenant who believes there has been a breach of the Warranty of Habitability, please reach out to us and we can assist you with notifying your landlord.  Likewise, if you are a landlord who has received notice, you should discuss the particulars of the situation with an attorney at Estill & Long, LLC who can advise you of whether it is a potential breach of the Warranty of Habitability.

What Happens if all Three Requirements are Met?

There are three possibilities if all three conditions are met and there is a breach of the Warranty of Habitability.  First, the tenant may terminate the rental agreement and surrender possession of the premises.  Second, the tenant may pursue a claim for injunctive relief, essentially forcing the landlord to remedy the problem.  Third, the tenant may sue for monetary damages.

Conclusion

The legal landscape surrounding the rental of residential property changed drastically in 2008 when the Colorado legislature codified the Warranty of Habitability.  The law is somewhat neutral, however, imposing duties on both the landlord and the tenant.  If, after reading this article, you believe your landlord or your tenant may be in violation of the Warranty of Habitability, I highly recommend you reach out to us at Estill & Long, LLC to assist you.

 About Peter McFarland, Esq.

Peter earned his Juris Doctor (J.D.) degree at the University of Denver. After becoming licensed to practice law in the State of Colorado, he earned his Master of Laws (LL.M.) in Taxation at the University of Denver. In his current role, Peter counsels real estate investors, landlords, and tenants with respect to their rights and duties under the law. He gained valuable experience as an attorney with the University of Denver’s Low Income Tax Clinic during his graduate school studies and has been counseling clients at Estill & Long, LLC since his arrival in early 2013.

 

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