§ 38-12-503 — Warranty of habitability - notice - landlord obligations

Colorado § 38-12-503

• Jurisdiction: Colorado
• Title 38: Property -
• Art.: Tenants and Landlords

Text

(1) In
every rental agreement, the landlord is deemed to warrant that the residential
premises is fit for human habitation at the inception of the tenant's occupancy and
that the landlord will maintain the residential premises as fit for human habitation
throughout the entire period that the tenant lawfully occupies the residential
premises or dwelling unit.

(2) A landlord breaches the warranty of habitability set forth in subsection (1)
of this section if:

(a) A residential premises is:

(I) Uninhabitable as described in section 38-12-505; or

(II) In a condition that materially interferes with the tenant's life, health, or
safety; and

(b) The landlord has notice, as described in subsection (3)(e) of this section,
of the condition described in subsection (2)(a) of this section and:

(I) Has failed to commence remedial action in accordance with subsection (4)
of this section within the following period after having notice:

(A) Twenty-four hours, where the condition materially interferes with the
tenant's life, health, or safety; or

(B) Seventy-two hours, where the residential premises are uninhabitable as
described in section 38-12-505 or otherwise;

(II) Has commenced remedial action, in accordance with subsection (4) of
this section, within the period described in subsection (2)(b)(I) of this section, but
failed to continue performing the remedial action as needed until the condition was
remedied or repaired;

(III) Has failed to completely remedy or repair the condition within a
reasonable time after commencing remedial action;

(IV) Has failed to comply with subsection (8) of this section concerning a
residential premises that has been damaged due to an environmental public health
event; or

(V) Leases a residential premises to a tenant and the residential premises is
in an uninhabitable condition at the inception of the tenant's occupancy.

(3) (a) There is a rebuttable presumption that a landlord has failed to
commence remedial action, continue performing remedial action, or completely
remedy or repair a condition that renders the residential premises uninhabitable
within a reasonable time if the tenant establishes that the residential premises is
uninhabitable, as described in subsection (2)(a) of this section, the tenant
establishes that the landlord has notice of the uninhabitable condition, as described
in subsection (3)(e) of this section, and:

(I) The landlord has failed to communicate with the tenant after having
notice of a condition within the time frame required under subsection (6) of this
section; or

(II) The condition continues to exist:

(A) Fourteen calendar days after the landlord received notice of the
condition, where the residential premises are uninhabitable as described in section
38-12-505 or otherwise; or

(B) Seven calendar days after the landlord received notice of the condition,
where the condition materially interferes with the tenant's life, health, or safety.

(b) (I) A landlord may rebut the presumption described in subsection (3)(a) of
this section by establishing, by a preponderance of the evidence, that:

(A) The landlord commenced and continued performing remedial action but
the condition could not be completely remedied or repaired due to circumstances
outside the landlord's reasonable control;

(B) Remedial action would require entry to the tenant's dwelling unit and the
tenant unreasonably denied the landlord entry to the dwelling unit; or

(C) The tenant engaged in conduct that unreasonably delayed or otherwise
prevented the landlord from commencing remedial action within the time period
described in subsection (2)(b)(I) of this section, from continuing to perform remedial
action, or from completely remedying or repairing the condition within a reasonable
time.

(II) A tenant otherwise has the burden of proof to establish a breach of the
warranty of habitability.

(c) Notwithstanding the circumstances described in subsection (3)(b)(I) of
this section, a landlord must reasonably continue to make efforts to commence or
continue performing remedial action to remedy or repair a condition that renders
the tenant's residential premises uninhabitable and for which the landlord has
notice. These efforts to commence or continue performing remedial action shall
include prompt correspondence and good faith cooperation with the tenant and
may require prompt correspondence and good faith cooperation with maintenance
staff, third-party contractors, a government official, or any other person whose
involvement is necessary to remedy or repair the condition.

(d) If a tenant denies entry to the dwelling unit and entry to the dwelling unit
is necessary to commence or continue performing remedial action, the presumptive
time periods described in subsection (3)(a)(II) of this section are tolled until the date
that the tenant proposes as a reasonable alternative date and time for entry or
another date and time that the landlord proposes and to which the tenant agrees in
accordance with subsection (6)(b) of this section.

(e) A landlord has notice of a condition described in subsection (2)(a) of this
section if there is any writing that provides a basis for the landlord to substantially
know that the condition exists or may exist, including:

(I) Written notice from a governmental entity regarding the condition;

(II) Written notice from a third party regarding the condition;

(III) Written notice from a tenant concerning a condition that may affect
multiple tenants;

(IV) A tenant's written correspondence with maintenance staff or a
maintenance service provided by the landlord, including a maintenance service
provided by a third party;

(V) Written observations or written reports that the landlord has obtained
personally, directly, or indirectly; or

(VI) Written notice from the tenant regarding the condition, which notice is
sent in a manner that the landlord typically uses to communicate with the tenant.

(f) (I) Any notice provided by a tenant is sufficient if the notice is provided to
the landlord in a manner that is required or permitted by the rental agreement or by
any property rules or regulations pertaining to the tenancy or residential premises.

(II) A rental agreement or property rule or regulation pertaining to a tenancy
or residential premises that states that a tenant may or must give notice of an
uninhabitable condition to the landlord verbally waives the landlord's right to
receive written notice under subsection (3)(e) of this section.

(4) (a) (I) Upon having notice of a condition described in subsection (2)(a) of
this section, a landlord shall commence remedial action within the time period
described in subsection (2)(b) of this section unless the circumstances described in
subsection (3)(b)(I) of this section prevented the landlord from commencing
remedial action.

(II) If the condition materially interferes with the tenant's life, health, or
safety or is a condition described in section 38-12-505 (4)(l), remedial action must
include a landlord providing the tenant, at the request of the tenant and within
twenty-four hours after the tenant's request:

(A) A comparable dwelling unit, as selected by the landlord, at no cost to the
tenant; or

(B) A hotel room, as selected by the landlord, at no cost to the tenant.

(b) (I) A comparable dwelling unit or hotel room must include at least the
same number of beds as there are beds used in a tenant's dwelling unit.

(II) If a tenant requires a comparable dwelling unit or hotel room for more
than forty-eight hours:

(A) The comparable dwelling unit or hotel room must include a refrigerator
with a freezer and a range stove or oven; or

(B) The landlord must provide a per diem for daily meals and incidentals for
each tenant in an amount that is at least equal to the Colorado state employee per
diem for intrastate travel as established by the department of personnel. The
landlord must provide the per diem to the tenant at the time the landlord
reasonably expects the tenant to be in a comparable dwelling unit or hotel room for
more than forty-eight hours and for every twenty-four-hour period thereafter.

(III) (A) A comparable dwelling unit or hotel room must be habitable,
accessible to an individual with disabilities if the tenant has a disability, and located
within five miles of the tenant's dwelling unit, unless the tenant consents at the
time of the request or after the request to a comparable dwelling unit or hotel room
that is further than five miles from the tenant's dwelling unit.

(B) The landlord may select a comparable dwelling unit or hotel room that is
further than five miles but less than ten miles from the tenant's dwelling unit if the
comparable dwelling unit or hotel room that is further away from the tenant's
dwelling unit is substantially less expensive than other options that are available
within five miles of the tenant's dwelling unit.

(C) If a comparable dwelling unit or hotel room within five or ten miles of the
tenant's dwelling unit is not available for the tenant's use in accordance with
subsections (4)(b)(III)(A) and (4)(b)(III)(B) of this section, the landlord must select the
nearest available comparable dwelling unit or hotel room.

(IV) If a tenant is relocated pursuant to subsection (4)(a) of this section, a
landlord is required to pay for only the following expenses that arise from
relocating the tenant:

(A) A per diem allowance pursuant to subsection (4)(b)(II)(B) of this section;
and

(B) Reasonable costs that are incurred due to the tenant's relocation,
including storage and transportation costs.

(V) A relocated tenant remains responsible for any portion of the rent
payment owed under the rental agreement during the period of any temporary
relocation and for the remainder of the term of the rental agreement following
remediation.

(c) If a tenant is provided a hotel room due to a condition described in
subsection (4)(a)(II) of this section and the condition cannot be remedied or repaired
within sixty consecutive days due to circumstances outside the landlord's
reasonable control, the landlord is required to provide the hotel room to the tenant
for only up to sixty consecutive days. The landlord is relieved of the landlord's
obligation to provide hotel accommodations to the tenant if the landlord:

(I) Determines that the condition at the residential premises cannot be
remedied or repaired within sixty consecutive days due to circumstances outside
the landlord's reasonable control;

(II) Provides the tenant, at the earliest opportunity, written notice that
specifies:

(A) That the uninhabitable condition at the residential premises cannot be
remedied or repaired to a condition that no longer materially interferes with a
tenant's life, health, or safety within sixty consecutive days from the start of the
tenant's hotel stay;

(B) The date that the tenant's hotel accommodations will no longer be
provided to the tenant at the landlord's expense, which date must be no earlier than
sixty consecutive days after the start of the tenant's hotel stay at the landlord's
expense; and

(C) That the tenant may terminate their rental agreement with no liability or
financial penalty to the tenant; and

(III) Returns to the tenant the tenant's full security deposit on or before the
date that the landlord provides the tenant notice in accordance with subsection
(4)(c)(II) of this section.

(5) (a) A landlord shall maintain accurate and complete records of all written
notices and correspondence, as described in subsection (3)(e) of this section, and
all documentation relevant to any uninhabitable condition or remedial action taken
to remedy or repair a condition that renders a tenant's dwelling unit uninhabitable.

(b) A landlord must maintain the records described in subsection (5)(a) of
this section for the entire period of the tenant's occupancy of the dwelling unit and
for at least three years thereafter.

(c) A landlord shall provide to a tenant, upon request by the tenant, any
record, notice, correspondence, or other documentation related to a condition or
remedial action within ten calendar days after the tenant's request.

(6) (a) A landlord that has notice of a condition described in subsection (2)(a)
of this section shall:

(I) Contact the tenant not more than twenty-four hours after receiving the
notice; except that a landlord may take up to seventy-two hours to contact the
tenant after the landlord has notice that the residential premises is inaccessible
because of an environmental public health event. The communication must indicate
the landlord's intentions to remedy or repair the condition, including an estimate of
when the remedial action will commence and when it will be completed.

(II) Inform the tenant of the landlord's responsibilities under subsection (4) of
this section, including the landlord's obligation to provide the tenant a comparable
dwelling unit or hotel room at no cost to the tenant; and

(III) Provide the tenant with written notice at least twenty-four hours in
advance of entry to the dwelling unit if entry to the dwelling unit is necessary to
commence or maintain remedial action; except that the landlord is not required to
provide advance notice when the condition materially and imminently threatens an
individual's life, health, or safety or when the condition poses an active and ongoing
threat of causing, and, without immediate remediation, would cause, substantial
and material damage to the residential premises.

(b) (I) A landlord shall provide the date and time the landlord intends to enter
a tenant's dwelling unit and a reasonable estimate of the duration the landlord, or
any other party acting on behalf of the landlord, will need to be in the tenant's
dwelling unit.

(II) Except as provided in subsection (6)(a)(III) of this section, a tenant may
reasonably deny entry to the dwelling unit at the date and time the landlord
requests entry. The landlord must then propose and the tenant may accept or
propose a reasonable alternative date and time for the landlord to enter the
tenant's dwelling unit.

(III) A tenant may permit the landlord to enter the dwelling unit with less
than twenty-four hours advance notice.

(7) A landlord that has notice of a condition, as described in subsection (2)(a)
of this section, at the tenant's dwelling unit or the residential premises is
responsible for remedying and repairing the dwelling unit or residential premises to
a habitable standard at the landlord's expense, except as described in subsection
(9) of this section.

(8) (a) A landlord that has notice of a condition, as described in subsection
(2)(a) of this section, at a residential premises that has been damaged due to an
environmental public health event shall comply with the standards described in
section 38-12-505 (1)(b)(XIII) within a reasonable amount of time given the condition
of the premises and at the landlord's expense.

(b) Once a governmental entity, government official, law enforcement
officer, or public safety officer deems a tenant's dwelling unit safe for reentry after
an environmental public health event, the landlord must grant the tenant or
tenant's representative access to the dwelling unit for the purposes of retrieving
the tenant's personal property, even if the residential premises that includes the
tenant's dwelling unit is considered uninhabitable under this section.

(c) A landlord that has remedied or repaired a residential premises to a
habitable standard following an environmental public health event shall provide the
tenant with documentation that demonstrates compliance with the standards
described in section 38-12-505 (1)(b)(XIII).

(d) A landlord's submission of an insurance claim for an uninhabitable or a
contaminated residential premises after the landlord has notice of a condition that
renders the residential premises uninhabitable after an environmental public health
event is not considered evidence of remediation.

(9) When a condition described in subsection (2)(a) of this section is
substantially caused by the misconduct of the tenant, a member of the tenant's
household, a guest or an invitee of the tenant, or a person under the tenant's
direction or control, the condition does not constitute a basis for a breach of the
warranty of habitability under subsection (2) of this section. It is not misconduct
under this subsection (9) by a victim of domestic violence; domestic abuse; unlawful
sexual behavior, as described in section 16-22-102 (9); or stalking if the condition is
the result of domestic violence; domestic abuse; unlawful sexual behavior, as
described in section 16-22-102 (9); or stalking and the landlord has notice at any
time of the domestic violence; domestic abuse; unlawful sexual behavior, as
described in section 16-22-102 (9); or stalking, as described in section 38-12-402
(2)(a).

(10) Except as set forth in this part 5, any agreement waiving or modifying
any right, remedy, obligation, or prohibition provided in this part 5 is void as
contrary to public policy.

(11) A landlord may terminate a rental agreement, if permitted by the rental
agreement and without further liability to the landlord or tenant, if the residential
premises is damaged as a result of a sudden environmental public health event or
an action taken by a governmental authority that renders continued occupancy of
the residential premises impossible or unlawful and:

(a) The landlord was not already in breach of the warranty of habitability
prior to the sudden environmental public health event or government action;

(b) It would be impracticable for the landlord to remedy or repair the
residential premises into compliance with the warranty of habitability due to the
sudden environmental public health event or government action;

(c) The landlord gives a minimum of thirty days' written notice to the tenant
concerning the termination of the rental agreement due to the sudden
environmental public health event or government action and complies with all
landlord obligations under this part 5 through the date of termination;

(d) The landlord grants the tenant or tenant's representative access to the
tenant's dwelling unit for the purpose of retrieving the tenant's personal property
prior to the termination of the rental agreement; except that, if it is unsafe to enter
the dwelling unit prior to termination of the rental agreement, the landlord shall
agree in a signed writing to grant the tenant or tenant's representative access to
the dwelling unit to retrieve personal property at the earliest possible time that it is
safe to do so;

(e) Notwithstanding section 38-12-103, the landlord returns the tenant's
security deposit prior to or on the date of the termination of the rental agreement;
and

(f) The landlord provides a prorated discount or refund for any portion of rent
paid during the time that the dwelling unit is uninhabitable and for which a
comparable dwelling unit or hotel room was not provided to the tenant.

(12) (a) Unless the circumstances described in subsection (3)(b)(I) of this
section prevented a landlord from commencing remedial action, the landlord shall
commence remedial action within the period described in subsection (2)(b) of this
section upon having notice of:

(I) Mold associated with dampness in a dwelling unit; or

(II) Any other condition causing the residential premises to be damp, which
condition, if unremedied or unrepaired, could create mold or would materially
interfere with the life, health, or safety of a tenant.

(b) The remedial action required pursuant to subsection (12)(a) of this section
must include performing all of the following applicable tasks within a reasonable
amount of time:

(I) Mitigating immediate risk from mold by installing a containment, stopping
active sources of water contributing to the mold, installing a high-efficiency
particulate air filtration device to reduce a tenant's exposure to mold, and
performing all of these tasks within seventy-two hours after receiving notice of the
condition;

(II) Maintaining the containment described in subsection (12)(b)(I) of this
section throughout the remediation and repair process;

(III) Establishing any additional protections for workers and occupants that
may be appropriate given the condition;

(IV) Eliminating or limiting moisture sources and drying all materials
impacted by the mold or dampness;

(V) Decontaminating or removing materials damaged by mold or dampness;

(VI) Evaluating whether the residential premises has been successfully
remediated, including post-remediation testing for the existence of mold; and

(VII) Reassembling the residential premises to control sources of moisture to
prevent or limit the recurrence of mold or dampness.

(c) If the condition described in subsection (12)(a) of this section would
interfere with the tenant's life, health, or safety, the landlord must provide, at the
request of the tenant, a comparable dwelling unit or hotel room in accordance with
subsection (4) of this section.

(13) (a) A landlord shall not require a tenant to submit an insurance claim
with the tenant's rental insurance carrier to cover a cost or expense related to
remedial action that the landlord is responsible for paying under this part 5.

(b) A landlord is prohibited from filing a claim with a tenant's rental
insurance carrier to cover a cost or expense related to remedial action that the
landlord is responsible for paying under this part 5 without express written
permission from the tenant provided at the time the claim is submitted.

(14) A landlord shall hire a professional, as defined in section 38-12-104 (3),
to remedy or repair a hazardous condition related to gas piping, gas facilities, gas
appliances, or other gas equipment at a residential premises.

Legislative History

Source: L. 2008: Entire part added, p. 1821, � 3, effective September 1. L. 2017: (3) amended, (HB 17-1035), ch. 276, p. 1515, � 2, effective June 1. L. 2019: (2), (3), and (4) amended and (2.2), (2.3), and (2.5) added, (HB 19-1170), ch. 229, p. 2306, � 3, effective August 2. L. 2023: (2)(a), (2.3), (2.5), and IP(4)(a) amended and (2.7) added, (HB 23-1254), ch. 169, p. 825, � 3, effective May 12; IP(2) amended and (2.4) added, (SB 23-206), ch. 356, p. 2138, � 4, effective August 7. L. 2024: Entire section R&RE, (SB 24-094), ch. 158, p. 704, � 3, effective May 3.