Bill Could Tighten Colorado Warranty of Habitability, Adding Deadlines | Westword


Warrant of Habitability Bill Could Put Landlords in Hot Water If Their Tenants Don't Have It

The 2008 Colorado law doesn't even have a timeline for the completion of necessary repairs; some lawmakers want to change that.
Legislation could give renters better recourse when repairs are needed.
Legislation could give renters better recourse when repairs are needed. Getty Images
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On January 11, Ryan Wilson took a very cold shower in his apartment at Venue on 16th, a luxury building next to City Park. His hot water was out.

When he got out of the shower, the heat wasn't working in his apartment, either, so now he was wet and cold. It turned out the boiler for the building was broken, causing problems with both the hot water and heating systems. Wilson pays $2,600 per month for his two-bedroom unit in the complex at 2900 East Sixteenth Avenue, and he says it took until January 26 for the boiler to be fully repaired — though intermittent fixes meant residents occasionally had hot water and heat during that period.

“In the month of January, it was eight total days without hot water and one day with no water,” Wilson recalls. “Then I think six days where they had heat issues.”

“Reasonable amounts of hot water at all times” and functioning heating facilities are required by Colorado’s Warranty of Habitability, which has governed landlord/tenant conditions since 2008, but the law states only that landlords must take steps to address those problems within 24 hours — not actually complete repairs in that time.

The Venue on 16th building is managed by Greystar, which oversees nearly 900,000 rental units across the country. According to emails sent to Venue tenants from management, there were two problems with the boiler that led to the delay in permanent repairs.

“The issues were intermittent, with only some residents experiencing warm water that was not reaching its maximum temperature, and a temporary fix was made while parts were ordered,” a building spokesperson tells Westword. “When the boiler malfunctioned, the issue was fixed within five hours. The subsequent day, the boilers were temporarily shut down for two hours to conduct additional maintenance to prevent similar issues in the future. We apologize for any inconvenience this caused our residents.“

But those residents won’t be receiving any rent concessions, and Wilson is concerned that Colorado’s laws don't do enough to protect tenants when conditions at their buildings become close to unlivable.

Wilson isn't alone in his concerns. After a power outage last August at the 1515 Flats off West Colfax Avenue, unhappy tenants reached out to state legislators, including Senator Julie Gonzales. Now lawmakers have introduced legislation aimed at making the state Warranty of Habitability more effective in dealing with renters' problems.

Senate Bill 24-094, Safe Housing for Residential Tenants, was introduced on January 24; it's sponsored by Gonzales, Senator Tony Exum and Representatives Meg Froelich and Mandy Lindsay. Many Colorado advocacy organizations support the bill, including the Community Economic Defense Project, which started out helping people facing eviction and now works more broadly toward equity for renters and other Coloradans.

“We very commonly see individuals who have bad Warranty of Habitability issues in their apartments or homes,” says Rebecca Cohn, head of CED Law, the legal arm of CEDP. “Because the Warranty of Habitability law doesn't work the way it's supposed to, it's often very difficult for them to quickly get relief.”

The bill attempts to set presumptive timelines for when repairs must be done instead of just a timeline for when the landlord should start the repair; it proposes that issues pertaining to life, safety and health must be fixed within seven days and other issues covered by the warranty must be fixed in fourteen days.

Currently, state law doesn’t specify what taking reasonable steps to begin a repair even means.

“Then, where you normally would look would be case law, and there's just very, very little case law in Colorado on the Warranty of Habitability,” Cohn says. “So what ends up happening is when this is litigated in court, it's left to the judge to come up with their own analysis, and what we typically see is it's a very low bar.”

Still, the bill’s supporters recognize that repair speed isn’t always in the landlord’s control; that’s why the timelines are presumptive. Under the proposal, if landlords can’t complete the repair within the time frame, they will have the chance to demonstrate to a judge that elements outside of their control caused the delay.

The Apartment Association of Metro Denver and Colorado Apartment Association believe that setting any timelines is going too far, however. According to Drew Hamrick, general counsel and senior vice president of government affairs for those entities, labor and materials aren’t readily available enough to support such timelines.

Elevators is a big one,” he says, noting that there are very few elevator repair companies in Colorado. “They're notoriously slow and notoriously expensive and injuriously bad at what they do. A rental housing provider has to be able to have that excuse of being able to say, ‘Judge, I've done everything I can. I am beating these people around the ears trying to get the repair, but it's just not happening.’”

The legislation would still provide landlords with that option, though. According to Cohn, the proposal could even help landlords because it would likely lead to people staying in their apartments longer, so landlords don’t have to deal with turnover costs. Tenants would benefit, too, she says, because they wouldn’t be displaced from their homes.

The bill also proposes changing the state’s notice requirements. Currently, the clock on repairs only kicks in if a tenant provides written notice to their landlord that also includes permission for their landlord to enter their unit. Due to those niche requirements, a phone call or even showing a landlord the problem in person isn’t enough, and Cohn says it puts tenants at a legal disadvantage.

“What we're proposing is that instead, all that's required is actual notice," she explains. "If the landlord is informed verbally on a phone call or in person — the tenant meets with management in their leasing office, or if the landlord comes to the unit and sees the issue with their own eyes, or a maintenance employee that works for the landlord reports to the unit and sees the issue and writes up a report — all of that would suffice."

Hamrick, however, believes that formal, written notice is important because of the legal time frames imposed on landlords to begin repairs. They need something tangible to point to if a case were to come up in court, he argues.
click to enlarge The 1515 Flats apartments near Sloan's Lake in Denver.
Residents at 1515 Flats dealt with a lack of electricity during a summer heat wave, inspiring the legislation.
1515 Flats Facebook
The legislation also clarifies when and how landlords must provide alternative lodging if a unit becomes uninhabitable because of a repair that impacts health and safety, and clarifies when tenants may withhold their rent in the case of neglected repairs.

Currently, Cohn says, the process of withholding rent is convoluted and often involves going to court. This legislation proposes making it simpler by requiring written notice that if a repair under the Warranty of Habitability isn’t completed within 72 hours of the date of that written notice, a tenant can begin withholding monthly rent.

The apartment associations argue that current law is already protective of renters, since they can sue for damages or move out without liability. In fact, that is the preferred solution for those who oppose the legislation: Just have tenants move out if repairs aren’t made.

“The whole idea is if you're not getting what you're paying for, you shouldn't have to pay for it,” Hamrick says. “In my mind, that was always a pretty good way to work things out, because a rental housing provider would be inclined to keep a place in a condition that people didn't want to move out of, and if something was seriously wrong, you'd have a remedy to do something about it.”

However, advocates point out that moving isn’t always feasible for families, especially if they have ties in the community where they live. Besides, most people can’t afford an attorney to prove to a court that they should be able to leave without liability, and most rental agreements include provisions that charge fees for early termination of leases.

Still, the apartment associations say that Colorado's Warranty of Habitability is already too broad, covering non-emergency items, and this legislation would make things worse for landlords. For proof, Hamrick uses the example of exterior receptacles for garbage cans. “Of course, everybody needs a trash can," he says, "but just imagine a situation where the trash can got stolen. That does not make your premises uninhabitable.”

But those in support of the legislation point out that for a missing trash-can fix, a two-week standard for repair would apply, so the landlord would have time to rectify the situation.

The apartment associations also suggest that a small percentage of people might use these legal changes to damage their own homes, so they can avoid paying rent or break their lease without liability.

“I don't think that is something that anyone should be concerned about,” Cohn says. “I'll speak on behalf of the clients I work with day in, day out: the lower-income individuals. They definitely don't want to have things break in their homes. It's already hard enough living paycheck to paycheck, trying to make sure that they can get the rent paid, if they can get all the rest of their bills paid, buy groceries. They are not going to be trying to inflict any additional damage on their homes.”

That's because in general, tenants want a home that is safe and livable, she adds, and current law doesn't give them enough tools to advocate for themselves without going to great expense. CEDP has found that even items currently covered under the law can go unaddressed.

"The vast majority of individuals that we work with are just desperately seeking relief, and to have their electricity functioning properly, their heat working in the winter, the rat infestation or roach infestation cleared from their home," she says. "They're not wanting to cause any more damage to their own home."

Wilson would just like to know he can stay warm...and clean. “There have to be legal rights for people in this situation,” he says. 
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