“Colorado is one of the worst states in the country for renters,” state Representative Serena Gonzales-Gutierrez
pronounced during a legislative hearing this past session. “This was a problem before COVID, but the pandemic has made this problem worse and brought them into the spotlight."
In a November survey, ServiceMaster
focused on tenant and landlord relationships in every state. It reported that more than half — 57 percent — of renters in Colorado believe that landlord-tenant laws are stacked against them. "As part of our service, much of our work brings us into contact with tenants who have become exasperated with their landlords' lack of interest in fixing issues within their homes," says Diana Rodriguez-Zaba of ServiceMaster, which provides water, fire and mold restoration services around the country. "We thought this would be an interesting study to run, in order to establish the extent of landlord apathy, and perhaps raise awareness of this issue. It appears property laws are heavily stacked in landlords' favor."
Only renters in Iowa, Arizona, Texas, Arkansas and North Carolina rated their relationships
worse than tenant-landlord dealings in Colorado.
The inequalities between renters and property owners were supposed to be balanced by Colorado’s 2008 warranty of habitability law, which was designed to ensure minimum housing standards to protect tenants from unsafe and uninhabitable living conditions in their units. "That seemed like it was a watershed moment and was a time where we saw more renter protections coming through," says Jack Regenbogen, a policy advocate and tenant lawyer with the Colorado Poverty Law Project.
Before the warranty of habitability became law, tenants only had the option of suing their landlord for breaking provisions stated in a lease agreement, according to Drew Hamrick of the Colorado Apartment Association, who was a part of the task force that worked on the law in 2008.
A landlord breaches the warranty of habitability if a unit lacks sufficient running water, heating and cooling services, and weather protection; lacks security because of inadequate windows and doors; or has lighting, plumbing and other equipment that does not meet basic safety standards. The law also requires the unit to be free of rodent and pest infestations.
But making sure the law is enforced isn't cheap. When a tenant believes that a landlord has broken the warranty of habitability, it's still the tenant's responsibility to prove it — and that often requires securing legal representation. If a tenant withholds rent because a landlord has broken the warranty of habitability, the tenant can file a counterclaim with the court during an eviction case — after posting a costly bond with the court.
"The bond is a mechanism to prove that they have the money to pay the rent. If they're not paying rent for the reason that they can't afford it, that's a whole different story," says Hamrick. "Putting a bond requirement ensures that everybody is honest and stops tenants from fabricating a warranty of habitability claim."
Seeing problems with the warrant of habitability law, in 2012 state senator Irene Aguilar introduced the proposed Uniform Residential Landlord & Tenant Act
, which would have granted extensive rights to renters in Colorado. It didn't pass. But in the last session, legislators were able to pass a bill that does improve some protections for tenants: Senate Bill 173.
That 2012 proposal included protections similar to those guaranteed by the 2019 Mobile Home Park Act Oversight
, which enables mobile home park residents to file a complaint through the Division of Housing, provides pathways to dispute resolution, and imposes limitations on security deposits and attorney fees, as well as a landlord's ability to impose certain rules. At the same time, the legislature passed the Rental Application Fairness Act, which prohibits landlords from charging excessive fees that don't align with actual costs.
Regenbogen suggests that Colorado should now form a government-backed agency to protect all renters similar to the one created by the Mobile Home Park Act Oversight
"Historically, Colorado has had many more homeowners than renters, especially as a Western state, and the laws have always tended to favor the landowner. As the demographics change, the law hasn't always kept pace," says Regenbogen, who notes that historically, more state legislators have been homeowners than renters. "The landlord lobby itself is very powerful and tends to have more money to be able to influence the political process."
Tenant advocates say that protections for renters became more important than ever during the pandemic. Since it began providing epidemic-related rental assistance services, the Department of Local Affairs has been collecting data on how some landlords add predatory fees to increase rent, including such things as charging for pest control or other services without providing them, or adding move-out fees.
"Those provisions continue to show up in legislation and impact tenants, which is really frustrating,” says Jason Legg, an attorney at Cadiz Law who works with 9to5 Colorado and is representing tenants at Mint Urban Infinity who filed a class-action lawsuit against the property in October. "It has a perverse impact of making tenants feel entrapped."
Brandon Smith, the lead plaintiff in that complaint, spent months organizing, collecting signatures, fundraising and contacting the Denver Department of Public Health and Environment (DDPHE) to inspect units. “What’s frustrating is that even if the landlord is mandated by the state to make repairs, they are given weeks or months to remedy the situation," says Smith. "The law shouldn’t require tenants to fundraise to have the state pay attention to crime, and that’s exactly what is happening here.”
"We see leases that include clauses that are just astonishing," Regenbogen says. "We've seen leases that require tenants to pay thousands of dollars if they want to move out early, or make them waive their right to a class-action lawsuit or a jury trial. We see clauses that favor the landlord and that aren't equitable. And they're perfectly legal."
Plenty of tenants were struggling to make rent before the pandemic, but after it hit, those financial hardships had them walking a thin line between being housed or unhoused. Concerned lawmakers saw the opportunity — and need — to expand renters' rights. SB 173 was the result.
“Imagine a single mom working multiple jobs to scrape by. Now imagine that her apartment lacks functioning heat or that it's infested by bed bugs, and she’s complained about these things multiple times to no avail," Javier Mabrey, a tenant lawyer, testified at a hearing for SB 173. (Mabrey is now a candidate for the Colorado House.) "If she falls behind on her rent because she loses one or both of those jobs, which happened to many Coloradans during the pandemic, she will not be able to bring up the bed bugs or the broken heater and defend herself."
Protections under SB 173 enable tenants with a household income of less than 250 percent of the federal poverty line to bring a warranty of habitability argument to the court without having to pay a bond first. The law also caps late fees at $50 or 5 percent of the amount owed that month, depending on which amount is greater. In addition, it outlaws evicting tenants based on unpaid late fees alone, blocks interest on late fees and gives renters seven days to pay rent before a landlord can charge a late fee.
"I think we had fallen pretty behind as it relates to tenant rights," says Gonzalez-Gutierrez of SB 173, which became law in October. "The new bill has helped us come a long way.”
Denver, too, stepped up this past year to defend tenants. In May, Denver City Council passed new landlord licensing requirements as part of Denver's Healthy Residential Rentals for All, an initiative modeled after Boulder's rental housing license requirement
Starting in 2023, landlords in Denver will be required to obtain a
license from the city before renting their units. The license will be based on meeting minimum housing standards, including amenities in "good working condition" and "free of leaks," in addition to having "a functioning smoke detector, carbon monoxide detector, and fire extinguisher." Beginning in March 2022, landlords have the option to apply for a license early and get a discount on licensing fees.
Councilwoman Stacie Gilmore, who championed the proposal, believes that the new requirements secure tenant rights and won't negatively affect landlords who are acting in good faith. “It’s too heavy of a burden on the tenant to secure legal representation to get their landlord to comply with habitability," she says. "I wanted to ensure that in the City and County of Denver, property owners are meeting our minimum housing standards, which solve some of the potential issues.
"This is going to be very important for us going forward, especially as we're looking at housing affordability, ADA accessibility, climate mitigation and energy efficiencies that we could provide or support in rental," Gilmore adds. "It's going to give us a lot of good data to make informed housing decisions in the future that we've never had before as a city."
If a licensed unit lacks minimum housing standards, tenants can file a complaint through the city; after a hearing process that will go through the Denver Department of Excise and Licenses
, a landlord's license could be suspended or revoked.
Along with meeting the city's minimum housing requirements, Denver landlords will also have to provide a fully executed lease to the tenant, as well as provide information on housing resources that directs tenants on where to go if an issue arises in their unit.
"Everybody deserves to have minimal housing standards. The poor can’t afford attorneys, and housing budget is limited, so they can be easy prey for slumlords," says Eric Escudero, communications director at the Department of Excise and Licenses.
"This program gives Denver another tool in our toolbox," he continues. "If there is a property complaint and inspectors with the DPHE verify the claims of below minimum standard housing, the city could revoke a residential rental license and that landlord would not be able to legally long-term rent the property anymore. The message to property owners offering high rents in exchange for below-standard housing is those days are numbered, and Denver now has an additional licensing tool to force changes."