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Colorado lawmakers seek to beef up 'warranty of habitability' protections for tenants

HB19-1170 passes in committee in 6-2 vote
Posted: 3:02 AM, Feb 18, 2019
Updated: 2019-02-18 12:58:30Z

DENVER — State lawmakers are trying to beef up protections for renters whose landlords are slow to react when it comes to repairing heating systems, fixing water leaks, or eliminating rodent or insect infestations.

House Bill 19-1170 would put time limits on those repairs, mandate that landlords move tenants to a comparable unit, or pay to have them moved while repairs are made.

It would also allow tenants to more easily withhold rent if the repairs aren't made in a timely manner.

The bill would also prohibit landlords from retaliating against tenants who make a good faith complaint alleging a condition that renders the premises uninhabitable, or that materially interferes with the health and safety of the tenant.

Genesis of the bill

"Between 2015 and 2016, 9 to 5 Colorado did a survey with nearly 1,000 renters in in the state," said Andrea Chiribogo-Flor, senior organizer of 9 to 5, an organization dedicated to putting working women's issues on the public agenda. "We asked what the biggest barriers were to finding housing and staying in their homes. The number one issue was cost, but pretty close to that was maintenance issues."

Chiribogo-Flor told Denver7 that many tenants feel they don't have any recourse, or any way to hold their landlords accountable.

Ashley Panelli said she knows that feeling. She testified in favor of the bill.

"I really felt helpless," she said. "I found out once winter came, that there was no heat in the building. I ended up wearing all of my winter gear inside."

Panelli said her apartment building was also infested with mice.

"They left their dropping everywhere," she said. "We were finding dead mouse bodies in various corners of the house, and after months and months and months of urging them to take action on these issues, nothing was done until I was driven to move out."

Contact7 has done numerous stories about tenants suffering without heat or hot water, with elevators that are out of service for days on end, and with rat infestations.

In one apartment complex, in east Denver, the rodent infestation was so bad, rats were chewing on the insulation covering electrical wiring on cars parked in the lot.

Tenants said the initial pest control response was to toss individual bait packets behind bushes, without securing them in bait stations. The poison was eaten by rabbits, squirrels and geese.

Pushback against bill

While the Public Health Care and Human Services Committee approved the measure by a 6-2 vote on Friday, there is mounting push back against the measure.

"This bill, like a lot of well-intentioned bills, has some serious unintended consequences," said Teo Nicolais, an instructor at the Harvard Extension School.

"The (existing) Warranty of Habitability Act is designed to insure that residents can expect that they have safe home to live in and that there aren't any hazardous or dangerous conditions," he said.

Nicolais, a landlord, said expanding the definition, "moves us from an objective standard to a subjective standard where people will disagree, and that's going to lead to a lot of lawsuits."

He added that most landlords support warranty of habitability "and adhere to most of what we see here," but he did acknowledge that there are some bad landlords.

"The problem with this proposal is in its effort to punish bad landlords — it strips away protections for the good ones," he said.

He cited concerns about the addition of two more conditions that can make an apartment uninhabitable:

  • If the premises lacks a functioning refrigerator, range or oven, if the landlord provided any of them pursuant to the rental agreement
  • If there is mold associated with dampness, that if not remedied, would interfere with the health and safety of the tenant

"If the resident is taking a shower, or boiling a pot of water, that creates dampness," he said. "Is that a breach of habitability?"

Nicolais said if tenants can already withhold rent, under certain conditions, but if they can begin withholding it because their refrigerator breaks down, fewer landlords will be providing appliances to begin with. Tenants will then have to purchase their own.

Nicolais said under the 2008 Act, residents can withhold rent, but they have to deposit the money with the court, so "residents have to first prove that they have the rent before they could withhold it."

"Under the proposed law, residents don't have to prove that," he said. "They can withhold the rent in their own bank account, which now brings up a major issue, is the resident withholding the rent because of a warranty of habitability issue, or is it because they didn't want to pay the rent in the first place."

Bad landlords, bad tenants

Landlords aren't the only ones to blame, Nicolais said. Some tenants don't hold up their end of the bargain too.

"What this proposed bill does is protect residents from bad landlords, but it doesn't protect landlords from bad tenants," he said.

The Colorado Apartment Association emailed this statement to Denver7, following the committee vote:

“Under current law, habitability is implied in every rental agreement for residential premises. The new law could render any maintenance dispute, regardless of how insignificant, a potential violation of the warranty of habitability. Our concern with this legislation is that it significantly increases liability of housing providers, which could reduce the number of units available to potential renters and increase housing prices. As the Colorado Apartment Association, its members, and its allies have worked to provide attainable housing for Colorado renters, we oppose any legislation that has the potential to increase rents and reduce opportunity for Coloradans seeking and providing housing.”

In 2008, Colorado legislators carefully crafted legislation to artfully balance the needs of housing providers and tenants. The current bill would open the door to minor complaints being used to avoid paying rent, a situation that the 2008 legislation specifically tried to avoid while offering a viable path for repair and remedy.

House Bill 19-1170 now goes to the full floor for debate. If it passes on all three readings, it will then move over to the senate.