Repairs and the warranty of habitability

Bottom line first. Every Colorado rental comes with an unwritten promise that the home is fit to live in. When a tenant sends notice of a serious problem, your clock starts at 24 or 96 hours, and a tenant who is ignored has real remedies, including fixing it and subtracting the cost from rent. Never respond to a repair complaint by raising rent, threatening eviction, or shutting off services. This lesson is general education, not legal advice.

The warranty of habitability

The warranty of habitability is the promise, built into every rental agreement, that the home is fit for people to live in (38-12-503(1)). Colorado treats this part of the law as a matter of statewide concern, and a local rule that conflicts with it is unenforceable (38-12-501). Cities may still have other rules in other areas, so check your city and a lawyer.

You breach the warranty when two things are true. First, the home is uninhabitable, or otherwise unfit, or in a condition that materially interferes with the tenant's life, health or safety. Second, you received reasonably complete written or electronic notice and did not start remedial action with reasonable efforts within the deadline (38-12-503(2)):

• 24 hours if the condition materially interferes with life, health or safety.
• 96 hours if the home is uninhabitable under the list below and the tenant gave permission for you or your agent to enter.

You must also answer the tenant within 24 hours of such a notice, saying what you plan to do and estimating when the work will start and finish (38-12-503(2.5)). In an environmental emergency that makes the home inaccessible, you may take up to 72 hours to respond. The tenant should send notice the way you normally communicate with them, and keep proof it was sent (38-12-503(2.3)).

What counts as uninhabitable

A home is uninhabitable if it has dampness-related mold that threatens health or safety, or if it substantially lacks any of these (38-12-505(1)):

• working appliances that you supplied (you do not have to supply them; the rule covers a refrigerator, stove or oven only if you included one);
• a weatherproof roof and exterior walls, with unbroken windows and doors;
• working plumbing and gas;
• running water and reasonable amounts of hot water;
• working heat and electrical lighting, wiring and equipment;
• clean common areas and pest control (extermination) for rodents or vermin;
• trash containers in good repair;
• floors, stairs and railings in good repair;
• working locks on exterior doors and on windows that open;
• compliance with building, housing and health codes whose violation threatens life, health or safety.

The list also covers cleanup after an environmental public health event such as a flood or wildfire, and cleanup of a former meth lab. A flaw in a common area counts only if it materially and substantially limits the use of the tenant's own unit (38-12-505(2)). Before you rent a home, make sure it meets this standard (38-12-505(3)). If the mold is tied to dampness, you must act within 96 hours to contain it, stop the water and filter the air, and then finish the cleanup in a reasonable time (38-12-503(2.2)).

If a condition that threatens life, health or safety is reported, the tenant can ask you for a comparable home or a hotel room at no cost. The tenant keeps paying rent during that time (38-12-503(4)).

The 2024 changes (SB24-094)

The 2024 act sets up to 60 days for the comparable home or hotel room you provide while you address uninhabitable conditions that materially interfere with the tenant's life, health or safety (SB24-094). It also requires you to keep working on an uninhabitable condition until it is completely remedied or repaired (SB24-094).

If the condition still exists either 7 or 14 days after you had notice, depending on the condition in the tenant's claim, the law presumes you failed your duty to remedy or repair it. This is a rebuttable presumption, one you may try to disprove (SB24-094). The act took effect May 3, 2024. Some statute websites still show older text, so check the bill summaries on leg.colorado.gov.

The tenant has duties too

A tenant must keep their part of the home reasonably clean and safe, dispose of trash properly, use fixtures reasonably, not disturb neighbors, promptly report problems, and not damage the place (38-12-504). If the tenant, a household member or a guest caused the condition, it is not your breach (38-12-503(3)). Only the people on the lease or adult residents listed on it may bring a habitability claim (38-12-508(2)).

The single-family exception

For a single-family house where you get no government subsidy, you and the tenant may agree that the tenant will do specific repairs. The agreement must be in good faith, in writing, separate from the lease, signed, and supported by something of value in exchange. The tenant must have the skills to do the work, and no such agreement may put the tenant's health or safety at risk. When it applies, the tenant takes on that item and its lack does not make the home uninhabitable (38-12-506). Certain arrangements are outside this part of the law entirely, such as a recreational cabin in an unincorporated area without public utilities, a hotel stay under 30 days, or housing tied to a job (38-12-511).

What a tenant can do if you do not fix it

1. End the lease. The tenant gives written notice 10 to 30 days ahead describing the problem and giving you five business days to fix it. If you fix it in that time, the lease continues (38-12-507(1)(a)).
2. Go to court. The tenant can seek an order to repair, and damages such as the lost rental value (38-12-507(1)(b), (d)). If you are suing for unpaid rent, the tenant can raise habitability as a defense, and the court may order the tenant to pay rent into the court while the case runs (38-12-507(1)(c)).
3. Repair and deduct. The tenant must give at least ten days' written notice of the plan to deduct, with the date, your name, the address, the condition, the date of the first notice, and a good-faith estimate from an unrelated licensed professional. You get four business days to get your own estimates. If you do not, the tenant hires a professional (not doing it personally) and subtracts the estimate from rent. If the real cost came in lower, the tenant sends you the difference within ten business days (38-12-507(1)(e)). Wrongful deductions can cost the tenant the amount, and double plus possession if in bad faith. No deducting is allowed in subsidized or income-restricted housing as the statute describes.
4. Repeat problems. If the same condition returns within six months, the tenant can end the lease 14 days after notice (38-12-507(3)).

Retaliation

Retaliation means hitting back at a tenant for a good-faith complaint. You may not raise rent, cut services, end the lease without the tenant's written consent, bring or threaten an eviction case, or otherwise intimidate or discriminate against a tenant because the tenant complained about a habitability or health and safety condition to you or a government agency, or organized a tenants' association (38-12-509(1)). The tenant can use retaliation as a defense in an eviction case, and can end the lease and recover up to three months' rent or three times actual damages, whichever is greater, plus attorney fees and costs (38-12-509(1.5), (2)).

Never lock out or shut off

You may not remove or exclude a tenant without going through court, unless the tenant consents or the home was truly abandoned. Willfully cutting off utilities, or taking off doors, windows or locks (outside real repair work), counts as unlawful removal. The tenant gets actual damages plus the higher of three times the monthly rent or $5,000, plus fees and costs, and a court can order possession restored (38-12-510).

Example with real numbers

In December, Priya's furnace fails. She emails Marcus the way he always communicates with her and keeps a copy.

1. No heat in winter can materially threaten health or safety, so Marcus must answer within 24 hours and start work within 24 hours.
2. He does not. Priya gets a $900 estimate from a licensed HVAC company unrelated to her and sends Marcus a 10-day deduction notice.
3. Marcus has four business days to get his own estimate. He gets none.
4. Priya hires the company. Rent is $1,800, so she pays $1,800 - $900 = $900 that month.
5. The job costs $780. She owes Marcus the $900 - $780 = $120 difference within ten business days.

If Marcus had then raised her rent for complaining, he would face up to three months' rent, 3 x $1,800 = $5,400, or three times her damages if more.