C.R.S.
Section 38-12-507
Breach of warranty of habitability
- tenant’s remedies
(1)
If there is a breach of the warranty of habitability as set forth in section 38-12-503 (2):(a)
Upon no less than ten and no more than thirty days written notice to the landlord specifying the condition alleged to breach the warranty of habitability and giving the landlord five business days from the receipt of the written notice to remedy the breach, a tenant may terminate the rental agreement by surrendering possession of the dwelling unit. If the breach is remediable by repairs, the payment of damages, or otherwise and the landlord adequately remedies the breach within five business days of receipt of the notice, the rental agreement shall not terminate by reason of the breach.(b)
Intentionally left blank —Ed.(I)
A tenant may obtain injunctive relief for breach of the warranty of habitability in any county or district court of competent jurisdiction. In a proceeding for injunctive relief, the court shall determine actual damages for a breach of the warranty at the time the court orders the injunctive relief. A landlord is not subject to any court order for injunctive relief if:(A)
The landlord tenders the actual damages to the court within two business days after the order; and(B)
The proceeding for injunctive relief does not concern a condition described in section 38-12-503 (2)(a)(II) or (2)(a)(III) that has not been repaired or remedied.(II)
Upon application by the tenant, the court shall immediately release to the tenant the damages paid by the landlord. If the tenant vacates the leased residential premises, the landlord shall not rent the residential premises again until the unit complies with the warranty of habitability set forth in section 38-12-503 (1).(c)
Intentionally left blank —Ed.(I)
In an action for possession or collection based upon nonpayment of rent, in which the tenant asserts a defense to possession based upon the landlord’s alleged breach of the warranty of habitability, upon the filing of the tenant’s answer the court shall order the tenant to pay into the registry of the court all or part of the rent accrued after due consideration of expenses already incurred by the tenant based upon the landlord’s breach of the warranty of habitability. The tenant may assert, as an affirmative defense, an alleged breach of the warranty of habitability, provided that the landlord or any agent acting on behalf of the landlord has previously received written or electronic notice of an alleged breach of the warranty of habitability. If a county or district court is satisfied that the defendant is unable to deposit the amount of rent specified because the defendant is found to be indigent pursuant to subsection (1)(c)(II) of this section, the defendant shall not be required to deposit any amounts to raise warranty of habitability claims as an affirmative defense and the claim will be perfected.(II)
A defendant is indigent for the purposes of this section if the defendant has a net income that is:(A)
Five times or less the annual rental of the defendant’s premises, after allowing all exemptions available to families occupying dwellings in low-rent housing authorized under the act of the congress of the United States known as the “United States Housing Act of 1937”, as amended. For the purpose of making an indigent determination in computing the annual rental, there must be included in the calculation the average annual cost to the defendant, as determined by the court, of heat, water, electricity, gas, and other necessary services or facilities, whether or not the charge for such services and facilities is in fact included in the rental; or(B)
Less than two hundred fifty percent of the federal poverty line; except that, for purposes of calculation, a defendant’s assets must not be taken into account.(d)
Whether asserted as a claim, counterclaim, or an affirmative defense, a tenant may recover damages directly arising from a breach of the warranty of habitability, which may include, but are not limited to, any reduction in the fair rental value of the dwelling unit, in any court of competent jurisdiction.(d.5)
The court shall determine the reduction of the premise’s rental value in its uninhabitable state to the date of trial and shall deny possession to the landlord and deem the tenant to be the prevailing party, conditioned upon the payment of the rent that has accrued to the date of the trial, as adjusted pursuant to the reduction in the rental value caused by the breach of the warranty of habitability. The tenant shall make this payment to either the court or the landlord within fourteen days from the date of the court’s judgment. The court may order the landlord to make repairs and correct the conditions that constitute a breach of the landlord’s obligations, shall order that the monthly rent be limited to the premise’s reasonable rental value, as determined pursuant to this section, until repairs are completed, and shall award the tenant costs and attorney fees if provided by and pursuant to any statute or the contract of the parties. If the court orders repairs or corrections, or both, pursuant to this section, the court’s jurisdiction continues over the matter for the purpose of ensuring compliance. The court shall award possession of the premises to the landlord if the tenant fails to pay all reduced rent obligations accrued to the date of trial within the period prescribed by the court pursuant to this subsection (1)(d.5).(e)
Intentionally left blank —Ed.(I)
Pursuant to this subsection (1)(e), the tenant may deduct from one or more rent payments the cost of repairing or remedying a condition that is the basis of a breach of the warranty of habitability described in section 38-12-503, if the tenant provides notice of the condition to the landlord as described in section 38-12-503 (2)(b) or (2.2) and the landlord fails to:(A)
Commence remedial action by employing reasonable efforts within the applicable period described in section 38-12-503 (2)(b); or(B)
Complete the actions described in section 38-12-503 (2.2).(II)
At least ten days before deducting costs from a rent payment as described in this subsection (1)(e), a tenant shall provide the landlord with written or electronic notice of the tenant’s intent to do so. The notice must specify the date of notification, the name of the landlord or property manager, the address of the rental property, the condition that requires a repair or remedy, the date upon which the tenant provided notice to the landlord of the condition that requires a repair or remedy, and a copy of at least one good-faith estimate of costs to repair or remedy the condition, which estimate has been prepared by a professional who is unrelated to the tenant, is trained to perform the work for which the estimate is being prepared, and complies with all licensing, certification, or registration requirements of this state that apply to the performance of the work. A tenant withholding rent over multiple payment periods is required to provide notice only once. The tenant shall retain a copy of the notice.(III)
After a tenant provides a landlord notice of the tenant’s intent to deduct costs pursuant to subsection (1)(e)(II) of this section, the landlord has four business days to obtain one or more good-faith estimates of such costs in addition to any estimate that the tenant included in the notice. The estimate must be prepared by a professional who is unrelated to the landlord, is trained to perform the work for which the estimate is being prepared, and complies with all licensing, certification, or registration requirements of this state that apply to the performance of the work. If the landlord prefers to repair or remedy the condition by hiring a professional other than a professional who prepared an estimate for the tenant, the landlord shall share the preferred professional’s estimate with the tenant and shall commence work to repair or remedy the condition as soon as reasonably possible.(IV)
If the landlord does not obtain any additional estimates within the four days prescribed by subsection (1)(e)(III) of this section, the tenant may proceed to deduct costs from one or more rent payments, based on the estimate acquired by the tenant, until the entire amount of the estimate is deducted.(V)
A tenant who deducts costs pursuant to subsection (1)(e)(IV) of this section shall not repair or remedy the condition but shall hire a professional who is unrelated to the tenant, is trained to perform the work for which the estimate is being prepared, and complies with all licensing, certification, or registration requirements of this state that apply to the performance of the work.(VI)
If a tenant hires a professional to repair or remedy a condition causing a breach of the warranty of habitability and deducts the estimated cost of such repair or remedy from one or more rent payments, as permitted by this subsection (1)(e), and the deducted estimated cost exceeds the actual cost incurred by the tenant, the tenant shall remit the excess cost to the landlord within ten business days.(VII)
Notwithstanding any provision of this subsection (1)(e) to the contrary, a tenant shall not deduct costs from one or more rent payments if the condition that is the basis for the alleged breach of the warranty of habitability is caused by the misconduct of the tenant, a member of the tenant’s household, a guest or invitee of the tenant, or a person under the tenant’s direction or control; except that this subsection (1)(e)(VII) does not apply if:(A)
The tenant is a victim of domestic violence; domestic abuse; unlawful sexual behavior, as described in section 16-22-102 (9); or stalking;(B)
The condition is the result of domestic violence; domestic abuse; unlawful sexual behavior, as described in section 16-22-102 (9); or stalking; and(C)
The landlord has been given written or electronic notice and evidence of domestic violence; domestic abuse; unlawful sexual behavior, as described in section 16-22-102 (9); or stalking.(VIII)
Notwithstanding any provision of this subsection (1)(e) to the contrary, a tenant shall not deduct costs from one or more rent payments or make repairs to a residential premises if the residential premises was constructed, acquired, developed, rehabilitated, or maintained with:(A)
Funding provided pursuant to section 8 or 9 of the federal “United States Housing Act of 1937”, as amended, 42 U.S.C. secs. 1437f and 1437g;(B)
Funding from the home investment partnerships program of the federal department of housing and urban development; or(C)
Federal low-income housing tax credits, Colorado affordable housing tax credits, or funding provided under any federal, state, or local program that restricts maximum rents for persons of low or moderate income and that is currently subject to a use restriction that is monitored to ensure compliance by the federal government, the state government, a county government, or a municipal government, or by any political subdivision or designated agency thereof.(IX)
A tenant who deducts costs from one or more rent payments in accordance with this subsection (1)(e) may seek additional remedies provided by this section.(X)
If a court finds that a tenant has wrongfully deducted rent, the court shall award the landlord an amount of money equal to the amount wrongfully withheld. If the court finds that the tenant acted in bad faith, the court shall award the landlord possession of the residential premises and an amount of money equal to double the amount wrongfully withheld.(XI)
A tenant who deducts rent as a result of a breach of the warranty of habitability, which breach is based on a condition described in section 38-12-505 (1)(b)(I), may, in lieu of repairing the malfunctioning appliance, replace the malfunctioning appliance so long as the replacement appliance is at least of substantially comparable quality and has substantially the same features as the original appliance.(2)
If a rental agreement contains a provision for either party in an action related to the rental agreement to obtain attorney fees and costs, then the prevailing party in any action brought under this part 5 shall be entitled to recover reasonable attorney fees and costs.(3)
Notwithstanding subsection (1) of this section:(a)
If the same condition that substantially caused a breach of the warranty of habitability recurs within six months after the condition is repaired or remedied, other than a breach of section 38-12-505 (1)(b)(I), the tenant may terminate the rental agreement fourteen days after providing the landlord written or electronic notice of the tenant’s intent to do so. The notice must include a description of the condition and the date of the termination of the rental agreement.(b)
If the same condition that substantially caused a breach of the warranty of habitability recurs within six months after the condition is repaired or remedied, and the condition is a breach of section 38-12-505 (1)(b)(I), the tenant may terminate the rental agreement fourteen days after providing the landlord written or electronic notice of the tenant’s intent to do so. The notice must include a description of the condition and the date of the termination of the rental agreement. However, if the landlord remedies the condition within fourteen days after receiving the notice, the tenant may not terminate the rental agreement.(4)
If a residential premises is uninhabitable pursuant to section 38-12-505 (1) after being damaged due to an environmental public health event, the tenant may terminate the tenant’s lease if:(a)
The landlord has not been able to remediate the conditions of the residential premises so that it is safe for habitability within sixty business days after the landlord has received notice of the habitability issue from the tenant;(b)
The tenant has given the landlord written or electronic notice that the residential premises is not safe for habitability due to damage from an environmental public health event; and(c)
The landlord is not able to provide adequate alternative housing accommodations for the tenant, pursuant to section 38-12-503 (4), for the duration of the time that the residential premises is being remediated.(5)
Notwithstanding subsection (4) of this section, if a tenant is a member of a vulnerable population, the tenant may terminate the tenant’s lease or agreement after the residential premises has been damaged due to an environmental public health event if:(a)
The tenant has given the landlord written or electronic notice that the residential premises is not safe for habitability due to damage from an environmental public health event;(b)
The landlord has not been able to remediate the conditions of the residential premises so that it is safe for habitability for the tenant who is a member of a vulnerable population;(c)
The landlord is not able to provide adequate alternative housing accommodations for the tenant, pursuant to section 38-12-503 (4), for the duration of the time that the residential premises is being remediated; and(d)
The tenant provides the landlord with evidence from a licensed medical doctor that the tenant’s condition is such that to continue living in a residential premises that has been damaged due to an environmental public health event would be detrimental to the tenant’s health, safety, or quality of life.
Source:
Section 38-12-507 — Breach of warranty of habitability - tenant’s remedies, https://leg.colorado.gov/sites/default/files/images/olls/crs2023-title-38.pdf (accessed Oct. 20, 2023).
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