Landlord’s Defenses to Claims of a Breach of the Warranty of Habitability

Colorado’s warranty of habitability regulates the upkeep and condition of rental properties.  The warranty puts duties on landlords to maintain and repair their renter’s dwelling to certain standards compliant with Colorado statutes.  If these standards are not met, renters may have a cause of action against the landlord for damages resulting from the disrepair or breaking the lease agreement.  However, landlords do have defenses given to them in the Colorado Revised Statutes governing the landlord tenant relationship.

CRS 38-12-508 grants to landlords the following defenses if they are sued for a breach of the warranty of habitability:

  • It shall be a defense to a tenant's claim of breach of the warranty of habitability that the tenant's actions or inactions prevented the landlord from curing the condition underlying the breach of the warranty of habitability.

When a tenant makes a claim of a breach of the warranty of habitability, the tenant must allow for the cure of the breach.  A landlord must be allowed by the tenant to cure the defect or problem that the tenant alleges is a breach.  If the tenant fails to allow the landlord access to the property, for example, the tenant cannot later claim in any action that the landlord has breached their duty under the warranty of habitability.

  • Only parties to the rental agreement or other adult residents listed on the rental agreement who are also lawfully residing in the dwelling unit may assert a claim for a breach of the warranty of habitability.

The requirement for parties to an action for breach of the warranty refers to what is commonly known as “standing.” Standing, in the context of a suit for a breach of the warranty of habitability, refers to only the adult parties listed on the actual rental agreement.  Guests of the resident or neighbors of the rental unit may not maintain an action under this theory.

  • A tenant may not assert a claim for injunctive relief based upon the landlord's breach of the warranty of habitability of a residential premises unless the tenant has given notice to a local government within the boundaries of which the residential premises is located of the condition underlying the breach that is materially dangerous or hazardous to the tenant's life, health, or safety.

Prior to filing suit, a tenant must alert the proper governmental bodies to the condition of the unit that they are renting.  Local governments have an interest in maintaining minimum standards for rental units and require notice of actions maintained under the warranty of habitability.

  • A tenant may not assert a breach of the warranty of habitability as a defense to a landlord's action for possession based upon a nonmonetary violation of the rental agreement or for an action for possession based upon a notice to quit or vacate.

A tenant may not use an alleged breach of the warranty of habitability as a defense in an eviction action.  This provision prevents tenants from using a breach of the warranty in a completely unrelated matter such as an eviction for a substantial violation of the lease.  Landlords looking to evict tenants for monetary violations such as the non-payment of rent, however, may see the breach of a warranty used as a defense where a tenant believes that the breach exists and is withholding rent until the breach is cured.

  • If the condition alleged to breach the warranty of habitability is the result of the action or inaction of a tenant in another dwelling unit or another third party not under the direction and control of the landlord and the landlord has taken reasonable, necessary, and timely steps to abate the condition, but is unable to abate the condition due to circumstances beyond the landlord's reasonable control, the tenant's only remedy shall be termination of the rental agreement.

This particular provision merely limits the tenant’s remedies instead of providing a separate defense to landlords.  Where the landlord has basically done all within their power to cure the breach, there can be no action for injunction or monetary damages, only for a termination of the lease agreement.

  • For public housing authorities and other housing providers receiving federal financial assistance directly from the federal government, no provision of this part 5 in direct conflict with any federal law or regulation shall be enforceable against such housing provider.

Colorado Landlord and Tenant Attorney Nathaniel Gilbert helps landlords with legal issues such as lease drafting and negotiation, evictions, lease enforcement, and defense of claims by tenants.