The importance of habitability can’t be overstated.
The term refers to anything that threatens the health and welfare of tenants or the livability of the property. Heating, running water, roof leaks, unsafe electrical, carpeting, stairways, or sidewalks are among the most common problems.
An implied warranty of habitability, or a warranty that a property is structurally safe for human habitation, is assumed when renting it out, whether it is a house or a condominium.
“Implied warranty of habitability” requires proof of certain criteria.
- There should be no pest problems, holes in the walls, ceilings, or floors, and the property should be structurally sound. It is not considered fit for occupancy to occupy a home that has any of these problems or that does not provide adequate protection from the elements.
- It is possible to find asbestos insulation, lead paint, carbon monoxide leaks, or problematic plumbing within the dwelling that make it unsafe for tenants. Rental properties are implied to be safe by their owners.
- A functional bathroom is essential. For this reason, a bathroom must be able to be occupied with functional fixtures like sinks, toilets, and bathtubs.
- It may not be appropriate to invoke the implied warranty of habitability if there is a consistently recurring problem. A breach of the implied warranty of habitability would occur if there is a problem with heat.
- In order for electrical lighting to remain safe and functional, it must be installed with wiring and electrical equipment that are in compliance with applicable laws.
- Locks or security devices must be maintained in good working condition on all exterior doors and on all exterior windows that can be opened.
- Mold is another requirement of a habitable residence as stated in recent amendments to the bill.
Additionally, the bill contains amendments that specify that functioning appliances must be maintained and in good working order, and that they must be in compliance with applicable law when installed.
A lawsuit can be filed for “breach of implied warranty of habitability” when the owner does not provide the necessary maintenance to solve the problem. Punitive damages can be collected. When property owners ignore their tenants’ safety, the court takes a dim view of them. Tenants are not responsible for proving their case, but the owner is.
What are Habitability Claims
Over the years, courts have made many habitability rulings based on the Uniform Residential Landlord and Tenant Act, the URLTA. When faced with a difficult case between Landlord and Tenant, a judge will often consult the many points of this Act before rendering a decision. A number of states have based their statutory law on this act or the Model Residential Landlord-Tenant Code. Interpretations can vary with different judges and in different states. In addition, states will often model their legislation on rulings based on those of another state. Many people are unaware of the existence of these acts and their impact on tenant relations.
Landlord-tenant law in the United States originated from English common law developed within an agricultural society. The URLTA stems from this.
The basic purposes of the act were to:
- Simplify, clarify, modernize, and revise the laws governing the rental of dwelling units and the rights and obligations of landlords and tenants.
- Encourage landlords and tenants to maintain and improve the quality of housing.
- Make uniform the law with respect to the subject of this Act among those states that enact it.
There are many specific definitions included such as good faith, building, and housing codes, dwelling unit, landlord, owner, person, premises, rent, rental agreement, single-family residence, tenant, etc.
Exceptions to Warranty of Habitability:
- If the uninhabitable condition is the result of stalking, or domestic violence, domestic abuse, unlawful sexual behavior upon the tenant and the landlord has been given written notice and evidence of the domestic violence, abuse, or stalking.
- If the uninhabitable condition is the result of a casualty or catastrophe to the dwelling unit, the landlord may terminate the rental agreement without further liability
Are Landlords responsible for Pest Control?
Unfortunately, there are many cases where landlords have ignored maintenance concerning “habitability.” These actions have lead to major court decisions. This in turn has produced more Fair Housing laws, lead based paint requirements, mold legislation, and more, all of which have a far-reaching impact on investment property.
How long does a Landlord have to make a repair in Colorado?
In terms of warranty of habitability law, what are the major changes?
There are now four different types of WH claims classified by the WHA. WH claims are classified under Section 505 under the new law, as they were under the old law. According to C.R.S. 38-12-505, these claims are referred to as Section 505 claims. Firstly, uninhabitable properties lack any of the 505 characteristics. A property is unfit for human habitation if its condition makes it unfit for human habitation. It is up to the court to decide whether a property is unfit for human habitation. There are many other conditions that fall into this category, which is often referred to as ‘anything else’. Those who impact a tenant’s life, health, or safety (“LHS” claims) are considered more serious in nature. In addition, mold cannot be allowed to remain untouched if it would have “material adverse effects on a tenant’s life, health, or safety.” If mold exists, it is not automatically illegal to fail to remediate it.
Appliances are now covered by the WHA. In a residential premise, an appliance is a refrigerator, range stove, or oven included as part of the rental agreement or any other agreement between the landlord and the tenant for the tenant to use. A separate written agreement outside of the lease cannot be used by landlords to prove appliances, which is why the law prohibits landlords from sidestepping coverage.
Now that mold is covered by law, it is illegal. In damp conditions, mold can grow in the interior of a building as microscopic organisms or fungi. Most landlords are likely to experience problems with the mold provision of the new law because it is onerous and confusing.
Relocation rights and obligations have been drastically altered by the new law. Previously, a landlord could move a tenant to a comparable unit at his or her discretion after paying any reasonable costs a tenant actually incurred during a move. In accordance with the new law, the landlord will select a comparable unit or hotel for the tenant. WH claims involving life, health, or safety claims can, however, only be requested by tenants. The fact that landlords are not required to relocate tenants for mold WH claims is especially noteworthy for two reasons:
- It requires hazardous waste-type protocols for claims qualifying for mold protection under the new law.
- The second rule is that mold doesn’t become a WH issue unless it would endanger the tenant’s health, safety, or life. A written notice is required for tenants, just as under the old law. In response to such notices, landlords must comply with a specific timeframe and respond in a specific manner. Tenants may provide landlords with electronic notices of warranty of habitability (WH) claims under the law.
The term “electronic notice” applies to notices sent via electronic mail, electronic portals, or management communication systems available to both landlords and tenants. Tenants are required by their leases to provide electronic notice to their landlords. In light of this, every landlord should stipulate in their lease when tenants must send electronic WH notices. Although, landlords should keep in mind that tenants can deliver their WH written notices in person, or with any other delivery method, such as FedEx, USPS, etc. Tenant remedies are significantly redefined and expanded in the revised WHA. Injunctive relief can now be sought in county court, rather than district court, where it was previously available only to tenants. Rent is deducted from the tenant’s rent for repairs made by tenants. This is the most significant change in remedy. There may be significant disputes over the repair and deduction process under the new law.
Renters have the right to repair and deduct the cost of repairing appliances from rent, as well as replace appliances.
Finally, tenants may terminate a lease upon fourteen days’ written notice even if a landlord fixes a WH issue after six months.
How does the WHA trigger a landlord’s legal obligations?
A landlord must respond within 30 days of receiving a reasonable complete written notice (RCWN) from a tenant. “Reasonable complete written notice” is not defined in the statute. It is, however, stated in the statute that “reasonably complete written or electronic notice of the conditions described” must be provided for 505 claims, catchall claims, and LHS claims. There should be at least one of these four conditions described in a tenant’s notice.
Are tenants required to state “warranty of habitability” or “I guarantee” on their notice
What is the “claim of habitability”?
It is not necessary for a tenant’s notice to mention that the issue is WH or the statute. The landlord must determine whether the tenant’s notice involves a WH claim because the notice must only “describe the condition”. Landlords should therefore always make WH determinations on maintenance requests regardless of what a tenant’s notice states.
The new burden landlords face can be illustrated by a few examples. If the tenant’s electrical lighting is not working, for example, the tenant might state that in his notice. The 505 List includes electrical lighting, so this is a WH claim. As an example, a tenant might state in their notice that their garbage disposal does not work, which violates the WHA. WH claims cannot be made for garbage disposals since they aren’t WH items.
The situation is further complicated by mold notices. In providing any notice of mold, tenants may make mold a WH issue. Mold, however, is a WH violation only if it interferes with a tenant’s life, health, or safety in a material way.
How does a landlord respond to “reasonably complete written notice” (RCWN)?
to do?
RCWN requires landlords to respond within 24 hours. An explanation of landlord’s intentions for remedying the condition, including an estimate for the start and end dates of the remediation process, must be included in the landlord’s reply. There is no legal requirement that landlords respond in writing, but it would be best if they did.
Is it still necessary for us to respond within 24 hours if we’re not open on Saturdays or Sundays?
Is it 24 hours?
In fact, yes. There is no exception to the law. The law is poorly written, which benefits landlords because it does not state any ramifications or consequences for not responding within 24 hours. Responding to a notice outside of twenty-four hours is not a default or even an element of default in itself. Rather, a landlord is only in violation of the WHA if he fails to initiate remedial action after receiving RCWN within the time limits (96 hours for mold, 24 hours for LHS issues) after receiving notification from the tenant.
There are significant differences between maintenance policies and maintenance practices. Due to this, it is impossible to say which is the best
Given the number of permutations, there is no one-size-fits-all solution.
What is the deadline for landlords to begin repairing their properties?
Following receipt of RCWN from a tenant, landlords are required to take remedial action promptly. WH claims are handled differently based on their category. The landlord must begin remedial action within ninety-six (96) hours if the WH claim is a 505 List item, falls under the catchall provision (any condition that makes the premises unsuitable for habitation) or involves mold. However, the landlord must include permission to enter the premises in the RCWN if the tenant includes it. Even if the tenant has given permission to enter the premises, landlords must begin remedial action within twenty-four (24) hours.
What is the deadline for landlords to complete repairs for WH claims?
With the exception of mold, the new law does not address landlords’ time to resolve WH issues. A reasonable time was required to cure WH issues under the previous law. In general, a reasonable time is implied by law when no time is stated. Under similar facts and circumstances, a diligent property manager would take a reasonable amount of time to complete repairs. Whether landlord has completed the project within a reasonable amount of time will depend on landlord’s original estimate.
What is the threshold for mold events triggering a landlord’s response under the WHA?
It is important to know the answer to this question about mold and the new WHA.
WHA issues only apply to mold if it interferes materially with health and safety
When not remedied, a tenant’s health can be compromised (LHS). As a result, most mold events are not covered by the WHA.
A landlord’s standard operating procedures (SOPs) should include how to respond to mold problems among tenants
Concerns. Investigation, determination, response, and education should be the focus of SOPs. The landlord Any mold issue that materially interferes with the operation of a facility should be investigated and determined as soon as possible
The tenant’s occupational health and safety. Tenants must be promptly notified if this threshold has not been met.
The tenant should be informed that only mold that interferes with the normal operation of the house should be written and simultaneously removed
Mold issues not reaching this level can still be considered a WHA breach by the tenant’s LHS Maintenance items are treated as routine maintenance.
Depending on the circumstances, investigations and determinations will vary. Routinely,
In small amounts of mold, maintenance can respond and document (photos are recommended).
In the following steps, a standard form letter or template can be sent to the tenant to inform them that mold has been found
WHA will not be responsible for this event but will handle it in accordance with normal maintenance procedures.
Regulations.
For landlords, determining whether there is a mold issue will require their own mold expert
A material interference with the LHS of a tenant. It can be difficult to find the right person. Mold vendors that are qualified should be able to opine on the extent of the impact on the tenant’s LHS after a physical examination. Upon receiving an opinion from your vendor that there is no impact on the tenant’s LHS, you should inform them that it is not a LHS issue (a WHA claim), but that you will take appropriate remedial action as soon as possible.
A vendor won’t need to tell you about dangerous or serious mold problems if they impact the tenant’s health and safety.
In general, the CDC does not recommend routine sampling for molds and does not require identifying the species of mold growing in a residence. Currently, molds are associated with allergies most often. In addition, sampling and culturing are not reliable methods for determining your health risk due to the fact that susceptibility varies greatly between individuals. Mold poses a health risk if it is seen or smelled, so you should arrange for its removal regardless of its species. Moreover, it can be expensive to sample for mold reliably, and there are no standards for determining what amount of mold is acceptable or tolerable.
A landlord is legally required to address mold issues if there is a legitimate problem
What is the new WHA’s response to mold?
Under the new law, all incidents of water intrusion, and dampness will be called mold claims. The statutory language does not require mold to be present for WHA claims involving “dampness” but landlords should be aware of this. There are two types of mold in residential premises: mold associated with dampness and mold associated with any condition causing dampness.
In accordance with Section 2.2 of the WHA, mold claims cannot be warranty of habitability issues unless the mold would materially adversely affect the life, health, and safety of a tenant. Nevertheless, Section 2(a)(II) stipulates that a guarantee of habitability claim may be made if the condition presents a material threat to the health, safety, or life of a tenant. LHS can be interfered with by mold (but it usually isn’t). The language in 2(a)(II) of LHS would have been applicable to mold when it interferes materially with LHS.
The law requires landlords to mitigate immediate risk from mold within ninety-six hours of receiving Reasonably Complete Written Notice involving a mold claim. Tenants must be protected from mold by installing a containment system (not specified in the law), stopping active water sources, installing high-efficiency particulate air filtration systems (HEPA), and stopping active moisture sources. Landlords should provide HEPA filters to tenants to address their needs.
It is important for landlords to be aware of the difference between the mold section and LHS Section(2)(a)(II). All other LHS issues must be addressed within twenty-four hours, but mold claims must be addressed within ninety-six hours. Since mold is defined as a Life Health Safety issue in Section 2(a)(II), a ninety-six-hour requirement does not make sense. The majority of mold cases are caused by water intrusion events, so landlords will usually immediately take action (halt the source of water) when such a situation arises.
It is the landlord’s responsibility to maintain containment until certain actions required by the law are implemented and to address mold claims in a timely manner. When a landlord has a valid mold issue, he or she is required to provide adequate protection for workers and occupants, eliminate or limit moisture sources, dry all materials, decontaminate or remove damaged materials, evaluate whether the premises have been successfully remedied, and reassemble the premises to prevent or limit recurrence of mold by controlling moisture and nutrients.
It is rare to find mold in rental housing larger than ten square feet, and most cases are smaller than one square foot.
If a landlord is required to provide a tenant with alternative accommodations under the WHA, when must they do so? Providing these accommodations is a landlord’s responsibility, but what are the responsibilities?
When the tenant’s notice describes conditions that materially interfere with the tenant’s health, safety, or life (LHS), the landlord has to provide the tenant with alternative accommodations. Accordingly, landlords would not have to relocate tenants due to mold issues, since the statute specifically refers to Section 2(a) II).
Many maintenance issues that are not life-threatening could be considered materially interfering with the life of a tenant. If the elevator goes out in a four-story building, a tenant would be inconvenienced. WHA should not be responsible for this inconvenience, even though it is extremely inconvenient. According to the statutory language, however, a tenant could claim material interference with their life because of the issue. It is clear from this example that the courts are still in charge of determining the full impact of the WHA at this point. A tenant’s daily activities will be interpreted by the courts as life, so the WHA will be extremely impactful. A WHA sweep would be more reasonable if the court interprets life as potentially causing death.
In the case of a legitimate LHS issue, landlords are required to provide tenants with a comparable dwelling unit, at no cost to them. At no expense or cost to the tenant, the landlord may provide the tenant with a hotel room of his or her choice.
During any temporary relocation or after the WHA issue is resolved, the tenant remains responsible at all times for rent payment, regardless of whether the landlord provides alternative accommodations. A landlord may, therefore, terminate the tenant’s right to possession of an impacted unit even while a WHA issue is being addressed.
Is it possible to violate the WHA if the tenant causes damage?
Not at all. It is clear from the WHA that this is the case. Guests or invitees of the tenant, or people under the tenant’s direction or control, cannot cause maintenance issues or damage that breaches the warranty of habitability.
It is therefore not possible for a tenant to demand alternative accommodations if they cause the problem. When evaluating potential warranty of habitability claims, a landlord should always ask whether the tenant is responsible because a landlord cannot breach the WHA if the tenant causes the problem. Second, landlords should determine whether mold poses a threat to the health or safety of a tenant if there is a mold claim. To conclude, landlords should determine if the issue is listed in 505 (INSERT 505 Link). The fourth point is that landlords should take action if their property is not on the 505 list
It should be determined whether the unit is otherwise unsuitable for human habitation (this is the only standard we believe should apply). A landlord should decide if the issue interferes with a tenant’s life, health, or safety materially.
We can handle these important issues as your property management company. In order to protect your investment, we place a high priority on habitability.