Does the New Carbon Monoxide Act Apply To You?

The Lofgren and Johnson Families Carbon Monoxide Safety Act (“the Act”, “the law”) becomes effective July 1, 2009.   If the law applies to a rental property, the Act requires the landlord to install carbon monoxide detectors.  Since the governor signed the Act, Firm clients have been asking lots of questions.  Clients have asked some straightforward questions, and some more complicated questions.  The law’s application to some rental properties is clear.  However, whether the law applies to other rental properties can be one of the more complicated questions.  With the effective date of the law rapidly approaching, we answer the question of whether you have to put carbon monoxide detectors in your property.

Most property managers and owners are planning to put carbon monoxide detectors in their rental units.  However, some property managers and owners have taken the position that their property is not covered by the Act, and therefore they do not have to install carbon monoxide detectors.  Property managers and owners take this position either based on their reading of the Act or because the Act is not clear.  To analyze the “law doesn’t apply to my property” argument, we will review and evaluate the Act’s key language and legislative history.  However, first we need to look at the factual scenarios potentially covered by the Act.  Clients have asked questions about three factual scenarios. 

The resident’s unit has fuel-fired appliances (meaning fuel-fired appliances, heaters, fireplaces, etc.) located within a resident’s unit.  Here the law is clear.  The manager and owner must install the detectors.  This first scenario also covers any rental units with attached garages.  If your unit has an attached garage, you must install a detector.

  In the second scenario, the fuel-fired appliances aren’t located in the unit, but are part of a mechanical system delivering a product of a fuel-fired appliance.  For example, a main furnace delivering forced air heat from a gas fueled furnace through air ducts and vents.  This second scenario is not clearly covered by the new law.  However, because the same ducts and vents that deliver heat can directly deliver carbon monoxide, you should install detectors.

The third scenario is similar to the second scenario. The fuel-fired appliances aren’t located in the unit, but are part of a mechanical system delivering a product of a fuel-fired appliance.  Examples of such systems are gas-fired boilers delivering hot water for fixtures and radiant heat, or an aquatherm system.  Unlike the second scenario, the fuel-fired appliance cannot directly deliver carbon monoxide through its mechanical system.   For this reason, some have argued these properties are not subject to the new carbon monoxide law.  We couldn’t disagree more strongly.

The Act has several provisions that spell out which properties are covered.  “. . . every dwelling unit of an existing multi-family dwelling . . . that has a fuel-fired heater or appliance, a fireplace, or an attached garage . . .”  C.R.S., § 38-45-103(1)(a); “. . . every dwelling unit of an existing multi-family dwelling . . . that has a fuel-fired heater or appliance, a fireplace, or an attached garage . . .” C.R.S., § 38-45-103(2);  “. . . dwelling unit in a multi-family dwelling  used for rental purposes and that includes fuel-fired appliances or an attached garage . . .”  C.R.S., § 38-45-104(1).
Some argue that the law does not cover their property because the residents’ units “do not have any fuel-fired appliances”.  In other words, the furnace or boiler is not located in the residents’ units.  While this may be a correct interpretation of the plain language of the Act, statutes are not interpreted in a vacuum.  While the plain meaning of a statute is important, the legislative history and purpose is important as well.  The legislative history surrounding the adoption of this law is both clear and strong.  The Act was adopted after several people (including an entire family in one instance) died due to carbon monoxide poisoning.  The law was adopted to prevent or lessen such tragedies.

Common sense dictates that this would include preventing carbon monoxide tragedies on rental properties that contain mechanical systems (heat, gas, etc.) which both create carbon monoxide gas and can directly deliver such carbon monoxide gas to a rental unit (scenario two).  Given the clear purpose and legislative history of the Act, an owner or manager would not prevail in court arguing that because the furnace is not “located” within an apartment unit, the unit does not “use” or “include” a fuel-fired appliance.  Include means to “contain within as part of a whole.”   An apartment unit contains heating vents that are part of the mechanical system as a whole, including the fuel-fired furnace.  Under the new law, managers and owners are required to install detectors on scenario two properties.

By far, the strongest resistance to installation has come in connection with scenario three communities (fuel-fired boiler for radiant heat and fixture hot water, or aquatherm systems, also boiler driven).  The resistance is based on the argument that a scenario three mechanical system cannot “directly deliver” carbon monoxide to the rental unit.  This is correct.  However, it is incorrect to assume that carbon monoxide can’t be indirectly delivered to a community’s units through leakage or seepage.  Many carbon monoxide deaths document that carbon monoxide leaks into living spaces in lethal doses even when the mechanical system cannot directly deliver the deadly gas.  The recent tragic death of the twenty three year old DU student (a death that was a major impetus for the Act being adopted) was a scenario three case.  Carbon monoxide from a gas-fired boiler leaked throughout the building.  The Act covers scenario three properties if there is any possibility of carbon monoxide leakage.

Risk analysis also dictates that the detectors be installed in any community when there is any possibility of carbon monoxide leaking or poisoning regardless of the lack of clarity in the law.  Since the law is unclear, if someone dies and the community took the position that the detectors weren’t required, you will only find out if a jury agrees with you when you get their verdict.  If the community takes the position that detectors weren’t required, but a court concludes that the law did require them, this probably would result in a strict liability situation.  When the law requires you to take action, you fail to take action, and someone is injured, ample case law supports the conclusion that the party who failed to comply is automatically negligent.  At that point, the only issue for the jury would be the amount of damages to award.  You never want to be in this position.

The law may not be clear on whether you are required to install detectors.  But what is clear, is that you are immune from liability if you install the detectors in accordance with the manufacturer’s recommended installation instructions.  The industry in general, and the Colorado Apartment Association specifically fought hard to get this language.  To protect our clients and the industry, Mark drafted the immunity language that was the basis for the final immunity language in the Act.  The answers to any and all other questions about Colorado’s new carbon monoxide law are answered in our  comprehensive briefing paper.  The HTS carbon monoxide briefing paper can be found and downloaded from our website htspc.com.

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