When Do You Breach the Warranty of Habitability

Colorado’s new warranty of habitability law (C.R.S., § 38-12-501, et. seq.) becomes effective September 1, 2008.  If you didn’t have a chance to attend one of our many free classes on the new law, don’t worry.  We will continue to address key aspects of the new law in the newsletter.  Last month, we talked about a resident’s ability to withhold rent under the new law.  This month, we answer the key questions about breach and written notice. When do you breach the warranty of habitability?  When does a resident have to give you written notice of a warranty of habitability problem?

For you doomsayers, rest assured, it takes a lot to be in breach of the warranty of habitability.  Four things have to happen before you can breach the warranty of habitability.  First, the resident’s unit must have an uninhabitable condition.  Second, the uninhabitable condition must be materially dangerous or hazardous to the resident’s life, health, or safety.  Third, you must have received written notice from the resident about the uninhabitable condition.  Fourth, you must fail to correct the uninhabitable condition within a reasonable time.

The law defines a specific list of uninhabitable conditions.  A unit is uninhabitable if it substantially lacks key characteristics listed in the law.  Key characteristics include water proofing and weather protection; broken windows and doors; running water and reasonable amounts of hot water; heat and electricity; appropriate extermination; adequately maintained common areas, floors, stairways, and railings; adequately maintained locks on doors and windows designed to be opened, and compliance with all applicable building, housing, and health codes.  Building code compliance means the code that was in effect at the time the community was constructed.  In addition to the specific list, the law also creates a general catchall for uninhabitable conditions.  Other conditions not specifically listed in the law can be considered an uninhabitable condition if the condition makes the unit otherwise unfit for human habitation.

If you are starting to panic, don’t.  Sure, broken windows are a huge potential problem.  However, similar to any condition, broken windows are just that, a potential breach of the warranty of habitability.  It’s not enough for a resident to have a broken window.  The broken window must cause the unit to be materially dangerous or hazardous to the resident’s life, health, or safety.  Regardless of the condition, and whether the condition is listed in the statute or not, no condition is a breach unless the condition is materially dangerous or hazardous to the resident’s life, health, or safety.  Thus, windows with minor cracks would not be a breach because a window with a minor crack is not materially hazardous or dangerous to a resident’s life, health, or safety.
Assuming that an uninhabitable condition exists and the condition is materially dangerous or hazardous, you still have not breached the warranty of habitability until you receive written notice of the problem from your resident. Informing the maintenance staff is insufficient.  Telephone calls do not count.  Many communities take calls, and then create service requests.  This does not constitute written notice.  Written notice does not have to take any particular form.  However, the resident must inform you in writing of the problem along with a request for you to fix the problem.  Letters, faxes, and emails are all considered written notice.

The last requirement is failure to repair.  You must fail to repair after notice before you are in breach of the warranty of habitability.  If a materially dangerous or hazardous condition exists, and you have received written notice of the condition from the resident, you are given a reasonable amount of time to fix the problem before you can be in breach.  A reasonable amount of time is not a set amount of time.  The surrounding facts and circumstances will determine what is a reasonable amount of time to fix any particular issue.  If a diligent manager could fix a problem within two days but it took you three weeks, you didn’t fix the problem within a reasonable amount of time.  If no manager could have fixed the problem in less time than it took you, you fixed the problem within a reasonable time.

View Resource »