SB12-070, Residential Landlords and Tenants Act

SB12-070

RESIDENTIAL LANDLORDS AND TENANTS ACT

Sen. Aguilar, Rep. Wilson, Rep. Solano

Staff Name: Jaime Menegus and Lou Irwin

What the Bill Does:
SB 12-070 amends Colorado’s current law^[1] regarding tenant and landlord relationships to provide a balance between the interests of landlords and tenants. 

Colorado Context:
This section of Colorado’s law has a long and contentious history, beginning in 1969. During that time, courts refused to take on the issue, and early attempts to modernize the statutes were vetoed. Colorado was the 49^th state to enact a Warrant of Habitability (WoH) in 2008.  That legislation was the result of 18 months of paid mediation between landlords and tenants.  However, according to critics, significant changes to the agreed language were made prior to introduction without the assent of tenant advocates.  This has not been a partisan issue in Colorado. Before the WoH was enacted in 2008, 17 Democrats and 20 Republicans had tried to enact legislation.  Continuing difficulties revolve around the balance of power between realtors, landlords, and their supporters and tenants. While the WoH was passed in 2008, tenants have had difficulty enforcing the WoH.

National Context:
Tenant/landlord common laws originated in England in the Middle Ages, when the purpose of the leasehold was agrarian, and the tenant owed the landlord rent in exchange for possession of the leased premises.  Modern, urban rental housing has required a reformulation of many of the premises that led to the common law. Additionally, courts have begun to recognize that the paucity of rental housing in many urban settings results in tenants lacking bargaining power. Courts have also begun to shift their focus from the property law aspects of a residential lease to the contractual aspects. One consequence has been the implication of a warranty of habitability into residential leases. Legislatures followed, enacting WoH’s as social and political duties. The overall attempt has been to bring landlord-tenant law in line with other consumer protection cases where courts have “sought to protect the legitimate expectations of the buyer” by implying warranties of fitness and merchantability.  In the case of an apartment lease, the tenant “may legitimately expect that the apartment will be fit for habitation for the time period for which it is rented.”^[2]
Provisions of the Strike Below Amendment:
In its revised form, the bill changes Colorado’s existing statutes in the following ways:

• Section 1:  Requires the landlord to obtain the Tenant’s approval to move them to a new unit when theirs is not habitable.
• Section 2: Strengthens the tenant’s remedies to breach of habitability by:
  • Allowing for termination of a lease:
    • Between 10 -30 days if the deficiency is not repaired within 5 business days;
    • After 3 days in the case that the failure recurs within 6 months, unless the Landlord is engaged in a good faith effort to remedy the breach
  • Revokes  the ability of landlords to be relieved of responsibility for the breach by paying damages to the court
  • Requires the return of all applicable deposits to the tenant, if the lease is terminated as a consequence of a breach of habitability
    • Allows recovery of attorney fees by the prevailing party
• Section 3: Clarifies that the landlord is not liable for conditions that are the result of persons or entities not under his control
• Section 4: Removes language regarding retaliation that was discriminatory to tenants
  • Revokes language in the statute that presumes the landlord’s action is not retaliatory
  • Provides remedies for violations of this section
• Section 5:  Provides for remedies for tenants in cases of unlawful removal
• Section 6:  Restates Federal preemption of any portions of this law
• Section 7:  Adds three provisions not in current law including:
  • Disclosure:  Requires the landlord to provide the tenant with a copy of the lease and a way to contact the landlord or his or her representative when needed, and to update the tenant whenever there is a change in contact information
  • Access:  Specifies that the landlord cannot enter the premises without the tenant’s permission, except in an emergency; but the tenant is prohibited from denying access unreasonably, or subsequent to prior notice of 2 days from the landlord
  • Wrongful failure to supply heat, water, hot water or essential services: Provides remedies  if the landlord willfully or negligently fails to supply necessary utilities
  • Waiver of Landlord’s right to terminate: Precludes a landlord from evicting a tenant, during that month, for non-payment of rent if the landlord accepts a partial payment of rent.  Also prohibits landlord from evicting due to a tenant breach if the landlord accepts a partial payment of rent.

Fiscal Impact: Minimal savings may be realized by local governments due to the clarification of policies and procedures that apply to residential rental disputes. 

2.12.12 ia

^[2] David I. Blower, Colorado Hb 1061 and Advocating for the End of Caveat Emptor in Residential Leases, 78 U. Colo. L. Rev. 957, 960-62 (2007)