Asked in Landlord - Tenant for Colorado

Q: Hot water heater broken, no hot water for 5 days, 24 apts. Can I deduct 5 days of rent as part of their 'failure'?

No notice was given to tenants until 2nd day. After calling the Mgmt. Company, Answering service gave me details. Is it within my tenant rights to...either charge them for hotel room, or ask for credit for the 5 days of no hot water...certainly part of their 'commitment' to me.

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2 Lawyer Answers

Donald C Eby

Answered
  • Landlord Tenant Lawyer
  • Castle Rock, CO
  • Licensed in Colorado

A: Not likely, But you could perfect your Warranty of Habitability Defense if Landlord does not repair in a "reasonable" manner.

Ashley Dean Powell

Answered
  • Licensed in Colorado

A: Under Colorado Revised Statute Section 38-12-503, every residential lease includes a warranty of habitability. Section 38-12-505 includes an elaborate list of the types of items that might violate landlord’s warranty of habitability if they are not properly maintained by landlord. For example, if your house or apartment does not adequately protect you from the weather outside (it isn’t waterproof, it isn’t windproof), landlord may be in breach of this warranty. Likewise, if you don’t have adequate plumbing, natural gas, running water (including hot water), heat, or electricity, these may be indications of a house that is uninhabitable. Something to keep in mind is that the particular item that landlord has failed to maintain (even if it is on the specific list in Section 38-12-505) must ALSO create “a condition that is materially dangerous or hazardous to the tenant’s life, health, or safety.”

If you are a tenant and you believe that a situation exists at your rented property that violates the warranty of habitability by presenting a danger to your health or safety, then the statute (Section 38-12-503(2)(c)) requires you to provide your landlord with a written notice of that condition. Following the written notice, your landlord has a “reasonable time” to cure the problem.

After you have provided your landlord with the written notice required by Colorado law and your landlord fails to fix the problem in what you believe is a reasonable time, then you should review Section 38-12-507 for your potential remedies as a tenant. Your remedies include terminating the lease, having a court force your landlord to make the repairs (known as injunctive relief), withholding rent, paying for the repairs yourself and charging them against your rent owed, and potentially collecting your costs and attorney fees. There are additional nuances to some of these remedies, and you should consider consulting an attorney before you proceed with unilaterally enforcing these remedies. For example, a tenant cannot terminate the lease without a notice to the landlord of at least 10 days and no more than 30 days (with a five-business-day cure period included). Additionally, a tenant cannot pursue injunctive relief against the landlord if they have not first given notice to an appropriate government entity (see CRS Section 38-12-508(3).

You can quickly review a summary of some of Colorado’s warranty of habitability on this PDF, which was published and maintained on an official Colorado.gov website: https://www.colorado.gov/pacific/sites/default/files/Attachment%205-Warranty%20of%20Habitability.pdf

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