Colorado Revised Statues

TITLE 38. PROPERTY – REAL AND PERSONAL
TENANTS AND LANDLORDS
ARTICLE 12.TENANTS AND LANDLORDS
PART 1. SECURITY DEPOSITS – WRONGFUL WITHHOLDING
C.R.S. 38-12-101 (2012)

38-12-101. Legislative declaration

The provisions of this part 1 shall be liberally construed to implement the intent of the general assembly to insure the proper administration of security deposits and protect the interests of tenants and landlords.

HISTORY: Source: L. 71: p. 592, § 1. C.R.S. 1963: § 58-1-26.

Law reviews: For article, “The Effect of Zoning Violations on the Enforceability of Leases”, see 19 Colo. Law. 2077 (1990).

ANNOTATION

Law reviews. For comment, “Colorado’s Wrongful Withholding of Security Deposits Act: Three Litigious Shares in an Untested Law”, see 49 Den. L.J. 453 (1973). For article, “The Colorado Security Deposit Act”, see 50 U. Colo. L. Rev. 29 (1978).

Purpose. The security deposit act was passed to control the practices of landlords who withhold, without justification, their tenants’ damage deposits. Houle v. Adams State Coll., 190 Colo. 406, 547 P.2d 926 (1976).Top of Form

38-12-102. Definitions

As used in this part 1, unless the context otherwise requires:

(1) “Normal wear and tear” means that deterioration which occurs, based upon the use for which the rental unit is intended, without negligence, carelessness, accident, or abuse of the premises or equipment or chattels by the tenant or members of his household, or their invitees or guests.

(2) “Security deposit” means any advance or deposit of money, regardless of its denomination, the primary function of which is to secure the performance of a rental agreement for residential premises or any part thereof.

HISTORY: Source: L. 71: p. 592, § 1. C.R.S. 1963: § 58-1-27.

ANNOTATION

Law reviews. For comment, “Colorado’s Wrongful Withholding of Security Deposits Act: Three Litigious Shares in an Untested Law”, see 49 Den. L.J. 453 (1973). For article, “The Colorado Security Deposit Act”, see 50 U. Colo. L. Rev. 29 (1978).

Landlord undefined. This section does not define the term landlord nor does it state what constitutes the landlord-tenant relationship. Houle v. Adams State Coll., 190 Colo. 406, 547 P.2d 926 (1976).

The legislative intent does not expand the common-law definition of a landlord and a tenant. Houle v. Adams State Coll., 190 Colo. 406, 547 P.2d 926 (1976).

College board of trustees is not landlord. Houle v. Adams State Coll., 190 Colo. 406, 547 P.2d 926 (1976).

Dormitory student is not tenant. Houle v. Adams State Coll., 190 Colo. 406, 547 P.2d 926 (1976).

“Residential premise”. A furnished condominium unit containing complete sleeping and eating facilities and available for short-term rentals is a “residential premise” subject to the provisions of this act. Haan v. Mountain Queen Condo. Ass’n, Inc., 717 P.2d 969 (Colo. App. 1985), rev’d on other grounds, 753 P.2d 1234 (Colo. 1988).

The language adopted by the parties to a rental agreement to describe a payment made by the tenant to the landlord prior to occupancy is not dispositive of the question of whether the payment constitutes a “security deposit”. Mountain Queen Condo Ass’n v. Haan, 753 P.2d 1234 (Colo. 1988).

Applied in In re Quintana, 28 Bankr. 269 (Bankr. D. Colo. 1983).

38-12-103. Return of security deposit

(1) A landlord shall, within one month after the termination of a lease or surrender and acceptance of the premises, whichever occurs last, return to the tenant the full security deposit deposited with the landlord by the tenant, unless the lease agreement specifies a longer period of time, but not to exceed sixty days. No security deposit shall be retained to cover normal wear and tear. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention of any portion of the security deposit. When the statement is delivered, it shall be accompanied by payment of the difference between any sum deposited and the amount retained. The landlord is deemed to have complied with this section by mailing said statement and any payment required to the last known address of the tenant. Nothing in this section shall preclude the landlord from retaining the security deposit for nonpayment of rent, abandonment of the premises, or nonpayment of utility charges, repair work, or cleaning contracted for by the tenant.

(2) The failure of a landlord to provide a written statement within the required time specified in subsection (1) of this section shall work a forfeiture of all his rights to withhold any portion of the security deposit under this section.

(3) (a) The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorneys’ fees and court costs; except that the tenant has the obligation to give notice to the landlord of his intention to file legal proceedings a minimum of seven days prior to filing said action.

(b) In any court action brought by a tenant under this section, the landlord shall bear the burden of proving that his withholding of the security deposit or any portion of it was not wrongful.

(4) Upon cessation of his interest in the dwelling unit, whether by sale, assignment, death, appointment of a receiver, or otherwise, the person in possession of the security deposit, including but not limited to the landlord, his agent, or his executor, shall, within a reasonable time:

(a) Transfer the funds, or any remainder after lawful deductions under subsection (1) of this section, to the landlord’s successor in interest and notify the tenant by mail of such transfer and of the transferee’s name and address; or

(b) Return the funds, or any remainder after lawful deductions under subsection (1) of this section, to the tenant.

(5) Upon compliance with subsection (4) of this section, the person in possession of the security deposit shall be relieved of further liability.

(6) Upon receipt of transferred funds under subsection (4) (a) of this section, the transferee, in relation to such funds, shall be deemed to have all of the rights and obligations of a landlord holding the funds as a security deposit.

(7) Any provision, whether oral or written, in or pertaining to a rental agreement whereby any provision of this section for the benefit of a tenant or members of his household is waived shall be deemed to be against public policy and shall be void.

HISTORY: Source: L. 71: p. 592, § 1. C.R.S. 1963: § 58-1-28.L. 76: (2) amended, p. 314, § 67, effective May 20.

ANNOTATION

I. General Consideration.
II. Treble Damages and Attorneys’ Fees.

I.GENERAL CONSIDERATION.

Law reviews. For comment, “Colorado’s Wrongful Withholding of Security Deposits Act: Three Litigious Shares in an Untested Law”, see 49 Den. L.J. 453 (1973). For article, “The Colorado Security Deposit Act”, see 50 U. Colo. L. Rev. 29 (1978).

Purpose of section. From a consideration of the language of the entire section, it is evident that the legislative purpose of this section is to assure that tenants will not be wrongfully deprived of their security deposits, and that if so deprived they will be entitled to adequate judicial relief. Ball v. Weller, 39 Colo. App. 14, 563 P.2d 371 (1977).

This section is designed to assist tenants in vindicating their legal rights and to equalize the disparity in power which exists between landlord and tenant in conflicts over relatively small sums. Martin v. Allen, 193 Colo. 395, 566 P.2d 1075 (1977).

This section provides a court remedy against landlords who withhold security deposits willfully and wrongfully, and the tenant’s attorney should be paid for the time necessary to prevail; absent reasonable attorneys’ fees, the security deposit law would not be enforced. Mau v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981).

Security deposit actually belongs to tenant; it is only security for the landlord. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

Landlords not absolved from notice requirement. The last sentence in subsection (1) does not absolve landlords from the notice requirement; it merely permits them, upon proper notice, to apply deposits against unpaid rent. Heatherridge Mgt. Co. v. Benson, 192 Colo. 190, 558 P.2d 435 (1976).

Justification for requiring tenants to notify landlords prior to claiming treble damages, attorneys’ fees, and court costs is to give the landlord one last week to return the security deposit. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

“Willful” defined. The term “willful” in subsection (3)(a) means “deliberate”. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

When retention “willful”. If the landlord deliberately fails to return the security deposit during the additional seven-day period, the retention is logically “willful” under this section. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

Wrongful withholding of deposit determined. Failure to return the deposit, coupled with failure to provide a tenant with statutorily mandated written statement of reasons for the retention, makes the withholding of a deposit wrongful. Martinez v. Steinbaum, 623 P.2d 49 (Colo. 1981).

Deposit not “wrongfully” held. Where respondent authorized petitioner in writing to retain that portion of his deposit equal to one month’s rent, petitioner did not withhold that part of the deposit “wrongfully”, within the contemplation of subsection (3)(a). Heatherridge Mgt. Co. v. Benson, 192 Colo. 190, 558 P.2d 435 (1976).

Evidence of landlord’s good faith. The discrepancy between the amount of a security deposit retained and the amount of actual damages proved by the landlord is important evidence of his good faith. Guzman v. McDonald, 194 Colo. 160, 570 P.2d 532 (1977).

Tenant may not accelerate statutory time requirements. McAuliffe v. Rooney, 38 Colo. App. 137, 552 P.2d 1031 (1976).

Where the statutory notice was given within the one-month period allowed by subsection (1), and only nine days after the surrender of the key to the premises, and suit was commenced prior to the expiration of the additional seven-day period contemplated by the notice requirements of subsection (3)(a), award of treble damages is improper. McAuliffe v. Rooney, 38 Colo. App. 137, 552 P.2d 1031 (1976).

A restrictive endorsement, by which a landlord attempts to create a waiver of a tenant’s right to legal recourse, is void under this section. Anderson v. Rosebrook, 737 P.2d 417 (Colo. 1987).

A tenant cannot be compelled to arbitrate a claim for violation of the wrongful withholding of security deposits act. The act creates a cause of action enforceable in Colorado courts; the enforceability of the statutory cause of action in a legal proceeding cannot be limited or waived by an arbitration agreement. Thus an arbitration provision that would waive this cause of action in favor of mandatory arbitration is unenforceable to the extent that it applies to an action brought under the act. Ingold v. AIMCO/Bluffs, L.L.C. Apartments, 159 P.3d 116 (Colo. 2007).

Statute as basis for jurisdiction. Houle v. Adams State Coll., 190 Colo. 406, 547 P.2d 926 (1976).

Applied in In re Quintana, 28 Bankr. 269 (Bankr. D. Colo. 1983).

II.TREBLE DAMAGES AND ATTORNEYS’ FEES.

Constitutionality of attorneys’ fees provision. The legitimate aims of subsection (3)(a) supply a rational basis for the distinction between prevailing tenant-plaintiffs, who are entitled to attorneys’ fees, and prevailing landlord-defendants, who are not, and therefore the provision is constitutional. Torres v. Portillos, 638 P.2d 274 (Colo. 1981).

Equality of opportunity to recover attorneys’ fees is not a fundamental right, and therefore the rational relationship test, not the strict scrutiny test, is the appropriate standard for equal protection review. Torres v. Portillos, 638 P.2d 274 (Colo. 1981).

Entitlement to attorneys’ fees. Tenants who are successful on appeal are entitled to an award of reasonable attorneys’ fees. Martin v. Allen, 193 Colo. 395, 566 P.2d 1075 (1977); Kirkland v. Allen, 678 P.2d 568 (Colo. App. 1984).

Attorneys’ fees allowable include those incurred on appeal. Martinez v. Steinbaum, 623 P.2d 49 (Colo. 1981).

Attorney fees allowable include those incurred in resolving an issue as to the amount of reasonable attorney fees incurred in the underlying litigation and those incurred on appeal. Mau v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981).

Rationale for award of attorney fees. The reason this section provides for an award of attorney fees is two-fold: (1) To insulate the award of damages from being substantially reduced by the fees; and (2) to encourage the private bar to enforce its provisions in actions which generally involve small amounts of money. Ball v. Weller, 39 Colo. App. 14, 563 P.2d 371 (1977); Torres v. Portillos, 638 P.2d 274 (Colo. 1981).

Successful tenants are entitled to recover attorney fees for landlord’s independent actions challenging rulings and fee awards in the underlying security deposit litigation. Mishkin v. Young, 198 P.3d 1269 (Colo. App. 2008).

Hearing to determine amount of attorneys’ fees. When a successful plaintiff has requested attorneys’ fees in his complaint, such an award is mandatory, and it becomes incumbent upon the trial court to hold a hearing to determine the amount of reasonable attorneys’ fees to be awarded. Ball v. Weller, 39 Colo. App. 14, 563 P.2d 371 (1977); Kirkland v. Allen, 678 P.2d 568 (Colo. App. 1984).

Awarding fees without hearing error. The trial court erred in awarding attorneys’ fees to respondent without a hearing on their reasonableness. Heatherridge Mgt. Co. v. Benson, 192 Colo. 190, 558 P.2d 435 (1976).

Factors considered in determining of reasonable fee. If the fee requested is reasonable in light of community standards and the other criteria to be considered by the court, it is not appropriate for a court to take into consideration what a major client may pay the attorney on an hourly basis or the possible absence of overhead expenses comparable to those borne by lawyers in private practice. Mau v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981).

When penalty provision attaches. If a landlord does not return a security deposit within the required time, the penalty provision of subsection (3)(a) attaches to that portion of the money wrongfully retained, plus attorneys’ fees, and court costs. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975); Kirkland v. Allen, 678 P.2d 568 (Colo. App. 1984).

Where landlord deliberately fails to return security deposit within the additional seven-day period following the tenant’s notice to landlord of his intention to file legal proceedings, such retention is logically “willful” under subsection (3)(a) treble damages provisions. Kirkland v. Allen, 678 P.2d 568 (Colo. App. 1984).

The purpose of the seven-day notice provision in subsection (3)(a) is to give landlords one last week to avoid treble damages by returning the security deposit. Mishkin v. Young, 107 P.3d 393 (Colo. 2005).

A landlord may not avoid treble damages by accounting for a security deposit during the seven-day period established by subsection (3)(a). The seven-day period is beyond the statutory deadline of subsection (1) and, therefore, the landlord has already forfeited all rights to retain the deposit. Mishkin v. Young, 107 P.3d 393 (Colo. 2005).

Statutory liability of subsection (3)(a) may be offset by an award, if any, made to the landlord by counterclaim for damages caused by the tenant to the property, and the landlord has the burden of proving the claim by a preponderance of the evidence. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975).

Treble damages action not “frivolous” merely because landlord wins. A treble damages action under subsection (3)(a) cannot be characterized as “frivolous” or “groundless”, as used in § 13-17-101(3), merely because the landlord prevails on the merits of his defense. Torres v. Portillos, 638 P.2d 274 (Colo. 1981).

Prospective renter was not entitled to treble damages pursuant to this section since deposit paid for rental of condominium unit was not a security deposit but was instead prepayment of the entire rent for said unit. Mountain Queen Condo. Ass’n v. Haan, 753 P.2d 1234 (Colo. 1988).

Statute of limitations. The treble damages provision of this section, being penal in nature, is governed by the one-year statute of limitations; however, the recovery of the actual security deposit and the award of attorneys’ fees, being remedial in nature, are limited by the six-year statute of limitations. Carlson v. McCoy, 193 Colo. 391, 566 P.2d 1073 (1977).

38-12-104. Return of security deposit – hazardous condition – gas appliance
(1) Anytime service personnel from any organization providing gas service to a residential building become aware of any hazardous condition of a gas appliance, piping, or other gas equipment, such personnel shall inform the customer of record at the affected address in writing of the hazardous condition and take any further action provided for by the policies of such personnel’s employer. Such written notification shall state the potential nature of the hazard as a fire hazard or a hazard to life, health, property, or public welfare and shall explain the possible cause of the hazard.

(2) If the resident of the residential building is a tenant, such tenant shall immediately inform the landlord of the property or the landlord’s agent in writing of the existence of the hazard.

(3) The landlord shall then have seventy-two hours excluding a Saturday, Sunday, or a legal holiday after the actual receipt of the written notice of the hazardous condition to have the hazardous condition repaired by a professional. “Professional” for the purposes of this section means a person authorized by the state of Colorado or by a county or municipal government through license or certificate where such government authorization is required. Where no person with such government authorization is available, and where there are no local requirements for government authorization, a person who is otherwise qualified and who possesses insurance with a minimum of one hundred thousand dollars public liability and property damage coverage shall be deemed a professional for purposes of this section. Proof of such repairs shall be forwarded to the landlord or the landlord’s agent. Such proof may also be used as an affirmative defense in any action to recover the security deposit, as provided for in this section.

(4) If the landlord does not have the repairs made within seventy-two hours excluding a Saturday, Sunday, or a legal holiday, and the condition of the building remains hazardous, the tenant may opt to vacate the premises. After the tenant vacates the premises, the lease or other rental agreement between the landlord and tenant becomes null and void, all rights and future obligations between the landlord and tenant pursuant to the lease or other rental agreement terminate, and the tenant may demand the immediate return of all or any portion of the security deposit held by the landlord to which the tenant is entitled. The landlord shall have seventy-two hours following the tenant’s vacation of the premises to deliver to the tenant all of, or the appropriate portion of, the security deposit plus any rent rebate owed to the tenant for rent paid by the tenant for the period of time after the tenant has vacated. If the seventy-second hour falls on a Saturday, Sunday, or legal holiday, the security deposit must be delivered by noon on the next day that is not a Saturday, Sunday, or legal holiday. The tenant shall provide the landlord with a correct forwarding address. No security deposit shall be retained to cover normal wear and tear. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention of any portion of the security deposit. When the statement is delivered, it shall be accompanied by payment of the difference between any sum deposited and the amount retained. The landlord is deemed to have complied with this section by mailing said statement and any payments required by this section to the forwarding address of the tenant. Nothing in this section shall preclude the landlord from withholding the security deposit for nonpayment of rent or for nonpayment of utility charges, repair work, or cleaning contracted for by the tenant. If the tenant does not receive the entire security deposit or a portion of the security deposit together with a written statement listing the exact reasons for the retention of any portion of the security deposit within the time period provided for in this section, the retention of the security deposit shall be deemed willful and wrongful and, notwithstanding the provisions of section 38-12-103 (3), shall entitle the tenant to twice the amount of the security deposit and to reasonable attorney fees.

HISTORY: Source: L. 91: Entire section added, p. 1691, § 1, effective July 1.

ANNOTATION

Section does not abrogate common law remedy of constructive eviction for hazardous condition caused by an unsafe gas appliance. Copeland v. Lincoln, 166 P.3d 245 (Colo. App. 2007).

38-12-200.1. Short title

This part 2 shall be known and may be cited as the “Mobile Home Park Act”.

HISTORY: Source: L. 85: Entire section added, p. 1198, § 1, effective June 6.

Law reviews: For article, “The Effect of Zoning Violations on the Enforceability of Leases”, see 19 Colo. Law. 2077 (1990).

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TITLE 38. PROPERTY – REAL AND PERSONAL
TENANTS AND LANDLORDS
ARTICLE 12.TENANTS AND LANDLORDS
PART 3. LOCAL CONTROL OF RENTS PROHIBITED
C.R.S. 38-12-301 (2012)

38-12-301. Control of rents by counties and municipalities prohibited – legislative declaration

(1) The general assembly finds and declares that the imposition of rent control on private residential housing units is a matter of statewide concern; therefore, no county or municipality may enact any ordinance or resolution that would control rent on either private residential property or a private residential housing unit.

(2) For purposes of subsection (1) of this section, an ordinance or resolution that would control rent on either private residential property or a private residential housing unit shall not include:

(a) A voluntary agreement between a county or municipality and a permit applicant or property owner to limit rent on the property or unit or that is otherwise designed to provide affordable housing stock; or

(b) The placement on the title to the unit of a deed restriction that limits rent on the property or unit or that is otherwise designed to provide affordable housing stock pursuant to a voluntary agreement between a county or municipality and a permit applicant or property owner to place the deed restriction on the title.

(3) An agreement authorized pursuant to subsection (2) of this section may specify how long either private residential property or a private residential housing unit is subject to its terms, whether a subsequent property owner is subject to the agreement, and remedies for early termination agreed to by both the permit applicant or property owner and the county or municipality.

(4) Notwithstanding any other provision of this section, a county or municipality may not deny an application for a development permit as defined in section 29-20-103 (1), C.R.S., because an applicant for such a permit declines to enter into an agreement to limit rent on either private residential property or a private residential housing unit.

(5) This section is not intended to impair the right of any state agency, county, or municipality to manage and control any property in which it has an interest through a housing authority or similar agency.

HISTORY: Source:. L. 81: Entire part added, p. 1818, § 1, effective June 23.L. 2010: Entire section amended, (HB 10-1017), ch. 208, p. 906, § 1, effective September 1.

Law reviews: For article, “The Effect of Zoning Violations on the Enforceability of Leases”, see 19 Colo. Law. 2077 (1990).

Editor’s note: Section 2 of chapter 208, Session Laws of Colorado 2010, provides that the act amending this section applies to agreements entered into before, on, or after September 1, 2010.

ANNOTATION

Statute declaring rent control a matter of statewide importance preempted conflicting home rule town ordinance that mandated affordable housing mitigation. Lot Thirty-Four Venture, L.L.C. v. Town of Telluride, 976 P.2d 303 (Colo. App. 1998), aff’d, 3 P.3d 30 (Colo. 2000).

Ordinance constituted rent control because options it imposes for constructing new employee housing or deed restricting housing are within commonly understood meaning of rent control. Rent control falls within an area of mixed state and local concern. Ordinance clearly conflicts with state prohibition on rent control contained in this section. Accordingly, ordinance invalid and section does not violate home rule amendment to constitution. Town of Telluride v. Lot Thirty-Four Venture, 3 P.3d 30 (Colo. 2000).

2010 amendments to this section apply retroactively and such retroactive application does not violate the constitutional prohibition against retrospective legislation. The general assembly clearly indicated that it intended that the amendments apply to agreements entered into before they took effect, the amendments clarified rather than changed existing law, and the amendments were remedial in nature. Meyerstein v. City of Aspen, — P.3d — (Colo. App. 2011).

38-12-302. Definitions

As used in this part 3, unless the context otherwise requires:

(1) “Municipality” means a city or town and, in addition, means a city or town incorporated prior to July 3, 1877, whether or not reorganized, and any city, town, or city and county which has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution.

HISTORY: Source: L. 81: Entire part added, p. 1818, § 1, effective June 23.

TITLE 38. PROPERTY – REAL AND PERSONAL
TENANTS AND LANDLORDS
ARTICLE 12.TENANTS AND LANDLORDS
PART 4. VICTIMS OF DOMESTIC VIOLENCE
C.R.S. 38-12-401 (2012)

38-12-401. Definitions

As used in this part 4, unless the context otherwise requires:

(1) “Domestic abuse” shall have the same meaning as provided in section 13-14-101 (2), C.R.S.

(2) “Domestic violence” shall have the same meaning as provided in section 18-6-800.3 (1), C.R.S.

HISTORY: Source: L. 2004: Entire part added, p. 528, § 1, effective August 4.

Law reviews: For article, “The Effect of Zoning Violations on the Enforceability of Leases”, see 19 Colo. Law. 2077 (1990).

38-12-402. Protection for victims of domestic violence

(1) A landlord shall not include in a residential rental agreement or lease agreement for housing a provision authorizing the landlord to terminate the agreement or to impose a penalty on a residential tenant for calls made by the residential tenant for peace officer assistance or other emergency assistance in response to a domestic violence or domestic abuse situation. A residential tenant may not waive the residential tenant’s right to call for police or other emergency assistance.

(2) (a) If a tenant to a residential rental agreement or lease agreement notifies the landlord in writing that he or she is the victim of domestic violence or domestic abuse and provides to the landlord evidence of domestic violence or domestic abuse in the form of a police report written within the prior sixty days or a valid protection order and the residential tenant seeks to vacate the premises due to fear of imminent danger for self or children because of the domestic violence or domestic abuse, then the residential tenant may terminate the residential rental agreement or lease agreement and vacate the premises without further obligation except as otherwise provided in paragraph (b) of this subsection (2).

(b) If a tenant to a residential rental agreement or lease agreement terminates the residential rental agreement or lease agreement and vacates the premises pursuant to paragraph (a) of this subsection (2), then the tenant shall be responsible for one month’s rent following vacation of the premises, which amount shall be due and payable to the landlord within ninety days after the tenant vacates the premises. The landlord shall not be obligated to refund the security deposit to the tenant until such time as the tenant has paid the one month’s rent pursuant to this section. Notwithstanding the provisions of section 38-12-103, the landlord and the tenant to a residential rental agreement or lease agreement may use any amounts owed to the other to offset costs for the one month’s rent or the security deposit. The provisions of this paragraph (b) shall apply only if the landlord has experienced and documented damages equal to at least one month’s rent as a result of the tenant’s early termination of the agreement.

(3) Nothing in this part 4 authorizes the termination of tenancy and eviction of a residential tenant solely because the residential tenant is the victim of domestic violence or domestic abuse.

HISTORY: Source:. L. 2004: Entire part added, p. 528, § 1, effective August 4.L. 2005: Entire section amended, p. 402, § 3, effective July 1.

TITLE 38. PROPERTY – REAL AND PERSONAL
TENANTS AND LANDLORDS
ARTICLE 12.TENANTS AND LANDLORDS
PART 5. OBLIGATION TO MAINTAIN RESIDENTIAL PREMISES – UNLAWFUL REMOVAL

C.R.S. 38-12-501 (2012)

38-12-501. Legislative declaration – matter of statewide concern – purposes and policies

(1) The general assembly hereby finds and declares that the provisions of this part 5 are a matter of statewide concern. Any local government ordinance, resolution, or other regulation that is in conflict with this part 5 shall be unenforceable.

(2) The underlying purposes and policies of this part 5 are to:

(a) Simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants;

(b) Encourage landlords and tenants to maintain and improve the quality of housing; and

(c) Make uniform the law with respect to the subject of this part 5 throughout Colorado.

HISTORY: Source: L. 2008: Entire part added, p. 1820, § 3, effective September 1.

Law reviews: For article, “The Effect of Zoning Violations on the Enforceability of Leases”, see 19 Colo. Law. 2077 (1990).

Law reviews: For article, “Colorado Implied Warranty of Habitability for Residential Tenancies: An Overview”, see 38 Colo. Law. 59 (May 2009).

38-12-502. Definitions

As used in this part 5, unless the context otherwise requires:

(1) “Common areas” means the facilities and appurtenances to a residential premises, including the grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to a tenant.

(2) “Dwelling unit” means a structure or the part of a structure that is used as a home, residence, or sleeping place by a tenant.

(3) “Landlord” means the owner, manager, lessor, or sublessor of a residential premises.

(4) “Rental agreement” means the agreement, written or oral, embodying the terms and conditions concerning the use and occupancy of a residential premises.

(5) “Residential premises” means a dwelling unit, the structure of which the unit is a part, and the common areas.

(6) “Tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

HISTORY: Source: L. 2008: Entire part added, p. 1820, § 3, effective September 1.

38-12-503. Warranty of habitability

(1) In every rental agreement, the landlord is deemed to warrant that the residential premises is fit for human habitation.

(2) A landlord breaches the warranty of habitability set forth in subsection (1) of this section if:

(a) A residential premises is uninhabitable as described in section 38-12-505 or otherwise unfit for human habitation; and

(b) The residential premises is in a condition that is materially dangerous or hazardous to the tenant’s life, health, or safety; and

(c) The landlord has received written notice of the condition described in paragraphs (a) and (b) of this subsection (2) and failed to cure the problem within a reasonable time.

(3) When any condition described in subsection (2) of this section is caused by the misconduct of the tenant, a member of the tenant’s household, a guest or invitee of the tenant, or a person under the tenant’s direction or control, the condition shall not constitute a breach of the warranty of habitability. It shall not be misconduct by a victim of domestic violence or domestic abuse under this subsection (3) if the condition is the result of domestic violence or domestic abuse and the landlord has been given written notice and evidence of domestic violence or domestic abuse as described in section 38-12-402 (2) (a).

(4) In response to the notice sent pursuant to paragraph (c) of subsection (2) of this section, a landlord may, in the landlord’s discretion, move a tenant to a comparable unit after paying the reasonable costs, actually incurred, incident to the move.

(5) Except as set forth in this part 5, any agreement waiving or modifying the warranty of habitability shall be void as contrary to public policy.

(6) Nothing in this part 5 shall:

(a) Prevent a landlord from terminating a rental agreement as a result of a casualty or catastrophe to the dwelling unit without further liability to the landlord or tenant; or

(b) Preclude a landlord from initiating an action for nonpayment of rent, breach of the rental agreement, violation of section 38-12-504, or as provided for under article 40 of title 13, C.R.S.

HISTORY: Source: L. 2008: Entire part added, p. 1821, § 3, effective September 1.

38-12-504. Tenant’s maintenance of premises

(1) In addition to any duties imposed upon a tenant by a rental agreement, every tenant of a residential premises has a duty to use that portion of the premises within the tenant’s control in a reasonably clean and safe manner. A tenant fails to maintain the premises in a reasonably clean and safe manner when the tenant substantially fails to:

(a) Comply with obligations imposed upon tenants by applicable provisions of building, health, and housing codes materially affecting health and safety;

(b) Keep the dwelling unit reasonably clean, safe, and sanitary as permitted by the conditions of the unit;

(c) Dispose of ashes, garbage, rubbish, and other waste from the dwelling unit in a clean, safe, sanitary, and legally compliant manner;

(d) Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, elevators, and other facilities and appliances in the dwelling unit;

(e) Conduct himself or herself and require other persons in the residential premises within the tenant’s control to conduct themselves in a manner that does not disturb their neighbors’ peaceful enjoyment of the neighbors’ dwelling unit; or

(f) Promptly notify the landlord if the residential premises is uninhabitable as defined in section 38-12-505 or if there is a condition that could result in the premises becoming uninhabitable if not remedied.

(2) In addition to the duties set forth in subsection (1) of this section, a tenant shall not knowingly, intentionally, deliberately, or negligently destroy, deface, damage, impair, or remove any part of the residential premises or knowingly permit any person within his or her control to do so.

(3) Nothing in this section shall be construed to authorize a modification of a landlord’s obligations under the warranty of habitability.

HISTORY: Source: L. 2008: Entire part added, p. 1822, § 3, effective September 1.

38-12-505. Uninhabitable residential premises

(1) A residential premises is deemed uninhabitable if it substantially lacks any of the following characteristics:

(a) Waterproofing and weather protection of roof and exterior walls maintained in good working order, including unbroken windows and doors;

(b) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation and that are maintained in good working order;

(c) Running water and reasonable amounts of hot water at all times furnished to appropriate fixtures and connected to a sewage disposal system approved under applicable law;

(d) Functioning heating facilities that conformed to applicable law at the time of installation and that are maintained in good working order;

(e) Electrical lighting, with wiring and electrical equipment that conformed to applicable law at the time of installation, maintained in good working order;

(f) Common areas and areas under the control of the landlord that are kept reasonably clean, sanitary, and free from all accumulations of debris, filth, rubbish, and garbage and that have appropriate extermination in response to the infestation of rodents or vermin;

(g) Appropriate extermination in response to the infestation of rodents or vermin throughout a residential premises;

(h) An adequate number of appropriate exterior receptacles for garbage and rubbish, in good repair;

(i) Floors, stairways, and railings maintained in good repair;

(j) Locks on all exterior doors and locks or security devices on windows designed to be opened that are maintained in good working order; or

(k) Compliance with all applicable building, housing, and health codes, which, if violated, would constitute a condition that is dangerous or hazardous to a tenant’s life, health, or safety.

(2) No deficiency in the common area shall render a residential premises uninhabitable as set forth in subsection (1) of this section, unless it materially and substantially limits the tenant’s use of his or her dwelling unit.

(3) Unless otherwise stated in section 38-12-506, prior to being leased to a tenant, a residential premises must comply with the requirements set forth in section 38-12-503 (1), (2) (a), and (2) (b).

HISTORY: Source: L. 2008: Entire part added, p. 1822, § 3, effective September 1.

38-12-506. Opt-out

(1) If a dwelling unit is contained within a mobile home park, as defined in section 38-12-201.5 (3), or if there are four or fewer dwelling units sharing common walls or located on the same parcel, as defined in section 30-28-302 (5), C.R.S., all of which have the same owner, or if the dwelling unit is a single-family residential premises:

(a) A good faith rental agreement may require a tenant to assume the obligation for one or more of the characteristics contained in section 38-12-505 (1) (f), (1) (g), and (1) (h), as long as the requirement is not inconsistent with any obligations imposed upon a landlord by a governmental entity for the receipt of a subsidy for the residential premises; and

(b) For any dwelling unit for which a landlord does not receive a subsidy from any governmental source, a landlord and tenant may agree in writing that the tenant is to perform specific repairs, maintenance tasks, alterations, and remodeling, but only if:

(I) The agreement of the parties is entered into in good faith and is set forth in a separate writing signed by the parties and supported by adequate consideration;

(II) The work is not necessary to cure a failure to comply with section 38-12-505 (3); and

(III) Such agreement does not affect the obligation of the landlord to other tenants’ residential premises.

(2) For a single-family residential premises for which a landlord does not receive a subsidy from any governmental source, a landlord and tenant may agree in writing that the tenant is to perform specific repairs, maintenance tasks, alterations, and remodeling necessary to cure a failure to comply with section 38-12-505 (3), but only if:

(a) The agreement of the landlord and tenant is entered into in good faith and is set forth in a writing that is separate from the rental agreement, signed by the parties, and supported by adequate consideration; and

(b) The tenant has the requisite skills to perform the work required to cure a failure to comply with section 38-12-505 (3).

(3) To the extent that performance by a tenant relates to a characteristic set forth in section 38-12-505 (1), the tenant shall assume the obligation for such characteristic.

(4) If consistent with this section a tenant assumes an obligation for a characteristic set forth in section 38-12-505 (1), the lack of such characteristic shall not make a residential premises uninhabitable.

HISTORY: Source: L. 2008: Entire part added, p. 1823, § 3, effective September 1.

38-12-507. Breach of warranty of habitability – tenant’s remedies

(1) If there is a breach of the warranty of habitability as set forth in section 38-12-503 (2), the following provisions shall apply:

(a) Upon no less than ten and no more than thirty days written notice to the landlord specifying the condition alleged to breach the warranty of habitability and giving the landlord five business days from the receipt of the written notice to remedy the breach, a tenant may terminate the rental agreement by surrendering possession of the dwelling unit. If the breach is remediable by repairs, the payment of damages, or otherwise and the landlord adequately remedies the breach within five business days of receipt of the notice, the rental agreement shall not terminate by reason of the breach.

(b) A tenant may obtain injunctive relief for breach of the warranty of habitability in any court of competent jurisdiction. In any proceeding for injunctive relief, the court shall determine actual damages for a breach of the warranty at the time the court orders the injunctive relief. A landlord shall not be subject to any court order for injunctive relief if the landlord tenders the actual damages to the court within two business days of the order. Upon application by the tenant, the court shall immediately release to the tenant the damages paid by the landlord. If the tenant vacates the leased premises, the landlord shall not be permitted to rent the premises again until such time as the unit would be in compliance with the warranty of habitability set forth in section 38-12-503 (1).

(c) In an action for possession based upon nonpayment of rent in which the tenant asserts a defense to possession based upon the landlord’s alleged breach of the warranty of habitability, upon the filing of the tenant’s answer the court shall order the tenant to pay into the registry of the court all or part of the rent accrued after due consideration of expenses already incurred by the tenant based upon the landlord’s breach of the warranty of habitability.

(d) Whether asserted as a claim or counterclaim, a tenant may recover damages directly arising from a breach of the warranty of habitability, which may include, but are not limited to, any reduction in the fair rental value of the dwelling unit, in any court of competent jurisdiction.

(2) If a rental agreement contains a provision for either party in an action related to the rental agreement to obtain attorney fees and costs, then the prevailing party in any action brought under this part 5 shall be entitled to recover reasonable attorney fees and costs.

HISTORY: Source: L. 2008: Entire part added, p. 1824, § 3, effective September 1.

38-12-508. Landlord’s defenses to a claim of breach of warranty – limitations on claiming a breach

(1) It shall be a defense to a tenant’s claim of breach of the warranty of habitability that the tenant’s actions or inactions prevented the landlord from curing the condition underlying the breach of the warranty of habitability.

(2) Only parties to the rental agreement or other adult residents listed on the rental agreement who are also lawfully residing in the dwelling unit may assert a claim for a breach of the warranty of habitability.

(3) A tenant may not assert a claim for injunctive relief based upon the landlord’s breach of the warranty of habitability of a residential premises unless the tenant has given notice to a local government within the boundaries of which the residential premises is located of the condition underlying the breach that is materially dangerous or hazardous to the tenant’s life, health, or safety.

(4) A tenant may not assert a breach of the warranty of habitability as a defense to a landlord’s action for possession based upon a nonmonetary violation of the rental agreement or for an action for possession based upon a notice to quit or vacate.

(5) If the condition alleged to breach the warranty of habitability is the result of the action or inaction of a tenant in another dwelling unit or another third party not under the direction and control of the landlord and the landlord has taken reasonable, necessary, and timely steps to abate the condition, but is unable to abate the condition due to circumstances beyond the landlord’s reasonable control, the tenant’s only remedy shall be termination of the rental agreement consistent with section 38-12-507 (1) (a).

(6) For public housing authorities and other housing providers receiving federal financial assistance directly from the federal government, no provision of this part 5 in direct conflict with any federal law or regulation shall be enforceable against such housing provider.

HISTORY: Source: L. 2008: Entire part added, p. 1825, § 3, effective September 1.

38-12-509. Prohibition on retaliation

(1) A landlord shall not retaliate against a tenant for alleging a breach of the warranty of habitability by discriminatorily increasing rent or decreasing services or by bringing or threatening to bring an action for possession in response to the tenant having made a good faith complaint to the landlord or to a governmental agency alleging a breach of the warranty of habitability.

(2) A landlord shall not be liable for retaliation under this section, unless a tenant proves that a landlord breached the warranty of habitability.

(3) Regardless of when an action for possession of the premises where the landlord is seeking to terminate the tenancy for violation of the terms of the rental agreement is brought, there shall be a rebuttable presumption in favor of the landlord that his or her decision to terminate is not retaliatory. The presumption created by this subsection (3) cannot be rebutted by evidence of the timing alone of the landlord’s initiation of the action.

(4) If the landlord has a right to increase rent, to decrease service, or to terminate the tenant’s tenancy at the end of any term of the rental agreement and the landlord exercises any of these rights, there shall be a rebuttable presumption that the landlord’s exercise of any of these rights was not retaliatory. The presumption of this subsection (4) cannot be rebutted by evidence of the timing alone of the landlord’s exercise of any of these rights.

HISTORY: Source: L. 2008: Entire part added, p. 1826, § 3, effective September 1.

38-12-510. Unlawful removal or exclusion

It shall be unlawful for a landlord to remove or exclude a tenant from a dwelling unit without resorting to court process, unless the removal or exclusion is consistent with the provisions of article 18.5 of title 25, C.R.S., and the rules promulgated by the state board of health for the cleanup of an illegal drug laboratory or is with the mutual consent of the landlord and tenant or unless the dwelling unit has been abandoned by the tenant as evidenced by the return of keys, the substantial removal of the tenant’s personal property, notice by the tenant, or the extended absence of the tenant while rent remains unpaid, any of which would cause a reasonable person to believe the tenant had permanently surrendered possession of the dwelling unit. Such unlawful removal or exclusion includes the willful termination of utilities or the willful removal of doors, windows, or locks to the premises other than as required for repair or maintenance. If the landlord willfully and unlawfully removes the tenant from the premises or willfully and unlawfully causes the termination of heat, running water, hot water, electric, gas, or other essential services, the tenant may seek any remedy available under the law, including this part 5.

HISTORY: Source: L. 2008: Entire part added, p. 1826, § 3, effective September 1.

38-12-511. Application

(1) Unless created to avoid its application, this part 5 shall not apply to any of the following arrangements:

(a) Residence at a public or private institution, if such residence is incidental to detention or the provision of medical, geriatric, education, counseling, religious, or similar service;

(b) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser, seller, or a person who succeeds to his or her interest;

(c) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization;

(d) Transient occupancy in a hotel or motel that lasts less than thirty days;

(e) Occupancy by an employee or independent contractor whose right to occupancy is conditional upon performance of services for an employer or contractor;

(f) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative;

(g) Occupancy in a structure that is located within an unincorporated area of a county, does not receive water, heat, and sewer services from a public entity, and is rented for recreational purposes, such as a hunting cabin, yurt, hut, or other similar structure;

(h) Occupancy under rental agreement covering a residential premises used by the occupant primarily for agricultural purposes; or

(i) Any relationship between the owner of a mobile home park and the owner of a mobile home situated in the park.

(2) Nothing in this section shall be construed to limit remedies available elsewhere in law for a tenant to seek to maintain safe and sanitary housing.

HISTORY: Source: L. 2008: Entire part added, p. 1827, § 3, effective September 1

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