The most common problem for tenants by far is not getting their deposit back—but that subject will have to wait for another column.
Probably the second biggest problem is getting repairs. What rights you have in getting repairs is very dependent on where you live. I realize Boulder Weekly readers can live anywhere, but tenants living in the city of Boulder have a much better chance of getting repairs because of the Boulder housing code, although few know that. More on that at the end.
Regardless of where they live in Colorado, tenants moving from other states may understandably think they have the right to withhold part or all of their rent if repairs aren’t made because of a legal doctrine called the implied warranty of habitability. Hold off on that course of action.
I have previously mentioned that the Boulder Tenants Union—and other pro-tenant organizations and state legislators—tried to pass warranty of habitability (WOH) legislation in Colorado in the 1980s. At that time, 42 other states had a WOH, which usually gave tenants the right to withhold rent if landlords refused to make repairs in a timely manner, or at all.
That basic right was consistently opposed by the landlord’s lobby (Colorado Apartment Association, CAA, which fought virtually any proposed tenant protection for decades) and languished. After much effort, a weak version of the WOH finally passed in 2009. Colorado Revised Statute 38-12-503 states, “In every rental agreement, the landlord is deemed to warrant that the residential premises is fit for human habitation.” But the ability of tenants to use that right was complicated, rarely used and not widely known. Efforts made to strengthen it over the years were always opposed by the usual suspects.
An amended version finally passed and took effect in 2019 (over the objections of the CAA), and became easier to use. The Colorado Homes for All Coalition (working to repeal the statewide ban on rent control) worked with the Colorado Poverty Law Center (CPLC) lobbying for those WOH improvements. While it’s still not ready for prime time, the warranty of habitability is still the best protection tenants have right now, especially for those tenants with weak or non-existent housing codes.
Spencer Bailey, housing advocate attorney with the CPLC, says Colorado was one of the last states to pass a WOH, and it still needs work. He agrees it continues to be risky and complicated to withhold rent without talking to an attorney (or other tenant service). “Post 2019, a tenant has a very limited mechanism to withhold rent, and tenants often don’t know how to follow the steps,” Bailey says.
It should be noted that while the WOH gives tenants the right to withhold rent—or, in severe cases of uninhabitability, move out (known as constructive eviction)— it ain’t easy. There are certain steps—written notice, specific timelines that need to be followed—and failure to do all those in just the right way could end up significantly costing the tenant.
So, if you have a repair or maintenance issue, what should you do? The type and extent of repair may well determine what can be done. Also, check your lease to see who’s responsible for repairs, but beware of illegal clauses. For instance, you can’t waive your rights under the WOH, regardless of what the lease says.
Common sense dictates the first step: Talk to the manager/owner of your unit to get repairs. It’s best to give them a dated, written request with specifics, keep a copy and ask how long they expect repairs to be made.
If you’re in the city of Boulder, consult the Landlord-Tenant Handbook. It has an extensive section on what is covered, who is responsible and steps to take. The L-T Handbook was created by the Community Mediation and Resolution Center, which I discussed in my Aug. 25 column (Unrepentant Tenant, “Resources for Boulder renters”). They are also a good resource to get information and resolve the problem.
As I hinted earlier, few people (especially tenants) know that the city of Boulder has the oldest and strongest housing code in Colorado, called the property maintenance code. There’s a lot to it, so I’ll be writing more about that in the next column. But it is separate from a tenant’s right under the Warranty of Habitability, and also referenced in The L-T Handbook.