(1) If there is a breach of the warranty of habitability as set forth in section 38-12-503 (2):
Upon no less than ten and no more than thirty days written notice to the landlordspecifying 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.
(I) A tenant may obtain injunctive relief for breach of the warranty of habitability inany county or district court of competent jurisdiction. In a 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 is not subject to any court order for injunctive relief if:
The landlord tenders the actual damages to the court within two business days afterthe order; and
The proceeding for injunctive relief does not concern a condition described in section 38-12-503 (2)(a)(II) that has not been repaired or remedied.
(II) 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 residential premises, the landlord shall not rent the residential premises again until the unit complies with the warranty of habitability set forth in section 38-12-503 (1).
In an action for possession based upon nonpayment of rent in which the tenant assertsa 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.
Whether asserted as a claim or counterclaim, a tenant may recover damages directlyarising 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.
(I) Pursuant to this subsection (1)(e), the tenant may deduct from one or more rentpayments the cost of repairing or remedying a condition that is the basis of a breach of the warranty of habitability described in section 38-12-503, if the tenant provides notice of the condition to the landlord as described in section 38-12-503 (2)(b) or (2.2) and the landlord fails to:
Commence remedial action by employing reasonable efforts within the applicableperiod described in section 38-12-503 (2)(b); or
Complete the actions described in section 38-12-503 (2.2).
At least ten days before deducting costs from a rent payment as described in thissubsection (1)(e), a tenant shall provide the landlord with written or electronic notice of the tenant's intent to do so. The notice must specify the date of notification, the name of the landlord or property manager, the address of the rental property, the condition that requires a repair or remedy, the date upon which the tenant provided notice to the landlord of the condition that requires a repair or remedy, and a copy of at least one good-faith estimate of costs to repair or remedy the condition, which estimate has been prepared by a professional who is unrelated to the tenant, is trained to perform the work for which the estimate is being prepared, and complies with all licensing, certification, or registration requirements of this state that apply to the performance of the work. A tenant withholding rent over multiple payment periods is required to provide notice only once. The tenant shall retain a copy of the notice.
After a tenant provides a landlord notice of the tenant's intent to deduct costs pursuant to subsection (1)(e)(II) of this section, the landlord has four business days to obtain one or more good-faith estimates of such costs in addition to any estimate that the tenant included in the notice. The estimate must be prepared by a professional who is unrelated to the landlord, is trained to perform the work for which the estimate is being prepared, and complies with all licensing, certification, or registration requirements of this state that apply to the performance of the work. If the landlord prefers to repair or remedy the condition by hiring a professional other than a professional who prepared an estimate for the tenant, the landlord shall share the preferred professional's estimate with the tenant and shall commence work to repair or remedy the condition as soon as reasonably possible.
If the landlord does not obtain any additional estimates within the four days prescribed by subsection (1)(e)(III) of this section, the tenant may proceed to deduct costs from one or more rent payments, based on the estimate acquired by the tenant, until the entire amount of the estimate is deducted.
A tenant who deducts costs pursuant to subsection (1)(e)(IV) of this section shall notrepair or remedy the condition but shall hire a professional who is unrelated to the tenant, is trained to perform the work for which the estimate is being prepared, and complies with all licensing, certification, or registration requirements of this state that apply to the performance of the work.
If a tenant hires a professional to repair or remedy a condition causing a breach ofthe warranty of habitability and deducts the estimated cost of such repair or remedy from one or more rent payments, as permitted by this subsection (1)(e), and the deducted estimated cost exceeds the actual cost incurred by the tenant, the tenant shall remit the excess cost to the landlord within ten business days.
Notwithstanding any provision of this subsection (1)(e) to the contrary, a tenantshall not deduct costs from one or more rent payments if the condition that is the basis for the alleged breach of the warranty of habitability 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; except that this subsection (1)(e)(VII) does not apply if:
The tenant is a victim of domestic violence; domestic abuse; unlawful sexual behavior, as described in section 16-22-102 (9); or stalking;
The condition is the result of domestic violence; domestic abuse; unlawful sexualbehavior, as described in section 16-22-102 (9); or stalking; and
The landlord has been given written or electronic notice and evidence of domesticviolence; domestic abuse; unlawful sexual behavior, as described in section 16-22-102 (9); or stalking.
(VIII) Notwithstanding any provision of this subsection (1)(e) to the contrary, a tenant shall not deduct costs from one or more rent payments or make repairs to a residential premises if the residential premises was constructed, acquired, developed, rehabilitated, or maintained with:
Funding provided pursuant to section 8 or 9 of the federal "United States HousingAct of 1937", as amended, 42 U.S.C. secs. 1437f and 1437g;
Funding from the home investment partnerships program of the federal departmentof housing and urban development; or
Federal low-income housing tax credits, Colorado affordable housing tax credits, orfunding provided under any federal, state, or local program that restricts maximum rents for persons of low or moderate income and that is currently subject to a use restriction that is monitored to ensure compliance by the federal government, the state government, a county government, or a municipal government, or by any political subdivision or designated agency thereof.
A tenant who deducts costs from one or more rent payments in accordance with thissubsection (1)(e) may seek additional remedies provided by this section.
If a court finds that a tenant has wrongfully deducted rent, the court shall award thelandlord an amount of money equal to the amount wrongfully withheld. If the court finds that the tenant acted in bad faith, the court shall award the landlord possession of the residential premises and an amount of money equal to double the amount wrongfully withheld.
A tenant who deducts rent as a result of a breach of the warranty of habitability,which breach is based on a condition described in section 38-12-505 (1)(b)(I), may, in lieu of repairing the malfunctioning appliance, replace the malfunctioning appliance so long as the replacement appliance is at least of substantially comparable quality and has substantially the same features as the original appliance.
If a rental agreement contains a provision for either party in an action related to therental 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.
Notwithstanding subsection (1) of this section:
If the same condition that substantially caused a breach of the warranty of habitability recurs within six months after the condition is repaired or remedied, other than a breach of section 38-12-505 (1)(b)(I), the tenant may terminate the rental agreement fourteen days after providing the landlord written or electronic notice of the tenant's intent to do so. The notice must include a description of the condition and the date of the termination of the rental agreement.
If the same condition that substantially caused a breach of the warranty of habitability recurs within six months after the condition is repaired or remedied, and the condition is a breach of section 38-12-505 (1)(b)(I), the tenant may terminate the rental agreement fourteen days after providing the landlord written or electronic notice of the tenant's intent to do so. The notice must include a description of the condition and the date of the termination of the rental agreement. However, if the landlord remedies the condition within fourteen days after receiving the notice, the tenant may not terminate the rental agreement.
Source: L. 2008: Entire part added, p. 1824, § 3, effective September 1. L. 2019: IP(1) and (1)(b) amended and (1)(e) and (3) added, (HB 19-1170), ch. 229, p. 2310, § 6, effective August 2.