Warranty of Habitability Early Notification Requirements

The new notice requirements of Colorado’s Warranty of Habitability (effective August 2, 2019) require a landlord to type, long before making repairs. The requirements are specific and time sensitive.  They will doom the reasonable, but inexperienced landlord to losing the dispute, regardless of the underlying merits of the argument.

The statutory clock starts ticking when the landlord receives “reasonably complete written or electronic notice of the condition” of the problem from the resident. The statute allows for a pre-agreed specific email address, phone number, or electronic portal for notices. Therefore, a prudent lease contract should include specified and required contact information for this purpose.

Upon receipt of the resident’s notice, the landlord must provide a response within 24 hours that includes:

• The landlord’s intentions for remedying the condition.
• An estimate of when the remediation will commence (24 or 96 hours depending on seriousness).
• An estimate of when the remediation will be completed.

There’s oddly no requirement that the landlord’s response notice be in writing.  However, both expediency and the need to prove the content and timing of the response notice dictate written or electronic notice. While these are the only three required elements of the landlord’s response notice, it is a convenient opportunity to provide notice of entry (whether or not required by lease) and also influence the likely outcome of a litigated finding of what might constitute the statute’s undefined obligation to “commence remedial action”.

The statute dictates that the landlord will commence remedial action within 24 hours for an issue that “materially interferes with the tenant’s life, health or safety” or within 96 hours for the long list of less serious required repairs (working appliances, leaking roofs, hot water etc.), but it doesn’t say what commencement might be. Obviously, the greater the progress on the repair, the more likely a landlord will be able to win the argument that the steps taken within the mandated time-frame represent commencement. 

However, when little progress can be anticipated within the mandated response time, statements like we will commence remediation work by “inspecting the problem to determine what needs to be done”, “causing a maintenance representative to respond to the unit”, or “ordering necessary replacement parts” will go a long way to creating “commencement” when it might otherwise not exist. 

The more information that may be available regarding the scope and timing of the work, the more meaningful the information that can be provided to the resident. Other than making promises that can’t be kept, there is nothing wrong with providing more information than the statute requires. However, given the short time for the response and the mandatory minimum content, there will be times when the even the most diligent and transparent landlord will be forced to make very little information sound like statutory compliance. For those times consider:

We intend to make all necessary repairs.  We will commence the repair process by inspecting and diagnosing the problem to determine needed supplies, equipment and repair person(s) within ____ hours.  We will be entering the unit for that purpose during this time-frame.  We estimate that the repairs will be completed when the necessary materials and repair persons can be coordinated at the unit.