Jerry Kopel

KOPEL: THE DEVIL, AS ALWAYS, IS IN THE DETAILS

Warranty of Habitability took 50 years to reach the law books, but will it work?

Colorado’s “Implied Warranty of Habitability for Residential Tenancies” is just a 10-month-old baby, born during the 2008 legislative session following a gestation period of 50 years. You could not expect it to be perfect, with 10 fingers and 10 toes. Those who carried House Bill 1356 fought hard to keep what they could keep to provide statutory protection for residential renters. But lots of pro-landlord language became part of the law, perhaps enough to render the new protections unusable. It’s too early to tell.

Boulder real estate attorney Victor M. Grimm and his wife, Denise Grimm, a certified paralegal, dissected the new law in an article in the May 2009 issue of The Colorado Lawyer, the publication of the Colorado Bar Association. The article avoided judging whether various clauses of the new law were adequate or inadequate, giving credibility to their analysis.

Any legislator considering introducing an amendment to the new law in 2010 should read the Grimms’ article, as well as the May 6, 2008, Colorado Daily interview on the subject with former state Sen. Ron Tupa, D-Boulder.

The new habitability statute, CRS 38-12-503, provides, “In every rental agreement the landlord is deemed to warrant that the residential premise is fit for human habitation.” It specifies conditions that render a residence uninhabitable and covers all the bases by adding the catch-all phrase “or otherwise unfit for human habitation.” The landlord is offered such options as allowing the tenant to make repairs.

However, the following is added to the definition: “The residential premise is in condition that is materially dangerous or hazardous to the tenant’s life, health or safety.” That is NOT an alternative proof to “unfit for habitation.” It is an ADDITIONAL proof, which sits on the tenant’s shoulders.

For example, if cockroach extermination has not been successful, that problem falls under the “fit for habitation” clause. But it does not fall under “materially dangerous or hazardous” clause, especially considering that the statute fails to define “materially dangerous” (or hazardous).

CRS 38-12-508 requires a tenant to give “notice to a local government where the residence is located, of a materially dangerous or hazardous condition to life, health or safety.” The Grimms suggest that this should be done before an action is filed. But the law doesn’t define “local government.” So is a recreation subdistrict office acceptable? Or the county jail? We don’t know.

As the Grimm article points out, without calling it good or bad “it seems apparent that a merely uninhabitable premises is not sufficient to invoke the remedies provided under the act; the premises must be both uninhabitable and dangerous or hazardous.”

Attorney fees: A well-to-do property management company can afford to eat attorney costs much more easily than a tenant earning a salary. When attorney fees were available to the prevailing party under present court decision, there were attorneys who would take a tenant’s case on the chance that the court would award payment of lawyer fees to the plaintiff. That’s no longer possible under the new law, which fails to include lawyer fees for one of the parties to the lease, reducing the possibility of successful actions except through pro bono activity.

Retaliation: Under CRS 38-12-509, if the tenant can show there was actually retaliation for a complaint, the statute provides “a landlord shall not be liable for retaliation under this section, unless a tenant proves that a landlord breached the warranty of habitability.”

Time for notice: In some instances, a time frame for action by the landlord or the tenant is not set out. You might view my column in The Colorado Statesman for June 13 to consider the potential time needed by one of the parties to fulfill a duty.

The Grimms conclude their article by saying, “the act contains its share of ambiguities and unanswered questions, which, presumably, will be addressed by the courts and/or the Legislature in the years to come.” I suggest that legislators who support a habitability warranty ask the Grimms to help draft an amended law for 2010.

Which brings us to the subject of pro bono. Most plaintiffs who will need pro bono assistance will be indigent tenants.

Pro bono is a well-known term in the legal profession. The Colorado Lawyer includes the following information, provided by the Colorado Supreme Court:

“(the court) recognizes those law firms, solo practitioners and in-house counsel groups that have committed to:

(1) an annual goal of 50 hours of pro bono legal services by each Colorado-licensed attorney in their firm, primarily for the indigent and/or organizations serving indigent persons (averaged across the firm and prorated for part-time attorneys);

(2) valuing such hours for all purposes of attorney evaluation, advancement and compensation in the firm as the firm values compensated client representation; and

(3) recognizing in the calendar year 2008 those firms that achieved the goal. Listings to date include firms and attorneys providing services pro bono. Pro bono does not require an attorney to use legal firm money to pay court costs or hire investigators.

On April 1, 1999, the following short news article by John Sanko appeared in the Rocky Mountain News:

“Colorado lawyers shouldn’t be forced to work for free ... With a few chuckles over the idea of lawyers working for nothing, the Senate gave preliminary approval to HB 1301, which declares that professionals — lawyers, doctors, dentists, plumbers or any other occupation that is licensed — cannot be required to pay a fee in lieu of doing public work. The bill was carried by Rep. Shawn Mitchell, R-Broomfield, and Sen. David Owens, R-Greeley.”

HB 1301 can be read at CRS 12-1.5-101: (1) No regulatory agency or other department, division, branch, instrumentality or political subdivision of state government shall require any person practicing a regulated profession or occupation to donate such person’s professional services without compensation to any other person as a condition of admission to or continue licensure in such profession or occupation; nor shall payment of money in lieu of such uncompensated service be required.

(2) This section shall not be construed to prohibit the crediting of required hours of continuing education in exchange for hours of donated services by a person in a regulated profession or occupation.”

The statute’s words appear to apply to the judiciary (a political subdivision of state government). Nowhere does the law require a law firm to compel employee-attorneys to provide free service to the indigent. Yet, the weight of having the judiciary urge pro bono may be the deciding factor in what, in a few years, could be considered important in determining a legal office’s pay or a partnership or location.

Jerry Kopel served 22 years in the Colorado House.