State Laws Addressing Radon, Mold and Secondhand Smoke
Colorado
Colorado’s Tenants and Landlords law provides that there is an implied warranty of habitability in every rental agreement and provides a list of certain conditions that render a residential premises uninhabitable. (Co. Stat. § 38-12-503.) In 2019, the law was amended to include mold and dampness in the list of conditions and expand the remedies available for tenants. (2019 Colo. Legis. Serv. Ch. 229 (H.B. 19-1170).)
Duty to Maintain and Repair. The Tenants and Landlords law states that a landlord commits a breach of the implied warranty of habitability if the premises are “uninhabitable” as described in the law, otherwise unfit for human habitation, or in “a condition that materially interferes with the tenant’s life, health, or safety”; and the landlord has received reasonably complete written or electronic notice of the condition and has failed to commence remedial action by employing reasonable efforts within 24-96 hours, depending on the type of condition.
The law specifies that in cases where the premises “has mold that is associated with dampness, or there is any other condition causing the residential premises to be damp, which condition, if not remedied, would materially interfere with the health or safety of the tenant,” the warranty is breached if the landlord fails to take the following steps:
- Within 96 hours after receiving notice, to mitigate the immediate risk from mold by installing a containment, stopping active sources of water to the mold, and installing a high-efficiency particulate air filtration device to reduce tenants’ exposure to mold;
- Maintain the containment until remedial actions are taken; and
- Within a reasonable time, take the following remedial actions to remove the health risk posed by mold: establish appropriate protections for workers and occupants; eliminate or limit moisture sources and dry all materials; decontaminate and remove damaged materials as appropriate; evaluate whether the premises has been successfully remediated; and reassemble the premises to control sources of moisture and nutrients and thereby prevent or limit the recurrence of mold. (Co. Stat. § 38-15-503.)
Remedies/Enforcement. The amended law grants county and district courts jurisdiction to provide injunctive relief related to a breach of the warranty of habitability. In a proceeding for injunctive relief, the court must determine actual damages for a breach of the warranty, which are then paid to the tenant (Co. Stat. § 38-12-507.) A tenant may also provide the landlord notice of her intention to deduct from rent payments the cost of remedying a condition that is the basis of a breach of the warranty and may then deduct such cost unless the landlord takes certain remedial actions.
The law also requires the landlord to provide the tenant a comparable dwelling unit or a hotel room, at no expense or cost to the tenant (beyond normal payment of rent), when the notice received by the landlord concerns a condition that materially interferes with the tenant’s life, health, or safety. If the tenant vacates the residential premises, the landlord is not allowed to rent the premises again until the unit complies with the warranty of habitability. (Co. Stat. § 38-12-507.)