Jerry Kopel

Warranty of Habitability


August 17, 2007

By Jerry Kopel

I bet you didn't know that animals in Colorado, domestic or wild captives, have a warranty of habitability directed against their owner or caretaker.

It's CRS 18-9-201 (4). "Neglect" means failure to provide food, water, protection from the elements, or other care generally considered to be normal, usual, and accepted for an animal's health and well being, consistent with the species, breed, and type of animals.

If the neglect constitutes "cruelty to animals" it is punishable as a class 1 misdemeanor. A second conviction is a Class 6 felony under CRS 18-9-202.

Unfortunately, two-legged animals, otherwise known as human beings, do not have the same rights of protection in Colorado. Our state is one of only two (Colorado and Arkansas) that does not, by legislative declaration, statute, or court decision of common law, recognize warranty of habitability for humans.

The term "warranty of habitability" generally means a tenant, in return for his or her consideration, has the right to a habitation that is fit for a human being to live in.

Attempts to pass a warranty law for humans goes back to a 1969 bill by Sens. Joe Shoemaker (R) and John Birmingham (R) and has failed every year it has been introduced. There have been dozens of attempts since 1969. It might be worthwhile for proponents to collect all of these and their amendments and how far the bills proceeded before being killed (a worthy project for interested students at University of Denver Sturm Law School).

The only time right for passage appears to be with a combination of a House, Senate, and governorship controlled by Democrats. That's this year (too late) or 2008. The last time we had that combination was 1962.

A bill was not introduced in 2007 because the expected sponsor Rep. Mike Merrifield (D) was ill. The Apartment Owners Association will not be surprised when a bill is introduced in 2008.

As one who frustratingly carried or supported bills for tenants' rights over two decades beginning in 1971, I suggest two alternatives. One, a legislative declaration recognition that warranty of habitability as a doctrine exists in Colorado, or two, a re-run of SB 133 by Sen. Sally Hopper (R) in 1987, or similar legislation.

By "re-run" I mean introduction of the ORIGINAL version of SB 133, not the version that barely passed the Senate and died in House State Affairs Committee even after being drastically weakened by Apartment Owens Assn. lobbyists' amendments in Senate State Affairs Committee. Hopper described the Senate passed bill in the Denver Post, April 17, 1987, as "decimated".

As reported in the Rocky Mountain News of March 12, 1987, Dennis Maloney, president then of the Apartment Owners Assn. told the Business Affairs Committee (the second Senate committee) "many landlords would have to raise rents and put people on the street if forced to provide the basic services."

To which Sen. Bob Martinez (D) responded "a home without heat, lights and water would be the same as being on the street."

As Hopper reported in the Colorado Statesman, May 1,1987, her bill as originally introduced required the landlord:

  • To maintain in good order the plumbing, sanitary and heating facilities. To make repairs after written notice by the tenant.
  • To supply running water, electricity and reasonable amounts of hot water and heat (unless turned off due to tenant failure to pay the bill).

The tenant would be required.

  • To use the plumbing, sanitary and hearting facilities in a responsible manner.
  • To keep the premises clean and safe.
  • When vacating the dwelling, to leave it in the condition of cleanliness as when it was rented (allowing for ordinary wear).

My choice? A legislative declaration approving warranty of habitability as a basic right for the tenant of a habitation. The courts have a slew of case decisions in 48 other states which could apply in Colorado.

Another approach would be to declare that tenants of habitations have the same rights against landlords that other animals in Colorado have against owners or caretakers.

* * *

I am a slow reader, so I admit that I just finished reading a March 3, 2003 New Yorker magazine. Here is what I found in a Talk of the Town column, page 32 by Roger Angell:

"In a separate announcement the Pentagon let it be known that it had ordered fifteen thousand eight hundred and ninety body bags, not all of them immediately destined for the Persian Gulf. None are for use by the enemy."

Jerry Kopel served 22 years in the Colorado House.

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