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Anderson v. Shorter Arms Investors, LLC.

2023 COA 71. No. 22CA0122. Landlords and Tenants—Warranty of Habitability—Statutory Notice Requirements.

July 20, 2023

Anderson is a tenant at an apartment complex owned by Shorter Arms Investors, LLC and managed by PK Management, LLC (collectively, Shorter Arms). Over the years, Anderson made oral and written demands that Shorter Arms repair numerous living conditions in his apartment that he considered to be deplorable. In addition, the Colorado Department of Public Health and Environment (CDPHE) inspected Anderson’s apartment at times during his tenancy and provided Shorter Arms with written notice of the results, including a May 2019 notice that there was a possible mold issue. Shorter Arms failed to make the repairs, and Anderson sued for breach of the warranty of habitability. The district court granted summary judgment in favor of Shorter Arms, finding that Anderson had failed to provide sufficient notice as required by the statute.

On appeal, Anderson argued that the statutory notice requirement is not jurisdictional, so the court should have only required substantial compliance. He maintained that his oral complaints complied with Shorter Arms’ rules, which provide that tenants requesting repairs should “[c]all, email or stop in the office to have the office staff write-up your service request.” Colorado’s statutory implied warranty of habitability, CRS § 38-12-503, provides that in every rental agreement, the landlord is deemed to warrant the residential premises as fit for human habitation. It also requires written or electronic notice before a landlord can be found to have breached that warranty; thus, the notice is an element of the cause of action for breach of the warranty that must be established before a landlord can be found liable. Accordingly, the district court did not err by concluding that Anderson’s oral notices were insufficient as a matter of law.

As to the CDPHE notice, the court of appeals assumed without deciding (as did the district court) that the statutory notice may be provided by a third party. Nevertheless, CDPHE’s May 2019 notice did not implicate the statute because this notice (1) predated the statutory amendments adding specific provisions related to mold and (2) was otherwise insufficient because it did not demonstrate that the condition resulted in the apartment being “uninhabitable” under the statutory definition or otherwise being unfit for human habitation.

With respect to the only written notice he gave, Anderson argued again that only substantial compliance with the statutory obligation to provide the landlord permission to enter the residence should be required. However, the Warranty Act, CRS §§ 38-12-501 to -511, requires contemporaneous permission for the landlord to enter the premises for repairs. This includes mold-specific issues, unless the mold condition has reached the point that it is presently materially interfering with the tenant’s life, health, or safety, which Anderson did not allege. Here, the court noted that it was undisputed that Anderson’s only written notice did not explicitly include permission for Shorter Arms to enter Anderson’s apartment to make the necessary repairs. Therefore, the district court did not err by concluding that Anderson’s written notice was insufficient as a matter of law.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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