In certain states, tenants are allowed to stop paying some or all of their rent until their landlord makes major repairs—a tactic known as “rent withholding.” However, the situation isn’t as clear-cut in Colorado. Technically, there’s no state law that gives tenants the right to withhold rent. But the law does protect tenants from eviction if they stop paying rent when their landlord violates Colorado’s implied warranty of habitability—in essence, creating the right to withhold rent in a backdoor way.
Rent withholding isn’t explicitly allowed by Colorado law
Tenants hoping to find a provision of Colorado law that allows rent withholding will be disappointed. Technically, a tenant is always bound by their lease, which requires them to pay rent in a timely manner. But state law also says that if a tenant is sued for eviction for not paying rent, the tenant may defend themselves in court by proving that they withheld rent because a landlord violated the implied warranty of habitability and failed to fix a problem with the rental unit.1 It’s a roundabout way of allowing rent withholding
You may be wondering, why doesn’t Colorado simply recognize a right to withhold rent? It’s because the state doesn’t want to encourage this behavior unless it is absolutely necessary.
Tenants must prove that the warranty of habitability was breached
In Colorado, and in most states in America, rental housing comes with a warranty. In order for a landlord to rent a dwelling to a tenant, he or she must “warrant,” or promise, certain things about the condition of the dwelling. Colorado is actually pretty specific about the requirements for rental property to be considered habitable.2 If any of these things don’t exist, it’s considered a breach of the warranty.
A tenant wins a non-payment eviction case by proving to the court that their landlord breached the warranty of habitability—basically, that they refused or ignored a request to make a repair that caused the rental unit to become unlivable.
Tenants have to pay withheld rent into a court fund
When a tenant intends to use the breach of the implied warranty of habitability as a defense in an eviction case, they must, at the beginning of the case, pay the amount of rent they have withheld to the court, minus any expenses allegedly caused by the landlord’s bad behavior (for example, payment for repairs).1 If the tenant is successful in proving their claim, they will get this money back at once the case concludes. If not, it will be likely be given to the landlord.
Colorado law is still developing on this topic
Until 2008, Colorado had no implied warranty of habitability at all. Only in 2018 did the Colorado government allow tenants to use a breach of the warranty as a defense to eviction. That means there is little precedent to see how courts will use and interpret these laws.
Point being, tenants should proceed carefully if they decide to withhold rent. First, tenants should notify their landlord of the problem with their rental and give the landlord time to fix it. While this isn’t a legal requirement, a court will be more likely to rule in favor of a tenant if they can show they gave their landlord a chance to do the right thing. Also, a tenant should never spend the withheld rent money—as noted above, they'll need to pay that money into a court fund if their landlord sues them.
The information provided on this website does not, and is not intended to, constitute legal advice.
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