Strict compliance with the law is necessary if tenants, who typically lack legal representation, wish to sue landlords for poor living conditions, Colorado’s second highest court said last week.
In a 2-1 decision, a three-judge Court of Appeals panel agreed that a Denver man could not hold his landlord responsible for an uninhabitable apartment because he did not give specific permission to enter his unit, as required by law.
“We are not free to rewrite the statute and must apply clear statutory language as written,” Judge Ted C. Tow III wrote. in the opinion of the panel of July 20dismissing plaintiff Allen Anderson’s argument that his lease already allowed the landlord entry for repairs.
Judge Timothy J. Schutz, writing in dissent, pointed out that Anderson initially represented himself in court and therefore the appeal panel had an obligation to take a more lenient view of his claims. For Schutz, Anderson probably did not need to give further permission to enter, and Anderson’s case should have been tried.
Jack Regenbogen, deputy executive director of the Colorado Poverty Law Project, acknowledged lawmakers intended to ensure homeowners receive proper notice of unsafe living conditions.
“However, the Legislature did not intend for these notification requirements to be weaponized and interpreted so strictly that they would become a barrier to people accessing appropriate remedies,” he said. “This decision will unduly prevent many tenants, especially those with low incomes who cannot access legal representation, from being able to communicate with their landlord about unsafe living conditions.”
An analysis of Denver evictions between 2014 and 2016 found that no more than 3% of tenants had legal representation, compared to the majority of landlords. Comparable statistics don’t appear to exist for the type of case Anderson brought – a “liability guarantee” lawsuit, in which landlords are responsible for keeping their properties fit for human habitation.
Anderson lives in the 2200 block of Downing St. in Denver, in a property owned by Shorter Arms Investors and managed by PK Management. Anderson alleged that her apartment was “flooded” with human waste, the ceiling “collapsed”, the stove was unusable for more than a year and lingering mold led to her hospitalization.
In December 2021, District Court Judge Stephanie L. Scoville analyzed whether Anderson had complied with Colorado law by providing a proper uninhabitability notice. Anderson pointed out that the state health department had observed a ceiling collapse and a “possible mold problem” in Anderson’s unit, and that Anderson himself had made numerous maintenance requests.
While Anderson “may well be right” that the state’s warning put Shorter Arms on notice and Anderson followed his landlord’s protocol for requesting work orders, Scoville ultimately decided that Anderson failed to meet a key requirement of the law.
There was “no explicit permission for the defendants to enter her apartment,” she wrote.
Anderson, now represented by pro bono counsel, turned to the Court of Appeals to challenge Scoville’s literal interpretation of the law.
“Given the important legal objective of ensuring that landlords provide and maintain residences ‘fit for human habitation’ and the power imbalance between landlords and tenants, requiring strict adherence to notice provisions … is inappropriate,” wrote attorney Katharine E. Lum, who was recently appointed to the Court of Appeal as a judge.
During oral argument, Schutz criticized Shorter Arms’ attorney for repeatedly observing that Anderson, who is disabled and receives federally subsidized housing, does not pay rent himself.
“Are you suggesting that the applicant, because he is in social housing, does not have a right to habitability? Schutz asked.
“No, he is,” replied attorney Todd E. Likman.
In the end, the majority of the panel sided with the defendants. Under the law as it existed at the time Anderson filed his lawsuit, he had to allow his landlord into the unit at the time he complained. Moreover, even though the state health department could have warned Shorter Arms, calling it “possible mold” was an insufficient way to do so, Tow wrote for himself and Judge Anthony J. Navarro.
Schutz, in his dissent, would have explicitly ruled that a third party can put a landlord on notice to repair an uninhabitable unit, and a jury could find that the state health department did so in Anderson’s case. He also believed that Anderson did not need to provide permission to enter while complaining to his landlord.
“Anderson has attached copies of numerous Shorter Arms inspection notices whereby he exercised his right to enter his unit,” Schutz wrote. “One of those notices even cited the term of the lease by which Anderson had provided his prior permission to enter his apartment to ‘perform reasonable repairs and periodic inspections’.”
Schutz concluded by suggesting that the legislature clarify what tenants must do to mount a viable lawsuit against their landlord.
A voicemail message left for Shorter Arms and PK Management was not returned.
The case is Anderson v. Shorter Arms Investors, LLC et al.
