Five Things to Know About the Warranty of Habitability

By Craig Chambers, Attorney At Law

The Littleton Lawyer

Vol 1.84    March 17, 2019

As a real estate attorney practicing in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver, Centennial, Lakewood, and the surrounding areas, I often deal with the warranty of habitability which exists for rental properties under Colorado law.

First, the “Warranty of habitability” under C.R.S. 38-12-503 et seq. means that the landlord has responsibility to ensure that the rental property is “fit for human habitation.”

Second, the warranty of habitability This exists in every residential lease. It can’t be waived. In other words, a tenant has a right to live in a habitable property.

Third, a residential  premises is deemed “uninhabitable” for problems with water intrusion, plumbing or gas facilities, lack of running water, sewage disposal , lack of eat, unsafe electrical  components, inappropriate extermination of rodents or vermin, unsafe stairs or railings, insufficient locks or security and similar safety hazards.

The actual definition of inhabitability is that the condition of the premises materially and substantially limits the tenant’s use of his or her dwelling.

Fourth, a tenant must give the landlord  notice of the problems with the unit and allow the landlord 5 business days to cure the problem with the property. If the landlord fails to cure the problems, the tenants can consider the lease terminated, withhold rent, and  vacate the home.

The tenant must prove two things: the premises are uninhabitable within the meaning of the statute; and the tenant gave the landlord notice and the landlord failed to correct the problems within 5 business days. Therefore, documenting both the problems with the dwelling and your communication with the landlord are crucial to winning your case.

Fifth, a breach of the warranty of habitability, if you can prove it, is a defense to an eviction FED proceeding; if you list the breach of the warranty of habitability as an affirmative defense,  a court would determine if the tenant was justified n terminating the lease and/or if the landlord breached the warranty of habitability, justifying the withholding of rent and terminating the lease.

Five Things to Know about Child Custody Cases

By Craig Chambers, Attorney At Law

The Littleton Lawyer

Vol 1.20    March 17, 2019

As a family law and divorce attorney practicing in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver, Centennial, Lakewood, and the surrounding areas, I often go to court on child custody matters. Here are five things to know about child custody cases.

The factors for where the child will reside as his primary resident are set forth in C.R.S. 14-10-124. The underlying standard is the court will determine child custody cases based on what’s in the best interests of the child.

First, what’s in the best interests of the child is not necessarily what a parent believes is in the child’s best interest. It’s not who has a nicer home or a better job. It’s up to the magistrate or judge assigned to the case, and it can vary depending on who the judge is. It’s what the court determines, after a hearing, based on the factors in the statute, as to what’s in the child’s best interests.

Second, in Colorado, there is no presumption of a 50/50 parenting plan. There are the nine factors in the statute for the court to consider, including the drive between the parents residence, the history  of involvement  between the parents and the child’s age, other relationships, school and adjustments to the community.

Third, the public policy of Colorado is to encourage the child to have a relationship with both parents. If one parent endangers the child physically or psychologically, it is possible to have the other parent’s parenting time restricted, or even supervised. These situations are rare and the underlying facts must be severe. In most cases, even if you don’t approve of your ex, he or she is likely to get reasonable and liberal parenting time.

Fourth, the child doesn’t get to choose his or her parenting time. Not even as a teenager. If the child is mature enough to express an independent and reasoned opinion the court can consider the child’s wishes. But the child can’t testify for one parent and against another.  Children can’t be witnesses.  Most judge’s  wont’ even allow the child to be questioned by the judge in chambers in a judicial interview.  You should never include your child in parenting or custody decisions. It forces the child to choose between his or her parents and it is harmful to the child.

In short, do not, under any circumstances, put the child in the middle of the parenting dispute.

Fifth, several of the factors in the statute relate to how well the parties get along. “The parties ability to encourage sharing of love, affection & contact between the child and the other parent”  “whether the parties past involvement shows a system of values, time commitment, and mutual support.”  “The ability of each party to place the needs of the child ahead of his or her needs.”

What’s best for the child is for you to communicate with your ex. Disparaging the other parent, or exaggerating about the other parents’ faults or misconduct is likely going to backfire. Colorado is a no-fault state. Unless your ex’s past conduct endangers the child the court won’t look at the parties’ misconduct.

Never disparage the other parent, especially in front of the child.

Custody disputes can be overwhelming and stressful. The best thing you can do in a custody dispute is to be the mature one:  encourage stability for the child’s sake.  Encourage the relationship between the child and the other parent.

Just because you and your ex may no longer get alone, what the court looks for in a custody dispute is which parent is most likely to put their differences aside and encourage a stable and supportive environment for the child.

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