When sued for eviction, unpaid rent or breach of the covenants of a lease, a Tenant may raise a number of defenses. This article discusses some of the defenses / counter claims that frequently arise in Landlord – Tenant disputes.
A Constructive Eviction occurs when a tenant abandons a lease because some act or omission on the part of the landlord “renders the premises unfit for occupancy for the purposes for which they were leased, or[…] deprives the lessee of the beneficial enjoyment of the premises.” Radinsky v. Weaver. There are many possible grounds for claiming constructive eviction, including ongoing construction, frequent intrusions into the unit, changed locks, loud and continuing noises or disturbances, structural defects, etc. Normally this defense is exceptional and must be shown by significant and compelling evidence.
If a Tenant is successful in raising this defense / counterclaim, the Tenant can recover the amount of rent still owed under the remaining lease as a damage, and any other damages arising naturally and directly from the constructive eviction.
Breach of the Covenant of Quiet Enjoyment
The Covenant of Quiet Enjoyment entitles every Tenant to the quiet enjoyment of their leased property. This means that a landlord may not intrude upon the leased property and may not by act or omission interfere with the Tenant’s beneficial use of the property. This defense / counterclaim is closely related to the concept of constructive eviction, except in the case of a breach of the covenant of quiet enjoyment the Tenant need not abandon the property, and the breach can be of a more minor nature.
If a Tenant wins their claim for breach of the covenant of quiet enjoyment they can be protected from claims for unpaid rent and may also be awarded a rent abatement. A rent abatement means that the Tenant will be entitled to recover a portion of rent already paid as compensation for the reduced ability to use and enjoy the leased property.
Breach of the Warranty of Habitability
All residential leases have an implied warranty of habitability read into them. See Colo.Rev.Stat. §38-12-503. This means that the Landlord warrants to the Tenant that the leased property is suitable for human habitation. Some examples of violations of this warranty include: dangerous or hazardous conditions, water leaks, lack of running water or hot water, lack of functioning heat, failure to provide extermination of infestations, and various violations of the building code.
If a Tenant succeeds on a defense / counterclaim of breach of the warranty of habitability she may recover any expenses incurred in remedying the breach, obtain injunctive relief, be allowed to terminate the lease and be protected from claims for unpaid rent.