Daily Development for
Thursday, January 7, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD/TENANT; RESIDENTIAL; RETALIATORY EVICTION: Colorado may not recognize the retaliatory eviction doctrine at all, but if it did, it would not apply the doctrine in a case in which a tenant only complained to the landlord about the condition of the premises and did not report a housing code violation to a government entity.

W.W.G. Corp. v. Hughes, 960 P.2d 720 (Colo. App. 1998).

The retaliatory eviction doctrine limits a landlord's right to decline to deal further with a tenant whom the landlord finds undesirable. Courts and residential leasing statutes have applied it to landlord action to terminate a periodic tenancy, decrease services, or increase rent. Arguably, it could even apply in a case in which the landlord, following expiration of an existing lease, refuses to extend to a tenant a new lease on the same terms and conditions that are offered to others.

The doctrine is a result of public policy concern about providing decent housing and reflects a judicial and legislative determination that in order to maintain decent housing, applicable codes must be enforced through individuals asserting in their own cases the right to conforming premises. The doctrine usually is viewed as part of the general movement toward an implied warranty of habitability, by which a landlord implicitly (and unavoidably) agrees to provide and maintain a premises that at least meets the standards of the housing code. In many jurisdictions, the premises must meet general habitability standards as well.

Under the laws of various jurisdictions, tenants may withhold rent, repair and deduct, sue for damages or specific performance, or terminate for constructive eviction based upon landlord's violations of these habitability standards. Typically, again, these tenants' rights are unavoidable the landlord cannot bargain for waivers in the lease.

In this case, the tenant complained to the landlord that leaking pipes in the leased premises had damages her furniture. According to the court, such leaks were not a violation of a housing code. In any event, the tenant did not complain to the housing code enforcement authorities (landlord voluntarily relocated her to another apartment) but instead pressed for compensation for her damaged furniture. The landlord refused to renew tenant's lease when it expired, and tenant refused to move. In the ensuing summary possession action, tenant argued retaliatory eviction, and the trial court, using its equitable discretion, found the doctrine consistent with Colorado law and applied it here, denying the summary possession.

On appeal: held: reversed. Since the complaint lodged by the tenant did not involve complaint of a housing code violation to the housing code authorities, the public policy reasons for the retaliatory eviction doctrine were not present.

The appeals court accepted the trial courts conclusion that the landlord terminated the tenant's continued possession of the premises in response to her complaints "regarding the water damage to her property and the uninhabitable state of her apartment."

Although the court acknowledges that some state statutes permit the doctrine of retaliatory eviction to operate when the tenant has done no more than complain to the landlord about uninhabitable conditions, it asserted that all of the reported holdings have involved situations in which there was a statute (usually the Uniform Residential Landlord Tenant Act) requiring such a result, and that it found no cases in which a court had permitted the tenant to raise the retaliatory eviction defense on the basis of the common law doctrine alone where the tenant had not complained to housing authorities.

The court further pointed out that Colorado courts have not yet determined whether the retaliatory eviction doctrine is applicable in Colorado. Since it concluded that the facts of the case did not support a retaliatory eviction defense, the court declined to reach the question of whether the doctrine should exist in Colorado.

Comment 1: In a brief research jaunt of his own, the editor also was unable to find any cases specifically holding that retaliatory eviction can be used when there has not been a formal complaint to a housing code agency or the equivalent. But the Restatement 2nd of Property, at Sec. 14.8, seems to adopt a tenant favorable position on the point. The Restatement would permit the doctrine to be raised when other elements have been met and: "(4) the landlord is primarily motivated in [taking the challenged action] because the tenant, either alone or through his participation in a lawful organization of tenants, has complained about a violation by the landlord of a protective housing statute."

A number of states have adopted this language with approval, among them Building Monitoring Systems, Inc. v. Paxton, 905 P.2d 1215 (Utah 1995) (holding of case involved complaint to housing authorities). The reporters to the Restatement, writing in 1972, indicated that complaints to housing authorities were not intended to be the only protected conduct, but rather any action asserting the tenant's right to a habitable premises is covered:

[T]he tenant's attempt to exercise or enforce his rights under the lease or under applicable law has been protected. E.g., Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C.Cir. 1972) (tenant's right under D.C. law to withhold rent for purpose of correcting housing code violations); Schweiger v. Superior Court of Alameda County, 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97 (1970) (tenant's right under state law to repair leased property and deduct costs from rent).

In the instant case, the court appears to acknowledge that the tenant's premises was uninhabitable. It is hard to believe that leaking water pipes severe enough to damage furniture do not violate most housing codes, and in any event the court does not seem to base its conclusion on the issue of whether the leaking pipes violated the code. Rather, it clearly states that the doctrine should be limited to situations in which a complaint is made to public enforcement officials. The Restatement would not so limit the doctrine.

Certainly the commentators writing in support of the doctrine have concluded that if the policy of the state is to encourage the tenant to assert its rights to a habitable premises, with the express or implied threat of legal responses if the landlord fails to act, this policy ought to protect the tenant from retaliation.

Comment 2: The logic of the proponents of permitting the application of the retaliatory eviction doctrine in cases where the tenant has complained of a habitability violation seems unassailable if we already are prepared to recognize the doctrine. The whole purpose of the panoply of special rights created under the implied warranty of habitability is to give the tenant more weapons than resort to formal code inspection devices,

In this particular case, however, the court apparently had the option to point out that the original condition may not have been a habitability problem because the landlord was not aware of it until informed by the tenant, and thereafter the landlord responded promptly by moving the tenant. The tenant's subsequent demand for compensation for her damaged furniture, therefore, may not have been an attempt to claim damages for an implied warranty of habitability, and the court could have disposed of the case on these alternative grounds.

Comment 3: The editor follows the logic of the retaliatory eviction doctrine, but nevertheless is uncomfortable with the open ended nature of the analysis of the continuation of the "retaliatory motive." The landlord, for an uncertain future time, is condemned to live with an undesirable tenant on landlord's property. This is not a desirable relationship for the courts to require.

In light of the fact that many, many state legislatures have now seen fit to identify and define the implied warranty of habitability, modern courts most conclude that a legislature's failure to act in this area is a considered choice, and not the result of simple inertia. Consequently this is not an area where judicial activism is warranted, even if it might be in other cases and even if it once was here. By this reasoning, the Colorado court was correct in reaching the conclusion that it ought to go slow in appending the retaliatory eviction defense to its common law. A legislature can better balance the delicate public policy choices here and set standards that are protective of the interests of all sides.

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