First Regular Session

Sixty-first General Assembly

LLS NO. 97­0068.01 JY SENATE BILL 97­063

STATE OF COLORADO

BY SENATOR Matsunaka;.

also REPRESENTATIVE Allen.

BUSINESS AFFAIRS & LABOR

REENGROSSED

A BILL FOR AN ACT

CONCERNING THE WARRANTY OF HABITABILITY FOR RESIDENTIAL TENANCIES.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Requires a landlord of a residential dwelling unit to comply with the requirements of applicable building and housing codes materially affecting health and safety and to maintain the premises in a fit and habitable condition.

Subject to certain requirements:

• Allows a tenant to perform specified repairs, maintenance, alterations, or remodeling pursuant to a written agreement; and

• Allows a tenant to terminate a rental agreement and recovegggnbnbkoiiujjijcertain damages upon a landlord's failure to comply with the rental agreement or statutory duties materially affecting health, habitability, and safety.

Specifies that a landlord who sells a premises containing a dwelling unit or a manager who terminates his or her management of such premises is relieved of liability under any applicable rental agreement and the provisions of this act as to events occurring after written notice to the tenant of such sale or termination. Requires a landlord to remit any security deposit owed to a tenant upon termination of a rental agreement. Specifies the remedies available to a tenant when the landlord fails to supply heat, water, hot water, or other essential services. Allows a tenant to repair certain minor defects and to deduct the actual and reasonable expenses from the tenant's rent. Prohibits a tenant from recovering any damages when the defect or condition was caused by an act or omission of the tenant.

Requires a tenant to comply with applicable building and housing codes materially affecting health and safety and to maintain the dwelling unit in a clean and safe condition. Upon a tenant's noncompliance, allows a landlord to enter the dwelling to perform the necessary work and to charge the tenant for the actual and reasonable costs incurred.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Article 12 of title 38, Colorado Revised Statutes, 1982 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW PART to read:

PART 4

WARRANTY OF HABITABILITY

38­12­401.  Definitions.  AS USED IN THIS PART 4, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(1)  "BUILDING AND HOUSING CODES" INCLUDES ANY LAW, ORDINANCE, OR RULE OR REGULATION CONCERNING THE FITNESS FOR HABITATION OR THE MAINTENANCE, OPERATION, OCCUPANCY, OR USE OF ANY PREMISES OR DWELLING UNIT.

(2)  "DWELLING UNIT" MEANS A STRUCTURE OR THE PART OF A STRUCTURE THAT IS USED AS A HOME, RESIDENCE, OR SLEEPING PLACE BY ONE PERSON WHO MAINTAINS A HOUSEHOLD OR BY TWO OR MORE PERSONS WHO MAINTAIN A COMMON HOUSEHOLD.

(3)  "GOOD FAITH" MEANS HONESTY IN FACT IN THE CONDUCT OF THE TRANSACTION CONCERNED.

(4)  "LANDLORD" MEANS THE OWNER OR LESSOR OF THE DWELLING UNIT. THE TERM DOES NOT INCLUDE A "LANDLORD" AS DEFINED IN SECTION 38­12­201.5 (1.5).

(5)  "PERSON" INCLUDES AN INDIVIDUAL, CORPORATION, GOVERNMENT, GOVERNMENTAL SUBDIVISION OR AGENCY, BUSINESS, TRUST, ESTATE, TRUST, PARTNERSHIP OR ASSOCIATION, TWO OR MORE PERSONS HAVING A JOINT OR COMMON INTEREST, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY.

(6)  "PREMISES" MEANS A DWELLING UNIT AND THE STRUCTURE OF WHICH IT IS A PART AND THE FACILITIES AND APPURTENANCES THEREIN AND THE GROUNDS, AREAS, AND FACILITIES HELD OUT FOR THE USE OF TENANTS GENERALLY OR THE USE OF WHICH IS PROMISED TO THE TENANT.

(7)  "RENT" MEANS ALL PAYMENTS TO BE MADE TO OR FOR THE BENEFIT OF THE LANDLORD UNDER THE RENTAL AGREEMENT.

(8)  "RENTAL AGREEMENT" MEANS ALL AGREEMENTS, WRITTEN OR ORAL, BETWEEN A LANDLORD AND A TENANT EMBODYING THE TERMS AND CONDITIONS CONCERNING THE USE AND OCCUPANCY OF A DWELLING UNIT AND PREMISES.

(9)  "SINGLE­FAMILY RESIDENCE" MEANS A STRUCTURE MAINTAINED AND USED AS A SINGLE DWELLING UNIT. NOTWITHSTANDING THAT A DWELLING UNIT SHARES ONE OR MORE WALLS WITH ANOTHER DWELLING UNIT, A DWELLING UNIT IS A SINGLE-FAMILY RESIDENCE IF IT HAS DIRECT ACCESS TO A STREET OR THOROUGHFARE AND SHARES NEITHER HEATING FACILITIES, HOT WATER EQUIPMENT, NOR ANY OTHER ESSENTIAL FACILITY OR SERVICE WITH ANY OTHER DWELLING UNIT.

(10)  "TENANT" MEANS A PERSON ENTITLED UNDER A RENTAL AGREEMENT TO OCCUPY A DWELLING UNIT TO THE EXCLUSION OF OTHERS.

38­12­402.  Landlord's duties to maintain premises. (1)  A LANDLORD SHALL:

(a)  COMPLY WITH THE REQUIREMENTS OF APPLICABLE BUILDING AND HOUSING CODES MATERIALLY AFFECTING THE PUBLIC HEALTH AND SAFETY;

(b)  MAINTAIN IN GOOD AND SAFE WORKING ORDER AND CONDITION ALL ELECTRICAL, PLUMBING, SANITARY, HEATING, VENTILATING, SECURITY LIGHTS AND SYSTEMS, AND OTHER FACILITIES THAT ARE REQUIRED TO BE SUPPLIED BY THE LANDLORD; AND

(c)  SUPPLY RUNNING WATER AND REASONABLE AMOUNTS OF HOT WATER AT ALL TIMES AND REASONABLE HEAT, EXCEPT WHERE THE BUILDING THAT INCLUDES THE DWELLING UNIT IS NOT REQUIRED BY LAW TO BE EQUIPPED FOR THAT PURPOSE OR WHERE THE DWELLING UNIT IS SO CONSTRUCTED THAT HEAT OR HOT WATER IS GENERATED BY AN INSTALLATION WITHIN THE EXCLUSIVE CONTROL OF THE TENANT AND SUPPLIED BY A DIRECT PUBLIC UTILITY CONNECTION.

(2)  THE LANDLORD AND TENANT OF A SINGLE­FAMILY RESIDENCE MAY AGREE IN WRITING THAT THE TENANT PERFORM THE LANDLORD'S DUTIES SPECIFIED IN PARAGRAPH (c) OF SUBSECTION (1) OF THIS SECTION AND ALSO SPECIFIED REPAIRS, MAINTENANCE TASKS, ALTERATIONS, AND REMODELING, BUT ONLY IF THE AGREEMENT IS ENTERED INTO IN GOOD FAITH AND SUPPORTED BY SEPARATE CONSIDERATION.

(3)  THE LANDLORD AND TENANT OF ANY DWELLING UNIT OTHER THAN A SINGLE­FAMILY RESIDENCE MAY AGREE THAT THE TENANT IS TO PERFORM SPECIFIED REPAIRS, MAINTENANCE TASKS, ALTERATIONS, OR REMODELING ONLY IF:

(a)  THE AGREEMENT OF THE PARTIES IS ENTERED INTO IN GOOD FAITH, SUPPORTED BY SEPARATE CONSIDERATION, AND SET FORTH IN A SEPARATE WRITING SIGNED BY THE PARTIES;

(b)  THE WORK IS NOT NECESSARY TO CURE NONCOMPLIANCE WITH PARAGRAPH (a) OF SUBSECTION (1) OF THIS SECTION; AND

(c)  THE AGREEMENT DOES NOT DIMINISH OR AFFECT THE OBLIGATION OF THE LANDLORD TO OTHER TENANTS IN THE PREMISES.

38­12­403.  Limitation of liability. UNLESS OTHERWISE AGREED UPON, A LANDLORD WHO CONVEYS A PREMISES THAT INCLUDES A DWELLING UNIT SUBJECT TO A RENTAL AGREEMENT IN A GOOD FAITH SALE TO A BONA FIDE PURCHASER IS RELIEVED OF LIABILITY UNDER THE RENTAL AGREEMENT AND THE PROVISIONS OF THIS PART 4 AS TO EVENTS OCCURRING AFTER THE TRANSFER OF TITLE FOR SUCH CONVEYANCE; EXCEPT THAT THE LANDLORD REMAINS LIABLE TO THE TENANT FOR ANY SECURITY DEPOSIT RECOVERABLE BY THE TENANT PURSUANT TO THE PROVISIONS OF SECTION 38­12­103.

38­12­404.  Tenant remedies ­ generally. (1)  EXCEPT AS OTHERWISE PROVIDED IN THIS PART 4, IF THE LANDLORD FAILS TO COMPLY WITH THE PROVISIONS OF SECTION 38­12­402 AND THE FAILURE SUBSTANTIALLY AND MATERIALLY AFFECTS HEALTH AND SAFETY, THE TENANT MAY DELIVER A WRITTEN NOTICE TO THE LANDLORD SPECIFYING THE ACTS AND OMISSIONS CONSTITUTING THE BREACH OF THE RENTAL AGREEMENT OR SECTION 38­12­402 AND STATING THAT THE RENTAL AGREEMENT WILL TERMINATE UPON A DATE NOT LESS THAN THIRTY DAYS AFTER RECEIPT OF THE NOTICE IF THE BREACH IS NOT REMEDIED WITHIN FOURTEEN DAYS. THE RENTAL AGREEMENT SHALL THEN TERMINATE AS PROVIDED IN THE NOTICE, SUBJECT TO THE PROVISIONS OF SECTION 38­12­410 AND THE FOLLOWING:

(a)  IF THE BREACH IS REMEDIAL BY REPAIRS, THE PAYMENT OF DAMAGES, OR OTHERWISE AND THE LANDLORD REMEDIES THE BREACH BEFORE THE DATE SPECIFIED IN THE NOTICE, THE RENTAL AGREEMENT SHALL NOT TERMINATE BY REASON OF THE BREACH.

(b)  IF SUBSTANTIALLY THE SAME ACT OR OMISSION THAT CONSTITUTED A PRIOR BREACH OF WHICH NOTICE WAS GIVEN RECURS WITHIN SIX MONTHS, THE TENANT MAY TERMINATE THE RENTAL AGREEMENT UPON AT LEAST FOURTEEN DAYS' WRITTEN NOTICE SPECIFYING THE BREACH AND THE DATE OF TERMINATION OF THE RENTAL AGREEMENT.

(c)  THE TENANT MAY NOT TERMINATE THE RENTAL AGREEMENT FOR A CONDITION CAUSED BY THE ACT OR OMISSION OF THE TENANT, A MEMBER OF THE TENANT'S FAMILY, OR OTHER PERSON ON THE PREMISES WITH THE TENANT'S ACTUAL OR IMPLIED CONSENT.

(2)  FOR PURPOSES OF THIS SECTION, NOTICE IS DEEMED RECEIVED UPON PERSONAL DELIVERY OR THREE DAYS AFTER MAILING UNLESS RETURNED BY POSTAL AUTHORITIES.

(3) IF THE RENTAL AGREEMENT IS TERMINATED UNDER SUBSECTION (1) OF THIS SECTION, THE LANDLORD SHALL RETURN THE SECURITY DEPOSIT RECOVERABLE BY THE TENANT IN ACCORDANCE WITH SECTION 38­12­103 AND SHALL RETURN ANY ADVANCED RENTAL PAYMENTS WITHIN FIVE DAYS OF THE DATE OF SUCH TERMINATION.

38­12­405.  Tenant remedies ­ wrongful failure to supply heat, running water, hot water, or essential services.(1)  IF, CONTRARY TO THE PROVISIONS OF SECTION 38­12­402, THE LANDLORD WILLFULLY OR NEGLIGENTLY FAILS TO SUPPLY HEAT, RUNNING WATER, HOT WATER, ELECTRICITY, OR GAS AND SUCH FAILURE SUBSTANTIALLY AND MATERIALLY AFFECTS HEALTH OR SAFETY, THE TENANT MAY GIVE WRITTEN NOTICE TO THE LANDLORD SPECIFYING THE LANDLORD'S BREACH, AND, IF SUCH BREACH IS NOT REMEDIED BY THE LANDLORD WITHIN FORTY­EIGHT HOURS, THE TENANT MAY:

(a)  RECOVER ACTUAL DAMAGES BASED UPON THE DIMINUTION IN THE FAIR RENTAL VALUE OF THE DWELLING UNIT UNLESS THE CIRCUMSTANCES OF THE BREACH WERE BEYOND THE LANDLORD'S CONTROL; OR

(b)  PROCURE REASONABLE SUBSTITUTE HOUSING DURING THE PERIOD OF THE LANDLORD'S BREACH, IN WHICH CASE, THE TENANT IS EXCUSED FROM PAYING RENT FOR THE PERIOD OF THE LANDLORD'S BREACH.

(2)  IF THE LANDLORD IS NOT ABLE TO OR DOES NOT MAKE THE NECESSARY REPAIRS REQUIRED UNDER SUBSECTION (1) OF THIS SECTION WITHIN FOURTEEN DAYS FROM THE DATE OF RECEIPT OF THE NOTICE REQUIRED UNDER SAID SUBSECTION (1), THE TENANT SHALL HAVE THE RIGHT TO TERMINATE THE TENANT'S REMAINING OBLIGATIONS UNDER THE RENTAL AGREEMENT. IN ORDER TO TERMINATE SUCH OBLIGATIONS, THE TENANT SHALL SERVE UPON THE LANDLORD A NOTICE OF TERMINATION SPECIFYING THE DATE ON WHICH THE RENTAL AGREEMENT SHALL BE TERMINATED AND MAY DEMAND THE RETURN OF THE SECURITY DEPOSIT. THE TENANT'S NOTICE OF TERMINATION SHALL STATE WHETHER THE TENANT DESIRES TO RECEIVE THE SECURITY DEPOSIT BY MAIL, AND, IF SO, THE LANDLORD SHALL BE REQUIRED TO MAIL THE TENANT'S SECURITY DEPOSIT PURSUANT TO SECTION 38-12-103. THE LANDLORD SHALL BE AUTHORIZED TO WITHHOLD THAT PORTION OF THE TENANT'S SECURITY DEPOSIT NECESSARY TO COVER THE EXPENSES AUTHORIZED PURSUANT TO SECTION 38­12­103 (1), EXCEPT FOR RENT OR OTHER COSTS, CHARGES, OR FEES DIRECTLY RELATED TO THE TENANT'S TERMINATION OF THE TENANCY UNDER THIS SUBSECTION (2). FAILURE TO RETURN THE SECURITY DEPOSIT WITHIN THE TIME PRESCRIBED IN THIS SUBSECTION (2) SHALL CONSTITUTE A WILLFUL AND WRONGFUL RETENTION OF THE SECURITY DEPOSIT, AND THE TENANT SHALL NOT BE OBLIGATED TO PROVIDE THE LANDLORD THE WRITTEN NOTICE REQUIRED BY SECTION 38­12­103 (3) (a). THE LANDLORD SHALL BE DEEMED TO HAVE COMPLIED WITH THIS SUBSECTION (2) IF THE LANDLORD EITHER MAILS THE SECURITY DEPOSIT TO THE TENANT AT THE DESIGNATED ADDRESS OF THE TENANT, IF REQUESTED TO DO SO BY THE TENANT, OR MAKES THE CHECK FOR THE SECURITY DEPOSIT AVAILABLE AT THE LANDLORD'S OFFICE.

(3)  IF THE TENANT SECURES REASONABLE SUBSTITUTE HOUSING AS PERMITTED UNDER PARAGRAPH (b) OF SUBSECTION (1) OF THIS SECTION, THE LANDLORD MAY BE LIABLE FOR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, MOVING EXPENSES, INCREASED RENTAL COSTS, AND REQUIRED UTILITY TRANSFERS.

(4)  IF THE TENANT PROCEEDS UNDER THIS SECTION, THE TENANT MAY NOT PROCEED UNDER SECTION 38­12­404 FOR THE SAME BREACH.

(5)  THE RIGHTS OF THE TENANT UNDER THIS SECTION DO NOT ARISE UNLESS THE TENANT IS CURRENT IN THE RENTAL PAYMENTS AND UNTIL THE TENANT HAS GIVEN NOTICE TO THE LANDLORD AND DO NOT ARISE IF THE CONDITION WAS CAUSED BY THE ACT OR OMISSION OF THE TENANT, A MEMBER OF THE TENANT'S FAMILY, OR OTHER PERSON ON THE PREMISES WITH THE TENANT'S ACTUAL OR IMPLIED CONSENT.

(6)  THE REMEDIES PROVIDED IN THIS SECTION ARE IN ADDITION TO THOSE REMEDIES AVAILABLE UNDER SECTION 38­12­104.

38­12­406.  Tenant's duties to maintain dwelling unit. (1)  A TENANT SHALL:

(a)  COMPLY WITH ALL OBLIGATIONS PRIMARILY IMPOSED UPON TENANTS BY APPLICABLE BUILDING AND HOUSING CODES MATERIALLY AFFECTING HEALTH AND SAFETY;

(b)  MAINTAIN THE PORTION OF THE PREMISES THAT THE TENANT OCCUPIES AND USES IN AS CLEAN AND SAFE CONDITION AS THE PREMISES WAS UPON THE COMMENCEMENT OF HIS OR HER TENANCY AND, UPON TERMINATION OF THE TENANCY, PLACE THE DWELLING UNIT IN AS CLEAN A CONDITION, EXCEPTING ORDINARY WEAR AND TEAR, AS WHEN THE TENANCY COMMENCED OR AS REQUIRED UNDER THE RENTAL AGREEMENT;

(c)  DISPOSE FROM THE TENANT'S DWELLING UNIT ALL ASHES, GARBAGE, RUBBISH, AND OTHER WASTE IN A CLEAN AND SAFE MANNER;

(d)  KEEP ALL PLUMBING FIXTURES IN THE DWELLING UNIT OR USED BY THE TENANT AS CLEAR AS THEIR CONDITIONS PERMIT;

(e)  USE IN A REASONABLE MANNER ALL ELECTRICAL, PLUMBING, SANITARY, HEATING, VENTILATING, AIR CONDITIONING, AND OTHER FACILITIES AND APPLIANCES, INCLUDING ELEVATORS IN THE PREMISES;

(f)  NOT DELIBERATELY OR NEGLIGENTLY DESTROY, DEFACE, DAMAGE, IMPAIR, OR REMOVE ANY PART OF THE PREMISES OR KNOWINGLY PERMIT ANY PERSON TO DO SO; AND

(g)  CONDUCT HIMSELF OR HERSELF AND ANIMALS UNDER THE CONTROL OF THE TENANT AND REQUIRE OTHER PERSONS ON THE PREMISES WITH THE TENANT'S CONSENT TO CONDUCT THEMSELVES IN A MANNER THAT WILL NOT DISTURB THE TENANT'S NEIGHBORS' PEACEFUL ENJOYMENT OF THE PREMISES.

38­12­407.  Landlord's remedies. IF A TENANT FAILS TO COMPLY WITH THE PROVISIONS OF SECTION 38­12­406, THE FAILURE MATERIALLY AFFECTS HEALTH OR SAFETY AND CAN BE REMEDIED BY REPAIR, REPLACEMENT OF A DAMAGED ITEM, OR CLEANING, AND THE TENANT FAILS TO COMPLY AS PROMPTLY AS CONDITIONS REQUIRE IN CASE OF EMERGENCY OR WITHIN THREE DAYS AFTER WRITTEN NOTICE IS DELIVERED BY THE LANDLORD SPECIFYING THE BREACH AND REQUESTING THAT THE TENANT REMEDY THE BREACH WITHIN SUCH TIME PERIOD, THE LANDLORD MAY ENTER THE DWELLING UNIT AND CAUSE THE WORK TO BE DONE IN A WORKMANLIKE MANNER AND SUBMIT THE ITEMIZED BILL FOR THE ACTUAL AND REASONABLE COST OR THE FAIR AND REASONABLE VALUE THEREOF AS RENT ON THE NEXT DATE THE PERIODIC RENT IS DUE OR, IF THE RENTAL AGREEMENT HAS TERMINATED, FOR IMMEDIATE PAYMENT, OR THE LANDLORD MAY EXERCISE ANY OTHER RIGHTS AVAILABLE UNDER ARTICLE 40 OF TITLE 13, C.R.S.

38­12­408.  Access by landlord ­ remedies. (1)  THE TENANT SHALL NOT UNREASONABLY WITHHOLD CONSENT TO THE LANDLORD TO ENTER INTO THE DWELLING UNIT IN ORDER TO INSPECT THE PREMISES, MAKE NECESSARY OR AGREED REPAIRS, DECORATIONS, ALTERATIONS, OR IMPROVEMENTS, SUPPLY NECESSARY OR AGREED SERVICES, OR EXHIBIT THE DWELLING UNIT TO PROSPECTIVE OR ACTUAL PURCHASERS, MORTGAGEES, TENANTS, WORKMEN, OR CONTRACTORS.

(2)  THE LANDLORD MAY ENTER THE DWELLING UNIT WITHOUT NOTICE TO THE TENANT ONLY IN CASE OF EMERGENCY.

(3)  THE LANDLORD SHALL NOT ABUSE THE RIGHT OF ACCESS PERMITTED UNDER THIS SECTION OR USE SUCH RIGHT TO HARASS THE TENANT. EXCEPT IN THE CASE OF AN EMERGENCY OR UNLESS IT IS IMPOSSIBLE TO DO SO, THE LANDLORD SHALL GIVE THE TENANT AT LEAST TWENTY­FOUR HOURS NOTICE OF THE LANDLORD'S INTENT TO ENTER THE DWELLING UNIT. THE LANDLORD SHALL EXERCISE THE RIGHT TO ENTER THE PREMISES ONLY AT REASONABLE TIMES.

(4)  IF THE TENANT REFUSES TO ALLOW LAWFUL ACCESS TO THE DWELLING UNIT AT A REASONABLE TIME PURSUANT TO THIS SECTION, THE LANDLORD MAY PEACEABLY ENTER THE DWELLING UNIT, OBTAIN INJUNCTIVE RELIEF TO COMPEL ACCESS, OR TERMINATE THE RENTAL AGREEMENT.

(5)  IF, PURSUANT TO THIS SECTION, THE LANDLORD MAKES AN UNLAWFUL ENTRY OR A LAWFUL ENTRY IN AN UNREASONABLE MANNER OR AT AN UNREASONABLE TIME OR MAKES REPEATED DEMANDS FOR ENTRY WHICH HAVE THE EFFECT OF UNREASONABLY HARASSING THE TENANT, THE TENANT MAY OBTAIN INJUNCTIVE RELIEF TO PREVENT THE RECURRENCE OF THE CONDUCT BY THE LANDLORD OR MAY TERMINATE THE RENTAL AGREEMENT.

38­12­409.  Limitations on tenant's use and occupancy of the premises. (1)  UNLESS OTHERWISE AGREED, THE TENANT SHALL OCCUPY AND USE THE DWELLING UNIT ONLY AS A RESIDENTIAL DWELLING UNIT.

(2)  THE RENTAL AGREEMENT MAY REQUIRE THAT THE TENANT NOTIFY THE LANDLORD OF ANY ANTICIPATED EXTENDED ABSENCE FROM THE PREMISES IN EXCESS OF SEVEN DAYS NO LATER THAN THE FIRST DAY OF SUCH EXTENDED ABSENCE.

38­12­410.  Affirmative defenses. (1)  EXCEPT AS PROVIDED IN SUBSECTION (2) OF THIS SECTION, A LANDLORD SHALL HAVE THE FOLLOWING AFFIRMATIVE DEFENSES TO ANY ACTION BROUGHT BY A TENANT PURSUANT TO THIS PART 4:

(a)  THE LANDLORD HAS SUBSTANTIALLY REMEDIED THE BREACH OR NONCOMPLIANCE WITHIN FOURTEEN DAYS AFTER RECEIVING WRITTEN NOTICE FROM THE TENANT.

(b)  THE FAILURE TO REMEDY THE BREACH OR NONCOMPLIANCE WITHIN FOURTEEN DAYS WAS DUE TO CONDITIONS OR CIRCUMSTANCES BEYOND THE LANDLORD'S CONTROL.

(c)  THE BREACH OR NONCOMPLIANCE WAS CAUSED BY THE ACTS OR OMISSIONS OF THE TENANT OR OF THOSE PERSONS UNDER THE TENANT'S CONTROL.

(2)  THE PROVISIONS OF PARAGRAPHS (a) AND (b) OF SUBSECTION (1) OF THIS SECTION SHALL NOT DIMINISH THE TENANT'S RIGHTS UNDER SECTION 38­12­405 (1).

(3)  THE TENANT SHALL NOT BE PERMITTED TO RAISE ANY AFFIRMATIVE DEFENSE BASED UPON A VIOLATION OF THIS PART 4 IN ANY LEGAL ACTION BROUGHT BY THE LANDLORD, UNLESS THE TENANT SERVES ANY WRITTEN NOTICE REQUIRED UNDER THIS PART 4 PRIOR TO THE DATE ON WHICH THE LANDLORD SERVES ANY WRITTEN NOTICE REQUIRED UNDER ANY PROVISION OF LAW OR THE RENTAL AGREEMENT. IF THE TENANT FAILS TO SERVE THE LANDLORD WITH SUCH PRIOR NOTICE, THE COURT SHALL BE PROHIBITED FROM CONSIDERING THE TENANT'S NOTICE IN ANY SUCH ACTION.

38­12­411.  Remedies for diminution of services. IF THE LANDLORD WILLFULLY AND WRONGFULLY DIMINISHES SERVICES TO THE TENANT BY INTERRUPTING OR CAUSING THE INTERRUPTION OF ELECTRIC, GAS, WATER, OR OTHER ESSENTIAL SERVICES TO THE TENANT, THE TENANT MAY RETAIN POSSESSION OR TERMINATE THE RENTAL AGREEMENT AND RECOVER LIQUIDATED DAMAGES EQUAL TO THREE MONTHS' RENT.

38­12­412.  Other remedies. (1)  THE REMEDIES SPECIFIED IN THIS PART 4 ARE NOT EXCLUSIVE AND SHALL BE IN ADDITION TO THOSE REMEDIES AVAILABLE UNDER LAW.

(2)  ANY PROVISION, WHETHER ORAL OR WRITTEN, IN OR PERTAINING TO A RENTAL AGREEMENT WAIVING ANY PROVISION OF THIS SECTION THAT BENEFITS A TENANT OR THE MEMBERS OF THE TENANT'S HOUSEHOLD SHALL BE DEEMED TO BE AGAINST PUBLIC POLICY AND SHALL BE VOID.

SECTION 2.  Effective date ­ applicability. This act shall take effect July 1, 1997, and shall apply to rental agreements existing on or after said date.

SECTION 3.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.