Can I Recover Rent Paid After CO2 Poisoning from the Furnace?

Full question:

It appears that my landlord did not inspect or service our 29 year old gas furnace before we moved into our 3 bedroom house in September of this year. We are assuming this since the city inspector literally looked at it for 2 seconds and said oh, this is trouble, and then after using his analyzer realized it was emitting dangerous levels of carbon monoxide, condemned it and red-tagged it on the spot, saying that it would have to be replaced or serviced by a licensed repair dealer. The landlord told us it was electric when we signed the lease, and then 2 months after turning it on at the beginning of October, we smelled gas, called the gas company, who sent out their inspector (who happened to also work for the city) and we discovered from them that we had been breathing in carbon monoxide for what could be that entire time, which happens to be the length of time that we who lived in the house were constantly sick with a variety of symptoms that we now think are related to the CO inhalation (one of us went to the hospital and several went to the doctor since early October with no results). Landlord replaced the furnace quickly after it was condemned. Can we be reimbursed the rent paid for the time that the furnace was poisoning us? Does he have to have the furnace inspected yearly and if something dangerous shows up does he have to show us the report? If he had it inspected would we have the right to see that report now?

• Category: Landlord Tenant
• Subcategory: Lease Violation
• Date: 04/07/2025
• State: Colorado

Answer:

In order to be reimbursed for the rent, you would probably need to bring a personal injury claim. Medical records will become evidence, and expert testimony may be required. I suggest you contact a local attorney who can review all the facts and medical records involved.

The local building department should be contacted regarding local inspection frequency, and the public nature of inspection reports, which varies by building department. Generally, a landlord has a duty to provide a safe and habitable premises. A building code violation may be used as evidence of a breach of the landlord's implied warranty of habitability.

A failure on the landlord's part to correct a problem affecting the habitability of the premises may be cause for termination of the lease. In general, a warranty of habitability requires landlords to maintain safe and sanitary housing fit for human habitation. The warranty of provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk.

This warranty is implied into all leases and generally requires the landlord to deliver livable quarters at the tenancy's inception and to maintain the premises in a habitable condition throughout the term, and conditions the tenant's covenant to pay rent on the habitable condition of the premises. A landlord is required to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. To constitute a breach of the warranty, the defect complained of must be shown to be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers.

The warranty of habitability is not intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship, but only provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk.

Factors to be considered in determining whether a condition or defect constitutes an actionable breach of the warranty include:

(1) whether the condition violates a housing law, regulation, or ordinance;
(2) the nature and seriousness of the defect;
(3) the effect of the defect on safety and sanitation;
(4) the length of time the condition has persisted; and
(5) the age of the structure.

A condition which may endanger or materially impair the health or safety and well-being of an occupant is sufficient to violate the warranty of habitability Factors aiding a court's determination of the materiality of a landlord's alleged breach of a residential lease include: (1) the seriousness of the claimed defects and their effect on the dwelling's habitability (2) the length of time the defects persist, (3) whether the landlord received written or oral notice of the defects, (4) whether the residence could be made habitable within a reasonable time, and (5) whether the defects resulted from abnormal conduct or use by the tenant.

Additionally, to assert a breach of the implied warranty of habitability except where otherwise provided by statute, the tenant must prove that he or she gave notice to the landlord of the defect or condition, that the landlord had a reasonable opportunity to make the necessary repairs, and that he or she failed to do so.