On February 20, 2024, the Colorado Supreme Court announced its opinion on Miller v. Amos, 2024 CO 11 (February 20, 2024) and held that defendants in forcible entry and detainer (“FED”) actions may assert violations of the Colorado Fair Housing Act (“CFHA”) as an affirmative defense to eviction.
Background
In 2021, plaintiff Jesse Amos entered into an oral tenancy agreement with defendant Claire E. Miller, whereby Amos granted Miller and her son tenancy in exchange for “pet care and light housekeeping services” in lieu of monetary rent (Miller v. Amos, 2024 CO 11 at ¶ 4) (hereinafter “Miller”). Six months later, Amos served Miller with statutory notice of termination of the tenancy for an alleged breach of contract (Id). Miller remained in the dwelling unit after the expiration of the notice period, and Amos filed a FED action against Miller in Adams County Court (Id. at ¶ 5). Miller filed an answer and argued, as pertinent, that Amos commenced eviction proceedings against her in retaliation for her refusal to engage in sexual acts with him (Id. at ¶¶ 5, 7). Miller also asserted several counterclaims, including violation of CFHA and the Federal Fair Housing Act, 42 U.S.C. §§ 3601‑3619 (Id).
The County Court concluded that a claim of pretextual (i.e., discriminatory or retaliatory) eviction is no defense to an FED action because a landlord may commence an eviction action for any reason, or no reason; accordingly, discriminatory or retaliatory intent cannot form the basis for a defense (¶ 8). The District Court affirmed the County Court’s judgment for different reasons. The District Court examined the text and legislative history of the CFHA and concluded that there was no indication that the legislature intended for an alleged violation of CFHA to be available for use as an affirmative defense because CFHA’s references to relief “all refer to affirmative relief,” (¶ 9). Further, an aggrieved tenant could pursue civil remedy in the form of a counterclaim or separate action (Id).
Ruling
The Colorado Supreme Court reversed the County and District courts' decision and held that the defendant in a forcible entry and detainer action may assert a violation of the Colorado Fair Housing Act as an affirmative defense (¶ 2). The Colorado Supreme Court reasoned that the CFHA, like the federal counterpart, has “broad remedial intent,” and that the FED statutes provide that a defendant should present “every defense which then exists and upon which the defendant intends to rely,” including affirmative and equitable defenses (¶ 18, citing § 13‑40‑113(1), C.R.S.).
It is well settled in the State of Colorado that defendants may raise equitable defenses to legal causes of actions, including FED proceedings (¶ 26). Part of the rationale supporting the availability of affirmative and equitable defenses is to ensure that tenants are not evicted without due process of law (Id). A landlord’s alleged violation of the CFHA “raises significant equitable concerns,” and a tenant’s rights (1) to be free from discriminatory conduct and (2) to due process are undermined if the tenant cannot prevent an unlawful eviction (¶¶ 31, 34). For all of the above reasons, the Colorado Supreme Court held that a defendant in a FED action may properly assert a violation of the CFHA as an affirmative defense.
The Colorado Supreme Court did not decide on the merits of Miller’s allegations. It will be up to another court to determine whether Amos violated the CFHA and, if he did, whether that violation is a sufficient defense to preclude the FED action. Following the court’s opinion in Miller, it is reasonable to expect defendants in FED actions to raise CFHA violations as an affirmative defense on a fairly regular basis. As with most changes in the law, the edges of this ruling will need to be smoothed out over time in the courts before its impact is truly known.
