The Colorado Supreme Court clarified on Tuesday that tenants defending against an eviction may cite their landlords’ illegal, discriminatory conduct as means to stay in their homes.

Last year, the legislature passed a law explicitly providing that a renter can defend against eviction if they show their landlord violated the Colorado Fair Housing Act and its prohibitions against discrimination on the basis of race, sex or other protected characteristics. However, the Supreme Court has now concluded tenants always had the ability to forestall evictions that violate the state’s fair housing laws.

“The General Assembly’s primary purpose in enacting the CFHA is turned on its head if a landlord is simultaneously prohibited from and allowed to engage in a discriminatory or retaliatory eviction,” wrote Justice Maria E. Berkenkotter in the Feb. 20 opinion.

Attorneys for Claire E. Miller, who alleged her landlord moved to evict her after she turned down his sexual advances, celebrated the court’s recognition of a discrimination-based defense to eviction.

“We are thrilled with the Colorado Supreme Court’s decision and grateful that Ms. Miller will have a chance to clear her rental history of this wrongful eviction,” wrote attorneys for CED Law and the Colorado Poverty Law Project. “Until today, some of Colorado’s trial judges continued to not recognize the fundamental principle that a landlord cannot evict a tenant for unlawful discriminatory or retaliatory reasons. This decision definitively refutes that outdated view.”

Miller lived with her son in the 800 block of Douglas Drive in Denver. She had an oral agreement with landlord Jesse A. Amos to provide pet care and housekeeping instead of paying rent. Amos moved to evict her, but his notice did not comply with the law. He then attempted to evict Miller a second time, which she claimed was the result of her refusal to have sex with him.

Miller sought to halt her 2022 eviction by using Amos’ alleged discrimination and retaliation – which are prohibited under the Colorado Fair Housing Act – as a defense. An Adams County Court judge concluded a landlord may provide an eviction notice without any reason, and the state’s fair housing laws supplied no defense for the proceedings.

On appeal, District Court Judge Teri L. Vasquez acknowledged other states had applied their fair housing laws to the evictions process. But she did not believe Colorado had done so, noting tenants could file a separate lawsuit for alleged fair housing violations.

Miller turned directly to the state Supreme Court, arguing trial judges “routinely” conclude the fair housing laws do not provide a defense in the roughly 39,000 eviction cases filed annually in county courts. Allowing a landlord to evict a tenant for discriminatory motives, then requiring the homeless tenant to file suit separately, her lawyers wrote, would fail to meaningfully address the problem: the wrongful eviction.

Victim advocacy groups, including the National Alliance to End Sexual Violence and the National Resource Center on Domestic Violence, wrote to the Supreme Court in support of Miller.

“To keep a sexual harasser from exploiting the eviction process to further harm victims, tenants must have the ability to assert an affirmative defense in an eviction proceeding,” they argued. “If this Court forecloses this right, the power to harm, and even render homeless victims of sexual harassment will be legally weaponized.”

Amos largely responded to the appeal by attacking Miller, calling her a “parasitic grifter” with an “illegitimate” child who “seduced a lonely widower.” His attorney, Gilbert O. Montoya Jr., wrote that the legislature’s 2023 enactment of a law to provide a discrimination-based defense to eviction meant the law prior to 2023 did not afford Miller such a defense.

The Colorado Bar Association’s Real Estate Law Section wrote separately to the Supreme Court, warning that giving tenants another defense to eviction would motivate landlords to go out of business and raise the cost of housing.

The Supreme Court brushed aside those concerns, noting a landlord may still evict tenants as long as it is not the product of discrimination. Although the Colorado Fair Housing Act does empower tenants to sue for violations, Berkenkotter explained such claims are “incidental” to the law’s ultimate goal.

“Requiring a tenant to first suffer a wrongful eviction and then pursue a separate action to vindicate their statutory right undermines the effectiveness of the statutory scheme and reduces judicial efficiency,” she wrote. “This order of operation ignores the plain language of the CFHA and subverts its central purpose, which is to eradicate discriminatory practices.”

Amos’ attorney did not respond to an email seeking comment.

Chief Justice Brian D. Boatright did not participate in the appeal.

The case is Miller v. Amos.