Colorado’s New COVID-19 Moratorium and Evictions
By Macklin Henderson, Garfield & Hecht, P.C.
Over the past few months, Governor Jared Polis signed a number of executive orders intended to protect tenants renting residential property in Colorado from the adverse impacts of COVID-19. Until recently, the executive orders did not prohibit evictions. Instead, they lengthened the statutory period granted to tenants to cure defaults due to nonpayment of rent.
However, on October 21, 2020, Governor Polis expanded upon his previous executive orders and signed Executive Order D 2020 227, which actually places a moratorium until November 20, 2020, on the eviction of tenants suffering financial hardship as a result of COVID-19. The order was likely signed in response to the Center for Disease Control’s (CDC) placing a temporary halt on residential evictions. The CDC’s moratorium, which is effective from September 4, 2020, to December 31, 2020, similarly prohibits evictions of residential tenants suffering financial hardship as a result of COVID-19. However, the CDC moratorium expressly permits state governments to impose their own restrictions on evictions that provide the same or a greater level of protection to tenants than the CDC moratorium, and while a state government’s moratorium is in effect, the CDC moratorium does not apply.
Order D 2020 227 prohibits individuals from filing forcible entry and detainer lawsuits against tenants who can demonstrate they are in financial distress. Likewise, the order prohibits a landlord who has already obtained a possession judgment against a tenant from enforcing the judgment if the tenant is suffering financial hardship. The protections the order affords to tenants even extend to hold-over tenants that retain possession of rented property after the expiration of their rental agreement.
Although the executive order does not expressly limit the prohibition on evictions to residential properties, the question arises as to commercial evictions. Arguments can be made that the definition of financial hardship effectively excludes commercial evictions from the moratorium. For example, a commercial tenant would be unable to state under penalty of perjury that it would be rendered homeless if evicted.
There are a few narrow exceptions to the order’s prohibition on evictions. For instance, landlords can still file eviction proceedings against tenants that commit a substantial violation of a lease provision as that term is defined in C.R.S. § 13-40-107.5. Examples of substantial violations include committing violent or drug-related felonies and certain other criminal acts on or near the premises. Landlords can also file eviction proceedings against and remove tenants that pose an imminent and serious threat to another individual or cause significant damage to a landlord’s property.
A tenant may demonstrate financial hardship by completing and signing a copy of the CDC’s declaration form or a Colorado Department of Local Affairs declaration form and providing the form to its landlord. In filing out the form, the tenant will have to declare, under penalty of perjury, the following:
- The tenant is using its best efforts to obtain government assistance for rent or housing;
- The tenant expects to earn less than $99,000 ($198,000 if filing jointly) in 2020, was not required to report any income in 2019 to the IRS, or received an economic stimulus payment pursuant to the CARES act;
- The tenant is unable to pay its full rent or make full housing payments due to loss of income, loss of work, or extraordinary medical expenses and is using its best efforts to make timely partial payments that are as close to the full payment as circumstances permit; and
- The tenant would likely be rendered homeless or forced to move into and live in close quarters in a new congregate or shared living setting because the tenants has no other housing options if evicted.
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