Colorado’s COVID-19 Eviction Rules
The eviction process in Colorado has been hectic to say the least over the last two years. COVID- 19 has redefined what it means to be a landlord in these trying times. It has also illuminated the policy divide that exists around renting. The following is not legal advice. This is a snapshot of a couple of Colorado’s executive orders as they pertain to evictions otherwise known as Forcible Detainer Proceedings. As of 8/19/2022, the most recent COVID-19 orders for Colorado can be found at https://www.colorado.gov/governor/executive-orders .
DO NOT RELY ON THIS ARTICLE. THE COVID EVICTION LANDSCAPE CHANGES VERY FAST. YOU SHOULD CONTACT AN ATTORNEY FOR THE MOST UP-TO-DATE INFORMATION.
General
The impacts of COVID-19 have hit both the residential and commercial rental market very hard. Commercial facilities such as barbershops had to shut down to comply with the COVID-19 orders while residential tenants faced job loss due to no fault of their own. Landlords took a hit with the implementation of multiple layers of local, state, and federal protections delaying evictions. While these protections did not relieve the tenants of the obligation to pay rent, landlords faced the reality of being unable to collect past due rent from tenants that simply did not have the ability to pay it. The reality is that COVID-19 has not been good for anyone. The following explores some of the steps that Colorado has taken to combat the increase in homelessness caused by the virus.
An executive order is a declaration issued by the governor or the president. The standard separation of powers structure provides Americans with a legislative branch, executive branch, and judicial branch. The legislative branch drafts the bills, the executive branch enforces them, and the judicial branch works through all the problems in the middle including legality.
The state governor is the head of the state’s executive branch. Typically, when the governor issues a executive order, it is a command to members of the executive branch to do something. The governor does not normally have the authority to order the legislative branch or judicial branch to do anything. Hence the separation of powers. But in a pandemic the rules change slightly.
Pursuant to the Colorado state constitution and a couple of bills approved by the legislative branch, the powers held by the executive branch expand during a pandemic. In effect, these powers allow the governor to alter certain laws during the duration of the pandemic.
In this article we are not going to explore the legality of the governor’s expanded powers during a pandemic.
Colorado Eviction Moratorium Part 1
On 3/20/2020, the Governor signed Executive Order D 2020 012. This order was purposed at attacking the instability in the housing market caused by the COVID-19 virus.
A couple of notable items:
· The executive order ordered the Department of Local Affairs (DOLA) and the Department of Regulatory Agencies (DORA) to work with property owners and tenants to identify any lawful measures to avoid removing or executing eviction procedures against tenants or mobile homeowners without cause or as a result of late or non-payment of rent or minor tenancy violations until 4/30/2020.
· The executive order also ordered the directors of DOLA and DORA to exempt tenants and mobile homeowners from fees or penalties for the late payment or nonpayment of rent until 4/30/2020.
· The executive order in effect also suspended residential evictions in the state until 4/30/2020 unless necessary to protect public health and safety.
· The executive order also ordered the distribution of funds from the Disaster Emergency fund.
· The executive order also impacted foreclosures, data sharing, temporary housing benefits, delinquent property taxes, and a variety of other topics.
· It should be made clear that the order did not relive any tenant of the obligation to pay rent, restrict the landlord’s ability to recover rent, or otherwise comply with public health and safety requirements or other legal requirements.
Originally the executive order was set to expire 30 days from 3/20/2020 with the described eviction protections extending until 4/30/2020. On 4/6/2020, the governor signed Executive Order D 2020 031 amending certain aspects and extending D 2020 012 until 4/30/2020. On 4/13/2020, the governor signed Executive Order D 2020 051 amending and extending certain aspects of D 2020 012 and D 2020 031 until 30 days from 4/30/2020.
A couple of notable changes:
· The executive order removed the 4/30/2020 expiration date for certain eviction protections.
· The executive order explicitly prohibited landlords from charging late fees or penalties during the duration of the executive order.
· The executive order prevented the filing or initiating of all Forcible Detainer Actions (FED).
· The executive order prevented the removal of any tenant or their personal property even under a writ.
· The executive ordered made an exception for circumstances where the tenant poses an imminent and serious threat to another individual or causes significant damage to property.
· In addition to the traditional notice required under the Forcible Detainer Statue (FED), landlords must notify tenants in writing of certain protections against eviction and foreclosures under the CARES act and other non-defined statues.
On 5/29/2020, the governor signed executive order D 2020 088 extending and amending the protections provided by D 2020 012, D 2020 031, and D 2020 051 by an additional 15 days.
A couple notable changes:
· The ban on FED actions and tenant removal was modified to only include those actions where the default was caused due to financial hardship caused by COVID-19.
· The executive order also imposed a duty to notify tenants if certain protections applied to them.
Colorado Eviction Moratorium Part 2
On 6/13/2020, the governor signed Executive Order D 2020 101 signifying a whole new line of protections for Tenants.
A couple of notable items:
· The executive ordered suspended the 10-day notice requirement for non-payment of rent provided by C.R.S. § 13-40-104(1)(d) and changed it to a 30-day notice requirement. This in effect added additional time for the tenant to cure the default.
· The executive order expressly prohibited the charging of late fees or penalties for any contract breach from 5/1/2020 - 6/13/2020.
D 2020 101 as originally executed was set to expire 30 days from 6/13/2020. On 7/12/2020, the governor signed executive order D 2020 134 extending and amending the protections provided by D 2020 101 until 30 days from 7/12/2020.
A couple of notable changes:
· The 30-day notice requirement was extended to apply to any default for non-payment of rent that occurred on or after 3/10/2020.
On 8/10/2020, the governor signed executive order D 2020 162 extending and amending the protections provided by D 2020 101 and 134 until 30 days from 8/10/2020. On 9/8/2020, the governor signed executive order D 2020 185 extending and amending the protections provided by D 2020 101, 134 and 162 until 30 days from 9/8/2020.
A couple of notable changes:
· The executive order clarifies the 30-day notice requirement applies to both commercial and residential tenants.
On 9/22/2020, the governor signed executive order D 2020 202 extending and amending the protections provided by D 2020 101, 134, 162, and 185 until 30 days from 9/22/2020.
A couple of notable changes:
· The executive order requires landlords to notify tenants in writing of certain federal protections against evictions as provided by the CDC. The landlord must provide two items described in the executive order including a CFR page and declaration form.
Colorado Eviction Moratorium Part 3
On 8/26/2020, Colorado Governor Jared Polis issued Executive Order B 2020-006 creating the Special Eviction Prevention Task Force. The task force housed under the Department of Local Affairs (DOLA) was focused on examining the housing market, the instability caused by the COVID-19 virus in Colorado, and to provide recommendations to the governor. The initial task force consisted of 11 members.
Following the recommendations of the task force, the governor signed executive order D 2020 223 signifying yet another line of protections similar but different than those already enacted.
A couple of notable items:
· The executive order reinstates the 30-day notice requirement. The notice requirement applies to any non-payment of rent under C.R.S. 13-40-104(1)(d) that occurred on or after 3/10/2020. The notice requirement applies to both commercial and residential tenants.
· The executive order prevents any property owner from charging a tenant any fee or penalty for the failure to timely pay rent starting as of 10/15/2020.
· The executive order directs that any fee or penalty assessed after 1/1/2021 shall apply only to rent due on or after that date.
· The executive order requires that landlords notify the tenant in writing of federal protections against evictions provided by the CDC. The landlord must provide as notice 1) a copy of the CDC’s order; 2) a copy of the declaration page in English and Spanish; and 3) a copy of DOLA’s model notification letter.
Executive Order D 2020 223 as originally executed was set to expire 30 days from 10/15/2020. On 10/21/2020, the governor signed executive order D 2020 227 extending and amending the protections provided by D 2020 223 until 30 days from 10/21/2020.
A couple of notable changes:
· The executive order defines a financial hardship due to COVID.
· The executive order prevents the following items if the tenant can demonstrate a financial hardship due to COVID. 1) Filing or initiating a Forcible Detainer Proceeding if based solely on a contractual violation; 2) Filing or initiating a Forcible Detainer under C.R.S. § 13-40-104(c); 3) Filing or initiating any Forcible Detainer action where the tenant did not commit a substantial violation under C.R.S. § 13-40-107.5; 4) Removing the tenant or their property from the premises.
· The executive order carves out an exception where the tenant poses an imminent and serious threat to another individual or causes significant damage to the landlord’s property.
On 11/19/2020, the governor signed executive order D 2020 255 extending the protections provided by D 2020 223 and 227 until 30 days from 11/19/2020. On 12/18/2020, the governor signed executive order D 2020 285 extending and amended the protections provided by D 2020 223, 227, and 255 until 12/31/2020.
A couple of notable changes:
· The executive order requires that the COVID-19 hardship declaration be completed subject to perjury and requires additional proof.
Colorado Eviction Moratorium Part 4
On 12/31/2020, the governor signed Executive Order D 2020 307 purposed at aligning Colorado law with federal law.
A couple of notable items:
· Validating the Consolidated Appropriations Act, 2021, Section 502, property owners cannot charge a tenant a late fee or penalty for failure to timely pay the rent.
· Any late fee or penalty assessed on or after 1/31/2021, shall apply only to rent due on or after that date.
D 2020 307 as originally executed is set to expire 30 days from 12/31/2020. On 1/29/2021, the governor signed executive order D 2021 029 extending the protections provided by D 2020 307 until 30 days from 1/29/2021. On 2/27/2021, the governor signed executive order D 2021 052 extending the protections provided by D 2020 307 and D 2021 029 until 30 days from 2/27/2021. On 3/28/2021, the governor signed executive order D 2021 073 extending the protections provided by D 2020 307, D 2021 029, and D 2021 052 until 30 days from 3/28/2021.
Colorado Eviction Moratorium Part 5
On 4/20/2021, the governor signed executive order D 2021 088 signifying yet another line of protections for Tenants in Colorado.
A couple of notable items:
· The executive ordered suspended the 10-day notice requirement for non-payment of rent provided by C.R.S. § 13-40-104(1)(d) for residential tenants and changes it to 30-days if the default occurred on or after 3/10/2020.
D 2021 088 as originally executed was set to expire 30 days from 4/20/2020. On 5/19/2021, the governor signed executive order D 2021 105 extending the protections provided by D 2021 088 until 14 days from 5/19/2021. On 6/1/2021, the governor signed executive order D 2021 110 extending and amending the protections provided by D 2021 088 and 105 until 30 days from 6/1/2021.
A couple of notable changes:
· The executive order requires landlords prior to filing or initiating a forcible detainer proceeding to provide written notice of the resources available to tenants and landlords via the DOLA resources form.
On 6/30/2021, the governor signed executive order D 2021 120 extending and amending the protections provided by D 2021 088, 105, and 110 until 30 days from 6/30/2021. But on 7/8/2021, the governor signed executive order D 2021 122 rescinding this line of executive orders.
Colorado Eviction Moratorium Part 6
On 7/8/2021, the governor signed executive order D 2021 122 signifying yet another line of protections for Tenants in Colorado.
A couple of notable items:
· The executive ordered suspended the 10-day notice requirement for non-payment of rent provided by C.R.S. § 13-40-104(1)(d) for residential tenants and changes it to 30-days if the default occurred on or after 3/10/2020.
· The executive order requires landlords prior to filing or initiating a forcible detainer proceeding to provide written notice of the resources available to tenants and landlords via the DOLA resources form.
The eviction protections contained in D 2021 122 as originally executed are set to expire on 7/31/2021. On 7/30/2021, the governor signed executive order D 2021 124 extending and amending the protections provided by D 2021 122 until 8/6/2021.
A couple of notable items:
· The executive order removes the expiration date of 7/31/2021.
· As of 8/1/2021, the executive order renews the 30-day notice requirement for non-payment of rent but only for eligible individuals. Eligible individuals are defined as an individual who can demonstrate that they have submitted an application for their rental property, or the landlord has submitted an application for their specific rental property to the State or any locality for emergency rental assistance in good faith and their application has not been denied.
On 8/6/2021, the governor signed executive order D 2021 124 extending and amending the protections provided by D 2021 122 and D 2021 124 until 30 days from 8/6/2021.
A couple of notable items:
· The executive order updates the DOLA disclosures to reflect the most recent CDC order.
At this point, the governor must have felt he hit a sweet spot. From 9/4/2021 to 8/17/2022 he signed executive orders D 2021 129, D 2021 132, D 2021 136, D 2021 139, D 2021 141, D 2022 003, D 2022 010, D 2022 013, D 2022 017, D 2022 020, D 2022 028, D-2022-035, and D-2022-037. Each of these orders extended the previous order. D-2022-037 extended these protections until 9/16/2022.
I think it is fair to say that these provisions may be extended again. This article is not political in nature. But I do feel an obligation to comment here. Executive power is great. It is essential when the is an immediate emergency. Normally, the legislator drafts a bill, votes, and it goes to the executive branch for approval. This process can take time. The concern I have revolves around the fact that the 1st executive order regarding this topic was signed on 3/20/2020. I updated this article on 8/19/2022 roughly 2.5 years later. We are still seeing new executive orders. I am not going to comment if that is right or wrong, but I do think at some point this topic needs to be kicked back to the legislator. It is essential that we maintain that separation of power as a democracy.
Colorado Eviction Moratorium Part 7
It is very likely that more executive orders will come. It appears the governor intends to keep a version of the 30-day notice requirement in place including the DOLA disclosures. The current JDF forms offered by the court should be examined prior to use. The CDC eviction moratorium ended as of 7/31/2021. Changes are happening so fast; it is impossible to predict what will happen next. Just because the CDC eviction ended does not mean their will not be additional federal law. I believe the CARES act had a few provisions affecting federal housing and housing with federal loans.
Important Update: Please be aware this article is not currently up to date. Once again, this is not intended to be legal advice. Call an attorney.
HB 1121 and SB 173
To be fair, the legislator has not been quiet through this entire ordeal either. Both House Bill 1121 and Senate Bill 173 have been approved and signed into law. SB 173 is not set to take effect until 10/1/2021, but House Bill 1121 is already in effect. I will not go into detail on the bills, but they have a huge impact on the eviction process, late fees, rent increases, and a variety of other topics affecting the landlord-tenant relationship.
Conclusion
2020, 2021, and 2022, have been an interesting exploration into the policy revolving around landlord-tenant issues. It’s hard to say if these measures are helpful or harmful to Colorado as a whole. Landlords that cannot afford the mortgage payment on the rental property are not good. But homeless tenants are not good either. All I can say is, God is good and hopefully he will see us through these trying times.
THE INFORMATION CONTAINED IN THIS ARTICLE IS NOT LEGAL ADVICE. I DID NOT COVER FEDERAL OR LOCAL PROTECTIONS AND PENDING LEGISLATION. IN ADDITION, THE SUMMARIES PROVIDED ARE BRIEF AND NOT INTENDED TO BE COMPLETE. YOU SHOULD CONTACT AN ATTORNEY FOR THE MOST UP-TO-DATE INFORMATION.