Eviction Moratorium Colorado
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 and Tenant in these trying times.
A common question I still get in 2022 is as follows. Is there still an Eviction Moratorium in Colorado? The answer is yes and no. Rather than looking at the traditional definition of an eviction moratorium, I feel it is more appropriate to reframe the question to the following:
What protections are still in place in Colorado that prevent or limit evictions? These protections can be broken down into three general categories. 1) Executive Orders; 2) Statutory; and 3) Tort and Contract Law. There are other categories, but these are the three big ones in my opinion.
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.
1. Executive Orders:
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 an executive order, it is a command to members of the executive branch to do something. Normally, the governor does not have the authority to order the legislative branch or judicial branch to do anything. Their power derives from the legislative branch. In other words, the governor cannot order the senate to pass a law to give the governor more power. 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.
Colorado has some interesting history regarding Eviction Moratoriums during COVID-19. I encourage you to look at another webpage I have going over some of that history. Past orders have extended the notice time requirement, waived late fees, put restrictions on the landlord’s ability to evict tenants, and other.
As of today, the majority of protections provided through Colorado executive orders have expired. There is one line of executive orders in particular that may extend and alter some of the traditional eviction rules, but it only applies in certain circumstances.
One noticeable aspect of that order is the requirement for landlords to provide specific information relating to evictions in their notices. Landlords need to talk to an attorney before pulling any forms off the internet.
It is entirely possible that by the time you read this posting that no executive orders will be in place. These orders typically only last 30-days and are amended or extended on a 30-day basis. In other words, they can change month to month. As indicated above, these orders are not traditional laws but they do have legal effects. This limited power granted to the governor is intended to provide temporary relief in emergency situations. As such, you need to contact an attorney because these executive orders change rapidly.
2. Statutory
COVID-19 had a big legislative impact. The pandemic essentially exposed a ton of issues that were important but not a priority until they were.
Specifically, House Bill 1121 and Senate Bill 173 addressed allot of concerns. As of today, both bills are active and in effect. Landlords and Tenants should check with an attorney because the effective date on these bills is important.
Late Fees
An issue that arose during the pandemic was late fees. Prior to the passage of House Bill 1121 and Senate Bill 173, a tenant could be evicted on the basis of failing to pay a late fee. This became a hot-button topic during the pandemic because landlords were being prevented from evicting tenants or being subjected to special eviction rules for items not related to rent. An interesting fact is that many older leases used to classify late fees as rent. Now you can see where the issue arose. As such, the governor issued executive orders limiting the landlord’s ability to evict tenants on the basis of rents. The problem is that these orders were temporary.
As such, one important aspect of House Bill 1121 and Senate Bill 173, was to ban the practice of classifying late fees as rent. In addition, these bills limit the landlord’s ability to evict on the basis of failure to pay a late fee.
Unlawful Evictions
Colorado has had an unlawful eviction statute in place for quite some time. Colorado has a very negative stance on self-help evictions. In other words, Colorado frowns on the landlord that throws away the tenant’s personal property when they are at work. In most situations, a landlord needs to obtain a court order to evict a tenant. Failure to do so can result in legal liability.
During the pandemic, due to the complexity caused by executive orders, CDC orders, local orders, and so on, naturally, landlords may have been tempted to act outside the court system.
One negative aspect of unlawful eviction actions has to do with the difficulty of proving damages. How do you value a T-shirt or your favorite picture? While damages are always an issue that needs to be addressed in most actions, they can present specific hardships in the context of landlord-tenant issues.
The legislator saw the issue and altered the statute. Following the passage of House Bill 1121 and Senate Bill 173, tenants now have the option to pursue statutory damages against the landlord for an unlawful eviction. In other words, they can elect to pursue a set number of damages set by the statute. This is great for those situations where you can’t really put a price tag on the injury. The effect was to severely reduce the barrier to entry and gave the unlawful eviction statute some real teeth.
Other:
I did not cover all the additions made by House Bill 1121 and Senate Bill 173. In addition, there are various other statutes in place that have nothing to do with House Bill 1121 and Senate Bill 173 that provide a degree of protection to tenants.
It is highly recommended that landlords and tenants talk to an attorney regarding issues arising during the landlord-tenant relationship. The laws are extensive and application depends on the facts of each specific case.
3. Tort and Contract Law
Landlords and Tenants always need to be concerned with other aspects of law including tort and contract law. I classify tort and contract laws as a protection against eviction for two reasons.
1) The Lease itself can give rise to contractual defenses; and
2) the phrase, the best defense is a good offense comes to mind.
The lease is one of the most important items defining the landlord-tenant relationship. It creates expectations between the parties. A lease is a contract meaning many aspects of contract law apply. In addition, a lease grants a property right meaning it holds a special place in law. As such, leases are subject to special rules as well. Where one party fails to perform their obligations under a contract, they can be liable for damages. This is the contract law aspect.
Separate from the contract law aspect, is the concept of tort law. Tort law in the context of a landlord-tenant relationship often deals with the taking of personal property (Conversion and/or theft) but can range into other issues such as assault.
Conclusion
While the traditional eviction moratoriums in Colorado are expiring, there are still many protections in place for tenants that both landlord and tenants need to be aware of. This was a very brief posting and in no way covers everything. If you have a concern, contact an attorney. This is a complex area of law that overlaps with other complex areas of law.
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.