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8/4/21 CDC Issues New Moratorium on Evictions

CDC Issues New Moratorium on Evictions in Communities with Highest COVID-19 Transmission Levels; Colorado’s Executive Order Extended

Due to what the US Centers for Disease Control (CDC) describes as “unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of the Delta variant,” the CDC has issued a new moratorium on residential evictions in any US county or territory experiencing “High” or “Substantial” levels of community transmission of the Coronavirus. As part of the new Order, any evictions for nonpayment of rent that were initiated prior to its issuance but not “completed” become subject to the order.

“Completed” means that the Writ has been executed. So, if you received a Writ on August 1st through August 3rd and that Writ has not yet been executed (the sheriff has not removed the tenant), that Writ is now on hold until October 3rd or until the County maintains a “Low” or “Moderate” level designation for 14 consecutive days, whichever occurs first.

The new moratorium, issued August 3rd, is effective through October 3rd and, like the former Order prevents landlords from evicting tenants who satisfy the following criteria:

1. have used best efforts to obtain all available government assistance for rent or housing;

2. either expect to earn no more than $99,000 in annual income for Calendar Year 2020-2021 (or no more than $198,000 if filing a joint tax return), were not required to report any income in 2020 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check);

3. are unable to pay their full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;

4. are using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and

5. if evicted, would likely become homeless, or be forced to move into and reside in close quarters in a new congregate or shared living setting, because they have no other available housing options.

The new requirement is that the tenant must reside in a county experiencing substantial or high rates of Covid-19 community transmission levels. To find out if your county is subject to the order, you can view the county-by-county transmission rates according to the CDC by using their COVID Data Tracker tool. As of August 4th, the transmission rates in some of Western Colorado’s most populous counties are listed below:

Delta County: Substantial

Garfield County: Substantial

Mesa County: High

Moffat County: High

Montezuma County: Moderate

Montrose County: High

Pitkin County: High

Rio Blanco County: High

While these transmission designations are current as of August 4th, the Order specifies that if a county’s designation is upgraded to “High” or “Severe” at any point while the order is in effect, the county will become subject to the moratorium. Conversely, if a county’s transmission designation is downgraded to “Moderate” or below while the Order is in effect, then the county will no longer be subject to the Order if it maintains the lower designation for 14 consecutive days.

While the previous moratorium, which expired on July 31st, was stated to be the final extension of the eviction moratorium in the United States, the CDC considers the new Order to be a separate, “narrower, more targeted” Order meant to only apply to the “hardest-hit areas.” Like the previous Order, this one does not excuse a tenant from any payment, nor does it prevent the eviction of tenants who engage in criminal activity on the premises; threaten the health and safety of other residents; damage or pose an immediate threat of damage to property; violate building codes or health ordinances; or violate contractual obligations other than timely payment of rent.

Meanwhile, Colorado extended and amended its existing eviction protections on July 30th, in Executive Order D 2021 124. The current Order amends and extends Executive Order D 2021 122 which allows tenants who have a pending application for emergency rental assistance to receive a 30-day notice of nonpayment, rather than the statutory 10-day notice. To qualify for this protection, the tenant must demonstrate that they have applied or that the landlord has applied for assistance AND that the application was not denied. If the tenant can demonstrate the above, they are considered an “eligible individual,” and are then entitled to the 30-day period, during which time they may cure the default for nonpayment. Landlords continue to be required to provide tenants with a copy of the Department of Local Affairs (DOLA) resources found at with any Notice to Quit or Demand for Compliance. This Executive Order expires on August 6th, unless extended.

Remember that evictions may still occur if: 1) the eviction is based on nonpayment of rent and a tenant does not complete a CDC declaration form; 2) the tenant engaged in criminal activity while on the premises; 3) the tenant threatened the health or safety of other residents; 4) the tenant damaged or posed an immediate and significant risk of damage to property; 5) the tenant violated any applicable building code, health ordinance, or similar regulation relating to health and safety; or 6) the tenant violated any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest). Note that under both the Colorado Executive Order and the CDC Order, a natural expiration of the Lease is not specifically excluded from the tenant protection the Order provides (the Orders are silent as to this issue). Courts have been divided as to the Order’s application as to this particular issue.

Keep in mind that financial assistance continues to be available to landlords negatively impacted by the CDC’s Order. The State of Colorado has instituted its own program to assist landlords. If you are owed money by a tenant who is protected under this order, you are likely entitled to monetary relief through Colorado’s Emergency Rental Assistance Program (ERAP). This program covers back-rent fees for property owners and tenants through April of 2020. For more information or to apply for assistance, visit the program’s website linked above.

The CDC’s previous Order saw a plethora of legal challenges spanning all the way to the United States Supreme Court. If similar legal challenges affect the new Order, we will work to provide updates as quickly as possible.

If you would like to speak with Annie Murphy or another attorney about evictions, please give our office a call at 970-241-5500.

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