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Landlord-Tenant COVID Update: 5-8-2020

To our valued clients:

As part of our ongoing efforts to keep our clients aware of changes to landlord-tenant law brought on by the COVID-19 pandemic, we wanted to provide this update to our prior guidance regarding changes in Colorado FED/eviction proceedings since our March update.

Court Update:

The Twenty-First Judicial District continues to operate on reduced staff and focus on court operations considered urgent public safety matters. However, the restriction on in-person hearings related to non-public safety matters such as evictions has been extended until June 1, 2020 and all hearings scheduled in May are in the process of being rescheduled again until after June 1.

Executive Order D 2020 051:

More significantly, on April 30, Governor Polis issued Executive Order D 2020 051 (here is the link) which amended and extended prior Executive Orders D 2020 012 and 031. As you will recall, EO-012 was the subject of our March 27 COVID update, and it requested (but did not mandate) restrictions on evicting tenants or initiating eviction procedures for minor tenancy violations or non-payment of rent.

No Evictions or Writs:

EO-051 significantly enhances the breadth of EO-012 in a variety of ways. First, the Order now places an outright prohibition on filing or initiating actions for eviction or from executing writs of restitution except where a tenant poses “an imminent and serious threat to another individual or causes significant damage to property.” The prohibition on filing or initiating eviction actions applies to both residential and commercial leases. The Order does state that tenants are NOT relieved of their contractual obligations under their Leases (i.e., to pay rent and follow the rules), but they cannot currently be removed from their housing for failing to comply until after June 1, 2020.

Although this broad prohibition on eviction proceedings (as well as the enforcement of orders from those proceedings) goes through May, there is always the possibility that the Order may be extended further. Except in cases where a tenant’s actions pose an imminent and serious threat to another individual or causes significant property damages, which are likely still to be determined on a case-by-case basis, landlords are prohibited from even filing eviction actions until after May.

No Late Fees:

EO-051 also creates a blanket restriction prohibiting landlords from charging late fees or penalties for breaching the terms of a lease due to nonpayment of rent. Again, unlike the requested restrictions of the March Order, EO-051 creates outright prohibitions on these activities. The Order has directed several executive agencies to work with property owners and landlords to create model repayment agreements that allow tenants additional time to repay rent, however, these model agreements have not yet been created or released.

Landlord’s Required Notice:

Finally, EO-051 takes the unprecedented step of directing all landlords of rental properties to notify tenants in writing of federal protections against eviction and foreclosures at their properties, including the protections provided by Section 4024 of the CARES Act, which we discussed in our last update that you can find here: link, even if the CARES Act may not apply to the tenant. This means that all landlords are now under an affirmative duty to inform their tenants of protections available to them. We have created a model notice that can be sent to tenants to meet the affirmative duty provision of the Order. If you are interested in utilizing this crafted notice for your properties, please contact us.

Continuing to Serve Notices/Demands:

We realize that these amendments represent serious restrictions on the ability of landlords to remove tenants from their properties. We continue to advise our landlord clients to address lease violations in a timely manner including through service of Demands for Compliance. We also note that nothing in the Orders nor the federal laws prevents a landlord from recovering unpaid rent once the restrictions are lifted (and the 120-day eviction moratorium under the CARES Act expires). Therefore, it is important to keep track of the unpaid amounts owed by tenants. We do, however, encourage you to work with your tenants to create repayment agreements if those tenants have been impacted by COVID.

It is important to be clear on what this means for evictions for our clients. At this time, we are unable to file any eviction actions with the court that are not imminent public safety threats. We can still draft notices and demands for compliance as needed and we welcome the opportunity to provide you with additional guidance if you believe you have a situation that meets the definition of a public safety threat requiring eviction.

We remain committed to working with both you and the courts to remain appraised of any changes as they occur and we welcome your questions or concerns and stand ready to help however we can.

We wish you the very best.

Annie Murphy and Ross Smith

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