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Landlord-Tenant Legal COVID Update 3-27-2020

To our valued clients,

If you are receiving this email, it is because we are working with you or have worked with you in the past regarding landlord-tenant matters. As you are already aware from prior notices from the firm, we continue to monitor the impact of the COVID-19 virus and are committed to providing continued professional legal services during this uncertain time. As part of this commitment, we felt it prudent to provide you with the latest information regarding local court operations, particularly as to FED/eviction proceedings in light of recent state, local, and federal responses to the virus.

Court Update:

On March 16, the Colorado Supreme Court ordered the suspension of certain state court operations (like jury calls) and directed judicial districts around the state to implement various restrictions on local court operations to limit in-person hearings to emergency matters pertaining to public safety and criminal proceedings for which there is a constitutional mandate of a speedy trial.

In response, the Twenty-First Judicial District, which includes the Mesa County Court issued Administrative Order 2020-05 on March 18. The order reduces staff and refocuses court operations to those that are considered public safety matters. Importantly for purposes of civil actions, including FED actions, the court will continue to accept electronic filings for cases, but in-person hearings related to non-public safety matters (including evictions) will be delayed until after May 1, 2020. Further, all in-person appearances, hearings, and trials currently scheduled for any non-public safety matters between March 19 and May 1 have been vacated and continued until after that date. Other Colorado judicial districts have issued similar orders.

The practical effect of this order is that, while landlords are still able to file eviction actions with the court, the requisite hearings on these actions will not be held until at least May, meaning landlords will be unable to obtain orders for possession until that time. It is important to also note that, because there are a large number of scheduled hearings that are also being pushed until that time, any new action filed will likely not receive a hearing date until well after May 4.

Executive Order D 2020 012 Update:

On March 20, 2020, Governor Polis issued Executive Order D 2020 012 (link below) which, among other things, ordered limits on evictions, foreclosures, and public utility disconnections. In essence, the Order requests property owners and landlords to avoid evicting tenants or initiating eviction procedures without cause (end of term terminations), for minor tenancy violations, or based on non-payment of rent until April 30, 2020 and to consider waiving or exempting tenants from fees or penalties for late or non-payment of rent during that time. While the Order does not place an outright restriction on these proceedings at the moment, it directs several executive agencies, including Department of Local Affairs (DOLA), Department of Labor and Employment (CDLE), and Department of Regulatory Agencies (DORA) to explore lawful measures to avoid removing or executing eviction procedures against tenants or mobile home owners for non-payment or minor violations. As of this communication, these agencies have yet to provide guidance regarding any such rules, but it is expected that they may be promulgated in the near future. In addition, the Order directs the Department of Public Safety to work with Sheriffs and Mayors to take formal actions suspending residential eviction activity until April 30 unless the actions are necessary to protect public health and safety. The Mesa County Sheriff’s Office, for instance, has already made the decision to suspend the execution of Writs of Restitution. In practice, this likely means that, even if a possession is granted to the landlord as a result of a court eviction proceeding, the Sheriff will likely be unable to carry out execution of the Writ (i.e., will be unable to carry out the physical process of eviction) unless the action is deemed necessary to protect health and safety.

While the ramifications of this unprecedented change are yet unknown, it is important to clarify that, as of right now, tenant payment responsibilities have not been abrogated. This is made doubly clear in Executive Order D 2020 012, which specifies that nothing in the Order relieves a tenant of the obligation to pay rent, nor restricts a landlord’s ability to recover rent due, or otherwise comply with other public health and safety or legal requirements. In addition, the latest order from the Twenty-First Judicial District allows a presiding judge to schedule hearings on matters not otherwise considered public safety matters if the situation presents a “substantial risk of imminent financial hardship, or imminent risk to the health, safety or welfare of an individual or members of the community.” This provision, while not directly addressing the applicability to eviction proceedings, would likely allow a hearing to be held if a tenant’s actions present an imminent risk to health and safety of other tenants or members of the community. These exceptions are only to be made on a case-by-case basis, but we stand ready to advise you regarding any such situations you experience.

Finally, despite these interruptions, for the time being landlords can and should continue to address lease violations in a timely manner and in compliance with Colorado statutes including continuing to serve of Demands for Compliance and Notices to Quit. While we typically recommend to our clients as a best practice that these notices be notarized once served, this is not a legal requirement under the law. Given the need for increasing physical distancing, taking a picture or making some other record to verify service of notices is sufficient for the time being. Please note that the Executive Order discussed above requests (but does not outright require) landlords to “avoid removing or executing eviction procedures” without cause, for minor tenancy violations, or for non-payment of rent. While not yet carrying the force of a command, the executive agencies tasked with rulemaking in Colorado are expected to begin passing rules restricting these procedures. We will make every effort to keep you informed if and when such changes are implemented.

We understand that these new guidelines may create some degree of inconvenience and hardship for landlords, property managers, and rental property owners. We are committed to working with you to reduce confusion and uncertainty during this pandemic and we are making every effort to stay up to date on the latest developments, particularly as concerns the quickly changing rules and regulations in this area of law. We welcome any questions or concerns you may have and are available to help in any way we can along the way as your legal advocate.

If you'd like to see the order, it's here: http://www.adcogov.org/sites/default/files/D%202020%20012%20Order%20Limiting%20Evictions%20Foreclosures%20and%20Public%20Utility%20Disconnections.pdf

We wish you the very best during these trying times.

Annie Murphy | Ross Smith

970-241-5864 | 970-248-4337

Dufford Waldeck

744 Horizon Court, Suite 300, Grand Junction, CO 81506

www.dwmk.com