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What’s the Latest on Evictions in Colorado? 10-21-20

On October 21, 2020, Governor Polis issued Executive Order D 2020 227 . In short, this executive order creates a new defense for residential tenants facing evictions: tenants who properly invoke this defense and affirm that they have experienced financial hardship due to COVID-19 cannot be evicted. But the executive order is not a complete ban on evictions: certain circumstances must exist for the defense to apply, and tenants may still be evicted if there has been a substantial violation of the lease or where the tenant poses a threat to another or causes significant property damage.

The executive order creates a defense to evictions for tenants who demonstrate that they have experienced “financial hardship due to COVID-19.” The tenant must affirm that they are using best efforts to obtain government assistance for rent or housing, that their annual income is below a specified amount, that they cannot make their rent payment due to loss of income or an unexpected medical expense, that they are using best efforts to make as close to full payments as possible, and that they would likely be rendered homeless if evicted. Unlike the CDC Order, which continues to be in effect through the end of the year (discussed in a previous article), this executive order applies to all residential evictions—not just nonpayment of rent cases—unless there has been a substantial violation of the lease or where the tenant poses an imminent and serious threat to another or causes significant property damage. A tenant can demonstrate financial hardship by filling out the executive order declaration form or the CDC declaration form and providing it to their landlord.

A tenant who affirms that they have experienced financial hardship due to COVID-19 does so under penalty of perjury. But it’s not clear what landlords can do if they suspect a tenant is being untruthful. As of right now, it does not appear that landlords can challenge the truthfulness or accuracy of the declaration form in court.

What does this mean for landlords and property owners?

Unless and until a tenant provides their landlord with a declaration form, landlords should proceed with evictions—with some modified procedures. Prior to initiating eviction proceedings, landlords must provide tenants with notice of the CDC Order and the executive order. And unless the tenant demonstrates financial hardship by providing the required declaration to their landlord, the tenant may still be evicted. But if the tenant does demonstrate financial hardship, landlords may not proceed with the eviction unless the eviction is based on a substantial violation of the lease or the tenant poses an imminent and serious threat to another or causes significant damages to the property. If a tenant invokes this defense, landlords should try to work out an agreement (in writing!) with the tenant—this can be done with our assistance or by utilizing a mediator.

Landlords should also take note of the modified notice requirement for nonpayment of rent cases—tenants must be given 30 days to cure. The notice requirements for all other evictions are the same: 21-days’ notice for the end of month-to-month rental agreements; 10-days’ notice for repeated lease violations; and 3-days’ notice for substantial violations.

Executive Order D 2020 227 is set to expire on November 20, 2020, but it will likely be extended by subsequent executive orders. The regulations are rapidly changing, so landlords and owners of residential rental properties should consult legal counsel prior to taking steps to terminate or evict a tenant.

By Charlotte McEwen