On Sept. 1, 2020, the Centers for Disease Control and Prevention (the “CDC”) released an order intended to directly address the potential catastrophic effects of nationwide evictions due to COVID-19. The order, entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (the “Order”), temporarily halts residential evictions across the country for the nonpayment of rent. According to the CDC, the moratorium will serve as an effective tool in slowing the potential spread of COVID-19 as it will reduce the number of people forced to either endure shared living situations or become homeless.
In order to be eligible for the protections of this Order, a renter must satisfy the following criteria as evidenced by an attestation signed under the penalty of perjury by the renter and every adult individual in the dwelling and delivered to the landlord:
- renter does not exceed the income threshold of $99,000 per year or $198,000 per year if they file a joint tax return;
- renter is unable to pay their full rental payment due to their having either lost income or having experienced “extraordinary” medical expenses;
- renter has made their best effort to obtain available government assistance and will continue to do so;
- renter will make every effort to make timely partial payments toward rent as their circumstances will allow; and
- an eviction would likely render the renter either homeless or force them to live in a shared space without the ability to adhere to CDC social-distancing guidelines.
The CDC, in conjunction with issuance of the Order also provided a declaration form that may be used by renters. Upon delivery of the attestation, the renter is then protected from eviction due to failure to pay rent for the duration of the Order.
The Order will be effective through Dec. 31, 2020, unless extended and is intended to operate in those states, territorial, local or tribal areas that have not already enacted an eviction moratorium. Pursuant to the Order, states, territories, local or tribal authorities are permitted to issue their own eviction moratoria that offer greater renter protections than provided under the Order. It is important to note that while a renter is protected from eviction due to nonpayment of rent under the Order, the Order does not remove the obligation of renters to make rental payments nor does it prevent landlords from issuing fees for a renter’s failure to make a timely rent payment. Additionally, the Order does not preclude landlords from evicting renters for any of the following reasons: (i) partaking in criminal activity; (ii) threatening the health or safety of other residents; (iii) damaging or posing a risk of damage to property; (iv) violating any applicable health or safety regulations, codes or ordinances; or (v) violating any other lease or contractual obligations.
Practical Implications in Colorado
Here in Colorado, on April 30, Gov. Polis issued a temporary moratorium on evictions; however, he did not extend that order when it expired in June. Instead the governor signed Executive Order D-2020 101, which temporarily suspended C.R.S. § 38-12-204(1), 38-12-204.3(2), and 13-40-104(1)(d) requiring landlords to provide tenants 10 days’ notice of any default for nonpayment of rent, during which time the tenant has the opportunity to cure the default. Under the governor’s executive order, landlords must then provide tenants with 30 days’ notice of any default for nonpayment before initiating or filing an action for forcible entry and detainer. Such 30-day notice may extend beyond the expiration of Executive Order D-2020 101. During this 30-day period, tenants shall have the opportunity to cure any default for nonpayment. The governor has subsequently extended the executive order through Oct. 9, 2020.
The governor also directed the executive director of the Colorado Department of Local Affairs (DOLA) to work with landlords to assist renters who have endured economic hardships due to COVID-19 and are struggling to make rental payments. Similar to the CDC’s Order, Gov. Polis’ executive orders did not forgive individual renters from their obligation to make rental payments, merely barring evictions for the failure to make such payments in a timely manner. In contrast with the CDC’s Order, Gov. Polis’ executive orders prohibited landlords from assessing late fees or penalties to renters for nonpayment of rent. It remains to be determined how the CDC’s Order will impact Gov. Polis’ future decisions regarding eviction moratoriums as his office has issued statements to local news agencies indicating the administration is “reviewing” the federal action and determining next steps to be taken by the governor. A decision is looming as the existing executive order limiting certain evictions in Colorado is slated to expire on Oct. 9 unless extended further.