On June 13, 2020, Governor Jared Polis signed Executive Order D 2020 101 (the “Order”) temporarily extending the required notice prior to commencing a forcible entry and detainer action (aka, an eviction) or terminating a tenancy or other estate in a mobile home park where the basis for such action is nonpayment of rent. Landlords must now provide 30 days’ prior written notice to tenants instead of 10 days, during which time tenants have the opportunity to cure the default in payment. This Order also prohibits landlords from charging late fees and other penalties that would otherwise be incurred between May 1, 2020, and June 13, 2020, extending an existing moratorium against the accumulation of late fees and penalties that first took effect on April 13, 2020 (see Executive Order D 2020 051). This Order is currently sent to expire on July 13, 2020.

While this newest executive order states its purpose is to “allow tenants to remain in their residences,” the other provisions of the Order may suggest a broader application extending to nonresidential (i.e., commercial) leases. According to Directive II.A. of the Order, “Landlords” must provide a 30-day pre-eviction notice in lieu of the 10-day notice set forth in statute. Pursuant to CRS §13-40-104(1)(d), such 10-day notice applies to residential leases whereas a separate 3-day notice applies to nonresidential leases. Resting on this distinction may not carry the day, however, as the same statute also provides a separate 5-day notice for a specific category residential leases (where landlord owns 5 or fewer single-family homes and provides statutory notice to tenant). To say that the Order’s reference to a 10-day notice limits the applicability of the Order to residential properties would be to say that the tenants living in exempt residences are left unprotected, which goes against the express intent of the Order.

In addition to the eviction moratorium imposed by this Order, the eviction moratorium set forth in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) remains in effect through July 25, 2020. This federal law, originally enacted on March 27, 2020, restricts eviction remedies sought by certain landlords including those owning rental properties with federally backed mortgage loans such as loans insured by the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), as well as VA and FHA loans. Although eviction proceedings are commonly a matter of state law handled exclusively by state courts, the CARES Act may create an issue of interpretation of a federal law and thus landlords commencing eviction proceedings prior to the expiration of the federal moratorium may face removal to federal court to determine applicability of this law.

In light of the ongoing global pandemic and frequent changes in the law, tenants and landlords alike are encouraged to seek legal advice in regards to the current status of eviction laws. Coloradans are also encouraged to find other solutions that do not result in eviction so that a global health crisis does not result in mass homelessness and the enduring stigma that follows.

Author: Juliana Massaro