Affirmative Notice Required to Commercial and Residential Tenants
08 May 2020
On April 30, 2020, Governor Jared Polis issued Executive Order D 2020 051 that extends and expands upon his previous Executive Order D 2020 012 limiting evictions and foreclosures on a statewide basis. The new Executive Order imposes sweeping (but temporary) restrictions on landlords’ rights to file or initiate eviction proceedings, restricts landlords’ ability to charge late fees or interest on unpaid rent, and also includes an affirmative notice requirement that orders “all landlords of rental properties” in Colorado to provide written notice to tenants at each property of certain federal protections against eviction under the “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act).
Although these federal protections only apply to certain rental properties, the written notice requirement in the Governor’s Order states that it applies to all landlords throughout the state, regardless of whether their properties are covered by the federal protections or not. Properties that are covered under Section 4024 of the CARES Act are subject to a 120-day federal moratorium on evictions (expiring on July 25, 2020), and include those that:
(i) meet the definition of a “covered housing program” under 34 U.S.C. § 14291(a);
(ii) participate in the rural housing voucher program under 42 U.S.C. § 1490(r);
(iii) have a federally backed mortgage loan; or
(iv) have a federally backed multifamily mortgage loan.
Those who are concerned their properties may be subject to these protections should review the specific provisions of Section 4024 of the CARES Act and other applicable laws, and consult an attorney who can answer any legal questions they may have.
Like any other notice required by law, it is always a best practice to maintain proper records of notices sent to each tenant to establish compliance with the requirements of the Executive Order. In this regard, an email notice may be sufficient and can help maintain an electronic record of notice being given. Individual lease agreements may include specific requirements for the provision of notice, however, so it is best to consult the provisions of specific leases to ensure full compliance with any such requirements.
While the Governor’s Executive Order requires landlords to notify their tenants of the protections available under the CARES Act, the notice will differ depending on whether their properties are covered or not. Even where a property is not protected by the federal moratorium on evictions, however, it may be covered by other provisions of the Governor’s Executive Order that limit landlord rights to initiate eviction proceedings. In any event, it is important to avoid making any statements that can be construed as misleading or inaccurate, and landlords should always take into account their own individual circumstances when making sure they comply with these and other requirements. While no deadline was provided for these notices, Colorado law would impute a reasonableness standard to sending the notices to tenant, so landlords should endeavor to send the required notices as soon as they can.
For guidance on drafting the required notice in compliance with the Governor’s Executive Order, reach out to an Ireland Stapleton real estate attorney.
The information provided herein is intended as general information and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.
Zach Price is a litigation attorney at Ireland Stapleton Pryor & Pascoe. In his practice, Mr. Price handles a wide range of commercial litigation matters, including matters involving real estate related disputes. He can be reached at 303-628-3617 or email@example.com.