The Covid 19 virus floating in the background with the word Covid 19 overlayed on top

On June 13, 2020, Governor Polis issued yet another executive order to modify the substance of Colorado’s eviction laws and the availability and enforcement of evictions in Colorado using his authority under Colorado’s Disaster Emergency Act. The new Order 2020-101 (“Order 101”) – now the Governor’s fifth order to implement new rules, restrictions, and prohibitions for landlords over a breakneck period of less than three months – is notably different from his previous eviction orders in a number of ways.

Most significantly, Order 101 is the first of the Governor’s eviction orders this year that does not extend the eviction protections afforded by his previous orders, including, notably, an outright prohibition on filing or initiating forcible entry and detainer (“FED”) (i.e., eviction) actions that had been in place since April 30. Instead, on June 13 the Governor allowed his previous orders 2020-012, 2020-031, 2020-051, and 2020-088 to expire by their terms, and in their place he issued the narrower Order 101 that is now in effect. This move alone should go a long way towards reducing the confusion and uncertainty for all parties involved, both on the landlord and the tenant side, who thus far were required to negotiate a complicated web of lengthy and interrelated executive orders – many of which included amended or supplemental language that incorporated by reference the language of prior orders – just to understand the changing landscape of eviction law in Colorado.

In addition to ending the outright moratorium on the filing of evictions that had been in place since the end of April, Order 101 also no longer directs the state’s law enforcement agencies to refrain from enforcing evictions or removing tenants. Order 101 does, however, suspend the ordinary ten (10) day statutory notice period for residential properties, and now requires landlords to provide residential tenants a full thirty (30) days of notice and an opportunity to cure before initiating or filing FED actions. Although the Order neglects to specify whether this new thirty (30) day notice requirement applies only to residential tenants, this appears to be the most reasonable interpretation.

Order 101 also continues to prohibit landlords from charging “any late fees or penalties for any breach of the terms of a lease or rental agreement due to nonpayment that were incurred from May 1, 2020 until June 13, 2020,” but elaborates that it does not relieve an individual from the obligation to make any contractually-required rent payments. Although the Order does not continue to prohibit landlords from charging late fees that accrue after June 13, 2020, it is unclear if Governor Polis ever intends to allow landlords to collect such late fees that accrued from May 1 until June 13, 2020. Those who wish to collect from tenants any such outstanding late fees incurred during this period should consult an attorney to determine whether and how to proceed.

Finally, Order 101 directs the Executive Director of Colorado’s Department of Local Affairs (“DOLA”) to “work with landlords to implement the model rent repayment agreements created by DOLA to assist individuals who are unable to pay rent because they have been impacted by financial hardship due to COVID-19.” These model rent repayment agreements are available online and include form language that can give tenants the option to agree to either a payment plan or a balloon payment to pay any outstanding rent owed for the months of March, April, and May 2020. Landlords are not required to enter these types of agreements with their tenants, however, and should review the proposed language and consult with an attorney before modifying an existing lease. In the absence of such an agreement, landlords typically retain the right to evict tenants upon nonpayment of rent, provided that proper notice is given and the ordinary eviction procedures are satisfied.

Unfortunately, it is still unclear how long the current Order will last before Governor Polis again decides to change the state’s eviction laws, which have thus far changed on a near-monthly basis this year. For at least 30 days from June 13, 2020, however, Order 101 should provide some level of certainty for landlords, property managers, and other interested parties in Colorado.

For guidance on how to comply with the fast-changing landscape of eviction law in Colorado, 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.