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UPDATE: New requirements for evictions for all commercial and residential tenants in Colorado.

On September 8, 2020, and again on September 22, 2020, Governor Jared Polis issued two new Executive Orders to once again modify the requirements that landlords must satisfy in order to evict any tenant in Colorado, whether commercial or residential. The first, Executive Order D 2020 185 (“Order 185”), replaces the ordinary notice and cure periods for nonpayment of rent (typically ten (10) days for residential tenants, and three (3) days for commercial tenants) with a full thirty (30) day notice and cure period. Previously, Governor Polis only required such a lengthy notice and cure period for residential tenants, but not commercial tenants. However, this requirement does not appear to apply to defaults for reasons other than nonpayment of rent.

The effect of this change is that upon a tenant’s failure to pay rent, a landlord must provide the tenant with thirty days of notice before initiating or filing a “forcible entry and detainer” (i.e., eviction) action, during which time the tenant may cure the default by paying the outstanding rent, thereby avoiding eviction. Landlords should keep in mind that upon expiration of this legally-required thirty-day period, some leases may require an additional period of notice and the opportunity to cure before filing eviction actions. Landlords should carefully review their leases and consult an attorney to ensure compliance with these requirements before filing eviction actions.

The second and more recent order, Executive Order D 2020 202 (“Order 202”) imposes an additional requirement that residential landlords must satisfy before filing or initiating an eviction action, and before even making a demand for rent from residential tenants. That is, Order 202 requires landlords to notify residential tenants of the federal protections against eviction under the CDC’s September 4, 2020 Order, which imposes a Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19 (the “CDC Order”). This additional notice requirement does not appear to apply to commercial tenants, however, because the CDC Order itself does not purport to apply to commercial tenants.

Landlords for residential properties should therefore make sure to provide this notice before filing an eviction action or making a demand for rent. Such notice must include a copy of the CDC Order as well as a copy of the CDC’s form declaration, which is an integral part of the eviction protections available under the CDC Order. As a best practice, landlords should provide this notice in written form, and should keep copies or a record of the notice to prove compliance with the new requirements. Some leases contain specific notice requirements, in which case landlords should also make sure to comply with all such requirements when providing this notice to tenants. When providing notice, it is important to avoid making any statements that can be construed as misleading or inaccurate, and landlords should always consider if the specific provisions of their Leases may impose additional requirements for tenant notices.

The CDC Order applies broadly, and prohibits landlords from evicting “any tenant, lessee, or resident of a residential property” who submits an executed declaration under penalty of perjury, stating that the individual meets certain criteria and has used best efforts to obtain available government assistance for rent or housing, and to continue making partial payments that are as close to full payment as the individual’s circumstances may permit. Although broad in application, it is unclear how many tenants will actually seek the protection of the CDC Order due to the rigorous criteria that must be satisfied to submit a truthful declaration. The CDC Order indicates that this moratorium shall be in effect until at least December 31, 2020.

For those who are concerned that a moratorium on evictions may effectively mean a suspension of tenants’ obligations to pay rent, the CDC Order expressly states that it “has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent … on a timely basis, under the terms of any applicable contract.” The reassurance this provision offers may be limited, however, because the CDC Order by its own terms allows residents to avoid eviction or removal even if they fail to pay rent as required under contract. Without being able to sue to retake possession upon a tenant’s default for nonpayment of rent, it is unclear how landlords will recover outstanding rent during the pendency of the CDC Order, especially if tenants later move out and no longer face the threat of eviction. Landlords can of course file civil actions and sue for breach of contract to attempt to recover unpaid rent, but without the right to evict tenants and re-let a residence to other tenants, the benefit of such recourse is limited.

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.