The Status of Evictions in Colorado
By: Craig D. Joyce
In response to the COVID-19 pandemic, Governor Polis declared a disaster emergency on March 10, 2020. By doing so, he invoked the powers given to the governor under Article IV, Section 2 of the Colorado Constitution and Article 33.5 of Title 24 of the Colorado statutes, commonly known as the Colorado Emergency Disaster Act. (C.R.S. 24-33.5-701 et seq.).
On March 20, 2020, the governor issued Executive Order D 2020 012 (EO 12) which, among other things, limited evictions. EO 12 did not impose an outright ban or moratorium on evictions. Rather the governor directed the Executive Directors of three departments to “work with property owners and landlords to identify any lawful measures to avoid removing or executing eviction procedures against tenants . . .[.]” EO 12 also directs the Executive directors to “work with property owners and landlords” to exempt tenants from late fees or penalties.
EO 12 also directed sheriffs “to suspend residential eviction activity” [i.e., move outs] until April 30, 2020. This is the only part of EO 12 with any teeth. Without the sheriff to execute orders for possession, eviction is a hollow remedy. EO 12 says nothing, however, about commercial evictions.
Various judicial districts, including all in the Denver metro area, acting through their respective chief judges with the authority granted them by the Chief Justice of the Colorado Supreme Court, temporarily suspended or postponed evictions.
On the day EO 12 expired, Governor Polis issued Executive Order D 2020 051 (EO 51). Unlike EO 12, EO 51 specifically forbids evictions, and it purports to apply both to “residential and commercial evictions” for thirty days, or until May 30, 2020. EO 51 contains this language:
“No individual shall file or initiate actions for forcible entry and detainer (i.e. eviction) involving a premises based upon a tenant’s default of any contractual obligation imposed by a rental agreement under C.R.S. 13-40-101, et seq.”
EO 51 continues EO 12’s directive for sheriffs to suspend residential eviction activities unless necessary to protect public health and safety.
While EO 51’s “no evictions” language leaves some room for interpretation, the intent is quite clear. And under C.R.S. 24-33.5-704(2), executive orders issued under emergency powers “have the effect of law.” Whether the outright prohibition on filing evictions would withstand challenge as an unconstitutional taking of property is beyond this discussion.
About two weeks before issuing EO 51, Governor Polis stated that he “does not have any legal ability to suspend rent or evictions outright.” I do not know what caused him to change his mind. Perhaps he received a legal opinion to the effect that his powers under the Colorado Emergency Disaster Act are broad enough to suspend evictions for 30 days. Two sections of the Act might apply: (1) Section 704(7)(g) provides the Governor with power to “control” the “occupancy of premises” and (2) section 704(7)(i) allows him to “make provision for availability and use of temporary emergency housing.” It is doubtful, however, that the temporary emergency housing power would apply to a commercial, non-residential property.
EO 51 adds one more tenant protection. Landlords are required to provide their tenants written notice of federal protections against eviction and foreclosures “including those provided by Sec. 4024 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law No. 116-136.” This section of the CARES Act prohibits landlords from evicting tenants from properties with federally backed mortgage loans. Again, the language of EO 51 is broad and subject to interpretation, but it is arguable that the notice requirement only applies to residential properties covered by the eviction prohibition in the CARES Act, not every landlord tenant arrangement.