An Important and Major Legal Explanation on Colorado Evictions

By Brandon Ceglian, Ceglian Law

In October, Governor Jared Polis issued Executive Order D 2020 227, hereafter (“Order 227). The Order has major new changes, here are the takeaways:

Amends/Extends: Amends/Extends the previous October 15, 2020 Executive Order D 2020 223 (“Order 223”) (attached) by extending the duration of Order 223 for an additional thirty (30) days to December 21, 2020. So, Order 227 continues the Order 223’s requirement to issue thirty (30) day money demands for all residential and commercial evictions and providing the four (4) CDC forms, per my previous emails.  I do expect Governor Polis to continue this Order 223/227 Order to the end of the year at least.

Adds:

1. New Form DOLA Declaration: Directs the Department of Local Affairs (DOLA) to draft a new eviction Declaration form (“DOLA Declaration”) very similar to the CDC Declaration Form.  At this time, there is no directive to provide the new form to Residents but I expect this will come once the DOLA form issues and perhaps a DOLA cover letter. To put this in context, Order 227 issued as a result of DOLA’s Eviction Task Force report that felt concern about a flood of evictions if the CDC Eviction Order is struck down by courts or rescinded…so essentially this is a stop-gap measure — but with more teeth. The information for the DOLA Declaration is found in the Polis 227 Order attached, and you will see it essentially tracks the CDC Declaration Form.
2. Same Drill as CDC, but More Teeth: The DOLA Declaration follows the same drill as the CDC Declaration, in that if the Resident provides you a sworn DOLA Declaration form the eviction is stopped and management/ counsel must decide next steps on a case-by-case basis. The Resident may provide Landlord either the DOLA Declaration OR the CDC Declaration.
3. Financial Hardship Defense: The DOLA Declaration applies only to persons that “…demonstrate a financial hardship due to COVID-19,” by signing and returning the DOLA Declaration to the Landlord.  This is substantially the same as the CDC Declaration. Recent CDC Guidance states that Landlords are allowed to attack the Resident’s CDC Declaration, but Governor Polis’s Order 227 does not specify one way or the other. I assume Courts will be inclined to also allow an adverse hearing on the DOLA Declaration as they have done with the CDC Declaration. This hearing is case-by-case, requires evidence, and we do charge hourly for such a hearing.
4. Duration: The Order 227 expires in thirty (30) days (December 21, 2020) It is not sure why the Order 227 did not go out to the end of the year — like the CDC Order does—but probably because Governor Polis prefers thirty (30) day orders that he can review/ renew periodically—and I think politically he prefers to string this along month-by-month to avoid litigation by an organized attack in the courts. Accordingly, I would expect this new Order 227 to be extended to track the CDC Order timeframe and go out to the end of the year (at least).
5. Lease End/Terminating Periodic Tenancy: A big change is that this new Order 227 specifically includes not only money demand evictions but also “end of lease term” holdovers and termination of periodic tenancies (like month-to-month). This is rough, because this loophole is how/ where we have been getting evictions to go through. Because of this and the continued eviction moratoriums, I advise more than ever to increase security deposits if the market will bear it.
6. Failure to Comply/Quit for Repeat Violation:  Another big change is that this new Order 227 now prohibits non-monetary evictions for “Failure to Comply” and “Notice to Quit for Repeat Violation.” This is shocking, given all the things a bad Resident can do to a property’s reputation and goodwill, not to mention the frustrations of rulebreakers that will certainly get all Residents upset and uneasy. This is not to say you shouldn’t post demands to comply, but we cannot proceed to evict until the order lifts — the eviction will be on hold until the Order 227 expires or CDC Order (whichever is invoked by Resident). Additionally, taking future rent could be construed as waiving the non-compliance with rules violations and so if you want to enforce an eviction for rule breaking then we would want to structure a payment acceptance agreement to expressly state that.  Because of this and the continued eviction moratoriums, I advise more than ever to increase security deposits if the market will bear it.
7. Substantial Violations:  Fortunately, evictions for substantial violations may still proceed. This is a different standard then a basic rule/lease violation, as it requires intentional/reckless destruction of the property or criminal conduct. Testing positive for Covid is not considered a “substantial violation” by the terms of the Order. This is frustrating for some properties that have reported to me they are now experiencing conflict on-site with people not wearing masks and not following protocols after testing positive for Covid.    This is getting more and more complicated for everyone, and questions abound!