The CDC eviction moratorium set to expire March 31, 2021 has been extended to June 30, 2021. A copy of the Order is attached. There are some slight modifications to this new CDC eviction moratorium Order and points to know.
- Provides that individuals who are confirmed to have, or have been exposed to, or who “might have” Covid-19 and take reasonable precautions to not spread the disease cannot be evicted based on the legal ground that the resident has Covid-19 and poses a health or safety threat to other residents. Accordingly, this appears to prohibit eviction not just for non-payment, but for endangerment / having covid/exposure to Covid-19. The CDC Order is poorly worded and could be read also to prohibit (or at least strongly discourage) evicting people who simply claim to have Covid-19 or been exposed to Covid - even if you are evicting for other reasons not related to (1) resident having/might have Covid-19 or (2) non-payment of rent.
- Provides that criminal trespass cannot be “sole” grounds to evict if the underlying cause of the trespass is non-payment of rent. This seems it may implicate non-renewals and termination of periodic tenancies (like month-to-month\), where the reason for non-renewal or termination was solely non-payment of rent.
- Continues to allow evictions for:
i. Engaging in criminal activity on the premises;
ii. Threatening the health or safety of other residents;
iii. Damaging or posing an immediate and significant risk of damage to property;
iv. Violating any applicable building code, health ordinance or similar regulation relating to health and safety; or
v. Violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment or fees, penalties, or interest).
- This final provision (v) continues the unresolved issue that the CDC Order is not clear whether it is a violation of the CDC Order - to not renew a lease or periodic tenancy or evictions for non-renewals or end of lease holdovers.
IF YOU RECEIVE A DECLARATION FOR RESIDENT UNDER, OR COMING UP ON, NON-RENEWAL OR END OF LEASE
i. It would seem safe in a “term lease” to evict for holdover, since this is a “contractual obligation,” to move out. However, safest practice is to hold off on eviction until the CDC moratorium ends.
ii. If the lease converts to month-to-month at lease end (“periodic tenancy”), then it is uncertain whether it is unlawful to send a non-renewal notice to someone who has provided you a CDC Declaration or to evict after non-renewal holdover, but more likely to be unlawful if the reason for non-renewal is solely the non-payment of rent. Safest practice is to hold off on non-renewal and allow the tenancy to convert to month-to-month until the CDC moratorium ends.
iii. If the lease is currently month-to-month and you wish to terminate the periodic tenancy, I believe it is more likely than not to be unlawful to terminate the tenancy if you received a Declaration if the reason for termination is solely non-payment of rent. Safest practice is to hold off on eviction until the CDC moratorium ends.
LATE FEES MORATORIUM EXTENDED TO APRIL 27, 2021
Governor Jared Polis extended his moratorium on Late Fees for both residential and commercial tenancies for another 30 days to April 27, 2021.
REMINDER - CARES ACT STILL IN PLAY – REQUIRING 30-DAY NOTICE TO VACATE/30-DAY PAY DEMANDS – BEFORE EVICTION - IF PROPERTY OR RESIDENT IS (1) SECTION 8 (2) PROJECT BASED AFFORDABLE HOUSING OR (3) PROPERTY SUBJECT TO FEDERALLY BACKED MORTGAGE