LATEST GOVERNOR EVICTION MORATORIUM ORDERS [COVID-UPDATE]
On Friday Governor Polis issued a new order (attached) extending the eviction moratorium an additional 15 days – to JUNE 15, 2020.
The order is similar but not the same as the prior Order.
It is the same as before in that it prohibits the “initiation and filing” of an eviction but staill does not state whether serving a Demand Notice is considered “initiation” of an eviction. In my opinion, it does not, and serving Demand Notices is okay. Safest approach, however, to avoid the argument in defense is to wait until June 16, 2020 to serve Demand Notices. I do not read the Order to apply to a holdover after lease end or termination by Notice to Quit at end of tenancy or other defaults unless the “the default is caused by financial hardship due to COVID-19” which is a loaded phrase for sure). Evictions for emergency matters are still available. (cont.)
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What we know now, 90 days into COVID-19
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(cont.) The new order is a little different in that it provides that the eviction moratorium extension applies only to evictions “based solely upon a tenant’s default of a contractual obligation…if the default is caused by financial hardship due to COVID-19.” And then it states that it is the tenant that must prove that he/she/it has a financial hardship that caused the default. The glaring problem that the Order does not address how is the landlord supposed to know why the tenant is not paying or why the resident defaulted on some other obligation. Accordingly, my advice to avoid COVID related defenses is to serve demands for payment now or later and file the evictions on or after Monday June 18, 2020 (UNLESS THE PROPERTY IS COVERED BY THE FEDERAL CARES ACT AND MUST GO OUT FURTHER TO AUGUST AFTER SERVICE OF 30 DAY NOTICE TO VACATE)
Evictions for end of lease/end of tenancy, can go forward now (so long as the reason you are evicting is not solely due to non-payment issues and there are other reasons.) However, the resident may argue that the reason they haven’t moved is due to COVID financial difficulties… and there you still have the glaring problem of not knowing the reason the tenant hasn’t paid or moved…
Additional New Requirement
The Order also amends the requirement to provide a letter regarding federal eviction rights to require not only notice of the rights but now also advise the resident “whether these protections apply to the rental property.” I know with the prior order I advised clients to take a position but some clients did not want to take a position in the letter either way… but now it is a requirement. In case this wasn’t done previously, I have attached the letter in two formats (updated to include the language of the most recent order): one that says not applicable and a 2nd that has check the box. A couple courts are already wanting us to affirmatively plead that the letter was delivered, and a couple courts can easily become most or all of them as things play out so I advise making sure you have documented delivery or posting online with email notice or however you are delivering it.
CARES Act Affidavit
Some Courts are wanting a CARES ACT affidavit, stating whether or not the property falls under the CARES Act… for sure so far Denver, El Paso, and Weld.
Brandon Ceglian | CeglianLaw