The COVID-19 Eviction Impact, 0921 COBJ, Vol. 50, No. 8 Pg. 43

PositionVol. 50, 8 [Page 43]

50 Colo.Law. 43

The COVID-19 Eviction Impact

Vol. 50, No. 8 [Page 43]

Colorado Lawyer

September 2021

August 2021



This article examines recent changes to eviction procedures resulting from the COVID-19 pandemic.

The COVID-19 pandemic has had devastating impacts worldwide. The United States alone has seen over 600,000 deaths so far from its ravages,[1] and our government has spent billions to address the pandemic's health and economic consequences. Recognizing the importance of keeping people housed and at home, local, state, and federal governments have passed laws, entered health orders, and issued executive orders to stem the human and economic harms from COVID-19. Evictions in particular have been a focus of local and national efforts to address pandemic injuries. These efforts have resulted in three primary sources of protections: the CARES Act,2 state and local executive orders, and Centers for Disease Control and Prevention (CDC) orders. These protections are often referred to as eviction moratoriums or bans but are more accurately described as a patchwork of partial moratoriums. This article examines the current eviction protections resulting from COVID-19 and the future of evictions in Colorado.

The Eviction Dilemma

Housing has always been a major issue in the United States because it is a basic necessity, and die lack of housing leads to negative outcomes including increased health care costs, increased crime, job loss, and disrupted education for children whose families are evicted.3 Despite these costly outcomes, those facing eviction are not given comparable legal protections to those who are accused of a crime. For example, most tenants facing eviction must represent themselves in court and hope for the best outcome.4 In fact, in fiscal year 2018,97% of all responding parties in a county court civil action in Colorado went unrepresented,5 a large number of which were parties to an eviction.[6]Due to the legal system's complexity and practical challenges facing the socioeconomically disadvantaged, many simply do not show up to their eviction proceedings at all.[7]

COVID-19 has exacerbated these problems by putting many out of work Throughout 2020, Colorado businesses were shuttered as the state came under stay-at-home orders. Bars, restaurants, schools, and gyms, among other types of businesses, had to close or significantly reduce their operations. Without work and with limited unemployment compensation benefits, many tenants faced difficulties paying rent. At the same time, they were legally mandated to stay home. The situation put both tenants and landlords in a difficult spot. Landlords needed rental income to survive, but many recognized that it would not be socially responsible to leave tenants homeless and exposed during a worldwide health crisis.

The Pre-COVID-19 Eviction Process

Eviction can be a cumbersome and confusing process for all involved—landlords, tenants, and even attorneys. Even the statutory term that describes the eviction process, "Forcible Entry and Detainer," can be confusing to parties. The law requires due process for tenants facing eviction, which includes serving specific notices and demands and scheduling a hearing and trial, and these components can be time-consuming. Before the COVID-19 executive orders discussed below were issued, Colorado landlords were generally required to give tenants a 10-day written notice of any default for nonpayment of rent.8The 10-day notice also served as a cure period for tenants. Following this period and without a cure by the tenant, a landlord could file a complaint, issue a summons, schedule a hearing, and have a trial. This process could take anywhere from a couple of weeks to a few months.

If the landlord prevailed at trial or the tenant failed to appear or file an answer by the scheduled return date, the judge entered a judgment for possession for the landlord and ordered a writ of restitution to issue 48 hours after entry of the judgment.9 The writ of restitution is the court order permitting the landlord, with the assistance of the local sheriff, to remove the tenant from the premises. The 48-hour window allows the tenant to vacate rented premises voluntarily and avoid the forcible removal.[10] However, when tenants do not voluntarily vacate, scheduling a forcible removal can add days and sometimes weeks to the eviction process, because evictions are not typically a sheriff's highest priority.

This extended timeline has made pursuing evictions very costly for landlords, who carry the expenses of the property until the tenant is removed. Assuming a quick process of two months and an average rent of $1,400 per month, a landlord stands to lose at least $2,800 in lost rent plus legal fees incurred by pursuing a formal eviction. Accordingly, landlords may choose to negotiate with tenants rather than pursue legal action.

Eviction-Related Orders

COVID-19 changed many aspects of life, and the process for pursuing eviction was not exempted. All levels of government implemented changes in processing evictions that were based on public health grounds, the idea being that increased homelessness as a result of job loss or mounting health care expenses would only exacerbate exposure to the disease.

Governor Polis issued Executive Order D 2020 101 on Tune 13, 2020, which suspended the 10-day notice requirements of CRS §§ 38-12-204(1), 38-12-204.3(2), and 13-40-104(1)(d) and replaced them with a 30-day notice requirement.[11]This temporary order was subsequendy amended and extended several times in 30-day increments. The amendments retroactively applied the eviction order to March 10, 2020, the date the governor initially declared a state of emergency.12

On a national level, the CDC issued an Eviction Order (CDC Order) that resulted in a partial moratorium on residential evictions based on nonpayment of rent. That order became effective on September 4, 2020, and has been extended several times, and as of this writing was scheduled to expire July 31, 2021.13 The moratorium was issued in accordance with die Public Health Service Act, which allows the Department of Health and Human Services Secretary to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between US states and US territories.[14]The CDC Order serves as a floor and does not prevent jurisdictions from providing more stringent protection for residents facing evictions.

The CDC Order halts evictions for covered persons, meaning any tenant, lessee, or resident of a residential property who provides a declaration under penalty of perjury that:

(1) the individual has used best efforts to obtain all available government assistance for rent or housing;

(2) the individual either expects to earn no more than $99,000 in annual income for calendar year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the US Internal Revenue Service, or received an economic impact payment (stimulus check) pursuant to CARES Act § 2201;

(3) the individual is unable to pay full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a layoff, or extraordinary out-of-pocket medical expenses;

(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; and

(5) eviction would likely render the individual homeless, or force the individual to move into and live in close quarters in a new congregate or shared living setting, because die individual has no other available housing options.

The CDC Order defines eviction as any action "to remove or cause removal of a covered person from residential property," except for foreclosure on a home mortgage.[15]

Colorado tenants and their lawyers should note that the protections listed above are not outright prohibitions on evictions but apply only to evictions for...

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