Colorado governor orders statewide eviction moratorium

Days after banning late fees on renters in Colorado, Gov. Jared Polis on Wednesday went a step further and reinstated a state eviction moratorium.

Polis halted evictions when the coronavirus hit Colorado in early spring, but he allowed the moratorium to lapse in June. Then, in early September, the Centers for Disease Control and Prevention issued a national eviction moratorium, which applied to most leases in Colorado and is set to expire at the end of this year.

That order has halted or delayed or most eviction proceedings, but some have continued. The CDC order allows landlords to take tenants to court, where judges are tasked with determining whether tenants in certain cases are in fact protected by the order.

Indeed, some landlords have been doing this, and eviction defense advocates have been adamant about the need for a state-level codification and expansion of the CDC order from Polis. Trade associations representing landlords have, on the other hand, has opposed an eviction moratorium all along.

In late summer, Polis convened a group of 10 experts with diverse backgrounds in the housing space to discuss and then deliver a series of recommendations to address housing insecurity in Colorado. In the group’s report, released last week, seven of the 10 members supported a recommendation that Polis implement a state-level eviction moratorium for extra security.

Wrote one member, the Boulder Councilwoman Rachel Friend, “This step ensures Colorado has an order in place to protect Coloradans, in the event the CDC order fails (for example due to litigation or being rescinded).”

The order announced Wednesday bars landlords from pursuing eviction against anyone experiencing “financial hardship due to COVID-19.” To prove such hardship, by the governor’s definition, a person must be using “best efforts to obtain government assistance for rent or housing”; expect to make no more than $99,000 in income for 2020, or $198,000 for joint filers; be unable to make full rent due to a loss of work, among other acceptable crises; make good-faith attempts to pay as much rent as possible; and face a credible threat of homelessness.

Polis is requiring tenants facing “hardship” to prove it by filling out a form, under threat of perjury. In his order, he directed state housing officials to draft a form for affected tenants to use.

The order applies to month-to-month tenancies, as well as longer-term arrangements. It does not apply if a tenant poses an “imminent and serious threat to another individual or causes significant damage to landlord’s property” — something a judge would have to determine.

Polis set the order to expire in 30 days, though he may well extend the order next month.

The order in no way relieves tenants of rent obligations. Through the end of this year, there is also a state housing assistance fund for landlords to recover lost payments.

Housing industry representatives have argued for months that this kind of action by Polis is unnecessary because more than nine in 10 renters in Colorado have paid monthly rent during the pandemic. The state task force, in its report, addressed this argument by writing, “The majority of renters who are severely cost burdened still ‘make’ rent by cutting back on other household expenses and/or relying on help from friends and family or taking on personal debt.”

By issuing the order, Polis not only protects against the event that the CDC order is amended or rescinded, but he also sets a precedent. It is a certainty that eviction defense advocates, likely including some on his task force, will pressure him to keep the moratorium in place into 2021.

That’s because the problem of housing insecurity is highly likely to remain through the duration of the CDC order.

Wrote the task force, in its report to Polis, “Models based on unemployment predictions and cost burden suggest that between 150,000 and 230,000 Colorado households could be at risk of eviction by December 31, 2020.”

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