Feds Protect Against Colorado Evictions While Governor Sleeps At The Wheel

Who could have believed that Trump and his administration would do better at preventing Colorado evictions than our own Democratic Governor and Legislators in Colorado? It is now true.

Today, September 4, 2020, as I write this, the Center for Disease Control has published into the Federal Register its notice of Agency Order: “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19.” The order is not a panacea, requiring a declaration under penalty of perjury that a tenant meets five criteria. Some of the criteria may be difficult to prove in court, such as that “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 the individual has no other available housing options.” At the very least, a landlord can still file for eviction with the well-founded hope that many tenants will not show up to defend themselves based on the CDC order.

The order does not relieve tenants of the obligation to pay rent, but for many, failure to pay will not be sufficient to evict.

Thus, from now until December 31st, this order may protect far more Colorado tenants than our state government has. Landlords, who may also face inability to pay their own mortgage and are unprotected under the order, are understandably likely to cry foul.

To address such imbalance in protections, our Legislators in Colorado could have passed an emergency law protecting both landlords with mortgages and tenants, backed by a 1934 Supreme Court ruling in Blaisdell that is still in effect today (https://bit.ly/3i13H5x). In fact I shared a memo (see https://bit.ly/3btDcD0) with multiple Colorado Legislators providing a basis to do just that, but the Democratically controlled Legislature and our Governor didn’t have the stomach to go up against the landlord lobby. Governor Polis even went so far as to “repeatedly [state] that he does not have the authority to interfere with contracts,” apparently having never read Blaisdell or consulted an attorney.

If you are facing eviction, you may be able to seek rental assistance from the State at https://cdola.colorado.gov/rental-assistance. You can also seek free legal assistance from volunteer attorneys with the COVID-19 Eviction Defense Project: https://cedproject.org/.

Here is some free legal advice: if you get a “SUMMONS (UNLAWFUL) DETAINER,” show up in court and fight it. The law is on your side.