From time to time associations are forced to make a difficult decision of whether to evict a resident from a residence in the community. There are three typical situations where an association may feel the need to evict a resident.
The first situation occurs after an association has initiated and completed a judicial foreclosure and becomes the owner of that property. In this case, if the resident(s) do not voluntarily leave the property, the association will have to move forward with an eviction to forcibly remove the individuals from the property.
The second situation occurs when the association’s declaration allows the association to evict an owner’s tenant if the tenant has violated the governing documents of the association and the owner has failed to evict the violating tenant for those violations. In these cases, the association can go to court and seek an order allowing the association to move forward with an eviction.
The third situation is when the association has rented out a unit that the association owns, either to an employee or to some other individual. In this case, there is likely a lease in place requiring the tenant to pay rent to the association. This is a typical landlord/tenant relationship.
Evictions used to be a straight forward legal process that usually took a few weeks to a month to complete. As with all things in 2020, those times have changed, and evictions are not so simple. In response to the COVID-19 pandemic, both the federal government and state government have placed bans on the evictions of individuals in certain circumstances.
On October 21, 2020, Governor Polis enacted Executive Order D 2020 227. This Executive Order offers protection for both commercial and residential tenants who have been financially impacted by COVID-19.
In order to have suffered a financial hardship due to COVID-19, the resident must meet all of the following criteria:
- He/she must be using best efforts to obtain government assistance for rent or housing;
- He/she must 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), were not required to report any income in 2019 to the I.R.S., or received an Economic Impact Payment pursuant to the Federal CARES Act;
- He/she must be unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
- He/she is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit; and
- He/she would likely be rendered homeless or forced 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 if evicted.
If residents meet the above requirements, sign a form under penalty of perjury, and provide it to their landlord, the landlord will not be able to evict the tenants.
In addition to these state protections, the federal government (by virtue of the Center for Disease Control and Prevention (CDC)) has issued an Order under Section 361 of the Public Health Service Act which is set to expire on December 31, 2020.
Pursuant to the CDC Order, the same qualifications as Governor Polis’s Executive Order apply to show that a person has been financially impacted by COVID-19.
In both the Executive Order and the CDC Order, the individual does not have to provide any information or evidence demonstrating the alleged hardships caused of COVID-19 other than to sign either the federal or state form attesting to such hardships. Associations are not allowed to request additional information.
There are exceptions to these Orders. Those exceptions include evictions based on: criminal activity; threatening the health or safety of other residents; damaging or posing an immediate and significant risk of damage to property; violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment.
Given the current state and federal orders protecting housing situations of certain individuals, it will likely be very difficult to evict an individual in the near future. If your association is considering an eviction action, it should contact legal counsel to discuss its chances of prevailing and the appropriate steps that need to be taken.
Please do not hesitate to contact an Altitude attorney at 303.432.9999 or at [email protected] with any questions regarding this article.