Updated Oct. 5, 2021. Circumstances may change.
Landlords nationwide can resume evictions after the U.S. Supreme Court blocked the Biden administration from enforcing a temporary eviction ban put in place last year by the Centers for Disease Control and Prevention.
The moratorium, a response to the global COVID-19 pandemic, has faced an uphill legal battle since its inception. Numerous landlord groups filed lawsuits claiming that the CDC lacked the statutory authority to put such measures in place. On Aug. 26, the Court sided 6-3 with the landlords:
“It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”
This article explains what the Supreme Court’s decision means for Colorado landlords and the legal avenues available to landlords looking to collect unpaid rent.
Talk to a Landlord Eviction Attorney
If you are a landlord who is unsure how to proceed with evictions now that the ban has ended, our Real Estate attorneys can guide you through the best possible legal outcomes. Call 303-688-0944 today to schedule your case assessment.
What does the Supreme Court ruling do?
The Supreme Court’s decision removes a major hurdle for landlords, many of whom have been struggling financially right alongside their tenants.
“While Covid-19 has been hard for tenants, not all landlords are well enough off financially to float the tenants through the crisis,” said Kayla Banzali, lead attorney for Robinson & Henry’s Evictions team.
“While we are still contending with other government orders that have not yet been overturned, we are hopeful that this will start leading to relief for some landlords that have been placed in a financially precarious position because of the CDC order.”
What happens to evictions in Colorado?
Beginning Oct. 4, Colorado tenants no longer have special protections after Gov. Jared Polis opted not to further extend the state’s eviction moratorium.
Issued Sept. 4, Polis’ executive order gave tenants with pending emergency rental assistance applications a 30-day period to catch up on rent before their landlord could file an eviction against them. The governor first issued the mandate on July 31, a day before the federal moratorium was initially set to expire.
“Thanks to the efforts of all Coloradans, the moment for extraordinary executive action has passed,” Polis wrote in the latest order.
While the pandemic-related protections are gone, renters are now permanently protected from excessive late fees and evictions in certain cases after a state law passed earlier this year went into effect Oct. 1. Here are the main changes brought by SB21-173:
- If a landlord files for eviction due to nonpayment but a tenant comes up with the full amount owed before a court signs off on the eviction, the landlord must accept the money and cancel the eviction. Previously, there was a 10-day “cure” period for tenants to resolve outstanding debts. Now there is no particular deadline.
- Tenants can use a health-and-safety defense in court regardless of settling any rental debts. Previously, if a tenant facing eviction over nonpayment complained to the court about the state of their home for health or safety concerns — like a landlord ignoring mold or not fixing a broken heating system — the tenant would have to pay most of their balance to stay in their unit.
- Colorado will no longer allow eviction hearings on the same day a landlord files for eviction. Renters are guaranteed at least one week between filing and hearing.
- Late fees are capped at $50 or 5 percent of a tenant’s outstanding rent balance — whichever is higher. Landlords can assess these fees only once per late payment. They had previously been allowed to charge unlimited fees for every day of missed payment. Now landlords must wait seven calendar days after rent is due to charge a late fee.
- Landlords can no longer initiate eviction proceedings against a tenant solely due to a tenant not paying late fees.
What is the CDC eviction ban?
In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act. You may know it as the CARES Act.
Among other relief programs, the CARES Act included a 120-day eviction moratorium for properties that received federal funding or had federally-backed mortgages. Congress did not renew those protections when they expired in July 2020.
A Series of CDC Eviction Moratorium Extensions
A couple of months later, in September 2020, the CDC issued its own order barring landlords from evicting a tenant for failure to pay rent in certain situations. Specifically, tenants had to declare that they had done their best to seek government assistance for payments. Renters were also eligible if their family fell below a certain income threshold.
The CDC’s moratorium was set to expire on December 31, 2020. When it did, Congress extended it for one more month. After that, the CDC extended the evictions ban three more times.
There was a national outcry from renters still struggling to stay financially afloat when the evictions moratorium expired again on July 31, 2021. As a result, the CDC once again extended the ban until October. The CDC argued it had the authority to do this because of how the ban’s lapse might affect the ongoing pandemic. For this moratorium, the CDC narrowed the ban to only counties where COVID-19 transmission is considered particularly high — currently 95 percent of the country.
Landlords Sued Government Over the Moratorium
Numerous landlord groups across the country sued the federal government after the original ban was enacted in September 2020. The landlords claimed that the order was unconstitutional, arguing that the CDC had exceeded its authority by issuing such a broad moratorium.
Several courts agreed with the landlords, but a U.S. Court of Appeals allowed the moratorium to remain in place during the appeals process.
In June 2021, the U.S. Supreme Court allowed the eviction ban to stay in place until it expired in July. However, Justice Brett Kavanaugh, who cast the deciding vote, said he believed the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”
Justice Kavanaugh went on to say that Congress would have to pass new and clearer legislation to extend the moratorium past July. It did not, and the CDC again extended its eviction moratorium to October. Landlords went back to court.
This time, the U.S. Supreme Court issued a strongly worded order that supported the nation’s landlords and slammed the CDC and Congress.
“Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration,” the justices wrote.
The nation’s highest court noted that millions of landlords are at risk of never recovering from the moratorium.
“Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982).”
How to Recover Unpaid Rent
If you are a commercial or residential landlord, Robinson & Henry Attorney Kayla Banzali said it’s important to realize that none of the eviction bans have actually done anything to forgive rent that is rightfully owed to you.
“It has just prevented landlords from evicting for failure to pay rent, or putting additional steps into the eviction process for failure to pay rent,” Banzali said.
Late rent “is absolutely still owed if the landlord has not received it,” she added.
If you’re looking to recover unpaid back rent, you have two options:
- Pre-litigation negotiation: negotiating a payment plan with tenants or former tenants regarding back due rent.
- Litigation to recover unpaid rent money.
We Help Landlords with Evictions
Evicting a tenant is rarely a pleasant experience under the best circumstances, and the COVID-19 pandemic has only further complicated the matter. Don’t sort through the information alone. Call 303-688-0944 to schedule a case assessment with one of Robinson & Henry’s eviction attorneys.