Jim Flynn

Jim Flynn, Money & the Law

Before COVID-19 came along and changed the world, people who didn’t pay their rent were summarily evicted. Here in Colorado, under normal circumstances, eviction is an expedited process involving a notice to the tenant, with a short deadline, to either pay up or move out and, if the tenant did neither, a simplified court proceeding leading to an order for possession. That order allows the sheriff to remove the tenant from the property, including putting the tenant’s possessions out in the front yard if necessary.

But when shelter at home became a part of the strategy to reduce the spread of COVID-19, it quickly dawned on government officials that sheltering at home required, well, a home. So when Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act, knowing 30 million to 40 million people were at risk of eviction, it included in the act a 120-day moratorium on evictions. However, the moratorium only applied to properties having some connection to government-sponsored housing..

Many states, realizing the federal moratorium had gaps, also acted to slow evictions. In Colorado, this has taken the form of an executive order extending the notice-to-tenant time before a landlord can begin an eviction proceeding.

The CARES Act eviction moratorium expired on July 24, and the Centers for Disease Control and Prevention, taking instructions from the White House, has now moved onto the stage with an executive order putting in place an eviction moratorium through the end of the year. This time around, the moratorium is not limited to rental properties having a government program connection; all rental properties are covered. However, not all tenants are covered.

That’s because, to qualify for protection under the CDC executive order, a tenant must submit to the landlord a sworn declaration, under penalty of perjury, stating: (1) I have used best efforts to obtain all available government assistance for rent; (2) I expect to earn no more than $99,000 ($198,000 if filing a joint tax return) in 2020 or I received an Economic Impact Payment under the CARES Act; (3) I am unable to pay my full rent due to substantial loss of household income, loss of compensable hours of work or wages, layoffs, or extraordinary out-of-pocket medical expenses; (4) I am using best efforts to make partial payments as close to the full payment as my circumstances permit; (5) If evicted, I would likely become homeless or need to move into a residence with close quarters, because I have no other options; (6) I understand I must still pay my rent and that fees, penalties and interest may still be charged and collected; and (7) I understand that when the temporary halt to evictions ends on Dec. 31, I may have to pay everything I owe or be subject to eviction.

The National Association of Realtors had this to say about the CDC order: “(T)his order will bring chaos to our nation’s critical rental housing sector and put countless property owners out of business.” The NAR is urging Congress to provide emergency rental assistance directly to housing providers. This, says the NAR, is necessary to provide “Americans’ access to affordable housing…”

To be fully informed on this subject, you should know that American Samoa is excluded from the CDC eviction moratorium. That’s because, per the CDC, American Samoa has had no reported COVID-19 cases.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright; moneylaw@jtflynn.com.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright. You can contact him at moneylaw@jtflynn.com

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