Governor Polis issued Executive Order #D-2020-012 on Friday March 20, 2020 (the “Order”) in an attempt to discourage evictions and foreclosures for both residential and commercial real estate properties in the wake of the State’s response to the COVID-19 pandemic shuttering many businesses. The Order makes several important directives with respect to multiple state agencies, County Clerk and Recorders, Public Trustees, Treasurers, and utilities in support of efforts to keep renters, homeowners, and small businesses in their properties during the pandemic. The Order does completely halt evictions or foreclosures, though in the interim many county courts have closed causing a near complete stop to evictions and foreclosures. Ultimately, the Order emphasizes the role and independence of County governments to determine their ability to continue to administer eviction and foreclosure proceedings in light of the pandemic, and also establishes and encourages financial support for those affected by COVID-19, especially low-income families/properties and small businesses. Prudence in checking local court and governmental agency orders, rules, and restrictions will be imperative.
Residential and commercial evictions are still permitted under the Order, but are discouraged. Meanwhile, many counties have closed their courts for non-essential evictions, so be sure to check as local court orders are issued limiting evictions.
The Governor directed the Executive Directors of several agencies to work with property owners and landlords through April 30, 2020 to “…identify any lawful measure to avoid removing or executing eviction procedures against tenants or mobile home owners without cause or as a result of late or non-payment of rent or minor tenancy violations…” and to “…work with property owners and landlords to exempt tenants and mobile home owners from fees or penalties for the late payment or nonpayment of rent…”. Notably, while this directive focused on residential properties, it appears to include commercial properties as well. This provision alone does not trigger an outright ban on evictions; each county inevitably will be responsible for dictating whether the court is open or closed for eviction proceedings.
In furtherance of the directive for agencies to work with residential property owners and landlords, and to free up law enforcement officers, the Governor also directed the Executive Director of the Department of Public Safety (DPS) to work with all Sheriffs, Mayors, and other local leaders to take “similar formal actions…to suspend residential eviction activity in the State until April 30, 2020 unless such actions are necessary to protect public health and safety.” This provision of Order D-2020-012 emphasizes the control of local governments to determine whether evictions will continue at a county-by-county level.
Property owners and landlords for low-income households, and low-income families may be eligible for rent payment assistance.
Three million dollars will be available from the Disaster Emergency Fund to the Department of Local Affairs (DOLA) to provide “short-term rental and mortgage assistance to low-income households facing financial hardship due to economic disruption associated with COVID-19” with assistance targeted towards those who lost employment to COVID-19 public health orders. These funds will remain available for six months from the date of the Order.
The Order further directs DOLA to work with multifamily housing and mobile home parks with low-income households specifically to assess possible methods to fund “loss of rent, including but not limited to federal, private, and philanthropic funding sources that are or may become available to Coloradans to help maintain housing and shelter needs.”
The Order also directs DOLA to share information and develop guidelines and processes for distributing any of these funds through partnerships with non-profit and local governments, and other sources while ensuring individuals do not double-dip for these benefits. Low-income households are defined as “households below 50% of area median income.”
Foreclosures are still permitted, but will be discouraged for a period of ninety (90) days.
In addition to mortgage assistance available through the above-mentioned directives, the Order directs the Department of Regulatory Agencies (DORA), through the Division of Banking and Financial Services, to work with state-chartered financial institutions (e.g. community banks and credit unions) to identify practices and policies to combat the threat of residential and commercial foreclosures. DORA is also directed to encourage banks, credit unions, and other financial institutions holding residential and commercial mortgages to halt foreclosures and related evictions due to the impacts of the pandemic. Specifically, the Order encourages financial institutions to provide a ninety (90) day deferment of payment for customers and businesses economically impacted by COVID-19 for consumer loans, residential and commercial mortgages, refinances, auto loans, and student loans, and small business loans. These directives do not actually require financial institutions to comply with the encouragement of DORA through these directives, though there are already many financial institutions voluntarily offering the programs.
Clerk and Recorder Directives
Clerk and Recorder offices are encouraged to process recording for residential and commercial refinance transactions, but are not required to remain open or to close. Be sure to check your local Clerk and Recorder’s website for more information.
County Clerks and Recorders were directed to provide “continued access, to the best extent possible” for recording deeds and other related documents specifically for financial institutions for recording deeds and other related documents related to residential or commercial refinance transactions. This does not mandate County Clerks and Recorders to remain open for recording.
Public Trustee Directives
Public Trustees are permitted to extend/delay certain parts of foreclosure proceedings for thirty (30) days, but are not required to remain open or to close. Be sure to check your local Public Trustee’s website for more information.
Public Trustees are authorized to suspend for thirty days statutes concerning the deadline for recordation of a Notice of Election and Demand for sale, mailing a Combined Notice, filing of a Notice of Intent to Cure and the time which a Trustee must mail the notice to the note holder or its attorney, and the deadline for tendering funds to cure, deadline to tender redemption funds and the deadline to execute and record a confirmation deed. Any extension granted per the Order must be posted on the Trustee’s website, electronic mail (if possible), and automated messages.
County Treasurer Directives
County Treasurers may suspend or waive delinquent interest for tax payments, but are not required to remain open or to close. Be sure to check your County Treasurer’s website for more information.
County Treasurers are authorized to suspend or waive delinquent interest as a result of delinquent property tax payments. Any extension granted per the Order must be posted on the County Treasurer’s website, electronic mail (if possible), and automated messages.
Public utilities will be encouraged to continue connections for residential and small business consumers with delayed or missed payments.
The Public Utilities Commission (PUC) within DORA was directed to work with public utilities in the State to suspend service disconnections for delayed or missed payments for residential and “small business consumers” relating to the impacts of COVID-19. Similarly, public utilities will be encouraged to waive reconnection fees and suspend accrual of late payment fees, and make reasonable efforts to reinstate service for these customers. “Small business consumers” is defined as “public utility customer whose utility service is classified as a small business user or a small commercial user pursuant to a utility tariff established by the PUC or a public utility customer who is seeking such tariff status.” “Public utility” or “public utilities” is defined as an investor-owned, municipal, or cooperative entity providing electric gas, or water service within the State of Colorado.
Payment assistance may be available for those affected by COVID-19.
The PUC is also directed to work with public utilities to develop and provide payment assistance programs, including customers qualified for Low Income energy Assistance Program related to the impacts of COVID-19. The PUC will also provide guidance on prioritizing payment assistance, and shall collect and monitor relevant data on these measures.
Relevant County Websites
Because of the rapid pace of information being shared across Colorado, please be sure to check your local county offices to determine their most current response to the Order. As of the date of this publication, most, but not all, of these governmental offices had adopted website disclaimers and notices consistent with the Order. Also be advised that while many county office’s websites may report the offices are “closed”, it is highly probable that the office is merely working remotely and/or has a document drop off location elsewhere at the county’s main offices.
As issues surrounding COVID-19 are fluid and rapidly changing, the information in this alert should not be construed as legal advice. It is intended to provide information as it is currently available.