With May here, many Coloradans were about to face a stark choice—pay rent or face eviction. In stepped Gov. Jared Polis, who, in the last hours of April, issued an executive order that halts eviction for 30 days. The order represents somewhat of a change of heart for Polis—just over two weeks ago, Polis claimed that he “does not have any legal ability to suspend rent or evictions outright,” despite sustained pressure from a range of groups, including the Denver City Council. Polis’s decision is sound—both as a legal and policy matter.
First, let’s turn to the law. Colorado’s Disaster Emergency statute gives Polis a range of powers in times of emergency. He can suspend the operation of state laws regarding the “conduct of state business,” evacuate whole areas of the state, and take over local government resources. Importantly, Polis can make decisions regarding “the occupancy of premises” and provide for “temporary emergency housing.” Polis’ executive order does not specify which provision of the statute he is acting under, and the statute has rarely been tested in courts. But a reasonable interpretation of these provisions is that Polis can direct that tenants continue to occupy the premises in which they already reside. Indeed, one Republican governor, Ron DeSantis of Florida, issued an eviction moratorium nearly a month before Polis—and the relevant language in the Florida emergency statute is identical to Colorado’s.
The order also makes good policy sense. Without this order, Colorado could have faced a homelessness crisis. Many Coloradans simply lack the money to pay rent. In just one week in mid-April, over 105,000 Coloradans filed for unemployment. There have been delays in processing both unemployment and stimulus payments.
The available relief before the order was just not enough. While Polis had previously asked landlords to avoid evicting tenants, many landlords had tried to evict their tenants anyway. Lacking direction from Polis, each county court system was making its own determination on whether to go forward with evictions. While some counties, including Denver, had decided to halt eviction proceedings, renters were unlikely to know what their individual county’s policy was. Faced with a landlord threatening eviction, some tenants would forego essential medication or food to pay their rent. Patchwork protections were inadequate.
The CARES Act that Congress enacted in March did prohibit landlords with federally backed loans from evicting tenants. But tenants have no way of knowing whether their landlords have federally backed mortgages. As one tenant-rights lawyer told me via email, “tenants have no chance on their own.” The new order requires landlords to notify tenants of their rights under the CARES Act.
It is important to recognize the limits of the order. While Polis has stopped people from being kicked out (for 30 days, at least), tenants will still owe rent to landlords. Once the emergency is over, the landlord will be able to evict tenants immediately. Here, the Colorado legislature will have to step in. The legislature will have a range of options at its disposal, from capping the rent tenants will owe landlords to requiring payment plans. While some landlords might argue that such laws are unconstitutional, courts have long upheld rent control laws. Problems may arise from retroactively applying these laws to pre-existing leases, but the legislature will have a strong argument.
COVID-19 is not the only health crisis that Colorado faces. Homelessness can cause a host of health problems. As the executive order says—“to be Safer at Home, Coloradans must continue to have a home.” By halting evictions, Governor Polis has done the right thing.
Craig J. Konnoth is an associate professor of law at the University of Colorado School of Law
