Unable to pay his full rent on Jan. 1, Macolm Whitehead got a temporary reprieve from his landlord. He paid $300 on Jan. 11 and was given another 10 days to pay $300 more, or about one third of the rent for his one-bedroom apartment in Aurora.
But Whitehead, who said he lost his job and is waiting for his unemployment benefits to restart, had no more money. On Monday, his landlord told him that if he didn’t pay by Jan. 27, the eviction process would begin — despite Whitehead signing a legal document protecting him from being evicted during the COVID-19 pandemic.
“If you get hired for a job, within 10 days, you still won’t get a check,” said a despondent Whitehead, who stopped paying his cellphone bill and used Wi-Fi and a chat app to talk during an interview about the back-and-forth with his landlord. “I feel like you (are) trying to work with me, but at the same time, it’s like you want to see me out. Like you want to see me homeless. If you really could work with me, you would say, ‘Well, I understand what’s going on in a pandemic.’”
Whitehead does have something going for him: a national eviction moratorium that prevents landlords from kicking tenants out for unpaid rent.
The order, in effect since Sept. 4, was extended last week to the end of March by President Joe Biden. Landlords say the national order is much more tolerable than Colorado’s, which mostly expired at the end of 2020. But tenant-rights advocates say it’s not enough.
That’s because landlords can still evict a tenant under the national eviction moratorium if the lease expires and a property owner decides not to renew it.
It also includes tenants who don’t pay their rent and fail to sign that legal document from the Centers for Disease Control and Prevention (since this is a health issue). Tenants must sign it to declare they’re unable to pay rent due to a substantial loss in income, are unable to get other government housing aid, tried to pay what they could and now will become homeless if evicted.
“The eviction moratorium is only for non-payment,” said Carey DeGenaro, volunteer director of legal services for the COVID-19 Eviction Defense Project, which provides free legal help to tenants. “Most landlords know that they can now exploit the loophole of evicting their tenants by just deciding not to renew the lease or ending a month-to-month tenancy, or even minor lease violations.”
Despite moratorium, renters can get evicted
Tenants facing an eviction must sign the CDC declaration and show it to their landlords. But now, without the Colorado ban, the renter may have to also file it in court. And that’s been a confusing message for tenants who assume that a moratorium means they’re in the clear, DeGenaro said.
“They think that these protections are automatic,” DeGenaro said. “Some don’t realize that even if they’ve given the CDC declaration to the landlord, if the landlord still files a case in court, they have to show up for that case, they have to file their CDC declaration with the court and say I’m protected. And a lot of them just don’t know how to do that.”
Gov. Jared Polis let Colorado’s ban expire at the end of December, though he did extend an order banning fees on late payment of rent through Jan. 31. The original order required landlords to tell tenants of the moratorium in writing, suspend late fees and provide 30 days notice instead of 10.
It also directed the Department of Local Affairs to work with landlords and tenants on repayment and financial assistance. None of those protections will exist after Sunday and with $247 million in new federal COVID relief on its way to Colorado renters, Polis appears unlikely to extend the state eviction ban.
“We are now focused on getting support to all Coloradans suffering the impacts of the pandemic,” a Polis spokesman said in a statement. “Many tenants and landlords are taking advantage of (state rent assistance) programs that help recover from months of inability to pay rent or mortgages. We believe these are effective and impactful efforts we are making to help Coloradans in need and speed our overall economic recovery.”
Like many political decisions made during the pandemic, there is an unsteady balance between keeping the public safe and keeping the economy going. For property owners, the inability to collect rent for several months hurt and depressed the value of rental properties so owners looking to sell can’t get the price they were counting on, said Drew Hamrick, general counsel for the Colorado Apartment Association.
Hamrick said he would prefer no eviction moratorium, but at least the CDC one isn’t “draconian,” but “workable” for apartment property owners, unlike the Colorado ban.
“The parts that have expired (in Colorado) were the parts that were really causing some trouble,” he said. “Even if the resident is fibbing on the declaration, you can’t go to court and get a judge to figure that out. That was hugely problematic when one person was saying ‘This is so,’ and the other person was saying, ‘No it’s not.’”
The eviction process is tedious so it’s not usually the route landlords want to take. As of Jan. 24, there have been 386 evictions since the Colorado ban was lifted on Dec. 31, Hamrick said. Before the pandemic, the monthly average was nearly 10 times more, at 3,000 to 4,000 a month. Most tenants are paying rent in the month it’s due, with rates falling slightly but still in the mid-90s, with 93.5% of rents collected by landlords in December.
“There’s just no crisis in no- payments of rent,” Hamrick said. “I get how a person can argue that, ‘Yeah, but it might have been a lot worse if it wasn’t for government assistance.’ … But anybody that’s trying to say that there’s massive non-payment-of-rent cases and there’s built-up demand for evictions and a lot of people are going to be homeless, it’s just not the way any of this is panning out.”
The form is not enough
The numbers may show that apartment companies still collected 90% or more of the monthly rent last year while evictions are at a fraction of the usual pace. But that means little to Whitehead, the Aurora resident threatened with eviction.
He filled out the CDC disclosure form on Monday to qualify for the national eviction moratorium and sent it to his landlord, who replied, “This has not gone into effect by the apartment association yet in Colorado,” which wasn’t true.
He said he sold his TV on Craigslist to try to scrape together the $300 he owes in rent. But he could really use the money to pay his phone bill so he can get calls from the housing agency or the unemployment office. He’s just not sure what to do.
“What do you do? There’s nothing that you can do. I promise you, we go to interviews every day. It’s like, that’s our job every day,” he said. “This is so bad to the point where I don’t even really have gas. It’s like I sacrifice if I go to the interview, am I gonna get the job? I don’t know but I’m gonna just go, you know, like seriously man, it’s rough.”
When contacted, Whitehead’s landlord at CBZ Management referred comments to the company’s lawyers at Tschetter Sulzer, which calls itself “Colorado’s #1 Landlord Firm.”
Victor Sulzer, a partner in the Denver firm, responded saying that landlords have the right to pursue an eviction even under the CDC moratorium, which now ends March 31. The exception?
“If it is a rent case — only a rent case — and the tenant submits a CDC declaration, the tenant may be protected from being physically removed from the property, but an eviction case can still be filed,” Sulzer said. “The rent is not forgiven, but the tenant remains responsible for the rent. The landlord has the right to challenge the veracity, the truthfulness of the declaration if the landlord has knowledge or belief that the tenant does not meet all five requirements of the declaration. If the declaration is not accurate, the courts can allow the physical eviction to proceed.”
What to expect in an eviction
Landlords are going to court to challenge the renter’s truthfulness about their inability to pay. While tenants are protected if they sign the CDC form, they must defend themselves in court too, said DeGenaro, with the COVID-19 Eviction Defense Project.
After a landlord posts a written warning on the tenant’s door, 10 days later the landlord would file in court. If tenants receive a summons and complaint, they should pay attention to it, she explained.
There should be a second piece of paper called “Notice to Parties” with filing instructions. If there are no filing instructions, call the court immediately. The phone number is usually somewhere at the top and when you call in, ask the clerk where do you file an answer in a Forcible Entry and Detainer, or FED case.
Denver County has an email address to send documents to, but not all counties offer that. Some let you mail it in or drop it off. Just pay attention to the next steps, because if you don’t respond, the court will likely rule to evict even if that person is protected by the moratorium, she said.
“We’ve had an astronomical increase of people reaching out every day” in January, DeGenaro said. “We are just seeing more and more people who are being evicted for, ‘My lease ended and my landlord refuses to renew it,’ or ‘I’m on a month-to-month tenancy and my landlord just decided to kick me out.’ We aren’t really seeing success stories in those cases. … It’s really judge and county specific, so we are still seeing people getting evicted.”
Unfortunately some end up homeless. “We’ve had some stories of people saying that they’ve procured tents,” she said. “We’ve also heard a lot of stories of people shacking up with family and obviously, that’s hugely problematic because this pandemic is still going and we still have this more contagious version of it as well.”
State program offers 3 months future rent, plus arrears
More money is heading to the state’s two rent assistance programs, thanks to the passage of the federal relief bill last month. Alison George, the state director of housing in the Department of Local Affairs, expects $247 million by next week. The money will replenish the Property Owner Preservation program for landlords and the Emergency Housing Assistance Program for tenants.
An additional $137 million of the federal dollars is going to 11 local jurisdictions with more than 200,000 residents. Those include Adams, Arapahoe, Boulder, Douglas, El Paso, Jefferson, Larimer and Weld counties, as well as Aurora, Colorado Springs and Denver, according to the governor’s office. The federal relief plan provided a total of $384 million to help Colorado renters.
And that’s on top of a special legislative session last month to provide $54 million to the programs. But demand has soared in January, likely due to the state’s expired eviction ban and a delay in the state unemployment office paying out pandemic benefits. And state aid is fast depleting.
In the first 25 days of January, about $42 million has so far been requested, according to George. There have been 7,500 requests submitted to the landlord program and 10,000 applications submitted or in progress for tenants.
That tops the amount for the two programs for all of last year. As of December, the POP and EHAP programs had provided more than $30 million in assistance to cover rent or mortgage payments for 17,350 households since the programs started in the summer.
“That’s pretty shocking isn’t it,” George said.
This, of course, means that it’s been more difficult to get through all the applications and get rents paid.
For tenants who apply, it’s taking about two weeks for confirmation and another two weeks before payments are made, according to the COVID-19 Eviction Defense Project estimate. For landlords, it may depend on what city the apartment complex is located.
Don Hamstra, chairman of Red Cloak Properties, said his team applied for state assistance on behalf of tenants back in August. The money came in for tenants in three of the company’s Colorado Springs apartment complexes but not yet for one in Aurora.
“They’re trickling in for three of the properties, but with the fourth one, we’ve seen nothing,” Hamstra said. “And that’s the one with the largest outstanding balance point where it’s causing a hardship to the building because we have four or five people that aren’t paying. They’ve been approved and they keep saying it’s in the works, but we’ve seen no money.”
DOLA has hired a Mississippi-based emergency services organization HORNE to help process applications. The company is expected to start this week, George said.
Beyond the economic factors, the January increase also had to do with changes to the programs. The state now lets tenants apply directly for help on DOLA’s site (instructions here) since some landlords were unwilling to participate. While both programs did pay landlords directly, tenants with landlords unwilling to help them apply for aid will now get paid directly.
The state is also paying three months of future rent, plus any back rent, if it’s requested. That availability was made possible by the federal law and the state’s special legislative session.
“My hope is that it gives some people some time to take a breath and focus on their lives, and not have that stress and get back on their feet so Colorado can recover and be more resilient in a faster way,” George said.
Can’t pay rent in Colorado? What to expect with an eviction moratorium
- Apply for rental assistance from the state’s Emergency Housing Assistance Program. It can take a month before funds are available. The program is now paying three months in future rent if requested, plus taking care of arrears.
- Landlords can apply to the Property Owner Preservation program, which makes it easier to get state funds for several tenants each month. Landlords must agree not to evict tenant during the program, plus 30 days after. Tenants are notified if the landlord receives money.
- Tenants must fill out the CDC declaration and give it to their landlord.
- Landlords must give tenants 10 days notice before filing a complaint in court. The warning must be written out and posted, typically to the tenant’s front door.
- If you receive a summons and complaint, read it and find the instructions on how to file an answer. Call the court clerk if you can’t figure it out. The number is usually at the top.
- When filling out the response, state that you’re protected under the CDC eviction moratorium and include a copy of your declaration in the response. The deadline to respond is usually seven to 14 days.
Resident Relief Foundation is funded by the Colorado Apartment Association. Coloradans with a good rental history who have lost a job due to COVID or another illness, or have seen reduced incomes are encouraged to apply. There are no monthly rent limits. >> Details
Colorado Coalition for the Homeless provides assistance in finding permanent housing or keeping current housing. >> Details
Housing Now is Salvation Army’s housing program to assist those who face the loss of their housing or are already homeless. >> Details
Colorado Legal Services provides free legal services to low-income Coloradans in matters ranging from housing, domestic relations, domestic violence and public benefits. >> Details
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