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1. Is there a standard form for tenants to fill out if they cannot pay their rent? Would such a form have any different legal effect from a promissory note or a mediated agreement?
There is no standard form for tenants to fill out when they cannot pay their rent. I do know that some housing providers have developed a “hardship affidavit” for their tenants to fill out and return to the provider. Landlord and tenants may use DOLA's Model Repayment Agreement to mutually agree on a plan for repaying outstanding rent or other contractual amounts in the future. However, any form like this would be just a version of a promissory note. In the same way that any “promise to pay” is only enforceable through the court system, by getting a judgment and enforcing that judgment through a wage or bank garnishment, likewise, any form developed specifically for this COVID situation could only be enforced by pursuing a judgment in court.
2. How can a tenant access rent assistance during the COVID restrictions? Are there links to specific rent assistance programs?
There is assistance through Boulder County for people who need help with rent. My office has also referred several people to A Woman’s Work and successfully received help. Additionally, the services of Longmont Mediation Services are always available to help negotiate payment plans, lease terminations, in-kind payments, or any other kind of creative agreements that might be possible between a tenant and a housing provider.
Click here to view the City of Longmont's COVID-19 Resource Page
Click here to view Boulder County's Housing Resource Page
3. We will not be charging late fees, but if we have to borrow money to cover missed rental income, is there a way to recover those missed payments after the tenants move out?
If a tenant leaves a rental owing the housing provider for missed rent and doesn’t make a written payment agreement with the provider, the provider, first, can take the owed amount from the security deposit. If the security deposit does not cover the amount of rent owed and the tenant is not otherwise making payments to the provider, the housing provider can get a judgment through the court process, in Small Claims Court if the amount is $7,500 or less, or in County Court if the amount is between $7,500 and $15,000. Unless a tenant voluntarily makes payments to a housing provider, the only way the provider can recover lost rent is by getting a judgment through the court process and enforcing that judgment through a wage or bank garnishment.
4. Can the government make personal rental contracts invalid by issuing an order that there will be no evictions for non-payment of rent? Is this constitutional?
The question of whether the government can make rental contracts invalid by issuing an order that there will be no evictions for non-payment of rent is subtle and complicated, and could be a constitutional issue. There will probably be court challenges regarding various federal and state orders, perhaps including eviction moratoriums, rent abatements, or rent caps, for example, once this COVID situation has passed. The current Boulder County Court moratorium does not say an eviction complaint for non-payment cannot be brought by a housing provider, only that the hearing on an eviction complaint for non-payment will not be heard until June at the earliest. The issue of constitutionality is one for which I can’t offer a legal analysis.
5. If electricity and/or water and/or gas is cut off from a rental property due to an “act of God” or “mistake by man”, is the housing provider responsible for supplying the tenant with a generator and/or potable water and/or space heaters? How does a lease requirement that a tenant carry renter’s insurance affect the housing provider’s responsibility?
When a housing provider rents a property, by implication the provider is warranting that the property is inhabitable, meaning, among other things, that the property has electricity, water, and/or gas service. When electricity, water, or gas is shut off at the property due to an “act of God”, this is called a “force majeure”, meaning that unforeseeable circumstances have prevented the housing provider from fulfilling their obligation under the lease to provide a habitable rental. The housing provider should look to the lease to determine if the lease contains a force majeure clause, and if so, what that clause says. Does it say the provider has the right to terminate the lease? Does it say that rent is abated for the time that the rental is in an uninhabitable condition? Does it say that the provider will provide alternate housing?
The lease should also require tenants to carry renter’s insurance that will cover the tenant’s expenses and losses in such a situation. Finally, under the Warranty of Habitability, in the case of a natural disaster affecting a rental – the 2013 flood for example - the housing provider does have the right to terminate a lease. The issue of force majeure application to the COVID situation is complicated. Housing providers should consult an attorney to update their leases to include a force majeure and to require tenants to carry renter’s insurance.
6. Which day was the first day that the Boulder court stopped eviction hearings? If a housing provider served a 10-day Notice on March 29, is that Notice invalidated by the stay on hearings? Can the housing provider in this case file an FED Complaint and get a hearing in June without posting a second 10-day Notice?
The Boulder District Court issued an Order on March 27 placing a moratorium on all non-essential matters until May 31. This includes eviction hearings except those necessary to protect public health and safety. However, the Boulder County Court is still accepting Complaints. If a housing provider files an FED Complaint now, the hearing will be scheduled for some time after June 1. A housing provider can file on a 10-day Notice posted on March 29 without posting a second Notice. The courts are not currently accepting filings for eviction. Those filings can be accepted beginning June 1. Click here for more information.
7. Is there public health guidance regarding required cleaning of a rental unit by tenants who have tested positive for COVID? Is there public health guidance regarding the cleaning of a rental unit by housing providers after tenants with COVID have vacated their unit?
The Center for Disease Control has issued guidelines for household cleaning. Whether a tenant follows these guidelines or doesn’t is not a matter of landlord/tenant contractual or statutory law. A tenant would be required to clean to an ordinary standard unless otherwise addressed in the lease. For example, a lease might require the tenant to clean the carpet upon move-out. On the other hand, some leases specifically state that the housing provider, not the tenant, will be responsible for cleaning the carpets. Click here for CDC guidelines for cleaning and disinfecting a household.
8. Officers Sara Aerne and David Kennedy, Landlord Training Alliance partners, add the following based on their experiences since the eviction moratorium:
Police have seen an uptick in calls related to disturbances, assaults, domestic violence, etc. They advise that even during the eviction moratorium, housing providers should continue to post proper 10-day or 3-day Notices for these types of non-monetary lease violations. You will be able to move forward with evictions for cause in June when the courts begin holding eviction hearings again if you have followed the correct posting protocols now.
Some housing providers may have tenants who have been allowed to continue to violate their lease with their behavior, causing problems for the housing provider and for other tenants. Once the eviction moratorium went into effect, providers became unable to move towards eviction until June (or, in the case of properties with a federally-backed loan, August). As an example, Officers Aerne and Kennedy, as well as other officers, were repeatedly called to a property for threatening behavior by a tenant. The tenant had finally, after more than a year of disturbance, been given a Notice to Quit for the end of March. When COVID struck and the tenant didn’t move, the landlord was stuck with the tenant and with the bad behavior. The moral is that an alert housing provider should be attentive to the needs of all tenants and act in a timely way to protect their safety from disturbing behavior by other tenants.
