Update (5/16/2023)
On May 15, 2023, the Colorado Supreme Court ruled the CARES Act 30-day notice to vacate requirement is still in effect for covered properties.
The Court ruled that the "Notice Provision [of section 9058 of the CARES Act] did not include an expiration date" and that the Court could not "insert an expiration date where Congress omitted one." The Court also ruled that section 9058's title, "Temporary moratorium on eviction filings," did not "change anything," stating that a title cannot limit the plain meaning of a more specific provision within a statute. The Court stated that it was not "empowered to 'rescue Congress from its drafting errors'..." and that if Congress made a mistake and intended to include an expiration date for the entirety of section 9058, then Congress should amend the statute.
The Court’s ruling means that owners and operators in the state will be required to give residents in covered properties 30 days' notice of a lease violation before filing for an eviction. This notice period trumps the state's current notice period of ten days.
Original Article (3/22/2023) - Colorado Court Holds CARES Act Notice Requirement Has Expired
In a win for a local housing provider, a Colorado county court denied a resident’s motion to dismiss for lack of subject matter jurisdiction in an eviction action focused on the federal CARES Act notice to vacate requirement.
Prior to filing its Complaint in Forcible Entry and Detainer, the housing provider issued a 10-day Demand for Rent or Possession to the resident in accordance with Colorado law. The resident’s motion to dismiss argued that because they lived in a “covered property” subject to the CARES Act, the housing provider was required to give a 30-day notice before requiring the resident to vacate. The resident also argued that because of the inadequate notice, the court lacked subject matter jurisdiction over the claim.
In its unpublished order denying the resident’s motion to dismiss, the Court cites that Section 9058 [of the CARES Act] “is titled ‘Temporary Moratorium of Eviction Filings,’ highlighting the temporary nature of the remedies provided. Subsection (b) of 15 U.S.C. 9058 sets out an expiration date 120-days from March 27, 2020. Subsection (c)(1) requires that a 30-day notice to vacate be provided to a tenant. Subsection (c) is not independent or separate from subsection (b), they both expire 120 days from March 27, 2020.”
The resident has appealed the decision to the Colorado Supreme Court.
Andrew Hamrick, the General Counsel and Senior VP of Government Affairs for the Apartment Association of Metro Denver (AAMD), discussed the importance of this decision before Colorado’s highest court. He states, “Only two of Colorado's 64 counties had found that there was a continuing obligation for the CARES Act notices. Absent the requirements of the CARES Act, Colorado statute requires a 10-day rent demand. Such a reversal would have the effect of imposing the CARES Act notice requirement statewide.” AAMD, along with several other organizations that represent owners and operators along Colorado’s Front Range, filed an amicus brief (friend of the court) in the matter before the Colorado Supreme Court.
Through its advocacy efforts, the National Apartment Association (NAA) continues to seek a legislative solution that acknowledges what the CO court confirmed, that the federal CARES Act notice to vacate requirement was temporary and expired when the moratorium itself expired in 2020. As one of NAA’s top three federal priorities in 2023, we continue to urge co-sponsorship of and passage of the HR 802, “Respect State Housing Laws Act", which rightfully returns this issue to the states.