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CDC Bans (Some) Evictions

On September 1, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) released an Order titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (the “Order”).  The Order is effective Friday, September 4, 2020, and expires December 31, 2020. 

ORDER APPLIES TO ALL 50 STATES

This Order applies to all states without an existing eviction moratorium providing “the same or greater level of public-health protection” than the Order’s requirements. The Order will apply in Arizona because the Order provides greater protection than Governor Ducey’s Executive Order halting the execution of writs of restitution.

Based on the Order’s language, I believe a landlord can still serve a 5-day non-payment of rent notice and even file an eviction action for non-payment in court, but if the tenant presents the landlord with the declaration, the writ of restitution could not be executed and the tenant could not be removed from the property. Unfortunately, however, we do not know this for sure.  

It is possible the Order was intended to prohibit even the filing of an eviction action, this is a question that will likely need clarification from the Arizona Supreme Court.

ORDER IS limited TO EVICTIONS FOR NON-PAYMENT

The Order only applies to cases involving non-payment of rent.  It does not prohibit evictions based on criminal activity; threats to health and safety of others; damaging or posing an “immediate and significant” risk of damage to property; violating any applicable building code, health ordinance, or violating other contractual obligations. I believe, based on the Order’s language, that non-renewals will still be permissible—although this is just an initial opinion.

TENANT’S DECLARATION OF PROTECTION

To invoke the Order’s protection, the tenant must provide their landlord with an executed declaration stating that:

  1. The tenant has used best efforts to obtain all available government assistance for rent or housing; 
  2. The tenant either: (i) expects to earn not more than $99,000.00 in annual income in 2020 (or no more than $198,000 if filing jointly); (ii) was not required to report any income to the IRS in 2019; or (iii) received a stimulus check pursuant to Section 2201 of the CARES Act; 
  3. The tenant is unable to pay the full rent because of substantial income loss, loss of compensable work hours or wages, a lay-off, or extraordinary out-of-pocket medical expenses; 
  4. The tenant is using best efforts to make timely partial payments that are as close to the full payment as their circumstances permit, taking into account other nondiscretionary expenses; and 
  5. An eviction would likely render the tenant homeless or force them to move into close quarters in a new congregate or shared living setting because the individual has no other housing options. 

Note, landlords do not get to verify the information in the affidavit, the tenant is protected by simply signing the declaration and delivering it to the landlord! Additionally, this Order applies to ALL types of residential rental properties: houses, buildings, mobile homes, land in a mobile home park, or similar dwellings leased for residential purposes.

SEVERE PUNISHMENT FOR LANDLORDS WHO VIOLATE THE ORDER

The Order states that the U.S. Department of Justice may initiate court proceedings against landlords for violations. Penalties for violating the Order are extreme; they are both criminal and financial. For individual landlords: If the violation does not result in a death, the penalty is a fine of not more than $100,000 or one year in jail, or both; If the violation results in a death, the penalty is a fine of not more than $250,000 or one year in jail, or both; 

SUMMARY

For now, it appears we can proceed with eviction filings. However, if a resident provides a signed declaration or attestation—that even closely resembles what is required in the Order—immediately stop all eviction action.

If you are an Arizona landlord and have questions about how the CDC’s new Order applies to your rental properties then contact the landlord – tenant attorneys at the Dunaway Law Group at 480-389-6529 or message us HERE.

Gov. Ducey: Some Evictions

Governor Ducey Extends COVID-19 Eviction Protection until October 31, 2020

Governor Doug Ducey today signed an Executive Order extending a moratorium on residential evictions until October 31, 2020, providing continued protections for renters who are facing economic hardship as a result of COVID-19. The order ensures renters impacted by COVID-19 will be able to stay in their homes while extending the time to access rental assistance programs.

not granted to all arizona tenants

Governor Ducey’s executive order protects Arizona tenant from eviction if they have been negatively impacted by COVID-19. For example, they’ve been laid-off, had their hours reduced, actually had COVID-19 or someone else in the house has. The executive order comes into play after the entire eviction process is complete and a writ of restitution is filed to remove the tenants. If the constable goes to the property to remove the tenants but decides that they are protected under the Governor’s exemption.

motion to compel enforcement

If the constable won’t remove the tenants from your property then we have to file a Motion to Compel. With this motion we are asking the judge to order the tenants removed. A special hearing will be set. At this hearing, tenants can provide evidence and testimony showing that they fall under Ducey’s exemption and they should stay in the house. We will then be given the opportunity to explain why they are not exempted and should be removed. If the judge rules in our favor the constable will remove the tenants. However, if the judge rules in their favor they can’t be removed until the executive order expires, October 31, 2020

If you are wondering how Governor Ducey’s Executive Order is impacting your landlord – tenant situation then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

Water Well Agreements Arizona

Shared Water Well Agreements

What are your rights to water that comes from a shared well that is not located on your property? For most people, the answer is in the words written in your well share agreement.

The first question to be considered is—which state regulating body grants me the right to access and use groundwater? The Groundwater Management Act “GWMA” of 1980 established that groundwater, is common property of the citizens of Arizona and the management of it was under the Arizona Department of Water Resources, ADWR. All groundwater withdraws in Arizona must come from a water well that was permitted by ADWR.

Owning the land and fee, or owning an undivided interest in the land, partial ownership, or having an easement right does not give you the right to extract groundwater. The right to extract groundwater only comes from having a permitted well.

Therefore, a well share agreement to share the water from a legal source should always refer to the well by its ADWR registration number.

On Whose Land Does is the Well Located?

The second question to be considered is: whose land is the well located on? If the well is located on land that is titled in the name of one of the members of the well share group, then that person owns the well. Drilling and constructing a water well creates a permanent change to real property and that improvement cannot be separated from the land, therefore, well becomes a part of the real property. Groundwater is not real property. Percolating water beneath the earth in Arizona is called groundwater and in it is considered “public” property managed by the ADWR.

If the well is located on your neighbor’s lot, and they hold title to the land in their name, the well should be registered with the ADWR in their name. The ADWR recognizes that shared wells can, and should be, registered in the name of the person or party that is responsible for its management. The ADWR has created Form 55-73 , for the purpose of registering shared wells in the name of a managing or operating group. Registration of a well with the ADWR does not establish ownership of the well. A.R.S. § 45-593(c), requires that the owner of the land keep the ADWR up-to-date as to who owns the land and where the well is located. For this purpose, they have created Form 55-71(a), request to change well information.

water well arizona

well is owned by those named on the deed

When a shared well site is situated on a parcel of land that is deeded and recorded in the appropriate County, the well is owned by the names listed on that deed. The wording of many well share agreements may grant several owners an undivided interest in into a small piece of land, and thus an undivided real property interest in the well. When this wording is used on the deed and in the shared well agreement, the assessors map should show a smart parcel of land with its own Assessor’s Parcel Number (APN). In this case, the well should be registered in the name of all parties listed on the deed.

If you’re well share agreement is worded in the same manner as the deed , you own an undivided piece of this land which means that you are also subject to a portion of the yearly property taxes or improvement assessments on this parcel. Once water is pumped to the surface from a registered well, and placed in the storage tank, it becomes the personal property of the owners of the land. So, if you own a percentage of the land via the deed, then you also own a percentage of the water stored on it.

easement rights & ownership rights

Some well shared agreements are structured such that the participants receive only an easement right to access the land where the well was located. There is a major difference between owning an undivided interest in a piece of real estate, partial ownership, versus having just a vested interest in someone else’s real property granted by an easement. An easement is a vested interest in someone else’s real property and not an undivided fraction of title to the land into the well.

An easement will typically state that it was granted for a specific purpose. If your well share agreement is an easement right of entry you should verify that you have a right to do more than merely access someone’s land. The wording of that easement may, by exclusion, not grant you are right to receive and share the water, located on that property. An easement is a vested interest only in someone else’s real property for a specific purpose and groundwater is not a part of real property.

water well agreements- pre-1980

Many well water agreements in place today were written prior to 1980, when groundwater was more loosely considered to be a part of the real property. These older versions often refer strictly to the land and not to the water or the registered well. Well share agreements that refer strictly to a piece of real estate, and do not state the registration number of a well, may not be granting you a legally defensible right to the groundwater. A registered water well is the only legal right to the public groundwater resource and it is granted only to the permitted owner of the land. This is a very compelling reason why all well share agreements should refer to the water well being shared by the registration number.

Well share agreements should define a legal right to groundwater from a registered well. A well share agreement is a legal contract between two or more persons and it can be enforced by the courts. Not complying with the well share agreement can constitute a breach of contract.

If you have questions about an existing water well agreement or would like to create a water well agreement then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

Terminate an Easement

Can an Easement be Legally Terminated?

What is an easement?– An easement is a right cross over/under/through the property of another person.

Can an easement be terminated? Yes, in Arizona there are four (4) basic ways an easement can be terminated.

 The four basic ways to terminate an easement are:

  • Expiration of an Easement: In Arizona, an easement can be terminated by the expiration of an agreed upon time event. on I agreement my abandonment via the doctrine of merger some easements are granted for a finite period of time when the time. Is not The easement is set to expire easements of this sort are said to terminate by expiration because they are granted. 10 years at the end of the 10 year period easement will terminate.
  • Agreement to Terminate an Easement: In Arizona, some easements are terminated by agreement of the owner of the easement. Termination by Agreement happens when the owner expressly conveys the easement back to the grantor. For example, if Simon owns an easement over Garfunkel’s land, and Garfunkel requests that Simon release the easement, Simon may then execute the termination agreement and convey the easement back to Garfunkel. Once this agreement is signed by Simon, then the easement in Arizona land will terminate.
Old abandoned building and rail.
  • Abandonment of an Easement: In Arizona, an easement can be terminated when the owner abandons his right to the easement. Usually mere nonuse of an easement is not enough to qualify for termination. In Arizona, an easement may be terminated by abandonment only if the owner makes a clear, unequivocal, decisive act to abandon the easement.

What is a decisive act to abandon? A decisive act to abandon an Arizona easement could include creating a new alternate road to enter the property or putting fending/wall or some other time of barrier across the easement.

  • Merger of Easement and Land: In Arizona, an easement may be terminated by the doctrine of merger. Under the doctrine of merger, if one party acquires the property subject to and benefited by an easement. The easement will have been said to merge with the other rights held by the owner.

This makes sense,  because an easement is the right to cross over the property belonging to another person. However, if you own the land the easement will merge into the land because it is impossible to have an easement over your own property.

Again, in Arizona, are the four methods to terminate an easement. Understanding easements and how they affect you can be very confusing and so f you have questions about an easement on your Arizona property then contact the Dunaway Law Group at 480-389-6529 or by sending us a message HERE.

Evictions and Ownership Disputes

Arizona statutes and Arizona case law are clear that eviction cases (a.k.a. forcible entry and/or forcible detainer) are designed to address only the issue of possession and not property ownership. The limited scope of a forcible entry and detainer action has been strictly defined by Arizona statute. A.R.S. § 12-1177(A) states in relevant part:

On the trial of an action of Forcible Entry or Forcible Detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

A.R.S. 12-1177(A)

Evidence offered to the Arizona Superior Court showing anything other than who is entitled to possess the property will be excluded from an eviction hearing. This means a defendant who wants to make a claim for ownership of the rental property must file a quiet title action and not raise the issue during an eviction hearing.

Proof of property Ownership 

The Arizona Superior Court’s inquiry into property ownership is limited to the extent that Plaintiff holds title to the property in dispute. If the Plaintiff – Arizona Landlord’s name appears on the trustee’s deed then the Court should not inquire into ownership any further.

The issuance of the Trustee’s Deed to Plaintiff is conclusive evidence that all statutory requirements for the Trustee’s Sale were satisfied and that Plaintiff has the right to possession of the Property.

A.R.S. § 33-811(B) further provides:

…the Trustee’s deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing, and posting of the notice of sale and the conduct of the sale.

eviction cases are summary remedies

Arizona courts have held that litigation as to the validity of title “would convert a forcible detainer action into a quiet title action and defeat its purpose as a summary remedy.” Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996).

For example, in Merrifield v. Merrifield, 95 Ariz. 152, 154, 388 P.2d 153, 155 (1963), the plaintiff held title to property pursuant to quitclaim deed which was valid on its face. The lower court nonetheless inquired into the merits of that title and refused to find the defendant guilty of forcible entry and detainer. The Arizona Supreme Court reversed the lower court’s ruling because plaintiff was entitled to possession as the title holder and pursuant to A.R.S. § 12-1177, the trial court was prohibited from considering the merits of the plaintiff’s title. Accordingly, any evidence offered by Defendants to raise extrinsic issues or disprove Plaintiff’s title must be excluded.

In another case demonstrating the Superior Courts inability to inquire into ownership in a forcible detainer (see Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946), the Arizona Supreme Court stated: “[T]he statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action.” Id. at 204, 397. The court also discussed the legislative intent in limiting the scope of a forcible entry and detainer action stating:

The object of a forcible entry and detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the defendant were permitted to deny his landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises.

Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946))

Id. at 204-05, 397. Because the trustee’s deed is conclusive evidence of Plaintiff’s title under A.R.S. § 33-811(B), and because the court is prohibited from inquiring into the merits of that title under A.R.S. § 12-1177(A), judgment must be rendered in favor of Plaintiff regardless of any defense of ownership the Defendants may raise.

Ownership Disputes in the Justice Court

The ownership of property and their interaction with evictions can become very complex. The above article discusses issues of ownership disputes and evictions in the Superior Court, however, the rules that apply to ownership disputes and evictions in the Justice Court (where most evictions take place) are completely different.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

In Arizona, residential eviction cases are usually brought in the Justice Court system. A justice court judge has the authority to evict tenants for a myriad of reasons. They can evict for nonpayment of rent, material breach of lease agreement, wrongful holdover, etc. However, a Justice Court judge cannot make decisions or even hear arguments over ownership of the property in an eviction case.

A.R.S. § 22-201(D) addresses this issue:

Justices of the peace have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.

A.R.S. § 22-201(D)

A.R.S. § 22-201(F) adds further clarification:

In actions between landlord and tenant for possession of leased premises, the title to the property leased shall not be raised nor made an issue.

A.R.S. § 22-201(F)

This means that if a Defendant – Arizona Tenant tells the Justice Court Judge they have an ownership interest in the property then the hearing will immediately be stopped and the matter forwarded on to the Superior Court.

Occasionally, when a case is sent to the Superior Court an Arizona landlord will respond, “but my tenant doesn’t own the property! It’s mine! They’re just lying! Why is the judge believing them? What could have been done to prevent this?”

While a landlords’ frustration is understandable it’s important to remember that the Justice Court judge is just following the law. Just because a Justice Court Judge moves a case into the Arizona Superior Court system does not mean they believe the tenant. Additionally, it does not mean that the tenant did something right or that we made some kind of a mistake. It simply means the Judge is following the law.

For help with your Arizona landlord – tenant matters contact the Dunaway Law Group at 480-389-6529 or message us HERE.