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. 

CDC EVICTION 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.

CDC ORDER IS limited TO 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.

ARIZONA TENANT’S DECLARATION OF PROTECTION

To invoke the Order’s protection, the tenant must provide their landlord with a 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 VIOLATing 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 of cdc’s eviction order

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 Dunaway Law Group at 480-389-6529 or message us HERE.

Unfortunately, things for Arizona landlords have become even more difficult in the past few weeks. Until a few weeks ago Arizona landlords could evict a tenant for wrongfully holding over. If a landlord sent a 30-day notice to terminate the lease of someone who is on a month to month tenancy or at the end of their lease However, the courts are now denying evictions in situations where the tenant is behind on rent and the landlord serves a 30-day notice to terminate the tenancy. Judges see these evictions off a 30-day notice as a roundabout way of evicting tenants because they are behind on rent.

Eviction Granted if the Property is to be Sold or Landlord Occupancy

A landlord must show that there is a reason to evict other than simple wrongful holdover. However, where a tenant has wrongfully held over and the landlord is going to sell rental property or move into it. If you intend to sell or move into the property then you would fit that exception.

Eviction Because of Failure to Properly Maintain the Property

While I understand that some tenants may not be good stewards of your property, rarely does their behavior reaches a levels so atrocious that a judge would evict them based off of improperly maintaining the yard. Maybe under normal circumstances but not in this era of COVID.

Future Lease Provisions            

Additionally, I understand your motivation to amend future leases to avoid the current Federal/State rules evictions. However, you cannot create a contract that would deprive people of their protections. A common example of this situation is when a creditor will write into a contract that this debt is not dischargeable in bankruptcy. Even though it may be written into an otherwise valid contract this is not enforceable and the debt will still be discharged by the bankruptcy court.

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