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.

Arizona Eviction Process

Steps to an Eviction in Arizona

  1. Notice to Tenant
    • In Arizona, a written notice must be sent to a tenant at the beginning of any residential eviction.
    • Timing of the Notice to the Arizona tenant.
  2. Filing the Eviction Lawsuit
  3. Eviction Hearing
    • Every eviction case has an in-person hearing. One of our attorneys will appear at the hearing on your behalf so you do not have to take time out of your schedule to come to the justice court, courthouse.
    • Eviction Trial– Occasionally, an eviction case will be set for trial. An eviction trial is completely different than an eviction hearing.
  4. Eviction Judgment
    • An Eviction Judgment is the goal of the eviction hearing. An Arizona Eviction Judgment is made up of two basic components.
      • 1) Monetary award- This portion of the judgment orders the tenant to pay the landlord all back rent, late fees, court costs, and attorney’s fees.
      • 2) Vacate the Property- The second part of the eviction judgment orders the tenants to vacate the rental property within 5 calendar days. If the Arizona tenants do not voluntarily vacate within that time then we must file a Writ of Restitution. This orders a constable to go to the rental property and remove the renters, by force if necessary.
  5. Writ of Restitution
    • A Writ of Restitution is filed with the Court if the tenant fails to vacate the Arizona rental property within 5 calendar days of us obtaining the eviction judgment.
      • The Writ of Restitution is filed with the clerk of court and requires an additional filing fee. As of 2021 the filing fee for the Writ of Restitution in the Arizona justice court system is $115.
    • Tenant’s Belongings– If a tenant vacates your rental property but leaves behind belongings then an Arizona landlord you must store their belongings for 14-days.
      • An Arizona landlord can charge a tenant the actual cost of moving their belongings and the actual cost of storing their belongings. However, the landlord cannot hold a tenant’s belongings hostage demanding that the eviction judgment is paid until the belongings will be released. Again, if an Arizona tenant pays the landlord the actual cost of moving and storing the belongings then they must be returned.

If you have additional questions about the residential eviction process in Arizona then contact the Dunaway Law Group at 480-389-6529 or 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–for non-payment of rent–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 tenants 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.

*** VERY IMPORTANT TO NOTE: THIS WAS SUPERCEDED BY THE CDC’S STAY ON EVICTION***

What is Writ of Restitution

If an Arizona tenant remains in a rental property for more than 5 calendar days from the day an eviction judgment was signed then, an Arizona landlord can file a Writ of Restitution to have them removed. Once the judge has signed the Writ of Restitution then it is sent to a Constable for enforcement (think Sheriff) to remove the tenants from your property. Arizona Constables works for Arizona courts and have similar powers and duties to an Arizona Sheriff. A Writ of Restitution can only be filed after an eviction hearing was held and a judgment entered in favor of the Arizona landlord.

If the Arizona tenant does not leave voluntarily then a Writ of Restitution can be filed with the court. Once the Writ of Restitution is filed with the court, it is first signed by the judge and then delivered to the Constable for execution. The Constable will then visit the rental property and physically remove the tenant(s) from the rental property. Upon arriving at the rental property, a Constable will give the tenants just a few hours to pack a bag and leave the rental property.

When Will the Constable Execute the Writ?

So you’ve filed a Writ of Restitution and want to know when the Constable will actually appear and evict your tenants? The time frame can vary wildly. When the Writ of Restitution is initially filed with the court the filing clerk must take the paperwork to the judge for his/her signature. On occasion, the paperwork will immediately be signed and handed off to the constable. Other times, the Writ of Restitution may sit on the judges desk for a few days before being signed. Once the writ has been signed it is then delivered to the Constable’s office.

Most justice courts in Arizona only have one Constable. So if the Constable gets a large influx of Writs of Restitution at the same time, your writ may be delayed. So all-in-all it can take approximately 5 to 7 days for the Constable to actually show up to the rental property.

what if the tenants leave their belongings?

What if the Arizona tenants leave behind their belongings? Well, an Arizona landlord you must maintain possession of the tenant’s belongings for at least 21 days from the date the Writ of Restitution was executed (day the Constable went to the property). Click HERE to learn more about the 21 day process.

If you would like to know more about Writ of Restitution or have questions about an Arizona eviction, please contact the Dunaway Law Group by phone at 480-389-6529 or by messaging us HERE.

Evicted Tenants’ Belongings

Often Arizona tenants will leave personal property on the premises after they have been evicted. As a landlord you cannot simply keep or throw away the former tenant’s belongings. The Arizona Landlord-Tenant Act requires the landlord to you maintain their possessions for at least 14 days.

Per A.R.S. § 33-1368(E) a landlord, must hold the evicted tenant’s possessions for a minimum of 14 days from the day the Writ of Restitution was executed (day the constable removed the tenants) issued. 

As the landlord, you may;

  • Keep the tenant’s belongings that the rental property for the 14 days,
  • Move the tenant’s belongings to an off-site storage facility,
  • Require the tenant to reimburse you for the actual cost of moving and storing their belongings during the 14 day period,
  • Prohibit the tenants from ever returning to the property without your explicit permission.

As a landlord you may NOT;

  • Require the tenant pay for eviction judgment prior to releasing the belongings to them. Meaning you cannot require a tenant pay you for all back rent, late fees, attorneys’ fees, and court costs prior to returning their belongings. Again, an Arizona landlord may only demand payment for the actual cost of storing and moving the tenants’ belongings.
  • Dispose of the tenant’s property prior to the expiration of the 14 days.  

catalogue their belongings

If you do choose to remove the tenant’s belongings from the rental property use considerable care, you will be responsible for any damage to their belongings. It is a good idea to photograph, or video the premises, so that you have an inventory of what was left behind. Make sure the date can be verified through the images and video. This will also give you the opportunity to catalog any damage to the rental unit itself. Take the inventory prior to moving any of the personal property from the rental unit.

After the 14 day period, if there has been no contact from the evicted party, and they have not claimed, or made and agreement to claim their property, a landlord may sell the items or dispose of the items that were left behind.

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