Laying Down the Law – Eviction Moratorium: Making Sense Of COVID-19 Eviction Guidance Under Arizona and Federal Law

Written by Columnist:

Christopher J. Charles, Esq.

Written by Columnist:

Anne Munsil Courchaine, Esq.

It is almost a cliché at this point to say that the year 2020 is unprecedented. Numerous articles, news stories, and social media posts have already exhausted that part of the story. However, it is not an exaggeration to say that millions of Americans, and thousands of Arizonans, have suffered financially because of COVID-19 or the accompanying lockdowns.

Both federal government officials and state government officials have recognized that many tenants have struggled to pay rent since the beginning of the pandemic in March 2020, and continue to face issues. However, despite breathless headlines nationally and locally, to say there is a moratorium on evictions because of COVID-19 is simply not true.

Restrictions on residential evictions are covered both by the federal CARES Act and two Executive Orders from Governor Doug Ducey.1 However, these restrictions are not a “get out of jail free card,” and tenants must follow all required steps to qualify for eviction protection.

Under the CARES Act, which expired on June 24, 2020, but was extended through a Center for Disease Control Regulation, 85 FR 55292, a tenant must show that they qualify as a “covered person.” A covered person must expect to make less than $99,000 in calendar year 2020 or $198,000 if filing jointly, did not report income for 2019, or received a stimulus check under the CARES Act. Also, to be a covered person, the tenant must show that they are unable to pay full rent due to loss of income, hours or wages, lay-off or extraordinary out-of-pocket medical expenses. They also have to demonstrate that they are making best efforts to make timely partial payments as close to the rent amount as possible, and that eviction would likely render them homeless or force them to move into a more crowded or shared living setting.

Once they can demonstrate they are a “covered person,” the tenant must show:

– The unit they are renting has a federally backed mortgage;

– The unit they are renting is part of government-subsidized housing; or

– The tenant has applied for federal housing assistance.

The tenant (and any other adult on the lease or living in the unit) also “must provide an executed copy of the Declaration form (or a similar declaration under penalty of perjury) to their landlord, owner of the residential property where they live, or other person who has a right to have them evicted or removed from where they live.”

In addition to the CARES Act protections, Governor Ducey’s Executive Order (“EO”) 2020-14 placed a moratorium on eviction enforcement for residential leases on March 24, 2020, and EO 2020-49 extended its provisions until October 31, 2020. To qualify for “eviction relief” under the EO, the tenant must have “suffered a substantial loss of income resulting from COVID-19, including: job loss, reduction in compensation, closure of place of employment, obligation to be absent from work to care for a home-bound school-age child; or other pertinent circumstances.” The tenant must notify the landlord or property owner in writing and provide any available supporting documentation acknowledging their “temporary financial hardship” and “acknowledge that the contractual terms of the lease remain in effect.” The tenant must also request a payment plan.

After August 21, 2020, a tenant “is entitled to the delay in the enforcement of a writ of restitution for residential premises” if they have notified landlord in writing with supporting documentation, have requested a payment plan, AND have provided the landlord with a copy of supporting documentation showing they have submitted an application for rental assistance through the state, city, county, or nonprofit.

Landlords, on the other hand, must provide additional information to tenants before filing an eviction action, including a one-page “Information on Temporary Halt in Residential Eviction for Non-Payment of Rent,” as well as filling out an Attestation that the landlord has complied with all provisions of the CARES Act.

Finally, landlords are prohibited from charging late fees or penalties for non-payment of rent between March 27, 2020 and July 24, 2020 by the terms of the CARES Act.

Information is changing rapidly on how evictions work in Arizona due to COVID-19. If you are a landlord or property manager looking for eviction assistance, the Attorneys at Provident Law® can help. Our Attorneys are experienced in handling eviction actions in this new environment.

Anne Courchaine is an Associate Attorney with Provident Law®, where she practices real estate, commercial litigation, and family law. She can be reached at a.courchaine@providentlawyers. com or 480-388-3343.

Christopher J. Charles is the founder and Managing Partner of Provident Law®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). Mr. Charles holds the AV® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions. Christopher teaches continuing education classes at the Arizona School of Real Estate and Business and he can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.