Laying Down the Law: COVID-19 and Evictions

Written by Columnist:

Christopher J. Charles, Esq.

Written by Columnist:

Anne Munsil Courchaine, Esq.

2020 is behind us but COVID-19 still lingers. One of the lasting effects of the pandemic thus far has been protection for tenants facing evictions for non-payment of rent due to COVID-19. According to research from October 2020 from the National Council of State Housing Agencies, “Arizona renters owe at least $178 million to their landlords,” and anywhere from 170,000-250,000 renters in Arizona could be facing eviction.^[1] This perplexing and difficult problem continues to plague landlords, tenants, and courts nationwide, as they grapple with an unprecedented patchwork of federal regulations and state action.

The “eviction ban” or “eviction moratorium” in Arizona has gone through multiple stages – first, the federal CARES Act, which expired on June 24, 2020, and two Executive Orders from Governor Doug Ducey that expired on October 31, 2020. These protections are no longer in effect, other than if a landlord is seeking unpaid rent or late fees during the time covered by the federal CARES Act, which was in force between March 27, 2020 and July 24, 2020.

The Centers for Disease Control first issued an order (the “CDC Order”) on September 4, 2020 preventing residential tenants from being evicted solely for non-payment of rent as long as they provided an attestation to their landlord. The CDC Order was initially set to expire on December 31, 2020. In response, the Arizona Supreme Court issued Administrative Order 2020-197 on October 14, 2020 that interpreted the CDC Order and set guidelines for Arizona courts in processing eviction matters.^[2] These protections only extended to evictions for non-payment of rent, not for other breaches of a lease agreement like criminal activity or non-economic material noncompliance with a lease term. The CDC Order was initially extended through January 31, 2021, and then again through March 31, 2021.^[3]

In response, the Arizona Supreme Court issued Administrative Order No. 2021-19, (“Order 2021-19”) on February 1, 2021, which replaced a previous Administrative Order from December 30, 2020 that had replaced the original October 2020 Administrative Order.^[4]

If this guidance sounds confusing and ad-hoc, that’s because it is.

To further confuse the issue, the Biden Administration announced on February 16, 2021 that it was extending a moratorium on foreclosures for homeowners through June 30, 2021, as well as extending the mortgage payment forbearance enrollment window until June 30, 2021.^[5] However, as of March 1, 2021, no further federal guidance has been issued on whether the eviction moratorium is also extended through June 30, 2021.

Importantly, on February 25, 2021, a federal judge in the Eastern District of Texas ruled that the CDC’s federal eviction moratorium was an unconstitutional exercise of the federal government’s power to regulate interstate commerce.^[6] The federal government plans to appeal the judge’s ruling.

So, what is the current Arizona guidance?

Order 2021-19, the Administrative Order is still in effect, and continues most of the protections in the original CDC Order, and clarifies certain instructions and issuing new requirements.

Order 2021-19 extends the eviction moratorium for residential tenants through March 31, 2021, due to the Coronavirus Response and Relief Supplemental Appropriations Act and extension by the CDC until March 31, 2021. A landlord seeking to file an eviction action against their residential tenant, in addition to the normal requirements under Arizona law, must attest the following information:

1. The claim is for any time between March 27, 2020 and July 24, 2020 and, if so, whether the property in which the defendant resided was covered under the CARES Act.
2. From September 4, 2020 through January 31, 2021, the plaintiff received from a tenant, lessee, or resident of the residential property a declaration under the CDC order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.”
3. On or after January 1, 2021, the plaintiff has applied for or has received rental assistance from any source based on defendant’s rental obligation. If so, plaintiff must state in the pleading and the accounting of payments the amount received and must apply it toward the obligation.
4. On or after January 1, 2021, the plaintiff obtained a prior judgment against the defendant. If so, the plaintiff must state the current damages claimed are exclusive of the damages awarded in the prior judgment.

The landlord is also required to serve a one-page notice on the tenant called “Information on Temporary Halt in Residential Eviction for Nonpayment of Rent.”

As previously required under the CDC Order, to be protected from an eviction, a tenant must provide a written declaration, under penalty of perjury, of the following:

1) You are using your best efforts to obtain all available government assistance for rent or housing;

2) You either (i) expect to earn no more than $99,000 during the 2020 Calendar Year (or no more than $198,000 when you file a joint tax return), (ii) were not required to report any income in 2019 to the IRS, or (iii) received an Economic Impact Payment (stimulus check) under the CARES Act;

3) You are unable to pay the full rent or make a full housing payment due to a large loss of household income, loss of normally paid hours or wages, a lay-off, or out-of-pocket medical expenses more than 7.5% of your total income;

4) You are using your best efforts to make timely partial payments that are as close to the full payment as your circumstances may permit, taking into account other bills you have to pay; and

5) If evicted, you would likely be homeless or be forced to move into a crowded living space such as a shelter or a residence with other people because you have no other available place to live for the same or lower cost.

Once the tenant has provided the sworn declaration, the landlord can still obtain a money judgment against them but cannot execute a Writ of Restitution forcing them out of the property except in certain circumstances. Order 2021-19 provides a mechanism for landlords who previously obtained a judgment against their tenant but were not able to issue the Writ of Restitution – the landlord can apply for a Writ according to Rule 14(b)(2), Arizona Rules of Procedure for Eviction Actions.

Updates and changes regarding evictions aboundin this market.  Call or email our office for up-to-date information. Our real estate and eviction attorneys at Provident Law® are here to help.  We are experienced in dealing with all aspects of residential evictions and we regularly represent landlords and tenants struggling to adjust to the rapidly changing COVID-19 environment.

[1] Catherine Reagor, “Relief bill extends eviction ban to Jan. 31, offers billions in aid to renters, landlords.” December 22, 2020, AZcentral.com, available at https://www.azcentral.com/story/money/real-estate/catherine-reagor/2020/12/22/eviction-ban-extended-jan-31-25-b-more-aid-provided-renters-and-landlords/3999547001/

[2] Administrative Order No. 2020-163, “Disposition of Residential Cases Related to the Public Health Emergency,” October 14, 2020, available at http://www.azcourts.gov/Portals/22/admorder/Orders20/2020-163FINAL.pdf?ver=2020-10-14-160741-570

[3] “Media Statement from CDC Director Rochelle P. Walensky, MD, MPH, on Extending the Eviction Moratorium,” January 20, 2021, available at https://www.cdc.gov/media/releases/2021/s0121-eviction-moratorium.html

[4] Administrative Order No. 2021-19, “Disposition of Residential Cases Related to the Public Health Emergency,” February 1, 2021, available at https://www.azcourts.gov/Portals/22/admorder/Orders21/2021-19PDF.pdf?ver=2021-02-01-180240-090.

[5] “Fact Sheet: Biden Administration Announces Extension of COVID-19 Forbearance and Foreclosure Protections for Homeowners,” February 16, 2021, available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/16/fact-sheet-biden-administration-announces-extension-of-covid-19-forbearance-and-foreclosure-protections-for-homeowners/#:~:text=The%20actions%20announced%20today%20will,homeowners%20through%20June%2030%2C%202021%3B&text=Provide%20up%20to%20six%20months,or%20before%20June%2030%2C%202020

[6] Katy O’Donnell, “Justice Department appeals order blocking federal eviction ban,” Politico.com, February 28, 2021, available at https://www.politico.com/news/2021/02/28/justice-department-federal-eviction-ban-471864 .

Anne Courchaine is an Associate Attorney with Provident Law^®, where she handles eviction matters, real estate, commercial litigation, and family law. Before joining Provident Law®, Ms. Courchaine served as a Navy Judge Advocate and as a Special Assistant United States Attorney for the Southern District of California.  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 regularly 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.