By: Kelsi Lane and Diego Brito
On January 29, 2021, the U.S. Centers for Disease Control and Prevention (CDC) issued an order to extend and modify its original “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” order. See our article on the original CDC order here: https://www.davismiles.com/cdc-calls-for-eviction-halt-beginning-september-4/. In Arizona, there are no state issued orders regarding evictions, leaving the CDC order as the protection for tenants which will now expire on March 31, 2021.
While the federal eviction moratorium has been extended, tenants need to know that it does not apply automatically. In order to qualify, tenants must provide a declaration to their landlord that attests the tenant:
- Best efforts to obtain assistance for rent or housing.
- Income of $99,000 or less ($199,000 for joint filers) for 2021, not required to report 2020 income, or received a stimulus check under the CARES Act.
- Considerable loss of income, a lay-off, or unexpected and considerable medical expenses.
- Best efforts to pay rent in part.
- Statement that eviction would leave the tenant homeless or forced to live in a shared-living situation in close quarters.
The Declaration is available for download in English and Spanish at: https://www.azcourts.gov/selfservicecenter/Landlord-Tenant-Disputes-Eviction-Actions/COVID-19-Processing-Eviction-Matters.
Landlords who violate the eviction moratorium may be jailed for up to one year and subject to fines ranging between $100,000 and $250,000, depending on if such violations resulted in a death.
Traditionally, landlords go through a court process to evict tenants. Upon granting of the eviction, tenants are removed from the residential rental properties by the enforcement of a writ of restitution by the Constable. Despite the tenant’s compliance with the eviction moratorium, Arizona courts are still entering judgment for evictions due to tenants’ failure to pay rent. However, the courts are not issuing writs of restitution for these evictions. Therefore, tenants need not leave the premises even after they are “evicted.”
Carolyn Lane, a Constable in Phoenix, recommends tenants immediately provide their landlord a copy of the CDC Declaration if they are behind on rent. Upon facing eviction for non-payment of rent, she advises tenants to also post the CDC Declaration to the front door to protect from an incorrect writ of restitution enforcement. Tenants will need to also need provide proof of attempts to obtain rental assistance.
However, not all evictions are covered by the eviction moratorium. There are five exceptions to the eviction moratorium. Landlords may still remove tenants for the following:
- Criminal activity on the premises.
- Threatening the health and safety of other tenants (having COVID-19 and taking the proper precautions is not grounds for removal).
- Damaging or threatening to damage property.
- Violating health and safety regulations.
- Violating any part of the lease except for payment-related provisions.
The last exception allowing evictions for violating lease provisions is creating an interesting legal question since many leases are reaching the end of the lease term since COVID-19 lockdowns and restrictions were in place in 2020. The courts may interpret the CDC moratorium as inapplicable to landlords that evict tenants pursuant to an expiration of lease provision. On the other hand, if a lease does not include an expiration of lease provision or is a month-to-month lease, then tenants are not violating the lease terms and are likely still protected by the eviction moratorium in regards to non-payment. The Supreme Court of Arizona issued Administrative Order No. 2021-19 February 1, 2021 stating that: “Termination of a periodic tenancy is presumed to be due to nonpayment of rent, if unpaid rent, a penalty or interest is owed. The CDC order applies unless the plaintiff proves the termination was for a reason other than nonpayment of rent, penalties, or interest.”
Additionally, tenants and landlords should carefully read their lease agreements to understand the effects of continued possession by the tenant and to identify the reasons that a landlord may evict a tenant
It is important to note that tenants are not relieved of their obligation to pay rent, and they must provide the necessary proof to avoid eviction.