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 became effective Friday, September 4, 2020, and expires December 31, 2020.

This applies throughout the country, and throughout the state of Arizona. This applies to all residents and not just CARES properties.

The Order prohibits “eviction” of a tenant, which it defines as “any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.”  Mortgage foreclosures are excluded.

A tenant is protected from being evicted if they sign a declaration saying 5 things:

  • The tenant has used best efforts to obtain all available government assistance for rent or housing;
  • 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;
  • The tenant is unable to pay the full rent;
  • The tenant is using best efforts to make timely partial payment; and
  • An eviction would likely render the tenant homeless or force the tenant to move into and live in close quarters with others

Until directed otherwise, it is important to note that landlords don’t get to verify the information in the affidavit, the tenant is protected if they sign the declaration and give it to the landlord.

Based on the Order’s language, we believe that a landlord could still serve a non-payment of rent notice on a tenant and 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.  In effect, the landlord should proceed as normal with their eviction protocol, including serving notices and filing actions, until a declaration has been signed by the tenant and provided to the landlord.  However, landlords must have systems in place to track and immediately stop any eviction action when the declaration has been provided.  If a landlord does not have that capability, they may wish not to take any action against their tenants.

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 other residents; damaging or posing an “immediate and significant” risk of damage to property; violating any applicable building code, health ordinance, or the like; or violating other contractual obligations (other than the timely payment of rent and other fees).  The language and intent is not clear regarding nonrenewals and those cases should be reviewed on an individual basis.

All types of residential rental properties are covered: houses, buildings, mobile homes, land in a mobile home park, or similar dwellings leased for residential purposes.

Penalties for violating the Order are extreme; they are both criminal and financial.  For an individual landlord:

  • 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;

For an organization landlord:

  • If the violation does not result in a death, the penalty is a fine of not more than $200,000 per event;
  •     If the violation results in death, the penalty is a fine of $500,000 per event.

It is possible that the CDC Order is unconstitutional.  However, until it is successfully challenged in court, its terms must be followed.

SUMMARY – for now, you are allowed to proceed with your eviction filings. If your resident provides a signed declaration or attestation, stop all action. ABSOLUTELY DO NOT PROCEED WITH A WRIT IF YOUR RESIDENT HAS GIVEN YOU ANY INFORMATION THAT CLOSELY RESEMBLES WHAT IS REQUIRED IN THE CDC ORDER AND CONTACT YOUR ATTORNEY.

by Mark B. Zinman, Zona Law Group