As of today, it is expected that the CDC moratorium will expire on July 31, 2021 and not be extended. There is always the potential that another government moratorium will be started or that other rules and restrictions will be implemented regarding evictions, but as of now, we have not yet heard rumors of such actions.
If the moratorium expires, Arizona law regarding evictions will be in effect again, but will be affected by administrative orders passed by the Arizona Supreme Court. Remember, the legislature passes laws: the legislature is what created the Arizona Residential Landlord and Tenant Act and the laws regarding evictions. On the other hand, the Arizona Supreme Court can pass rules to control the procedure of its courts. During the pandemic and after, the Arizona Supreme Court has passed numerous administrative orders controlling how evictions are processed.
We had contact with staff at the Supreme Court and they have given us a draft of the administrative order that the Court may publish. We, as well as our colleagues, provided feedback on the proposed order. There is no guarantee the Supreme Court adopts our suggestions, nor is there any guarantee they publish the draft as written.
Until the final administrative order is published, we do not know for sure how evictions will be handled after the CDC expires. Everything we set forth below is based upon what we know now but could change at any time.
RESIDENTS WHO HAVE BEEN CURRENT
For residents that have been current through the pandemic, evictions will proceed in August as normal, but managers will have to provide the additional information we have been requiring on our eviction declaration forms. This includes, but is not limited to, information about whether the property is covered by the CARES Act, whether rental assistance was received and whether the loan on the property is in forbearance.
RESIDENTS AGAINST WHOM YOU PREVIOUSLY OBTAINED A JUDGMENT BUT COULD NOT REMOVE BECAUSE OF THE CDC
For residents that had a previous judgment entered against them that are still not current on the rent, the Arizona Supreme Court is indicating there are two ways to proceed to have them removed:
1.Serve a new notice and (late July or August) file a new eviction action. Do not accept any partial payments in the month you serve the notice or after. Managers will have to comply with the extra rules we have been following since last year. Managers will have to be sure that they don’t seek monies from the first case in the new case and that they account for any rental assistance received.
2.Request a hearing in the previous case to get the judgment amended and get a new date on the writ. Again, you will want to refuse any partial payments. It sounds like this process will be similar to filing a new case, but instead of initiating a new lawsuit, we would file a motion to amend the previous case.
The court has given no indication on how they will process cases – they are only giving us the procedure to follow. For example, under #2 above, we know we have to file a motion, but we do not yet know how fast these cases will be heard and what evidentiary issues may be addressed in such a case. This process is entirely new and has never existed in the law before, because there has never been a moratorium before requiring owners to delay evictions.
Also, we expect that some of the justice of the peace, will provide additional hearing dates and times to process the additional cases.
RECOMMENDATIONS FOR CLIENTS TODAY:
If clients have not done so before, we suggest each and every property compile a list of residents who are delinquent and break it down into different categories:
a. Residents who have had a judgment entered against them but who are working with management. Continue to work with these residents to allow them to become current.
b. Residents who have had a judgment entered against them but who are not communicating, not making partial payments, nor seeking rental assistance. You will likely need to follow Options 1 or 2 above to have these people removed. Speak to an attorney about what process is best for you to proceed.
c. Residents who are delinquent but no eviction was filed against them (usually due to ownership policy decision). You will need to follow option #1 above if you intend on seeking to have them removed.
In this list/chart, clients should make notations of which cases were from July (so writs may be issued without amended judgments) and whether partial payments have been accepted along the way and whether those partial payments exceed the amount of the initial judgment.
Remember, if you are planning on proceeding wtih an eviction, whether under #1 or #2 above, you should not accept partial payments without a written payment plan.
Remember, even though the moratorium may be over, it is still a best practice to continue to work with those residents that are trying to catch up their past due account.
This entire newsletter is speculative on what will happen in Arizona after the CDC moratorium expires. As soon as we know more from the Supreme Court, we will notify clients. Until that time, clients should be reviewing their accounts and organizing files.
Zona Law Group P.C.