It has now been one full year of different eviction moratoriums being in place. We also suspect that more moratoriums will be enacted. While its possible the next moratorium will be different than the CDC order, it is expected to follow the same process – a resident signs a declaration and attests to 5 factors. One of those factors is that they are making partial payments to the best of their ability. This has thrown a significant wrench into the legal world for property owners because Arizona has a statute that specifically prohibits them from accepting partial payments, or they waive their right to proceed with an eviction. Therefore, the question is, what should property owners and managers be doing right now?

Amongst other requirements, the CDC eviction moratorium allows a resident to prevent an eviction, provided “the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses.” On the other hand, A.R.S. § 33-1371 says a landlord can only accept a partial payment of rent and proceed with an eviction, if the resident signs a contemporaneous document, setting forth when the balance will be paid. If a partial payment agreement is not signed, and the partial payment is accepted, the landlord cannot proceed with the eviction that month. These different laws, put owners in a strange position – should they accept partial payments?

Remember, if the resident has not signed the CDC declaration, then the CDC order does not apply and the owner should never accept a partial payment without getting a partial payment agreement signed. Many clients get confused and assume that the moratorium applies to their eviction, not realizing the CDC only applies when invoked by the resident. The owner should proceed with business as usual and follow their regular policies and procedures.

Things change, however, once the resident signs the CDC declaration. At that point, the owner may not be able to proceed with the eviction or may be able to get a judgment but not obtain the writ of restitution. The Maricopa County Justices of the Peace (“Maricopa JP’s”) recognize the problem that is created by the CDC order and its interplay with the prohibition on partial payments in Arizona. The Maricopa JP’s published a Best Practices memorandum saying that if a resident signs the CDC declaration, then that declaration constitutes the partial payment agreement. In other words, the landlord can proceed with an eviction and accept partial payments once a resident has signed the CDC declaration. We applaud the Maricopa JPs for realizing the problem owners face with these conflict laws. The problem, of course, is that this “Best Practice Memorandum” is not binding law and is up to the discretion of the judge hearing the case. Also, there is nothing in writing about this issue from other counties.

As always, our suggestion is to work with residents and accept partial payments. To the best owner’s abilities, they should try to get written payment plans, but accept partial payments if a CDC declaration has been signed. In this environment, when evictions are being stopped, an owner should do what they can to cover their expenses, and then worry about proceeding with evictions later. Owners should continue to communicate with residents and, to the extent possible, gather information from your residents as to their circumstances if they become delinquent. The more information you have, the better, in the event you need to file a challenge.

by Mark Zinman, Attorney, Zona Law Group P.C.