In the past 8 months, there have been an incredible amount of changes to evictions. Overlapping rules being implemented by the state and federal government, has left a lot of property owners confused about their rights. Thankfully, due to the expiration of the Governor’s Executive Order on October 31 (when this was written in October, it is expected the EO would expire and not be continued), and clarification from the Center for Disease Control (“CDC”) and the Arizona Supreme Court, we have more clarification than previous months. Here is where we stand with evictions.

NONCOMPLIANCE – A property owner has the right to file for an eviction based upon an immediate and irreparable breach or a breach relating to a noncompliance with the lease. The most common versions are unauthorized occupants, noise disturbances and/or criminal activity. Those types of evictions are generally not affected by any legislation or order. You can usually file the case, proceed through judgment and execute the writs of restitution to get possession back (some cases may be different, such as non-compliance for failing to pay move-in fees).

NON-PAYMENT OF RENT – if you have a resident that is delinquent in rent, your rights may be affected by the CDC eviction moratorium (“CDC Order”). The CDC Order was published on September 4 and a lot of clarifying information has been provided since that time. Here is where the law currently stands: you can proceed with your evictions normally, but if a resident signs the CDC declaration avowing to certain facts under the penalty of perjury, you are not allowed to get the writ of restitution executed. You can serve notice, file the eviction and get a judgment, but you should stop before seeking the writ of restitution and only proceed, if you are able to challenge the CDC declaration signed by the tenant as containing lies or material misstatements. We believe that such challenges will be looked at critically by the courts and should only be used in exceptional circumstances. For example, if a resident hasn’t paid rent in 6 months, we believe it is hard for them to declare, under penalty of perjury, that they are making their best efforts to make partial payments.

NON-RENEWAL OF LEASES AND TERMINATION OF MONTH-TOMONTH LEASE – Arizona law does not require cause to terminate someone when their lease expires or when they are on a month-to-month lease. In such cases, a property owner can serve a 30-day notice, requiring the resident to move at the next lease term that is not less than 30-days away, after service of the notice. As long as the action is not discriminatory or retaliatory, it is permitted under Arizona law. Now, however, the Arizona Supreme Court has said that if the tenant is delinquent in rent when the non renewal notice is served, there is a presumption in the law that it is because of the delinquency and the protections set forth in the CDC order are triggered. Therefore, if a non-renewal is being served, it is perfectly fine and you can proceed through a writ, if the tenant was not delinquent when the notice was served. On the other hand, if the tenant was delinquent in rent, there is a presumption that the writ will be delayed by the CDC order, unless the landlord can demonstrate that the reason for the eviction was not related to the non-payment. It will be the landlord’s burden to demonstrate the facts underlying their decision to terminate the lease.

We are confident that the changes are not over and readers must stay alert to changes in the law. This doesn’t necessarily mean that more moratoriums are guaranteed to be issued, but we do expect more legislation to be proposed affecting this area of the law in 2021.

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