On March 24, Governor Ducey entered an executive order that delayed writs of restitution following evictions actions where the resident was impacted by COVID-19. This was set to expire on July 22, 2020 but was extended by the Governor via another executive order (“EO”). The newest EO is set to expire on October 31, but as history has already shown, there is no guarantee that this will happen.

The Arizona Multihousing Association (“AMA”) and the Manufactured Housing Communities of Arizona (MHCA), along with several private landlords, filed suit challenging the EO. The argument is that the EO improperly takes action that is reserved for the legislature (separation of powers argument) and improperly denies landlords a right that they have under contract (infringing on private contract rights). These constitutional arguments are slightly different than the arguments previously raised by the gyms and bars, though all parties agree that the Governor has exceeded his authority.

The primary position of the lawsuit is that the Governor did not have the legal authority to take the action he did. Since the EO was first passed, we have spoken to countless landlords that have been negatively impacted by it. For example, in certain cases we have seen, landlords that haven’t received payment since March have been unable to remove the resident because they were allegedly impacted by COVID-19. The critical thing to note is that if the government had properly distributed funds for rental assistance and paid landlords, this lawsuit may not have been necessary. The lawsuit is not about landlords wanting to evict residents, but rather landlords wanting to ensure that they receive funds to avoid losing their property or
being unable to maintain their property.

Remember, the EO limits a landlord’s ability to collect rent from certain delinquent residents but it does nothing to protect a landlord from lawsuits related to COVID-19 and it does nothing to limit the legal obligations of a landlord. Therefore, a landlord must pay to maintain their property, even though the tenant in the unit may not have to pay their rent. This contrast of rights and obligations can have a devastating impact upon property managers. This is especially true for AZREIA members, who on average own less than 10 rentals. The loss of income from one unit can cause significant, lasting damage to an investor’s financial plan.

It is important that property owners’ voices are heard and it is made clear that this is not an issue of landlord v. tenant, but rather of citizens needing their government to take the correct action to address the impact of COVID-19. Property owners should not be forced to bear the financial burden of the pandemic.

by Mark Zinman, Zona Law Group