Arizona COVID Law Update: Continued Postponement of Eviction Enforcement Actions

On July 16 the other shoe dropped on Arizona residential evictions when Gov. Ducey amended and extended his March 24 Executive Order on Continued Postponement of Eviction Enforcement Actions. The new Executive Order, EO 2020-49, runs through October 31, 2020 and extends the provisions of EO 2020-14, which expired on July 22, 2020, but with some slight variations. Most notably, EO 2020-49 allows tenants after August 21, 2020 to postpone an eviction if they demonstrate that:

  1. They have notified the landlord in writing with supporting documentation of their ongoing financial hardship, and
  2. They provide the landlord of proof of submission of their completed pending application for rental assistance through a state, city or county non-profit program.

As with EO 2020-14, but perhaps less excusably because the Governor has had 120 days to think about this EO, there are some troubling grey areas. The first of these is that tenant exemptions for any medical reason related to COVID appear to expire on August 21, 2020. After that date, only financial hardship as a result of COVID will be a relevant defense to exercise of a writ and the tenant will be required to provide supporting documentation of financial hardship (not provide “any available supporting documentation,” as is the case prior to August 21) as well as evidence of application to a rental assistance program.

If this is the case, then landlords’ prospects improve markedly after August 21. However, some of the same problems of vagueness persist for the time being. For example, EO 2020-14 and 49 both require documentation to the landlord of a COVID-related health issue, but neither states when this documentation must be provided. Logic suggests it should be prior to any appearance in court so that the landlord might save the costs of filing the eviction action and possibly work out a deal with the tenant, but the Rules of Procedure for Eviction Actions don’t really require tenants to do anything prior to the initial appearance in court, and so courts so far have entertained this documentation whenever it is presented.

The same timing problem exists for COVID-related financial issues and some legal aid and tenant assistance organizations have published forms that a tenant can simply fill out and submit to the landlord to fulfill their obligations under parag. 2 of the Executive Orders. Strictly, speaking, a “check-box” form is not sufficient, and it has been my experience that some judges will insist upon more than a vague form if the landlord or her counsel raises the issue of full compliance with parag. 2 of the Executive Order.

Also important is the fact that EO 2020-49 remains sweepingly broad, applying to a range of COVID-related issues including being “more at risk from COVID-19 than the average person” (I think that is everybody!) and “reduction in compensation” as a result of COVID-19, which also would appear to cover just about everybody. In other words, EO 2020-49 remains an invitation to tenants for its own invocation at an eviction proceeding, and at least until August 21, the Governor expects landlords and the courts to do everything they can to help keep tenants from being evicted.

The good news in all of this is that there is financial assistance available for tenants and landlords should make sure they know it: Recent statistics suggest that 95 percent of Arizona renters are still paying their rent—or most of it through an arrangement with the landlord. However, that could change at any moment if the Federal Government is unable to come up with a plan to extend unemployment benefits for Americans who have lost their jobs due to COVID.

Only about one percent of renters are total “ghosts” who are neither paying rent nor communicating about their non-payment with their landlord. In many instances, these are “hard cases” who are subject to eviction for substantive reasons that go beyond simple non-payment of rent. Parag. 5 of EO 2020-49 makes it clear that these tenants can be evicted upon motion to the court and it is my experience that they can be evicted and removed from the property by writ; however, it certainly takes more time and effort and ends up costing the landlord more money.

The bottom line for landlords is that if you can work something out with your tenant you should.

After August 21, landlords may have more latitude to evict, but it remains to be seen how courts will interpret parag. 3 of EO 2020-49. In instances where the tenant must be evicted for reasons going beyond simple non-payment of rent, that can still be accomplished, but you will probably want the assistance of a lawyer who has filed such motions in the COVID era.