CDC ORDER STOPPING EVICTIONS – Legal Update from ZONA LAW GROUP 

On September 1, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) released an Order titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (the “Order”).  The Order is effective Friday, September 4, 2020, and expires December 31, 2020.

This is a temporary eviction moratorium that applies throughout all states and U.S. territories without an existing eviction moratorium providing “the same or greater level of public-health protection” than the Order’s requirements.  In other words, it applies throughout the country, and throughout the state of Arizona. This applies to all residents and not just CARES properties.

The Order prohibits “eviction” of a tenant, which it defines as “any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.”  Mortgage foreclosures are excluded.

We believe the Order will apply in Arizona because it provides greater protection to renters than Governor Ducey’s Executive Order temporarily halting the execution of writs of restitution.

A tenant is protected from being evicted, if they sign a declaration saying 5 things (see below), most importantly, that it will make them homeless and they make less than $99,000 a year or $198,000 if married and filing jointly. It is important to note that landlords don’t get to verify the information in the affidavit, the tenant is protected if they sign the declaration and give it to the landlord.

Based on the Order’s language, we believe that a landlord could likely still serve a non-payment of rent notice on a tenant and file an eviction action for non-payment in court, but if the tenant presents the landlord with the declaration, the writ of restitution could not be executed and the tenant could not be removed from the property.  Unfortunately, however, we do not know this for sure. Also, we do not yet know whether a landlord can serve a notice or file an eviction, if the tenant has previously provided the declaration.

Clearly, a lot is unknown and we will provide updates as we learn this information.

Others will likely weigh in on the Order’s meaning so that a consensus might be reached regarding its interpretation.  It is possible that it was intended to prohibit even the filing of an eviction action.  Our office intends to seek clarification from the Arizona Supreme Court regarding how it might interpret the Order.

The Order only applies to cases involving non-payment of rent.  It does not prohibit evictions based on criminal activity; threats to health and safety of other residents; damaging or posing an “immediate and significant” risk of damage to property; violating any applicable building code, health ordinance, or the like; or violating other contractual obligations (other than the timely payment of rent and other fees).  We believe, based on the Order’s language, that non-renewals (though not applicable to mobile home space rentals) would still be permissible.   (Again, this is not clear and the foregoing is our initial opinion and subject to change about the non-renewals).

To invoke the Order’s protection, the tenant must provide their landlord with an executed Declaration (the CDC’s Order provides a sample form) made under penalty of perjury stating that:

·     The tenant has used best efforts to obtain all available government assistance for rent or housing;

·     The tenant either: (i) expects to earn not more than $99,000.00 in annual income in 2020 (or no more than $198,000 if filing jointly); (ii) was not required to report any income to the IRS in 2019; or (iii) received a stimulus check pursuant to Section 2201 of the CARES Act;

·     The tenant is unable to pay the full rent because of substantial income loss, loss of compensable work hours or wages, a lay-off, or extraordinary out-of-pocket medical expenses;

·     The tenant is using best efforts to make timely partial payment that are as close to the full payment as their circumstances permit, taking into account other nondiscretionary expenses; and

·     An eviction would likely render the tenant homeless or force the tenant to move into and live in close quarters in a new congregate or shared living setting because the individual has no other housing options.

All types of residential rental properties are covered: houses, buildings, mobile homes, land in a mobile home park, or similar dwellings leased for residential purposes.

Penalties for violating the Order are extreme; they are both criminal and financial.  For an individual landlord:

·     If the violation does not result in a death, the penalty is a fine of not more than $100,000 or one year in jail, or both;

·     If the violation results in a death, the penalty is a fine of not more than $250,000 or one year in jail, or both;

For an organization landlord:

·     If the violation does not result in a death, the penalty is a fine of not more than $200,000 per event;

·     If the violation results in death, the penalty is a fine of $500,000 per event.

The Order states that the U.S. Department of Justice may initiate court proceedings for violations.

Finally, we are unsure of the legality of the CDC’s Order.  It seems to be an overreach of the executive branch into an area that would normally require legislative action.  The Order will likely face legal challenges. Regardless, on September 4, 2020, clients will need to comply with the Order in order to avoid its extreme criminal and monetary penalties.

SUMMARY – for now, you are allowed to proceed with your eviction filings. If your resident provides a signed declaration or attestation, contact your attorneys immediately. You may need to stop all action. ABSOLUTELY DO NOT PROCEED WITH A WRIT IF YOUR RESIDENT HAS GIVEN YOU ANY INFORMATION THAT CLOSELY RESEMBLES WHAT IS REQUIRED IN THE CDC ORDER.

We will keep our clients up to date as we learn more about the Order, its interpretation, and any challenges filed.