On September 4, 2020, the CDC issued an order declaring a national eviction moratorium, which was extended several times. In May 2021, the U. S. District Court for the District of Columbia granted a summary judgment, holding that the CDC lacked statutory authority to impose its COVID eviction moratorium. The court stayed its order pending appeal. On August 26, 2021, the United States Supreme Court vacated that stay. This means the CDC moratorium that temporarily prevented evictions in Arizona is no longer in effect. Consequently, the provisions of Section VI of Administrative Order 2021-129 (corrected 8/11/21) now apply to Arizona eviction case processing.
Also, Administrative Order 2021-120 provides interim procedures required for the courts and parties to resolve eviction actions that arose during the moratorium or were delayed by them. These procedures take into account the unique circumstances created by the moratorium to:
- Provide a process to allow Landlords to regain possession of rental properties in a lawful manner
- Help ensure that a Tenant is neither wrongfully evicted nor subject to a judgment that fails to credit payments made by them or on their behalf.
For a limited time, this order creates an alternative process to allow parties to amend judgments to reflect additional amounts owed and credit rental assistance monies received. This serves a dual purpose of reducing the number of new complaints filed and ensuring that court judgments are accurate.
Regardless, because of the expiration of the moratorium, Arizona Justice Courts are expected to be bombarded with eviction actions that have been put on hold for the last year and a half. Below are some considerations for landlords in either completing or initiating the eviction process:
- Cases delayed by the CDC Moratorium or other moratoria will be given priority over newly filed cases.
- All cases will be processed consistent with timeframes provided in state statutes and rules, except that the presiding judge of the county may exclude time when necessary to manage the volume of cases.
- Landlords filing new cases in which they claim nonpayment of rent during a moratorium must attest whether their claims are covered by the CARES Act, mortgage forbearance, or a rental assistance agreement, and that the claims are not covered by another judgment against the Tenants.
- The parties may agree to postpone an eviction proceeding in order to apply for rental assistance.
- The Landlord must move to amend a complaint delayed by a moratorium to provide any update needed about application of the CARES Act, mortgage forbearance, a rental assistance agreement, and other judgments against the Tenant.
- Until 11/01/21, a Landlord may move to amend a judgment or apply for a writ in a case in which a writ was delayed due to a moratorium. The landlord must provide any update needed about application of the CARES Act, mortgage forbearance, a rental assistance agreement, and other judgments against the Tenant.
- The Landlord must file a motion to amend the judgment, and an accounting of any rental assistance payments received since the judgment was entered, if rental assistance was received.
- If the judgment includes claims for rent, fees, penalties, or interest that accrued between 03/27/20 and 07/24/20, the Tenant must provide proof that the property was not subject to a mortgage, or provide the written response from a Qualified Written Request (QWR) submitted to the property’s mortgage holder that confirms the financing in place was not covered by the CARES Act.
- The Landlord must serve a motion to amend a judgment or an application for a writ of restitution on the Tenant either personally or by posting the document on the main entrance to the premises.
- The court will schedule a hearing on all motions for amended judgment. The court will set a hearing on an application for a writ, if it appears to the court that a new tenancy may have been established, that the judgment should be amended, or if the court finds that a hearing is appropriate based upon the court’s own motion or a request of the Landlord or Tenant.
- At least 3 days before the hearing, the court must mail a copy of the notice to defendant and attempt to contact defendant by telephone, text, or email to provide notice of the hearing. The Landlord must serve a notice of the date, time, place and purpose of a hearing on the Tenant either personally or by posting the notice on the main entrance to the premises.
- The Tenant may respond to a motion or application in writing before the hearing and orally at the hearing.
- An order issuing a writ may be executed by the constable or sheriff by removal of the Tenant from the residence no earlier than five calendar days after the date of the order. The order will state the earliest date on which the Tenant may be removed.
- Until 11/01/21, a Tenant may file a motion to compel satisfaction of judgment delayed by a moratorium, if the amount owed was fully paid through a rental assistance program.
It is clear that the onus will be on Landlords to update and amend the amounts owed. It is also clear that Landlords who started the process prior to the moratorium will be given priority, including prioritizing them for recovering possession of the premises. Ultimately, the end of the eviction moratorium is the first step in allowing Landlords to return to their regular practice of managing their Tenants and properties.
Zelms Erlich & Mack