CLARK BARS UPDATE - OCTOBER 12th 2020
Clark & Walker, P.C. - Attorneys at Law
Date: October 12, 2020
COVID-19 - CRITICAL UPDATE - CDC Order Temporarily Halting Evictions
By: Christopher R. Walker
On September 1, 2020, the U.S. Centers for Disease Control and Prevention (CDC) filed an order in the Federal Register to temporarily halt residential evictions to prevent the further spread of COVID-19 (hereinafter “Order”). The order provided for the temporary halt on evictions for non payment of rent for persons that met the eligibility requirements set forth in the Order. The protections under the Order are valid through December 31, 2020, assuming it is not invalidated earlier in any of the three federal lawsuits pending at this moment.
Previously, landlords were left with little guidance on the Order and were left with the interpretations made by state courts on matters related to the Order. Previously, the Arizona Supreme Court decreed that the presentment of the Order itself by a tenant was sufficient to stop the non-payment of rent eviction regardless of the merits of the declarations made therein. After much advocacy the Arizona Supreme Court changed its guidance and, in Administrative Order 2020-159, established a right for landlords to challenge the contents of a declaration submitted by tenants. While the burden of proof to refute the presumption the Arizona Supreme Court has created as to the validity of the declaration received is high this change in policy remains a victory in the sense that blatant false statements made by tenants to avoid evictions will likely not serve to delay the eviction from the premises. However, in those cases where the landlord was unable to refute this presumption, the Arizona Supreme Court has instructed that the trial court dismiss the eviction, without prejudice.
Recently, the CDC provided a document titled "Frequently Asked Questions" concerning the Order. In this document the CDC answered questions as to the enforcement of the Order and its effect on state court proceedings. Pursuant to this document, the CDC provided the following statement:
As indicated in the Order, courts should take into account the Order's instruction not to evict a covered person from rental properties where the Order applies. The Order is not intended to terminate or suspend the operations of any state or local court. Nor is it intended to prevent landlords from starting eviction proceedings, provided that the actual eviction of a covered person for non-payment of rent does NOT take place during the period of the Order. State and local courts may take judicial notice of the CDC Order, and the associated criminal penalties that may be imposed for non-compliance in making a formal judgment about any pending or future eviction action filed while this Order remains in effect.
In light of this recent development, there is a very strong argument that landlords be permitted to continue to issue non-payment of rent notices and even commence eviction actions and obtain eviction judgments for tenants that have filed with them a signed declaration under the Order. In these cases, landlords need to ensure that they notify their counsel that the tenant provided the signed CDC declaration and the landlord’s counsel should ensure that the court is apprised of the declaration so that, assuming the declaration is truthful, the writ of restitution is not pursuable until after the expiration of the CDC order.
Given the developments from the CDC coupled with the statements made by the Department of Justice in defense of the constitutionality of the Order, this Firm will be petitioning the Arizona Supreme Court to adjust the guidance that it has provided in this matter to allow for the filing of eviction actions and the obtaining of judgments in non-payment of rent matters even in those situations where a tenant has provided a signed copy of the CDC declaration. It remains unknown how the Arizona Supreme Court will respond to this request but the argument being made is compelling and the relief requested certainly is reasonable and supported by the CDC's articulated position. Once updated guidance is received from the Arizona Supreme Court an update will be sent out to all clients which, hopefully, will authorize the filing on all tenants currently delinquent on their rental obligations.
Should you have any questions or concerns regarding the Order and the Court's interpretation of the Order please direct them to Christopher Walker via email at firstname.lastname@example.org
or via phone at (602) 957-7877.
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