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Judge rules eviction moratorium legal

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Gov. Doug Ducey did not act illegally in blocking the eviction of tenants who have not been paying their rent, a judge ruled July 22.

Maricopa County Superior Court Judge Christopher Coury said the record shows that there were legitimate health reasons for the governor in March to order police officers and constables not to execute eviction orders on certain tenants. He said the evidence “demonstrates reality that Arizona leaders and the general population perceived COVID-19 to be an emergent problem and a virus to which swift and urgent attention was required.”

And Coury said even Gregory Real Estate and Management, which owns a rental home in Surprise, conceded that the virus and its spread “constitutes a legitimate state interest.”

“The rational basis of mitigating the spread of COVID-19, by promoting physical distancing through the delay of evictions, exists and supports (the executive order),” the judge wrote.

Coury also rejected the argument that in halting the evictions the governor was effectively taking the property of landlords.

“There has been no physical invasion or direct appropriation of plaintiff’s real property,” he wrote.

Anyway, Coury said, Gregory Real Estate still has “an economically viable use of the land.” And the judge said that the order protects the landlord’s right to be paid – eventually – and that tenants must obey all of the other obligations under the lease agreement.

Finally, Coury said that Ducey, by the wording of his order, sidestepped the potential legal problem of interfering with another branch of government, in this case, the courts which can order tenants evicted for failing to pay their rent.

The judge pointed out that the governor did not seek to tell judges what they can and cannot do, instead directing his order at the constables and police who would be the ones to enforce the court orders. And Coury said these are executive branch activities.

In fact, Coury said, nothing in Ducey’s order blocks courts from hearing these cases and issuing eviction orders. Instead, he said, it “merely delays when eviction orders may be enforced by officers of the executive branch.”

The March order was not a blanket moratorium on evictions.

Relief is available to anyone who is required to be quarantined based on a diagnosis of COVID-19 or has been ordered to self-quarantine by a licensed medical professional based on their symptoms. Evictions also can be avoided if someone else living there is diagnosed with the virus or if they have some condition “that makes them more at risk for COVID-19 than the average person.”

And there are financial triggers, with evictions precluded for anyone who suffers a “substantial loss of income linked to the virus, ranging from a job loss, a cutback in wages, closure of their place of employment, or an obligation to be absent from work to care for a home-bound school-age child.

The protections had been set to expire this week. But Ducey a week ago extended the order through October 31.

He did include one additional condition.

Until now, renters have needed to provide evidence to the property owner that they have one of the specified reasons for not paying their rent. Now they have to certify to the landlord by August 22 that they have applied for rental assistance from one of the state, county, city or private organizations that administer those programs.

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