Arizona Multihousing Association | Arizona Capitol Times

Arizona’s eviction ban raises serious Constitutional questions

For many young millennials like myself, the concept of paying rent is second nature. At this point in our lives, few of us have had the opportunity to purchase homes, and renting makes sense for us. However, in the wake of COVID-19, which has caused widespread shutdowns and job losses, many of us are struggling to pay rent on time. In response to this crisis, numerous states and localities have enacted eviction bans and rent deferral schemes.

A lot of young renters may welcome this development, but they should think twice about cheering on these government intrusions into the housing market. Here’s why: while these extreme measures may be well-intended, they are unjust, unlawful and counterproductive.

In Arizona, Gov. Doug Ducey issued Executive Order 2020-14, which directs constables and other law enforcement personnel to temporarily delay enforcement of eviction orders for residential premises if: 1) the defaulted tenant or a household member is subject to a quarantine order, 2) the defaulted tenant has a health condition that makes them more at risk for COVID-19 than the average person, or 3) the defaulted tenant has suffered a substantial loss of income resulting from COVID-19.

The order was originally slated to expire 120 days from its enactment on March 24. However, immediately prior to its expiration, the governor issued Executive Order 2020-49. Executive Order 2020-49 is largely a continuation of its predecessor, but adds that after August 21, a tenant in default is entitled to delay the enforcement of a writ of restitution if he or she had provided the landlord with documentation of: 1) an ongoing financial hardship, and 2) submitted application to a governmental or nonprofit rental assistance program. This order is currently in effect through October 31.

While it may seem compassionate to absolve renters of their obligations during an emergency, somebody ends up paying the price: in this case, it’s landlords who are forced to bear the burden of the crisis thanks to the Arizona order. Yet landlords, most of whom are mom-and-pop operators, often face the same difficulties tenants, millennials and society at large face every day.

Generally, landlords, like any other business, offer a service in exchange for money essential to any business. Larger landlords may have the resources to weather several months of deferred rent. Smaller landlords don’t have that advantage – they often operate on shoestring budgets and live much closer to bankruptcy or foreclosure than most people realize. These smaller landlords are typically ineligible to receive federal and state assistance and instead have become collateral damage in the push for increased tenant protections during the pandemic.

Under Ducey’s current executive order, Arizona’s affordable housing crisis, which existed long before COVID-19, will only worsen. As landlords lose out on month after month of rent payments, many could be forced into foreclosure. These foreclosures will result in less affordable housing, which could have been prevented if the governor’s executive order allowed landlords to secure even partial payment of rent.

Better solutions than broad eviction bans exist. In the short term, Arizona could remove maximum occupancy requirements to shelter those who are losing their housing. Arizona could also pay hotels and other similar facilities for temporary housing if an unlikely rash of evictions were to erupt. Furthermore, Arizona can offer rental assistance for renters and tax relief to landlords who agree to forego or lower rent. In the long term, the power to fix these problems rests with Arizona’s legislature.

However, if Arizona and other state governments insist on making sacrificial lambs of landlords, the Constitution and organizations willing to enforce its provisions stand ready to fight. Currently, the Arizona Multihousing Association and others are bringing a petition for special action challenging Ducey’s executive order. They are rising up on behalf of all Arizona landlords to challenge the state’s egregious eviction ban.

As millennials, we cannot expect other individuals to bear our personal and financial burdens. We should celebrate legal actions like the Arizona Multihousing Association’s in the fight to honor individual rights. After all, these liberties are the foundations on which our nation was built.

Kady Valois is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.

AZ Supreme Court refuses case on lifting eviction ban

The Arizona Supreme Court won’t overturn the order by Gov. Doug Ducey blocking residential evictions.

In a brief order October 7, the justices spurned a request by the Arizona Multihousing Association to review the governor’s actions and determine if he is within his legal rights in saying that landlords could not oust tenants who have not been paying their rent because of COVID-19.

The ruling does not resolve the legal claims by the landlord group about the scope of the governor’s emergency powers.

That would take a full-blown trial, something that could take weeks, if not months. In fact, that’s exactly what the order signed by Chief Justice Robert Brutinel suggested.

But it does mean that Ducey’s order, originally issued in March, will remain undisturbed through at least the end of October when it is scheduled to expire – assuming the governor does not extend it as he did in July.

Courtney Gilstrap LeVinus, president of the landlord group, pronounced herself “shocked and disappointed” that the high court won’t hear the case. She said the ruling will have consequences not only for those who own rental properties but for the whole economy.

“We can fully expect to see a rental home foreclosure avalanche in the months to come, or certainly in the beginning of 2021, LeVinus said.

The only relief, she said, could come from $100 million that is supposed to be used for eviction relief. But LeVinus said only about $18 million has actually been distributed since the pandemic began.

Attorney Kory Langhofer, who represents the landlords, said the issue goes beyond the immediate effect on his clients.

“It reflects the failure of governmental institutions,” he said.

“Our Constitution requires the legislative and judicial branches to check executive overreach,” Langhofer said. “At the moment, that’s not happening.”

But Langhofer was able to convince only Justice Clint Bolick who was the lone person on the bench wanting the Supreme Court to review Ducey’s actions.

There was no immediate comment from the governor on either the order or whether he intends to let it expire as scheduled at the end of the month.

But even if the justices had taken up the case and overruled the governor it would have had no immediate effect. Last month, the Centers for Disease Control and Prevention issued its own anti-eviction order which runs through the end of the year.

In seeking Supreme Court action, the landlords claim the governor lacks the constitutional authority to tell constables around the state not to process eviction orders, even those issued legally by judges. They also contend that the gubernatorial directive is violating both the property rights of landowners as well as their right to enter into contracts.

In seeking review, the landlords acknowledged that the governor can exercise certain powers in a public health emergency. But Langhofer said that Ducey, is unilaterally barring landlords from enforcing the terms of lawful lease agreements, created “an indefinite economic welfare and redistribution program, rather than a public health measure to contain the COVID-19 contagion.”

Langhofer also warned the justices that if the governor’s order goes unchallenged, “then there is virtually no personal or commercial transaction or conduct that would lie outside his grasp.”

The way the landlords figure it, by the time the order expires – assuming it is not renewed – it will have been 221 days that tenants have not had to pay rent.

How much is owed is unclear.

Economist Elliott Pollack, in a study done for the Arizona Multihousing Association, figures that if just 1% of the more than 919,000 Arizona households who rent did not make payments over a seven-month period that means a loss of more than $67.7 million. Take that rent-withholding figure to 15%, he said, and the foregone revenues top $1 billion.

Pollack said there also is a ripple effect as landlords cannot pay their employees, contractors and suppliers.

But the issue before the court dealt only with the legal questions.

Langhofer told the justices that the statutory provisions the governor is using for all of his executive orders allow him to exercise police powers, specifically to “alleviate actual and threatened damage due to the emergency,” and to facilitate the supply of equipment and services “to provide for the health and safety of the citizens of the affected area.”

He acknowledged the law does allow the governor to “commandeer and utilize any property.” And that, Langhofer said, could be interpreted to include a moratorium on evictions as a means to ensure that people have housing.

But he said that exists only in a “state of war emergency” – and only if the governor makes provisions for compensating the owners of the property.

Laghofer said that Ducey, in issuing his executive order, acknowledged that it had little to do with protecting public health but was “primarily an economic relief measure.” He also pointed out that tenants seeking relief need not show they are infected with COVID-19 or even that they are in a high-risk category, but only that they provide documentation of “ongoing financial hardship.”

Ducey, however, said there is a direct link between his order and public health.

“The fight against evictions is key in slowing the spread of the virus,” wrote Brett Johnson, the private attorney retained by the governor to defend him in all the litigation over the COVID-19 restrictions he has imposed. “The federal Centers for Disease Control and Prevention has warned that homeless shelters are often crowded, making social distancing difficult, and that homeless can exacerbate and amplify the spread of COVID-19.”

The advice from the justices for landlords to take their case to a trial court is interesting given that there was, in fact, a hearing earlier this year in a separate challenge to the governor’s order brought by Gregory Real Estate and Management. It owns a rental home in Surprise.

In that case, Maricopa County Superior Court Judge Christopher Coury upheld the governor’s actions. 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.”

The lawyers in that case are seeking review by the state Court of Appeals. But they also asked the Supreme Court to bypass that step and consider the case now, something the justices refused to do.

CDC order gives new protections from eviction

A new federal directive could provide Arizona renters with protections even if the state Supreme Court rules that an anti-eviction order by Gov. Doug Ducey is illegal and unenforceable.

And the federal order would be in place for a longer period of time.

The order by the Centers for Disease Control and Prevention prohibits millions of renters from being ousted from their homes or apartments due to nonpayment of rent.

It is far more expansive than earlier federal directives that had covered only federally financed rental units. The conditions to get the relief also could be seen as more liberal than those imposed by Ducey in Arizona.

And this new order goes through the end of the year – Ducey’s executive order expires at the end of October.

The action comes just weeks after President Trump directed the CDC to study the issue. But the president, facing a tough re-election bid this year, moved to take full credit.

“I want to make it unmistakably clear that I’m protecting people from evictions,” he said in a prepared statement.

It also comes as the Arizona Multihousing Association is trying to convince the Arizona Supreme Court that it should override the governor’s own similar directive. Attorneys for the landlord group contend that the emergency powers lawmakers gave to governors decades ago do not permit what amounts to seizure of property.

But assuming the CDC order is valid – and there have been no challenges filed so far – it could mean that the Arizona landlords could win their lawsuit and still not be able to evict tenants.

There was no immediate response from either the landlord organization or its legal team.

The new federal directive has a multi-part test to qualify.

First is a requirement that the tenant has “used best efforts” to obtain all available government assistance for rent or housing. The order, however, does not define what that involves.

Similarly, tenants must make “best efforts” – again, undefined – to make timely partial payments “that are as close to the full payment as the individual’s circumstances may permit.”

There is an income cap of $99,000 for this year for individuals and $198,000 for couples filing joint returns.

Also required is a reason for the inability to pay rent, which can be “substantial” loss of household income, loss of work hours or wages, a layoff, or “extraordinary out-of-pocket medical expenses.” That last category includes unreimbursed medical expenses likely to exceed 7.5% of an individual’s gross income for the year.

Finally, there is a requirement for an applicant to say that eviction likely would leave the person or family homeless or, at the very least, force them to live “in close quarters in a new congregate or shared living setting.”

That last provision could provide the legal underpinnings for the order to be considered valid.

“Housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate setting, such as homeless shelters, which then puts individuals at higher risk to COVID-19,” the directive states. More to the point, it says that the ability of these facilities to do things like social distancing and other infection-control measures decreases as crowding increases.

“Unsheltered homelessness also increases the risk that individuals will experience severe illness from COVID-19,” the CDC states.

As with Ducey’s own order, the CDC says none of this removes the legal obligation of anyone to pay rent or other financial obligations under lease agreements. And it allows landlords to collect late fees, penalties and interest.

But it means that, at least through the end of the year, failure to do that won’t put an individual or family onto the street.

That income figure for eligibility, according to the CDC, is not arbitrary.

The agency cites a national study showing that someone would need to be earning about $49,837 a year to afford a two-bedroom unit without spending more than 30% of income on rent.

Under the CDC order, violators can be fined $100,000 and jailed for up to a year; for business enterprises the fine is $200,000 per violation or $500,000 if it results in death.

Ducey’s own executive order has a separate list of what can exempt a tenant from being evicted.

Factors include the need of someone diagnosed with COVID-19 to be quarantined, having health conditions that put them at higher-than-average risk for contracting the disease, or substantial loss of income.

But there is a workaround for landlords to the Arizona order. It allows a judge to order an eviction when it is “necessary in the interest of justice” or for other violations of the lease, like lying about the number of occupants, pets, income, employment or a criminal record.

The CDC actions drew a mixed reaction from the National Low Income Housing Coalition.

Diane Yentel, its president and CEO, called the move “long overdue and badly needed.”

But in a prepared statement she also called it a “half-measure” because it simply delays the problem of evictions and provides no financial relief. She urged Congress and the White House to try to iron out differences in a COVID-19 relief bill that she said would provide at least $100 billion in emergency rental assistance.

End of eviction ban doesn’t cause spike

Pima County Constable Kristen Randall, left, speaks to a rental resident letting them know about their eviction notice Friday, Sept. 24, 2021, in Tucson, Ariz. Long delayed evictions are rolling out more than a month after the end of a federal moratorium that had protected tenants, including some who hadn’t paid rent for many months during the coronavirus pandemic. (AP Photo/Ross D. Franklin)

TUCSON — Chandra Dobbs was stunned when the constable showed up on her doorstep with a fat packet of eviction papers. She thought she had more time.

“I didn’t think I was going to be evicted because I applied for rental assistance money,” Dobbs said a few days later. “But they didn’t want to wait the four to six weeks. So now we’re homeless — me, my 16-year-old son, my daughter and my grandchild, a toddler.”

Her confusion is a common theme across America at a time when the federal government has ended renter protections while doling out billions of dollars in rental assistance. Instead of the expected surge in evictions, many landlords are holding off, waiting for the federal money to come through.

But while a few jurisdictions bar landlords from evicting renters who have applied for the money, most do not.

Courtney Gilstrap LeVinus, president of the Arizona Multihousing Association, said, “The vast majority of property owners have worked with their residents for nearly two years to keep people in their homes.”

She has defended landlords throughout the pandemic, noting that many have been pushed to the brink of bankruptcy.

Court records show the eviction judgment against Dobbs was for $3,837, which included $2,700 in rent plus late fees and court and legal costs. Encore Management LLC, which filed for the eviction, did not respond to a request for comment about its side of the case.

Dobbs, who was laid off from her job as an exotic dancer during the pandemic, said her family is staying temporarily with friends while working with a nonprofit to find a new home and get money for a rent deposit.

After a slow start, the pace to distribute the first $25 billion installment of $46.5 billion in rental assistance is picking up. Treasury Department officials said the program had served 420,000 households in August — up from 340,000 in July — and distributed $7.7 billion since January.

Treasury officials said the strong signs of progress came from New Jersey, New York and South Carolina, which at first struggled to get their programs going. New Jersey, for example, sent out no money in the first quarter but now has distributed 78% of its first-installment money and doubled the number of households served in August compared with July.

Rental resident Paul Wunder holds his dog Missy as he speaks about his eviction notice after meeting with Pima County Constable Kristen Randall Friday, Sept. 24, 2021, in Tucson, Ariz. (AP Photo/Ross D. Franklin)

Spending in Florida increased from $60.9 million in July to $141.4 million in August while South Carolina went from $10.6 million to $25.3 million. New York saw a jump from $8.5 million to $307 million.

“These numbers are still early, uncertain and there is likely additional pain and hardship not showing up in these reports,” said Gene Sperling, who is charged with overseeing implementation of President Biden’s $1.9 trillion coronavirus rescue package. “But what is out so far is certainly better than anyone’s previous best-case scenario for the month after the moratorium.”

Sperling credited rental assistance and an increase in eviction diversion programs as key reasons the tidal wave predictions didn’t come through, adding that it was important to keep speeding relief money to landlords. On October 6, the Department of Housing and Urban Development issued a new rule barring landlords from evicting tenants in HUD-subsidized public housing without providing them 30 days’ notice and information about available federal emergency rental assistance.

Some tenants have benefited from remaining eviction moratoriums including in California which ended last month, New York’s which runs through the end of the year and Boston’s which is ongoing.

Pima County Constable Kristen Randall arrives at an apartment complex to speak to a rental resident about their eviction case Friday, Sept. 24, 2021, in Tucson, Ariz. Long delayed evictions are rolling out more than a month after the end of a federal moratorium that had protected tenants, including some who hadn’t paid rent for many months during the coronavirus pandemic. (AP Photo/Ross D. Franklin)

Others have taken advantage of newly created programs from Washington to Texas to Philadelphia to New Hampshire that aimed at keeping eviction cases out of the courts and keeping renters in their homes. Some court systems have also put in place policies staying evictions if a tenant has applied for rental assistance, while at least three states and 10 cities have approved measures providing tenants with free legal counsel in eviction proceedings.

Diane Yentel, president and CEO of a low-income coalition, said the nonprofit has encouraged leaders of state and local governments to maintain the few local eviction bans remaining after the U.S. Centers for Disease Control and Prevention moratorium ended in late August.

Landlord advocacy groups have encouraged members not to evict tenants who have applied for government funds to pay their back rent, but owners don’t always follow that suggestion. Smaller property owners have struggled for months to pay their own mortgages and taxes with many tenants not paying rent.

Many property owners were more willing to offer concessions during the pandemic, waiving late fees and sometimes reducing or forgiving rent, according to a synthesis of two recent studies of mostly small landlords carried out by the Terner Center of Housing Innovation at the University of California, Berkeley, and the Joint Center for Housing Studies of Harvard University.

The findings also highlighted the financial hardships landlords have faced, with some opting to sell their properties, a move that could lead to a loss of affordable housing stock in some communities.

U.S. Marine veteran Paul Wunder, who was also on Constable Kristen Randall’s schedule the following week for eviction from his Tucson apartment, said all landlords should wait to receive federal money set aside for rental assistance so they can get the rent money they are owed.

“If they just wait one month, they’ll get all their money,” said Wunder, cradling his small dog Missy, a shaggy terrier mix, inside his apartment a few days before he was locked out. The 66-year-old was laid off early in the pandemic, then laid off again after getting another job as an air conditioner technician.

“If they throw us into the street,” he said, “they’ll get nothing.”

Michael Casey contributed to this report from Boston.

Landlords sue, say Ducey lacks authority to stop evictions

Landlords and mobile home park owners from around the state are asking the Arizona Supreme Court to void an executive order by Gov. Doug Ducey blocking evictions of tenants who do not pay their rent.

The lawsuit claims the governor lacks the constitutional authority to tell constables around the state not to process eviction orders, even those issued legally by judges. It also contends that the gubernatorial directive is violating both the property rights of landowners as well as their right to enter into contracts.

In seeking review, the lawsuit acknowledges that the governor can exercise certain powers in a public health emergency. But attorney Kory Langhofer, who prepared the legal filing, said that Ducey, in unilaterally barring landlords from enforcing the terms of lawful lease agreements, created “an indefinite economic welfare and redistribution program, rather than a public health measure to contain the COVID-19 contagion.”

Langhofer also warned the justices that if the governor’s order goes unchallenged, “then there is virtually no personal or commercial transaction or conduct that would lie outside his grasp.”

The lawsuit asks the high court not just to rule that Ducey’s order exceeds his constitutional authority but to specifically direct constables and justices of the peace to carry out their duties to evict tenants once there is a finding they are not paying their rent.

In previously defending the order, the governor’s office has argued that nothing in it eliminates the legal duty of tenants to make up the missed rent once the emergency ends. But Langhofer said that eviction generally is a landlord’s only effective remedy when someone doesn’t pay.

And he called the end-of-emergency obligation to pay little more than “parchment promises” by tenants, who probably can’t pay anyway, making the requirement to come current on rent “an illusory means of redress” for landlords.

Courtney Gilstrap LeVinus, president of the Arizona Multihousing Association, one of the groups that sued, said when the governor issued the original order in March there was a promise that the state would be providing financial assistance to renters. So she said her members decided not to challenge the move.

But to date she said less than $2 million has gone out.

“Had those funds been deployed we may not have needed to file,” Gilstap LeVinus said.

“There are plenty of resources out there,” she continued. “No one should be evicted.”

Complicating matters, Ducey extended the no-eviction order last month through the end of October.

He did add a provision that requires tenants to certify to landlords by Aug. 22 they have applied for rental assistance from one of the state, county, city or private organizations that provide it. But there is no requirement they actually have received the money by then.

Ducey also set aside $5 million in grants for landlords, though aides to the governor said these were designed mainly to help those with one or just a few properties and not for owners of apartment complexes.

Gilstrap LeVinus said that will hardly be enough to compensate landlords for lost revenues.

Legal issues aside, she said it’s not fair to put the burden of the financial problems caused by the outbreak largely on the backs of landlords.

“When the pandemic hit, the state didn’t mandate that grocery stores and restaurants give away free food or that gas stations give away free fuel,” Gilstrap LeVinus said. “Yet in this case, they’re asking rental housing owners to provide free housing.”

And she pointed out that, by the end of October, landlords could have been without rent — and without ability to evict non-paying tenants — for 221 days.

“There is no industry that can continue to provide goods and services for 221-odd days and be expected to survive,” Gilstrap LeVinus said.

How much is owed is unclear.

She said the only data comes from a national organization which says more than 20 percent had not paid their August rent as of the sixth of the month. And that looks solely at information from major landlords.

Economist Elliott Pollack, in a study done for the Arizona Multihousing Association, figures that if just 1 percent of the more than 919,000 Arizona households who rent did not make payments over a seven-month period that means a loss of more than $67.7 million. Take that figure to 15 percent, he said, and the foregone revenues top $1 billion.

Elliott Pollack, CEO of Elliott D. Pollack & Co., is interviewed by Curtis Spicer at the Greater Phoenix Chamber of Commerce Economic Outlook 2016. (Cronkite News photo by Cammeron Neely/Cronkite News) — Elliott Pollack, CEO of Elliott D. Pollack & Co. (Cronkite News photo by Cammeron Neely/Cronkite News)

Pollack said there also is a ripple effect as landlords cannot pay their employees, contractors and suppliers.

But the heart of the issue — and the only one for the Supreme Court to decide — is whether what Ducey is doing is legal.

But he said that exists only in a “state of war emergency” — and only if the governor makes provisions for compensating the owners of the property.

Langhofer said that Ducey, in issuing his executive order, acknowledged that it had little to do with protecting public health but was “primarily an economic relief measure.” He also pointed out that tenants seeking relief need not show they are infected with COVID-19 or even that they are in a high-risk category but only that they provide documentation of “ongoing financial hardship.”

Beyond that, Langhofer pointed to the lack of any link between the order and the state’s coronavirus infection rate or any other public health metrics.

“The expansive temporary scope of Executive Order 2020-49 implicitly confirms that it aspires to address long-lasting repercussions of the current economic recession, not contain the spread of the disease,” he wrote.

Langhofer also raises the question of whether it was unconstitutional for the legislature to provide the governor with what could be considered unlimited emergency powers.

He’s not the first to make that suggestion. In separate legal filings last month, attorney Ilan Wurman told the Supreme Court that the governor has no constitutional right to unilaterally close bars and not give them a chance to reopen, no matter what may or may not have been approved by lawmakers.

No date has been set for the high court to hear that case.

Senate panel votes to handcuff cities on tenant protections

A Senate panel voted Monday to slam the door on future efforts by cities, towns and counties to enact their own regulations to protect tenants.

HB 2115 would leave untouched any ordinance that already was in place at the beginning of the year. But the measure, approved by the Senate Government Committee on a 4-3 party-line vote, says anything new would be strictly off limits.

The measure, which already has passed the House, now goes to the full Senate.

Moments later, the same committee approved, on the same party-line vote, HB 2358 which spells out that landlords are free to immediately evict tenants even after they have accepted partial payment of rent from a government program or even a church or housing assistance agency.

That came despite concerns from Zaida Dedolph of Wildfire, formerly the Arizona Community Action Association, that such a radical change from existing law will only exacerbate the state’s housing situation. She pointed out the move comes on the heels of a new report which shows Arizona is the third worst in the nation in having a supply of affordable housing.

The vote on HB 2115 preempting local regulations came over objections from representatives from various communities who urged lawmakers to butt out.

“The fact that different cities have different regulations is a good thing,” said Alex Vidal who lobbies on behalf of the League of Arizona Cities and Towns.

For example, he said in places like Yuma and Phoenix it might be appropriate to have some requirement about air conditioning or other cooling and even a requirement that an apartment be kept below a certain temperature.

“But in places like Flagstaff or Sedona or up north, the snow removal or heating might be a bigger concern,” Vidal said.

The measure is being pushed by the Arizona Multihousing Association which represents landlords throughout the state.

Lobbyist Jake Hinman told lawmakers that the Arizona Landlord-Tenant Act, first adopted in 1972, is sufficient to set out the rules governing the obligations of those who own homes and apartments and those who rent them. And he said the fact that most of the state’s 91 cites have so far chosen not to adopt their own codes proves that is true.

In fact, Hinman’s group originally sought to force repeal of existing local ordinances but was forced to back down when the House refused to go along. So he has agreed to settle to allow what is in place to remain.

New regulations or changes to existing ones, however, would be strictly forbidden.

But Ken Volk, who has worked with tenants for more than 24 years and helped push for the comprehensive housing code that exists in Tempe, said the Landlord-Tenant Act is really insufficient to protect those who rent.

“State law is vague,” he said, with words like “reasonable” and “appropriate” for what landlords are expected to provide in things like climate, water temperature and water pressure; another section of what’s forbidden uses words like “unsanitary” and “faulty.”

“None of those set standards,” Volk said, standards he said are necessary for not only renters but also neighbors and the general community.

He said the experience of what state lawmakers think is appropriate convinces him that local governments need to retain their ability to enact something more.

For example, Volk noted the Legislature approved a measure several years ago dealing with what happens in cases of bedbug infestations. On paper, he said, landlords are not supposed to rent out a unit they know has problems.

“Landlords will not admit that there was a prior bedbug problem,” Volk said. “What they do is they try to blame the current tenant and get the tenant to be held financially liable.”

Hinman, however, said preemption helps remove confusion for both landlords and tenants to have multiple regulations in different communities.

HB 2358 deals with the separate issue of what happens when landlords have accepted payments made on a tenant’s behalf.

Hinman said the legislation is necessary to protect landlords following a court ruling that precluded them from evicting a tenant for other violations. The court said once the landlord has accepted at least partial payment of rent – in this case, Section 8 rental assistance for low-income residents – he or she cannot then turn around and oust them.

“We have to have that remedy,” Hinman said.

But Pamela Bridge, director of advocacy for Community Legal Services, said the language is overly broad.

She said organizations that provide housing assistance, including churches, send checks to landlords under the presumption they’re helping to keep someone in an apartment. This bill, she said, allows the landlord to take the money and still turn the person out on the street that same month.

But Christopher Walker, an attorney who is involved in landlord-tenant issues, told lawmakers the legislation actually will help low-income tenants in the long run.

He warned that if landlords can’t enforce other rules because they’ve taken a check they will simply decide to no longer participate in the Section 8 program.

“That doesn’t help the vulnerable population,” Walker said.

“Landlords are concerned they don’t have the ability to manage and oversee their properties,” he said. “They don’t have the ability to remove someone that’s a risk.”

This House-passed measure also now goes to the full Senate.

State LIHTC can help meet rental housing market’s spiking demand

Arizona’s population continues to grow at a staggering pace – about 330 new residents a day statewide, according to Census statistics released last week. Last year, our state added more than 120,000 residents. That’s like adding a new city the size of Flagstaff and Prescott combined – every year.

When it comes to constructing rental housing for these new residents, the law of supply and demand very much applies in our state. When developers cannot construct new rental units quickly enough to meet the needs of these new Arizonans – and estimates show that Arizona needs to add about 240,000 new rental units this decade – the marketplace dictates that rents rise. The greater the rise in rents, the more challenging it is for many residents to find housing in their price range.

The most practical solution to meeting Arizona’s need for affordable housing and avoiding a California-style housing crisis? Creating an innovative public-private partnership that makes it less daunting financially and logistically for developers to grow our state’s supply of rental housing.

One such proposal: The Arizona Low Income Housing Tax Credit (LIHTC) Program.

The Arizona LIHTC program uses as its model a federal program signed into law by President Ronald Reagan as part of his Tax Reform Act of 1986. Made permanent in 1993, federal LIHTC has since been expanded by Democratic presidents and continued by President Donald Trump in his Tax Cuts and Jobs Act. Since its inception, federal LIHTC has supported the construction or renovation of more than 45,000 properties and nearly 3 million housing units nationally. Federal LIHTC has helped finance about 16,000 housing units here in Arizona since 1987. Another measure of federal LIHTC’s success? A credible accounting study shows that the foreclosure rate on these properties is less than 1 percent, meaning LIHTC financing works and helps the public sector, private sector, job-creating builders and residents.

Already, 16 red and blue states – including our neighbors in Colorado, Utah and New Mexico – have created state-level “LIHTC booster” programs to speed up the construction of housing for those who otherwise would struggle to afford rent. In Colorado, the state LIHTC program has created about 5,000 new affordable housing units since 2015.

Arizona’s state LIHTC would use the same stringent regulatory parameters as the federal LIHTC program. These requirements ensure that a healthy percentage of a development’s housing units are priced affordably and rented to residents with incomes below the area’s median income. The federal program issues tax credits to state and territorial governments, which then use a competitive process to distribute the credits to developers. In Arizona, the Arizona Department of Housing manages this process through its Qualified Allocation Plan. Thus, a state-level LIHTC program would create no additional layer of government. And state LIHTC credits could be targeted toward specific communities in needs, including Arizona’s urban and rural areas, the homeless, seniors, military veterans and schoolteachers.

With Arizona’s need for affordable housing set to grow at a rate of about 3,000 new units annually this decade – with another 4,500 units of new workforce housing also a yearly necessity – a state LIHTC program would help our housing market meet this ever-spiking demand and avoid growing our way into a conundrum of California proportions. State LIHTC would also help draw more developer interest when it comes to building rental housing at all price points and across all demographics. At present, many developers shy away from building rental units at below market rates, given that land, labor and material costs are the virtually same for building so-called “affordable units” as they are for what often gets labeled “luxury apartments.”

The same principle holds true with local land-use restrictions, design guidelines, impact fees, building codes and other regulatory costs: Again, while so-called affordable units rent at lower price points, the costs and hurdles to build such units are no less burdensome.

A state level LIHTC program would better level the playing field without breaking the state budget and without government choosing winners and losers or artificially deflating the rental marketplace, ala rent control. Across nearly 35 years, LIHTC has earned support from six Presidential administrations and Congressional members of both parties. It is the rare bipartisan idea that has demonstrable results – hundreds of thousands of families in need of help who get it in a way that also helps private sector businesses to create jobs and put roofs over families’ heads.

We hope that 2020 sees LIHTC in Arizona become a reality – before we face an affordable housing crisis that hits with all the impact of a southern California earthquake.

By Courtney Gilstrap LeVinus is president and CEO of the Arizona Multihousing Association and Joan Serviss is executive director of the Arizona Housing Coalition.

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Issue: Arizona Multihousing Association