COVID-19

 COVID-19


CLARK BARS UPDATE - MARCH 28th 2020

Law Offices of Scott M. Clark, PC
Date: March 28, 2020

COVID-19: SUMMARY
By: Judy Drickey-Prohow

As you know responses to the Covid-19 pandemic has created substantial confusion, including for those in the apartment industry. While everything concerning the Covid-19 national emergency is still very fluid, this is the current status of issues affecting the apartment industry.

Evictions

Federally Assisted Properties

As part of the stimulus bill, the federal government has imposed a one hundred twenty (120) day moratorium on evictions for certain federally assisted properties. This moratorium applies to:
- Tax credit properties
- Federally assisted properties including Section 202 Supportive Housing for the Elderly; Section 811 Housing for Persons with Disabilities; HOPWA Housing Opportunities for Persons with AIDS;

Section 236 properties; properties covered by the McKinney-Vento Homelessness Assistance Programs; Rural Housing Assistance Programs; and tenants who hold Section 8 vouchers.
- All properties that are insured, guaranteed, supplemented, protected or assisted in any way by HUD, the federal Housing Administration, Fannie Mae or Freddie Mac.

Properties subject to this moratorium may not
- Serve a non-payment notice during the period of the moratorium
- File an eviction for non-payment of rent during the period of the moratorium
- Charge fees, penalties or other charges relating to non-payment of rent.

Properties subject to this moratorium may
- Serve notices and evict tenants for both material and irreparable breaches of the lease;

This moratorium does not excuse residents from paying rent or complying with other lease obligations but prevents owners and management from acting on non-payment cases during the period of the moratorium.

MANAGEMENT IS CAUTIONED to carefully review loan and other documents to ensure that a property is not subject to this moratorium before serving any non-pay notices or submitting any non-pay cases for eviction.

Arizona Courts

For properties not subject to the federal moratorium, Arizona courts are currently hearing evictions subject to certain limitations:


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Maricopa County Justice Courts

Maricopa County Justice Courts will continue to hear eviction cases. The initial eviction proceeding and writ issuance is unchanged, although issuance of writs of restitution may be temporarily delayed when a tenant provides Management with written documentation that
- The tenant is required to be quarantined based on their diagnosis of Covid-19
- The tenant has been ordered by a licensed medical professional to self-quarantine based on their demonstrations of symptoms defined by the Centers for Disease control (CDC)
- The individual is required to be quarantined based on someone in the home being diagnosed with Covid-19
- The individual demonstrates that he/she has a health condition that makes them more at risk for Covid-19 than the average person
- The individual suffered a substantial loss of income resulting from Covid-19 including
   - Job loss
   - Reduction in compensation
   - Closure of place of employment
   - Obligation to be absent from work to care for a home-bound school age child, or
   - Other pertinent circumstances.

If a constable is executing a writ of restitution and the tenant believes he/she is entitled to the relief but has not yet provided written documentation to the landlord, the constable may allow the tenant five business days to provide documentation to the landlord before enforcing the writ. Landlords who disagree with a decision to delay enforcement of a writ may file a Motion to compel enforcement of the writ; in that situation the court will make a determination as to whether enforcement is necessary in the interests of justice or is in accordance with the provisions of the Arizona Residential Landlord and Tenant Act that involve material and/or irreparable breaches.

If the court delays the execution of a writ the court should still advise the tenant that rent must be paid while the tenant remains in possession and set a new date upon which the writ can be served.
Pima County Justice Court

On March 20, 2020 Pima County Justice Court stopped hearing any eviction cases except cases involving material and/or irreparable breaches. Cases that were filed prior to that date were rescheduled for hearings in early May 2020.

On March 27, 2020 Pima County Justice Court announced that any cases filed on or after April 1, 2020 would be heard on the next available date based on its past practices. Cases that were filed prior to March 20, 2020 will retain their May hearing dates unless the property elects to re-file in order to get an earlier date.

NOTE: Late in the afternoon of March 27, 2020 Tucson Mayor Regina Romero announced a “stay at home” advisory for the City of Tucson and ordered the closing of all non-essential businesses, including some businesses that were identified by Governor Ducey as “essential” in his Proclamation dated March 20, 2020. This “stay at home” advisory included the continued closing of Tucson City courts through April 17, 2020. The advisory did not affect the Pima County Justice Court and at this time it does not appear that Mayor Romero’s advisory will change the process for eviction filings and hearings in that court. We will provide updated information if anything changes.

While no guidance has been provided concerning the execution of writs of restitution, we anticipate that Pima County judges will use the same procedure that is being used in Maricopa County when a tenant objects to service of a writ of restitution based on the tenant’s belief that he/she is entitled to have the writ delayed due to a quarantine or other hardship that is Covid-19 related.
Other Courts

There have been no changes involving other courts, but properties should be aware that the process for handling eviction cases during this period is to a largely subject to the discretion of the individual Justices of the Peace. If there are questions about specific courts please direct those to counsel.

Eviction Prevention Assistance

The Arizona legislature has appropriate some money to assist tenants who are financially injured by the Covid-19 pandemic. Residents who are seeking assistance can apply to the Arizona Department of Housing beginning March 30, 2020. Information about that program can be found at https://azgovernor.gov/governor/news/2020/03/governor-ducey-announces-new-dollars-rental-assistance

Information about other agencies offering emergency eviction and utility assistance is available at . https://housing.az.gov/community-action-agencies-arizona-offer-emergency-eviction-and-utility-assistance

Employee Paid Leave Rights

The Families First Coronavirus Response Act (“Families First”) requires employers with fewer than five hundred (500) employees to provide paid sick leave and/or expanded family and medical leave for specified reasons related to Covid-19. These provisions apply from April 2, 2020 through December 31, 2020.

Under Families First, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1. Is subject to a federal, state or local quarantine or isolation or related to Covid-19. In this situation,
a. A full time employee is eligible for eighty (80) hour of leave and a part time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
b. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5110 in the aggregate over a two week period.

2. Has been advised by a health care provider to self-quarantine related to Covid-19. In this situation
a. A full time employee is eligible for eighty (80) hour of leave and a part time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
b. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5110 in the aggregate over a two week period.

3. Is experiencing Covid-19 symptoms and is seeking a medical diagnosis. In this situation
a. A full time employee is eligible for eighty (80) hour of leave and a part time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
b. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5110 in the aggregate over a two week period.

4. Is caring for an individual subject to an order requiring quarantine or isolation or who has been advised by a health care provider to self-quarantine related to Covid-19. In this situation
a. A full time employee is eligible for eighty (80) hour of leave and a part time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
b. Employees taking leave are entitled to pay at 2/3 of their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2000 in the aggregate over a two week period.

5. Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to Covid-19. In this situation
a. A full time employee is eligible for up to twelve (12) weeks of leave (two (2) weeks of paid sick leave followed by up to ten (10) weeks of paid expanded family and medical leave) at forty (40) hours a week, and a part time employee is eligible for leave for the number of hours that the employee is scheduled to work over that period.
b. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate over a twelve (12) week period.

6. Is experiencing any other substantially-similar condition specified by the Secretary or Health and Human Services. In this situation
a. Employees taking leave are entitled to pay at 2/3 of their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2000 in the aggregate over a two week period.

Obviously this situation remains fluid and is subject to change at little or no notice. Anyone seeking additional information or assistance are encouraged to contact counsel at any time. The Law Office of Scott M. Clark will continue to provide additional information as it comes available.

Any person who has questions about a proper protocol or who needs additional assistance is strongly encouraged to contact legal counsel at any time.

If you have questions about this information, please consult with an attorney



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