Arizona Capitol Times: Arizona’s eviction ban raises serious Constitutional questions

October 02, 2020 | By KADY VALOIS

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.

This op-ed was originally published by Arizona Capitol Times on October 2, 2020.