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The Arizona court bureaucracy has been attempting to regulate landlords in an indirect fashion for the last year by trying to impose mandatory notice and eviction forms on them. These forms include matters going beyond what the relevant statutes require. If successful the mandatory nature of the forms with these new requirements would be a round about way of the courts legislating from the bench.
In our system of government, legislation and the setting of public policy is the responsibility of the legislature and separation of powers principles require that the judicial branch stay out of it.
Our firm has taken the lead in opposing these efforts. But every time we have pointed out the defects in what the courts are trying to do, the bureaucracy changes the forms and continues to press the issue. The revised forms are every bit as bad as the former versions and the fight has seemed to become endless.
Out of a sense of frustration, a bill was proposed this legislative session to try and stop the courts. AMA and MHCA were the primary supporters of the bill. We helped draft it and Mark Zinman was the star witness testifying before legislative committees in favor of it. The bill, HB2237, would amend every landlord tenant and eviction law to specifically prohibit the courts from mandating the use of forms when other forms work equally well.
The bill sailed through both houses of the legislature on a bipartisan basis In the senate only two democrats and one republican did not vote for it. On March 21, 2017 the Governor signed it and it will go into effect around August 1.
It is tragic to see this attempted power grab by the court bureaucracy. We hope this will put a stop to these efforts. But frankly given the tenacity of the bureaucracy, it would not be surprising to see it try and get the new law struck down by those very same courts. If they try we will be there fighting them.
Landlords continue to be under siege from the court system.
To begin with, starting January 1, 2017, under a new rule parties (especially tenants) in eviction cases will be able to force a change of the assigned judge for no reason. Supposedly this is a pilot program but there is little doubt it will become permanent. All this will do is slow cases down and increase landlord expenses.
A Supreme Court Commission continues to seek a rule change by the Court making the use of certain notice forms by landlords and court eviction forms by lawyers mandatory. The Commission has drafted the forms they want mandated. There are many problems here the biggest being the forms are legally defective–they were clearly drafted by people who do not know what they are doing. We continue to lead the fight against this proposal and will be filing new objections by mid February.
Finally, many cases are resolved by having tenants who show up at court but do not dispute the rent owed sign stipulations agreeing to the numbers and to the eviction. This helps the courts process the heavy caseloads quickly and not waste time on cases where there are no disputes. Tenant and consumer advocates have been pressuring the courts to stop accepting stipulations with out the tenant appearing and acknowledging them. The Maricopa County Justice Courts are about to adopt this policy. Other counties will likely follow this lead. That defeats the purpose of stipulations and will slow cases down, again increasing landlord expense.
Advocates for these changes obviously have no concept of basic economics. The changes will slow cases down, make landlord expenses go up, and will ultimately force rents higher. Low rents are the ultimate consumer benefit of living in Arizona, but the advocacy groups have a hard job understanding this.
Its a shame when the court system becomes so focused on accumulating power that legislation is necessary to put it to a stop. But that seems to be where we are headed with the court system’s ongoing efforts to regulate landlords by mandating certain default forms and eviction pleading forms.
WZP has filed comments with the Court Rules Forum objecting to a proposal to make mandatory the use of certain forms to do evictions. These comments in summary say:
- The proposal is unlawful in that it exceeds the authority of the Courts to adopt rules under the Arizona Constitution and applicable statutes;
- It takes a private businesses’ source of income away by seizing the right to create notice forms without compensating it
- The Court system lacks the expertise and ability to do the job;
- The forms themselves do not satisfy statutory requirement;
- The proposal was made with no consideration of costs or benefits and is arbitrary and capricious;
- And finally, it arises out of uninformed stereotypes of the eviction process and landlord attorneys.
AMA is considering running a bill to amend the eviction statutes to prevent the court system from mandating the use of any forms in the future. MHCA is considering a bill to amend the court regulation statute to prevent the same thing. Both are considering proposals to change the specific landlord tenant laws for the same purpose.
The Arizona Association of Realtors is considering similar legislation since it too publishes on-line notice forms.
What seems clear is that these three groups are going to get together to get legislative controls imposed on the courts to rein in their empire building proclivities. That’s a powerful combination but the courts have a lot of influence as well.
This all results from the pending proposal by the “Arizona Commission for Access to Justice”. There is no assurance that the state Supreme Court would even approve that proposal and it is not likely it would. But the bureaucracy in the administrative office of the courts is where the empire building impulses reside and as long as they are not reined in, we expect this sort of thing will continue to be proposed.
The following is a summary of the main points in a 10 page HUD policy paper released on April 4, 2016 on the use of criminal background criteria to screen applicants for tenancy. Blanket policies of refusing to rent to anybody with a criminal record are de facto discrimination, HUD says — because of the systemic disparities of the American criminal justice system. Black men are imprisoned at a rate nearly six times that of white men, and Hispanic men at more than twice the rate of white men. Read the HUD statement here.
A landlord violates Fair Housing laws when a policy or practice has an unjustified discriminatory effect, even when there is no intent to discriminate. Under this standard, a facially neutral policy or practice that has a discriminatory effect violates the law if it is not supported by a legally sufficient justification.
Thus, where a practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the landlord, or if such interest could be served by another practice that has a less discriminatory effect.
In a fair housing case the landlord will need to prove that the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory. The interest may not be hypothetical or speculative, meaning the landlord must be able to provide evidence proving both that there is a substantial, legitimate, nondiscriminatory interest supporting the challenged policy and that the policy actually achieves that interest.
Ensuring resident safety and protecting property are among the fundamental responsibilities of a landlord and may be both substantial and legitimate. But the landlord must be able to prove that making housing decisions based on criminal history actually assists in protecting resident safety and/or property. Assertions based on generalizations or stereotypes that any individual with a criminal record poses a greater risk than one without such a record are not sufficient.
A landlord with a policy of excluding individuals because of prior arrests without conviction cannot satisfy its burden. For that reason, a landlord who denies housing to persons because of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.
Normally a record of conviction (as opposed to an arrest) will be sufficient to prove that an individual engaged in criminal conduct. But landlords that apply a policy or practice that excludes persons with prior convictions must still be able to prove that it is necessary to achieve a legitimate, nondiscriminatory interest.
A landlord that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden.
A landlord with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, it must be shown that the policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property, and criminal conduct that does not.
A policy that fails to take into account the nature and severity of an individual’s conviction is unlikely to satisfy this standard. A policy that does not consider the amount of time that has passed since the criminal conduct occurred is also unlikely to satisfy this standard, especially in light of research showing that, over time, the likelihood that a person with a prior criminal record will engage in additional criminal conduct decreases.
Accordingly, a policy that fails to consider the nature, severity, and remoteness in time of criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate, nondiscriminatory interest” of the landlord.
The Fair Housing Act provides that it does not prohibit “conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).” Accordingly, a landlord will normally not be liable for excluding individuals because they have been convicted of one or more of the specified drug crimes, regardless of any discriminatory effect that may result from such a policy.
Landlords should review and revise their criminal background screening criteria in light of this new, 2016 HUD policy statement.