Author: Clint Dunaway

Arizona attorney.

Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading used in civil lawsuits.

filed where a party is asking the judge to rule the issues in dispute without the need for a trial. This is known as a summary judgment, in that it summarily ends the case before trial. The purpose of a trial is to have somebody — the judge or the jury — decide what the facts are. If the facts are not in dispute, there is no need for a trial.

This blogpost will discuss when a Motion for Summary Judgment is used in a lawsuit and how to defend against it.

When is a Motion for Summary Judgment used?

A Motion for Summary Judgment is used when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. In other words, the party filing the motion is saying that there are no disputed facts that would require a trial, and the court can rule in their favor without the need for a trial.

A Motion for Summary Judgment is typically filed after the discovery process is completed, and all relevant evidence has been gathered. It is important to note that the moving party has the burden of showing that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. If the moving party meets this burden, the court will grant the motion, and the case will be dismissed or the claim(s) in question will be dismissed.

There must be “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law”. This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

If the facts are not in dispute, there is no need for a trial. Instead the party who believes that the undisputed facts compel a ruling in his or her favor will file a motion for summary judgment. The motion asks the court to consider the undisputed facts and apply the law to them, and argues that the law requires a judgment for the party bringing the motion.

When considering a Motion for Summary Judgment, judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Under Arizona Rules of Civil Procedure 56(c), a judgment can be entered only if the court finds that no genuine issues of material fact exist. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

Why File a motion for Summary Judgment?

Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part because a judge can rule on just one aspect of the case. This will allow the Movant to “chip away at the edges” of the lawsuit to see if they can get any of the claims for relief awarded.

Statement of Facts and Affidavit

A Statement of Facts and Affidavit(s) are submitted along with the Motion for Summary Judgment.

  • Statement of Facts– For the movant party, (person filing the MSJ) they must file a Statement of Facts providing the facts of the situation as they see them.
    • Supporting Documents-In addition to just stating the “facts”, each Party must provide documentation that supports their statement facts. When it decides a motion for summary judgment, the court may only consider facts in the pretrial record, such as deposition testimony, affidavits, answers to written discovery requests, documents, etc. It cannot decide which side is more credible than the other. If the court has concerns about the credibility of witnesses or which side to believe, the case should be resolved in a trial.
  • Affidavit in Support– Both Parties must file an affidavit swearing that their statements are true.

responding to the motion

A response to the Motion for Summary Judgment must be filed within 30 days of receiving the motion. A response gives a party the opportunity to respond to the allegations made in the Motion for Summary Judgment. As part of the response, a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts, the respondent must cite a source for every statement made to the court. Doing this is incredibly tedious and time consuming!

How to defend against a Motion for Summary Judgment?

When facing a Motion for Summary Judgment, the non-moving party has a few options for defending against it. Firstly, the non-moving party can argue that there are genuine disputes of material fact that require a trial. To do this, the non-moving party must point to specific evidence that creates a genuine dispute of material fact.

Secondly, the non-moving party can argue that the moving party is not entitled to judgment as a matter of law. This may be because the moving party has not met their burden of proof or because the law is not clear on the issue in question.

Finally, the non-moving party can argue that the court should deny the Motion for Summary Judgment without prejudice. This means that the court would not dismiss the case or claim(s) at this time, but rather, would allow the case to proceed to trial. This option is typically used when the non-moving party needs more time to conduct discovery or gather evidence.

RULING ON THE MOTION FOR SUMMARY JUDGMENT

There are essentially three way a Judge can rule.

  1. The Arizona Judge may rule 100% against the Party filed the Motion for Summary Judgement. If the Judge rules completely against the moving Party then the case will continue towards trial as if the Motion for Summary Judgment had never been filed!
  2. The Arizona Judge may grant a partial summary judgment. Meaning the Judge ruled in favor of the moving Party on some of their claims but not on all of them. If a partial summary judgment is awarded, then a decision is made on the claims involved without holding a trial but the the remaining issues will continue towards trial.  
  3. The Arizona Judge may rule 100% in favor of the Party who filed the Motion for Summary Judgment. If this happens, if the Judge rules completely in favor of the party who filed the Motion for Summary Judgment then it is deemed to be a final judgment from which a party may appeal. On appeal, the appellate court can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done because most summary judgments are upheld on appeal. Lastly, depending on the type of case, the winning party will likely be awarded their attorneys’ fees and costs.

In conclusion, the legal doctrine of Motion for Summary Judgment is an important tool for litigators in civil cases. It allows parties to avoid a trial when there are no genuine disputes of material fact and one party is entitled to judgment as a matter of law. However, when facing a Motion for Summary Judgment, the non-moving party has options for defending against it. They can argue that there are genuine disputes of material fact, that the moving party is not entitled to judgment as a matter of law, or that the court should deny the Motion for Summary Judgment without prejudice. Ultimately, it is up to the court to determine whether a Motion for Summary Judgment should be granted or denied.

If you need help from an Arizona attorney then contact the Dunaway Law Group at or 480-702-1610 or by sending us a message HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the States of Arizona and New York.

Appeal Arizona Eviction

How to Appeal an Arizona Eviction

Appealing an eviction in Arizona is so expensive, time consuming, and cumbersome that I’ve never seen a tenant successfully overturn an eviction.

However, Arizona law provides tenants the opportunity to appeal a forcible detainer (eviction) judgment.

There are two (2) main stages to appeal an eviction judgment. The first stage of the process begins in the Justice Court; the second stage takes place in the Arizona Superior Court. All of the steps must be followed with exactness the appeal will be dismissed.

STAGE ONE – Notice of Appeal

A Notice of Appeal MUST be filed with the Justice Court within 5 calendar days of the judgment. There is no flexibility with this deadline! If you miss this deadline then you will not be able to proceed with the eviction appeal.

Fee to File the Notice of Appeal: A $75 appeal fee is paid to the Justice Court at the time the Notice of Appeal is filed. This fee includes the cost of a copy of the audio recorded proceedings, a certification of the appeal record, and the transmittal of the record on appeal to the Superior Court.

Cost Bond: On or before the deadline to appeal, a cost bond of $250 must be paid. The purpose of this bond is to cover court costs incurred by the landlord in defending the appeal.

supersedeas bonds

Two Different Bonds that are Paid by the Tenant

Supersedeas Bond(s): One and Two: The purpose of the first supersedeas bond is to prevent enforcement of the judgment. Meaning the judgment creditor will not be able to try and collect on the judgment. For example, they are prevented from trying to garnish the tenants wages.

Second Supersedeas Bond: Payment of the second supersedeas bond will prevent any eviction proceeding resulting from an eviction action judgment. The second supersedeas bond is for the amount of the judgment that was obtained.

It is not necessary for a tenant to post either of the two types of bonds. But they must post one or the other to prevent enforcement of the eviction judgment.

How much are the supersedeas bonds? The amount of the bond is the total amount of the judgment ordered by the justice court, including court costs, attorney’s fees, damages, etc. The purpose of this bond is to stay collection proceedings on the money judgment awarded. The stay becomes effective when the bond is posted.

The second supersedeas bond is used to stay the eviction proceedings enforced by a Writ of Restitution. The amount of the bond is the amount of rent due from the date of the judgment to the next periodic rental due date, plus court costs and attorney fees ordered in the judgment. To stay the eviction proceedings a supersedeas bond must be posted before the Writ of Restitution is enforced. The stay becomes active once the bond is paid, but cannot be retroactive if the Writ has already been executed.

Rent Payment: In addition to paying all the necessary fees and bonds, the tenant must continue to pay their rent during the appeal process. All rent payments must be paid to the justice court on or before the rental due date, pending the appeal process.  If the rent is not timely received, the plaintiff may pursue a Writ of Restitution for execution of the judgment for possession.

The Appeal Memorandum: The Appellant’s memorandum is a written explanation of why the justice court ruling was legally wrong. This is where the tenant can provide a legal explanation for why the justice court’s ruling was wrong. The memorandum should cite specific law and how it was inappropriately applied to the facts of the relevant case. The tenant’s memorandum must be filed within 60 calendar days of the deadline to file the Notice of Appeal.

The landlord then has 30 days to file a response to the tenant’s memorandum. Once both sides have filed their respective memorandum we must wait for further instruction from the Superior Court.

STAGE TWO – The Superior Court

About 60 days after the tenant files the memorandum, he or she will receive notice from the Superior Court instructing that a filing fee must be paid to the Superior Court.

Court’s Ruling: After all of these steps have been completed, the parties will receive a written ruling from the Superior Court. The Superior Court can affirm the trial court, overrule the trial court, modify some of the trial court’s decision, or, if the record is not clear order a new trial in the Superior Court.

If the final outcome of the case is that the original ruling stands, or if the tenant’s appeal is dismissed for any reason, the court may use the bonds, deposit or payments made to satisfy the obligation under the original judgment.

***APPEALING AN EVICTION CASE THAT BEGAN IN SUPERIOR COURT***

The following red text explains the appeal process for eviction cases that began in the Superior Court. Note that 99% of all residential evictions begin in the Justice Court system.

An appeal from a Superior Court residential eviction is governed by Rule 17 of the Rules Procedure for Eviction Actions.

Notice of Appeal– A Notice of Appeal must be filed within five (5) calendar days of the judgment entry. If you do not file the Notice of Appeal within the five days then you are prohibited from moving forward with the appeal!

Fee– There is a fee for appealing a residential eviction from the Superior Court.

Bond. The tenant shall pay a bond in an amount approved by the court. A.R.S. Rule 17(c) of the Rules of Procedure for Eviction Actions states that “The [tenant] shall file a bond in an amount fixed and approved by the court…The bond shall be filed in an amount that provides security for the rental value of the premises pending the appeal and all damages, costs and rent that has been or may be ordered by the superior court”.

Rule 17(c) goes on to say that, “In the event that a defendant remaining in possession pending appeal subsequently breaches an appeal condition imposed by the court, the plaintiff may file an emergency motion to lift a stay, and the court shall conduct a hearing within three days. If the third day is a Saturday, Sunday or other legal holiday the hearing shall be held on the next court day.

The court’s decision denying a stay, conditioning the stay, or subsequently lifting the stay after a breach of an imposed condition may be reviewed by filing a petition for a special action with an appropriate appellate court pursuant to the Rules of Procedure for Special Actions.”

Motion to Set Aside the Judgment. A tenant appealing a residential eviction from the Superior Court may also file a Motion for Reconsideration–also known as a Motion for Relief, or Motion to Stay the Judgment.

If you are a landlord and need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

Eviction After Foreclosure of Home

In Arizona, as a homeowner whose house has been foreclosed you have a finite amount of time to vacate. If you do not vacate during that time then you can be evicted by the new homeowner.

Non-judicial foreclosure:

Non-judicial foreclosures in Arizona are much faster and less formal than judicial foreclosures. Most residential mortgages and deeds of trust in Arizona include a power-of sale clause that allows the lender to foreclose non-judicially if the borrower defaults on the loan. In a non-judicial foreclosure, the lender follows a specific process outlined in state law and the mortgage agreement. This typically involves giving the borrower notice of default and an opportunity to cure the default.

  1. Power of Sale Clause: Most residential mortgages and deeds of trust in Arizona include a power of sale clause. This clause allows the lender to foreclose non-judicially if the borrower defaults on the loan.
  2. Notice Requirements: The non-judicial foreclosure process in Arizona is initiated by the lender providing the borrower with specific notices of default and intent to sell. These notices are typically sent by certified mail and must comply with statutory requirements.
  3. Trustee Sale: The lender appoints a trustee, who is typically a neutral third party, to oversee the foreclosure process. The trustee is responsible for conducting the foreclosure sale.
  4. Auction: The property is sold at a public auction, often held on the courthouse steps or at another designated location. The highest bidder at the auction becomes the new owner of the property.
  5. No Deficiency Judgment: In most cases of non-judicial foreclosure, the lender is prohibited from seeking a deficiency judgment against the borrower. However, there are exceptions, such as if the borrower engaged in fraud or waste.
  6. Timeline: Non-judicial foreclosures in Arizona are typically faster and less formal than judicial foreclosures. The timeline can vary but is generally quicker, often taking a few months to complete.
  7. Redemption Period in Non-Judicial Foreclosure: Arizona does not have a statutory right of redemption period after a non-judicial foreclosure sale. (A.R.S. 33-811(E)). In non-judicial foreclosures, the lender can sell the property without court involvement as long as the deed of trust or mortgage includes a power of sale clause. In Arizona, the ownership interest passes to the new buyer at the foreclosure auction! This means that as soon as the house is foreclosed, the former owner is trespassing and the new owner may start the eviction process.

However, after a non-judicial foreclosure, borrowers may try and work out some kind of a deal with the new owner to stay in the house after the foreclosure date. But the new owner isn’t required to allow you to keep living on the property once they’ve purchased the house. For this reason, many home owners who are losing their house to foreclosure will vacate prior to the auction date. Additionally, all personal property located in the property at the time of the foreclosure auction becomes the property of the new owner and the former owner may have no rights to remove them.

Judicial Foreclosures in Arizona

  1. Lawsuit Initiation: Judicial foreclosures in Arizona involve a lawsuit filed by the lender (typically the mortgage holder or beneficiary) against the borrower to obtain a court-ordered foreclosure sale.
  2. Court Involvement: The entire judicial foreclosure process is carried out through the court system. The lender files a complaint in court, and the borrower is served with a summons and complaint, giving them an opportunity to respond to the lawsuit.
  3. Court Decision: If the court finds in favor of the lender, it will issue a judgment of foreclosure and specify the terms of the foreclosure sale. This judgment specifies the terms of the foreclosure sale, including the date and location of the auction.
  4. Auction: The property is then sold at a public auction, and the proceeds from the sale are used to satisfy the debt. If the sale does not cover the entire debt, the borrower will likely be protected by Arizona’s anti-deficiency statute.
  5. Redemption Period in Judicial Foreclosure: A redemption period refers to the window of time in which a borrower can reclaim their foreclosed property by paying off what they owe on the loan and any other delinquent debt attached under the loan agreement. In Arizona, only properties that went through the judicial foreclosure process are eligible for a redemption period. If you meet these conditions, then you have six months from the date of the foreclosure sale to pay all outstanding loan amounts, fees, and costs to redeem the property. However, if the foreclosure occurs out of court, in a nonjudicial foreclosure, then there is no right to redeem the property.

ARIZONA RENTERS WITH LEASE AGREEMENTS

  1. Arizona renters with a valid month-to-month lease may remain in the foreclosed property for up to 30 days from the date of the foreclosure.
  2. Arizona renters with valid leases can stay in the foreclosed property until the termination of their lease. For example, if an Arizona renter has a lease that ends September 30, 2023, and a new property owner takes possession of the property May 1, 2023, the Arizona renter may remain in the home until September 30, 2023.
    Exception to this Rule. The exception to this rule occurs when the new Arizona owner intends to move into the foreclosed property and make it their primary residence. In that case, the renter may NOT live in the foreclosed property for more than 90 days from the date of foreclosure.

eviction of former owner after foreclosure

Step One- Mail Notice to the Former Owners. Must be sent via certified mail.

Step Two- File a Forcible Detainer in Superior Court. My be filed in the Superior court, unlike typical evictions where they are filed in the Justice court.

Step Five- Writ of Restitution Against the Former Property Owners.

**The following paragraphs only apply to the eviction of the former owners of residential property lost to foreclosure in Maricopa County Arizona. For information on Writs of Restitution in traditional eviction cases click HERE. **

Former Owner’s Belongings Must Be Removed Prior to Writ. In Maricopa County, the new property owner is required to move the former owner’s belongings out of the property before the Maricopa County Sheriff’s Office (MCSO) will execute the Writ of Restitution. The new property owner must hire hire licensed and bonded movers with truck(s) capable of handling all of the occupants’ personal property. The new property owner must also pay for one month’s storage at an insured storage facility.

The occupants, former owners, do not have a contractual obligation to pay rent, rather they are unauthorized occupants that refuse to vacate. Although it is common for a judgment to include a monetary component for rents owed, that is a statutory result that is not based on a default of the lease.

It can be frustrating to new owners who are required to go through the normal eviction process, but then are not allowed to obtain a writ in the traditional way. The MCSO will not execute a writ against a former property owner under these strict rules are met with precision. 

The MCSO does not provide a checklist or how-to instructions for new property owners and so we have created one from our experiences and conversations with the MCSO.

Step By Step Instructions for Coordinating the Execution of the Writ as a new property owners.

  1. A deputy will contact the former owners/occupants and ask them to vacate the property in order to avoid the move-out/lock-out. The deputy provides them with a copy of the deed and writ and explains that they can move out voluntarily or they will be forcefully removed.
  2. The deputy will give the occupants reasonable time to move all of their property so the property owner does not have to do so. The deputy will follow up with the occupants to determine whether they are making progress to voluntarily vacate. 
  3. If the occupants are making progress and demonstrating a good-faith effort to vacate, the deputy may allow them more time to move out on their own. The deputy may grant the occupants a few weeks to move. 
  4. The deputy will apprise the property owner of the occupants’ progress.  
  5. The landlord is free to negotiate a “cash-for-keys” agreement with the occupants to encourage a voluntary move-out prior to a move-out/lock-out. In this scenario the property owner MUST NOT enter into a lease agreement with the occupants that enables them in the property as tenants. The occupants should be paid only after they have vacated the property and removed all of their personal property.
  6. The property owner must notify the deputy if the occupants move out, so the deputy knows that there is no longer a need to execute the writ of restitution.
  7. If the occupants refuse to voluntarily vacate then the deputy will show up to supervise the move-out process on a designated date. The deputy will coordinate a move-out date with the occupants. 
  8. The deputy will show up at 8 a.m. on the move-out date and give the occupants approximately 30 minutes to pack up essentials and leave. The deputy will discuss with the occupants what personal property can and cannot be removed. 
  9. If the occupants will not leave at that time, they will be escorted from the property by law enforcement. 
  10. Once the former occupants are escorted from the property, the property owner is then free to take physical possession of their property.
  11. The property owner is required to complete the move-out done in a single day! This means the property owner must figure out the logistics of the move. The deputy will NOT execute the writ if the move-out is incomplete or is not done correctly. The writ gets served on the property after the house is cleared out and the occupants’ personal property is secured in a storage facility.   
  12. The deputy will oversee the removal of the property to ensure that the occupants’ personal property is properly packed for transportation. The deputy will assist in determining whether something is trash or could reasonably be considered personal property. 
  13. The property owner must hire licensed/bonded movers to pack and move the occupants’ personal property. FYI, the MCSO Judicial Enforcement Division will NOT work with AZ Moves for Less b/c they have a history of doing a bad job. It is important to hire a reputable moving company that will do it right the first time. 
  14. The deputy will stop the move-out if he determines that the movers do not appear capable of getting the move complete in one day or if they are doing such a lousy job that the occupants’ property is at risk of damage. 
  15. The deputy will NOT start the move-out if he determines that there are insufficient movers to pack up the house or if there is not sufficient transportation to move all the occupants’ personal property to storage. It is very important to have enough movers, a large enough moving truck (possibly multiple trucks), and a large enough storage unit to contain all the property.
  16. Movers are required to pack up and move anything that can reasonably be moved. This may include furniture, pictures on the wall, appliances, etc. Movers may be required to move large and heavy items. Anything not hard-wired and/or affixed should be moved. 
  17. Movers are not required to move food and perishable items. Movers are not permitted to remove fixtures, cabinets, doors, ceiling fans, etc. 
  18. The belongings must be transported to an insured storage facility. The property owner is required to pay for one full month of storage (30 days). The storage unit must be put in the occupants’ names so they may retrieve their property from the unit. 
  19. The occupants are responsible for retrieving their property before the 30 days ends. The occupants are responsible to pay for any extension of storage time.
     
  20. The deputy will stay only a reasonable amount of time in the evening to complete the move-out. Movers do not have until midnight to finish the move should try to have the move completed during business hours or as close as possible. 
  21. The deputy will execute the writ when the house is empty, and the occupants’ belongings are in storage. 
  22. The locks can be changed upon execution of the writ. 
  23. Defendants are NOT allowed to return to the property for any reason after execution of the writ. They will be considered criminal trespassers and can be arrested.

If you recently purchased an Arizona property at foreclosure and have questions about the occupancy of the former owner, then then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. Readers should not act upon this information without seeking advice from professional advisers. Additionally, this Firm limits its practice to the states of Arizona and New York

Common Landlord Mistakes

Arizona landlords have many different aspects they must manage to be successful. Listed below are a few of the more common mistakes Arizona landlords make and how to avoid them.

failure to fix tenant’s Requests for Repairs

For instance, Arizona landlords must provide adequate heating and cooling to their tenants.

A.R.S. § 33-1324(A)(4) of the Arizona Landlord-Tenant Act states:  
Landlord is to “Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning…”

A.R.S. § 33-1324(A)(4)

A.R.S. § 33-1324(A)(6) of the Arizona Landlord-Tenant Act states: Landlord is to provide “reasonable heat and reasonable air-conditioning or cooling where such units are installed and offered, when required by seasonal weather conditions…”

A.R.S. § 33-1324(A)(6)

If you are a landlord in Arizona and the A/C unit breaks down in the middle of the summer, you better fix the air-conditioner as fast as possible! You can create real problems for yourself if you don’t. It gets so hot in the summer that people and pets can suffer serious injury if they’re left in a house without any cooling. Especially if there are young children or the elderly.

A.R.S. § 33-1364 and A.R.S. § 33-1365 provides a list of financial damages an Arizona landlord is responsible for if they do not comply with the above statutes.

In addition to opening up yourself to legal problems it makes financial sense to maintain heating and cooling for your tenants. Turnover with tenants is very expensive for the landlord. Not only do you have to rehab the property but there is the cost of finding the new tenants and possible vacancies while you look for them.

If you tenants are comfortable and happy there is a greater likelihood that they will pay their rent on time and stay in the property for a longer period. If your tenants are uncomfortable, they will vacate at their earliest opportunity.

Does your Arizona residential lease agreement require the landlord to pay the utilities? If you’re a landlord and responsible for paying your tenant’s utilities then listen up.

Section 33-1364(B) of the Arizona Residential Landlord and Tenant Act states: “A landlord shall provide all utilities and services specified in the lease agreement.”

Section 33-1364(A) states in part: “If contrary to the rental agreement…the landlord deliberately or negligently fails to supply running water, gas or electrical service, or both if applicable, and reasonable amounts of hot water or heat, air-conditioning or cooling…the tenant may give reasonable notice to the landlord and do one of the following:

  • Obtain the utilities and then deduct their actual cost from the rent.
  • (If applicable) Pay the landlord’s delinquent utility bill and deduct from rent the actual cost of the payment the tenant made to restore utility services.
  • Obtain reasonable substitute housing during the period of the landlord’s noncompliance, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance.

Section 33-1364(D) states in part: “If a landlord is in violation of…this section, the tenant may recover damages, costs and reasonable attorneys fees and obtain injunctive relief.”

Additionally, you cannot deliberately cut off an Arizona tenant’s utilities because they are delinquent on rent and you’re mad. The utilities cannot be shut off until you have properly evicted them. Shutting off their utilities while they are still occupying the property is considered an act of retaliation.

What does all of this mean to you as an Arizona landlord? If the lease agreement says you are to pay the utilities then make sure it happens!

failure to Provide Tenant a copy of the Lease

Arizona landlords and property managers must make sure to comply with Section 33-1322 of the Arizona Landlord and Tenant Act! Failure to comply with this section can have very negative consequences. A.R.S. 33-1322 of the Arizona Residential Landlord and Tenant Act discuss the “Disclosure and Tender of Written Rental Agreement.”

A.R.S. 33-1322(A) states in part: “The landlord…shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of each of the following:
1. The person authorized to manage the premises.
2. A person authorized to receive court papers and to receive notices and demands.

33-1322(B) requires the landlord to inform the tenant in writing that the Arizona Residential Landlord and Tenant Act is available on the Arizona department of housing’s website.  

33-1322(C) requires the landlord to keep this information current and refurnish the information when requested by the tenant. 

Under A.R.S. 33-1322(E), an Arizona landlord is required to provide a copy of the signed lease agreement to the tenant within a reasonable time.

An Arizona landlord’s failure to provide their Arizona tenant a signed copy of the lease agreement is “deemed a material noncompliance by the landlord.” A material breach of the lease agreement by a landlord gives the tenants certain rights to sue for damages or even move out of the property without penalty.

So Arizona landlords, do the right thing! Make it a priority to do all of the little things right and it will save you money and time down the road. If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

failure to complete the lease agreement: 

If you are an Arizona landlord it is extremely important that you take the time to properly complete the residential lease agreement. One important item is to fill in all the blank spaces on the lease agreement. The Arizona Residential Landlord and Tenant Act says that if any of the blank spaces are left empty this is a material breach of the lease agreement. A material breach of the lease agreement by the landlord would allow the tenant to unilaterally terminate the lease agreement! Don’t let this happen to you.

A.R.S. 33-1324(A)(6) states in pertinent part; “…A written rental agreement shall have all blank spaces completed. Noncompliance with this subsection shall be deemed a material noncompliance by the landlord…of the rental agreement.”

Tenant’s failure to sign LEASE AGREEMENT

Occasionally, I’ll be asked by a landlord what they should do in situations where they don’t have a signed lease agreement and the tenant isn’t paying. The Arizona Residential Landlord and Tenant Act addresses this exact issue.

Section 33-1314(B) of the Arizona Residential Landlord and Tenant Act states: “In the absence of a rental agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.”

This rule extends to all people and not just formal tenants. So, for instance, if you invite a friend into your house to rent a room for $500 a month. Even without a written lease agreement you can evict that friend for non-payment of rent.

The “fair rental value” of an Arizona rental property can be disputed by reasonable people it is best to make sure that you have a written lease agreement in place before ever letting a tenant move into the property.

FAILING TO PROVIDE tenants with receipts

If you are an Arizona landlord, you should keep track of all payments from your tenant, and providing a receipt for each payment received. If you are a tenant, you should be keeping track of all payments to your landlord, and asking for a receipt for each payment tendered.

Receipts keep everyone on the same page. If you end up having to evict a tenant for non-payment of rent, and you have kept an accurate ledger, you will have a much easier time evicting your tenant than a landlord who is giving it his best guess, and doesn’t have any documentation to back up his claim. Don’t be the doctor who isn’t using his own water tablets. Receipts are your friend. If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

FAILURE TO Register with the County

Did you know that as an Arizona landlord you must register your rental property with the county assessor? Yes, that’s right. The Arizona Residential Landlord and Tenant Act you must register your rental property or potentially face serious consequences.

Section § 33-1902(A) of the Arizona Residential Landlord Tenant Act states in part: “An owner of residential rental property shall maintain with the assessor in the county where the property is located information required by this section…The following information shall be maintained.”

  1. The name, address and telephone number of the property owner.
  2. If the property is owned by a corporation, limited liability company, partnership, limited partnership, trust or real estate investment trust, the name, address and telephone number.
  3. the street address and parcel number of the property.
  4. The year the building was built.

A.R.S. § 33-1902(C) states that if the owner has not filed the information required by this section with the county assessor and the residential rental property is occupied by a tenant the tenant may choose to terminate the tenancy. The tenant must first deliver a 10 day notice to the landlord requesting compliance with this section. If the owner does not register the property within 10 days after receipt of the notice, the tenant may terminate the rental agreement and the landlord shall return all prepaid rent and security deposit to the tenant

Any changes to the property owner’s contact information must be updated with the county within 10-days. Once the rental property has been registered with the county they reserve the right to perform periodic inspections.

Registering a rental property with the county is pretty painless. They request basic property information such as; parcel number, street address, ownership information, and statutory agent information if applicable. Plus, Maricopa county requires a statutory agent for all property owners who live out of state. You can reach the Maricopa county assessor’s office by clicking HERE.

Don’t Delay the Inevitable!

As a property manager or landlord, you might often choose to let late payments extend passed a due date. Landlord’s who delay sending default notices and commencing evictions action often risk enduring longer “rent-free” periods than if the landlord immediately responded to the first delinquency. A landlord is generally better able to obtain overdue lease payments if the landlord promptly contacts the delinquent tenant to work out payment details.

In some instances, the landlord may obtain full payment. In other circumstances, the landlord may make concessions by providing a lease modification (i.e., lower rent payments; forbear a portion of future rent payments; etc.) so the tenant will agree to remain in the premises. In yet other situations, the landlord may need to pursue eviction proceedings. It is important to you bottom line, to attempt to minimize your risk.

Holding off on the eviction process, while negotiating with your tenant.

It is necessary to pursue eviction, purely for business purposes. As a landlord, you must increase your leverage, as you start the negotiation process. It provided a landlord the ability to dangle a carrot in front of his tenant, and create motivation for change! If the tenant cooperates in the negotiations and pays at least some of the past due rent, the tenant will obtain a lease modification. If the tenant is does not cooperate, the tenant will be evicted.

Assuming the tenant cooperates and a settlement is reached, the eviction may be cancelled, but a landlord cannot obtain a refund for court filing costs. Two other benefits of starting an eviction while negotiating with a tenant is that (1) the proceeding give you a firm deadline for an agreement, and (2) if negotiations break down, the tenant will have to vacate the property. 

Ignoring your tenant’s imminent bankruptcy

As soon as a tenant files for bankruptcy, all legal proceedings against the tenant must be immediately halted. Pending lawsuits and eviction proceedings are also included! As a landlord, you must begin eviction proceedings against any tenant that is expected to declare bankruptcy. Once in bankruptcy, a tenant may be able to remain in the property rent-free for up to 60 days. It is usually far less costly to pursue an eviction proceeding than to be enveloped into a tenant’s bankruptcy action as the landlord and/or creditor. IMPORTANT! Eviction proceedings can take several weeks to complete.

If you are an Arizona landlord and need the assistance of an experienced Arizona attorney then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. The law changes quickly and varies from jurisdiction to jurisdiction. As such, readers should not act upon this information without seeking advice from professional advisers. Additionally, this Firm limits its practice to the states of Arizona and New York.