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What is Lis Pendens

What is a Lis Pendens?

Lis Pendens is a formal notice recorded with the local county recorder that puts the world on notice that there is pending legal action regarding a specific piece of real property. The lis pendens is filed with the clerk of the court and then filed with the proper Arizona county recorder. It must be filed subsequent to the beginning of a lawsuit surrounding the property in question.

lis pendens and law suits

In order to record a lis pendens there must be an ongoing lawsuit. A lis pendens literally means a “Notice of Pending Action.” In other words, it is a notice to the world that there is a lawsuit regarding title to that real estate. A lis pendens is not a lien and it cannot stop someone from selling or getting a loan secured by real property. However, it usually does effectively deter others from buying, selling or borrowing money because it means the ownership rights to that property are in question.

What is the purpose of filing a Lis Pendens?

A lis pendens provides notice of a claim involving specific real estate to potential buyer, lender, and the general public. It will basically freeze an Arizona property so that it cannot be sold or refinanced.  

What is the effect of a Lis Pendens?

Any future person who acquires an interest in the property after a lis pendens is recorded is bound by the ultimate results of the pending lawsuit. So even though the lis pendens doesn’t legally prevent a sale or loan, from a practical point it does. As such, prospective buyers, lenders and title insurers are very reluctant to become involved with property that could be adversely impacted by a pending suit.

Release of Lis Pendens

In Arizona, a lis pendens is typically removed by filing a Release of Lis Pendens with the Court and then the county. This is a voluntary act made by the party that recorded and filed the lis pendens in the first place, and usually occurs as a result of the settlement of the litigation or some other agreement between the litigants.

Wrongfully recording a lis pendens can result in statutory and actual damages against the filing party. Therefore, it is important to hire an attorney who is familiar with these laws and has experience with litigation involving a lis pendens

If you have a real estate dispute and need help from an experience Arizona real estate lawyer then contact the Dunaway Law Group at 480-389-6529 or by sending us a message HERE.

What is Writ of Restitution

If a tenant remains in a property for more than 5 days after a judgment was signed then an Arizona landlord can file a Writ of Restitution to have them removed. Once the judge has signed the Writ of Restitution then it is sent to a constable for enforcement (think Sheriff) to remove the tenants from your property. A Constable works for the court and has similar powers and duties to sheriffs.  A Writ can only be filed after an eviction hearing was held and a judgment entered in favor of the landlord. Once a landlord has received a judgment from the court, the tenant in your property has five days to vacate.  

If the Arizona tenant does not leave voluntarily then a Writ of Restitution can be filed with the court. Once the Writ of Restitution is filed with the court, it is first signed by the judge and then delivered to the Constable for execution. The Constable will then visit the property and physically remove the tenant(s) from the property. Upon arriving at the property, a Constable will give the tenants about 10 minutes to pack a bag and leave the property.

When Will the Constable Execute a Writ of Restitution?

So you’ve filed a Writ of Restitution and want to know when the Constable will actually appear and evict your tenants? The time frame can vary wildly. When the Writ of Restitution is initially filed with the court the filing clerk must take the paperwork to the judge for his/her signature. On occasion, the paperwork will immediately be signed and handed off to the constable. Other times, the Writ of Restitution may sit on the judges desk for a few days before being signed. Once the writ has been signed it is then delivered to the Constable’s office.

Most justice courts in Arizona only have one Constable. So if the Constable gets a large influx of Writs at the same time yours may be delayed. So all-in-all it can take approximately 5 to 7 days for the Constable to actually show up to the property. If you would like to know more about Writ of Restitution or have questions about an eviction, please contact the Dunaway Law Group at clint@dunawaylg.com or 480-389-6529.

Evicted Tenants’ Belongings

Often Arizona tenants will leave personal property on the premises after they have been evicted. As a landlord you cannot simply keep or throw away the former tenant’s belongings. The Arizona Landlord-Tenant Act requires the landlord to you maintain their possessions for at least 14 days.

Per A.R.S. § 33-1368(E) a landlord, must hold the evicted tenant’s possessions for a minimum of 14 days from the day the Writ of Restitution was issued. As the landlord, you may;

  • Keep the tenant’s belongings that the rental property for the 14 days,
  • Move the tenant’s belongings to an off-site storage facility,
  • Require the tenant to reimburse you for the actual cost of moving and storing their belongings during the 14 day period,
  • Prohibit the tenants from ever returning to the property without your explicit permission.

As a landlord you may NOT;

  • Require the tenant pay for the judgment you obtained against them prior to releasing the belongings to them. Meaning you cannot require a tenant pay you for all back rent, late fees, attorneys’ fees, and court costs prior to returning their belongings. (Again, you can only demand payment for the actual cost of storing and moving the belongings.)
  • Dispose of the tenant’s property prior to the expiration of the 14 days.  

If you do choose to remove the tenant’s belongings from the rental property use considerable care, you will be responsible for any damage to their belongings. It is a good idea to photograph, or video the premises, so that you have an inventory of what was left behind. Make sure the date can be verified through the images and video. This will also give you the opportunity to catalog any damage to the rental unit itself. Take the inventory prior to moving any of the personal property from the rental unit.

After the 14 day period, if there has been no contact from the evicted party, and they have not claimed, or made and agreement to claim their property, a landlord may sell the items or dispose of the items that were left behind.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at clint@dunawaylg.com or 480-389-6529.

Eviction Trial

What is the Difference between an Eviction Hearing and Eviction Trial?

Every eviction case in Arizona requires an Eviction hearing but occasionally the matter will be set for trial. At an Eviction hearing the landlord or landlord’s attorney appears and shows a judge the necessary paperwork to receive a judgment. For good cause shown the judge may set the matter for trial.

Why Would a Judge Set it for a Trial?

Under certain circumstances the Arizona Residential Landlord and Tenant Act requires that an eviction case be set for a trial. An eviction case will be set for trial if; the tenant appears and makes a legal defense to the attorney’s claims. Depending on how strict a judge interprets this statute, the hearing may be stopped the moment a tenant presents a legal defense and set for trial. Other judges will allow the landlord’s attorney and the tenant an opportunity to present their best arguments for a moment before dismissing the case or setting it for trial. However, most judges will not listen to any testimony or view evidence at the initial hearing and just set it for trial.

What Can I Expect at an Eviction Trial in Arizona?

Eviction trials can last from 30 minutes or so to several hours. During eviction trials both parties are given the opportunity to make brief introductory statements. Landlords and tenants may introduce evidence and question witnesses. Typical evidence is; pictures, text messages, lease agreements, and emails. Eviction trials can last for several hours.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at clint@dunawaylg.com or 480-389-6529.

In Arizona, all eviction cases–whether in the justice court or superior court–are controlled by the Rules of Procedure for Eviction Actions. If a Plaintiff-landlord wishes to have a trial by jury then it can be requested. Under Rule 11(d)-

“Trial Settings. Contested detainer matters shall be set for a trial by a judge alone unless a jury trial is demanded by the plaintiff in the complaint or by the defendant at or before the initial appearance. Failure to request a jury trial at or before the initial appearance shall be deemed a waiver of that party’s right to a jury trial. At the initial appearance, if a jury trial has been demanded, the court shall inquire and determine the factual issues to be determined by the jury. If no factual issues exist for the jury to determine, the matter shall proceed to a trial by the judge alone regarding any legal issues or may disposed of by motion or in accordance with these rules, as appropriate.”

Rule 12(a) of the Rules of Procedure for Eviction Actions provide us with the necessary steps for having a jury trial. The court will permit seven jurors in the justice court and 9 jurors in the superior court.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at office@dunawaylg.com or 480-389-6529.

1. What happens at the initial eviction hearing? 

On any given day eviction hearings are bunched into a 60 minute time frame.  It is not uncommon for 80 eviction hearings to be scheduled in a 60 minute block!  During these hearings the courtroom is packed with attorneys, their clients, tenants, and crying babies.  Thus, Judges are under necessity to move through each case as quickly as possible.  Additionally, the hearings move swiftly because often the defendants (tenants) don’t appear at their hearing.

In this small allotment of time there is not time to take sworn testimony, allow for opening and closing statements, or review evidence.  So just because the case was set for trial it doesn’t mean that they did anything right or that we did anything wrong.

2. Why would a judge set an eviction for trial?

If a Defendant (tenant) in fact appears at the hearing and denies the allegations contained in the Complaint, the Judge may set the matter for trial.

  • If the original eviction Complaint was filed for failure to pay rent a tenant might appear and too the judge that they are actually current on their rent. As mentioned above, the Judge does not have time during this block of time to hear either parties’ argument, and he or she will set it for trial.
  • Another example is in the case that the Complaint was filed for breach of the lease agreement. For instance, if the signed lease agreement states that only two people may occupy the property. If the property owner finds out that there are 22 people living in the house he or she may file for an eviction based on the fact that the Tenants had more than the allowed number of occupants in the home; which is a breach of the original signed agreement. However, the Defendant (tenant) may appear and claim that the people in the house are just visiting. In this case the matter would be set for trial.

If you need help from a real estate attorney then call the Dunaway Law Group at 480-389-6529 or email us at office@dunawaylg.com.

Serving Notice to Tenants

In Arizona, every eviction begins with the landlord sending a notice to the tenant. For a landlord who has never been through the eviction process, the timing of when a tenant is deemed received can be a little confusing. Proper service is explained in A.R.S. § 33-1313(B)

If notice is mailed by certified mail, the tenant is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.

For example, if a 10-day notice for material breach of the lease agreement is sent to the Arizona tenant via certified mail and the tenant does NOT sign for the notice then an eviction lawsuit cannot be filed for 16 days after it was mailed!

Another example could be with the 5-day notice for non-payment of rent. If the 5-day notice is sent to the Arizona tenant via certified mail and the tenant does NOT sign for the notice then we must wait 11 days before filing the eviction.

However, if the Arizona tenant actually signs for the certified notice then we begin counting on that day. For example, if we send a 5-day notice via certified mail and the tenant signs for it on the second day then the tenant will have a total of 7 days from the date of mailing to pay rent.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or HERE.

In Arizona, the process of evicting a tenant for non-payment of rent begins with mailing a 5-day notice. Arizona Landlords, should send the 5-day notice via certified mail so they can prove it was at least mailed. Even if the tenant never signs for the 5-day notice it is still legally considered having been received 5 days after it was mailed.

The 5-day notice demands that the tenant pay ALL past due rent, late fees, and other outstanding fees in full within 5 days. If, the tenant attempts to tender the full amount owed within the 5 day period then it must be accepted. A landlord can not reject the full outstanding balance owed and then turn-around and try to evict them for non-payment of rent.

It’s important to note, that if a landlord accepts even one dollar from a tenant then they cannot be evicted in that same calendar month.

If rent is not tendered during the 5 day period then a Complaint is filed with the appropriate Arizona justice court. Within 6 days of filing the Complaint an eviction hearing will be held. We attend eviction hearings for all of our Arizona clients.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or by messaging us HERE.