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Evictions and Ownership Disputes

Arizona law is clear that eviction cases are designed to address the issue of possession and not the issue of property ownership. The limited scope of a forcible entry and detainer action has been strictly defined by Arizona statute. A.R.S. § 12-1177(A) states in relevant part:

On the trial of an action of Forcible Entry or Forcible Detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

A.R.S. 12-1177(A)

Evidence offered to the Arizona Superior Court showing anything other than who is entitled to possess the property will be excluded from an eviction hearing. This means a defendant who wants to make a claim for ownership of the rental property must file a quiet title action and not raise the issue during an eviction hearing.

Proof of property Ownership 

The Arizona Superior Court’s inquiry into property ownership is limited to the extent that Plaintiff holds title to the property in dispute. If the Plaintiff – Arizona Landlord’s name appears on the trustee’s deed then the Court should not inquire into ownership any further.

The issuance of the Trustee’s Deed to Plaintiff is conclusive evidence that all statutory requirements for the Trustee’s Sale were satisfied and that Plaintiff has the right to possession of the Property.

A.R.S. § 33-811(B) further provides:

…the Trustee’s deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing, and posting of the notice of sale and the conduct of the sale.

eviction cases are summary remedies

Arizona courts have held that litigation as to the validity of title “would convert a forcible detainer action into a quiet title action and defeat its purpose as a summary remedy.” Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996).

For example, in Merrifield v. Merrifield, 95 Ariz. 152, 154, 388 P.2d 153, 155 (1963), the plaintiff held title to property pursuant to quitclaim deed which was valid on its face. The lower court nonetheless inquired into the merits of that title and refused to find the defendant guilty of forcible entry and detainer. The Arizona Supreme Court reversed the lower court’s ruling because plaintiff was entitled to possession as the title holder and pursuant to A.R.S. § 12-1177, the trial court was prohibited from considering the merits of the plaintiff’s title. Accordingly, any evidence offered by Defendants to raise extrinsic issues or disprove Plaintiff’s title must be excluded.

In another case demonstrating the Superior Courts inability to inquire into ownership in a forcible detainer (see Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946), the Arizona Supreme Court stated: “[T]he statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action.” Id. at 204, 397. The court also discussed the legislative intent in limiting the scope of a forcible entry and detainer action stating:

The object of a forcible entry and detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the defendant were permitted to deny his landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises.

Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946))

Id. at 204-05, 397. Because the trustee’s deed is conclusive evidence of Plaintiff’s title under A.R.S. § 33-811(B), and because the court is prohibited from inquiring into the merits of that title under A.R.S. § 12-1177(A), judgment must be rendered in favor of Plaintiff regardless of any defense of ownership the Defendants may raise.

Ownership Disputes in the Justice Court

The ownership of property and their interaction with evictions can become very complex. The above article discusses issues of ownership disputes and evictions in the Superior Court, however, the rules that apply to ownership disputes and evictions in the Justice Court (where most evictions take place) are completely different.

A.R.S. § 22-201(D) addresses this issue:

Justices of the peace have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.

A.R.S. § 22-201(D)

A.R.S. § 22-201(F) adds further clarification:

In actions between landlord and tenant for possession of leased premises, the title to the property leased shall not be raised nor made an issue.

A.R.S. § 22-201(F)

Occasionally, when a case is sent to the Superior Court an Arizona landlord will respond, “but my tenant doesn’t own the property! It’s mine! They’re just lying! Why is the judge believing them? What could have been done to prevent this?”

While a landlords’ frustration is understandable it’s important to remember that the Justice Court judge is just following the law. Just because a Justice Court Judge moves a case into the Arizona Superior Court system does not mean they believe the tenant. Additionally, it does not mean that the tenant did something right or that we made some kind of a mistake. It simply means the Judge is following the law.

For help with your Arizona landlord – tenant matters contact the Dunaway Law Group at 480-389-6529 or message us HERE.

Copies of Tax Returns

Must be Current on your fax filings

We must provide the bankruptcy Trustee with a copy of your most recent tax filing.

How to get a copy of Your Tax returns

The IRS receives copies of all your tax documents and so you can easily obtain copies of them by mail or fax. You’ll need to fill out Form 4506-T to request your income documents. This form is used to request transcripts of various tax documents. To request the income documents, check the box for line 8, “Form W-2, Form 1099 series, Form 1098 series, or Form 5498 series transcript.”

Text from IRS tax code

The information will be mailed to you, and it will be a computer printout of the information contained on your various income documents. One word of caution: the IRS only retains the federal information on these forms. State and local information, such as state withholding amounts, will not show up on this transcript. After obtaining the transcript, you may want to contact the institutions shown on the transcript to obtain a copy of the original documents.

Your tax accountant is able to request these documents from the IRS for you as well, and the IRS can fax the documents to your accountant’s office. If you need these documents immediately, this will likely be the fastest way to obtain your income information.

The IRS keeps your tax documents in their database for a minimum of four years, and sometimes they will have up to ten years of documents in their archives.

If You Are Missing a W-2 Form

You can ask your employer to send new a copy of your W-2. Some employers charge a nominal fee for this service. Employers are required by law to keep copies of your W-2s and other payroll information for at least four years.

If You Are Missing a 1099 Form

Form 1099 reports interest, dividends, brokerage trades, and self-employment income. Banks may have tax documents available for downloading from their web site, or you can call their customer service number to get a new 1099 mailed to you.

Your broker will be able to mail you a copy of your 1099 to report stock trading and other investment activity. Or you might be able to download a copy from the brokerage web site.

If you need to file bankruptcy and have questions about how you will be impacted by taxes then contact the Arizona bankruptcy attorneys at the Dunaway Law Group at 480-389-6529 or message us HERE.

Discovery in Lawsuit

During a lawsuit each party has the opportunity to request formal “discovery” from the opposing party. These requests for discovery is accomplished by sending the opposing party four different “packets” requesting certain types of information.  

I have included a copy of our initial drafts requesting information from the opposing party for your review and feedback. Pay particularly close attention to dates, names, and places to make sure that they are factually correct.

stack of legal documents

Uniform Interrogatories:

Is a series of questions that are listed in the Arizona Rules of Civil Procedure. Depending on the type of case there is a set of different questions for the opposing party.

Non-Uniform Interrogatories:

Give us the opportunity to write our own questions for the opposing party. For example, we could ask the opposing party, “Explain in detail why you did not make the payments as agreed”.

Request for Admissions:

This allows us the opportunity to present statements to the opposing party in a way where they should respond in the affirmative. If they do not respond in the affirmative then they must provide an explanation of why they denied the statement. For example, we could write a statement, “Admit you did not pay back the money as agreed”. They are forced to “admit” the statement or deny it and then give a detailed explanation as to why they denied the statement.  

Request for Documents:

We are given the opportunity to request up to 10 different sets of documents from the opposing party.

In Arizona, the opposing party has 20 days–in a Superior Court case or 30 days in the Justice Court–to produce the documents requested and their written responses.

Lastly, similar to 26.1 initial discovery statements. These packets are not exchanged with the Court. In fact, the Judge will never see this information unless a specific piece of information is formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply trying to gain useful information.

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

Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading filed with an Arizona court where a party is asking the judge to rule on a single issue—or the whole case—without the need for a trial. In order for summary judgment to be granted, 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.

When considering a Motion for Summary Judgment, the Arizona 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. Per Arizona Rules of Civil Procedure 56(c), only if the Arizona court makes a finding that no genuine issue of material fact exists can the moving party be granted a judgment as a matter of law. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Arizona 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.

Statement of Facts and Affidavit

There are two documents filed in conjunction with the motion for summary judgment itself; 1) a statement of facts and 2) an affidavit of facts.

  • Statement of Facts– The statement of facts lays out the facts as moving party sees them. In addition, to just stating the “facts”, they must also cite to specific documents that supports their statements.
  • Affidavit in Support– Additionally, the moving party must file an affidavit where they swear under oath that each of the statements they make are true.

Why Did They File 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 they are filed because a judge can rule on just one aspect of the case. This will allow them to see if they can “chip at the edges” of our lawsuit and see if they can get anything dismissed at this time.

What Should you Do?

You must file a response to the Motion for Summary Judgment and explain to the Arizona judge why the case should move forward to trial. As part of the response a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts you must cite a source for every statement you make to the court. Doing this can be incredibly tedious and time consuming. The response and accompanying documents must be filed within 30 days of receiving their Motion!

What If the Summary Judgment is Granted?

If the motion is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may appeal. An Arizona court of appeal can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done and most summary judgments are upheld on appeal.

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

Recovering Future Rents from Tenant

If a tenant that is under a current lease agreement who is evicted or abandons the property; can that landlord sue for all future rents thru the end of the lease? The answer is; “yes”, “no” and “maybe”.

Let me answer this question by using an example. Landlord and Tenant sign a 24 month lease agreement. Tenant promises to pay $1,000 each month for rent. However, 6 months into the lease term the tenant does not pay rent and so the landlord evicts him. Tenant still has 18 months left on his 2 year lease. Can landlord sue tenant for the remaining 18 months? Maybe, I will answer the question in greater detail below.

No, Landlords may not sue for future rents

Hypothetically, if the landlord finds a new tenant who begins paying rent the very next month then landlord may not sue the initial previous tenants for the future rent he should have paid. A landlord may not sue a tenant for future unpaid rents at an eviction hearing. Because the landlord won’t know how long the property will sit empty and therefore the courts award would be based off of speculation. But a landlord can sue for all past rents owed during an eviction lawsuit.

A landlord has a duty to “mitigate” his losses. A landlord mitigates his losses after an eviction by doing everything possible to re-rent the property. Landlord must take the same actions they would if re-renting the property under normal circumstances. The Arizona landlord cannot simply let the property sit empty for 18 months and then sue the tenant because the property sat empty. He must take all reasonable actions to re-rent the property as soon as possible. Again, a landlord may not sue a tenant for future rent through an eviction lawsuit. However, there is another option a landlord may take to recoup losses from a breaching tenant.

Yes, a Landlord MAY sue a former tenant for unpaid rents.

Yes, a landlord may sue a former tenant for unpaid rents after they were evicted from the Property. However, the landlord must first market and re-rent the Property before suing the former tenant. The law doesn’t allow for double-dipping, meaning you cannot sue a former tenant for terminating a lease 16 months earlier while collecting rent each month from a new tenant.

However, you can sue a previous tenant for all the months the Property sat vacant until it was re-leased to a new person. Using the example from above, let’s assume the landlord re-rented the Property one month after evicting the previous tenant. In this situation the Property only sat empty for one month and so the previous tenant is only liable to one months rent to the Landlord. Regardless of how many more months or years were left on a previous tenants lease, a landlord can only sue for the months the Property actually sat empty.

If you need help from an Arizona landlord – tenant attorney then contact the Dunaway Law Group at 480-389-6529 or message us HERE.