Eviction Archives Page 2 of 3 | Dunaway Law Group, PLC

What is a Writ of Restitution?

Once an eviction judgment in obtained, an Arizona tenant has 5 calendar days to vacate the property. If the tenants do not voluntarily vacate within the 5 days, then an Arizona landlord can file a Writ of Restitution. The Writ of Restitution orders a constable–similar to a sheriff–to remove the tenants from the Property.

Upon arriving to the rental property, the Constable will let the tenants know that they have, anywhere from a few minutes to a few hours to vacate the Property. The tenants will have enough time to pack a bag of their essentials and leave. Whether it’s by reason or force, the tenants will be leaving when the constable orders.

Once the tenants have been removed from the rental property, it becomes a Class C misdemeanor if they ever return without the landlord’s permission.

When Will the Constable Execute the Writ?

When will the constable visit the rental property and actually remove the tenants? It’s impossible to give a precise estimate and the timeframe 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. Once signed by the judge it is delivered to the Constable. Sometimes, a judge may be busy or out of town and the Writ sits on their desk for days before it is signed.

Once the Writ is signed then it is delivered to the Constable for execution, and this can be another delay in the process. Most justice courts in Arizona, only have one Constable. So, if the Constable is on vacation, sick or receives a large number of Writs at the same time then it can take as long as two weeks before he is knocking on the property door! Though it usually takes 6 to 9 days for the Constable to actually show up to the rental property.

changing the doorlocks

It is strongly advised that the locks to the property are changed once the tenants have been removed by the constable. Ideally, a locksmith can go to the property at the same time as the constable and immediately change the locks. Sometimes, a constable is not able to communicate with the landlord prior to executing the writ of restitution. In these situations, send the locksmith to the rental property just as soon as possible.

In the picture below, you can see the constable, locksmith, and property owner all present during the execution of the writ.

Maricopa County constable serving a Writ of Restitution

How will i know if the tenants have already vacated the rental property?

There is no “scientific” way of knowing whether or not the tenants have left. Typically, by this point the tenants are not contacting the landlord and so they are not going to send an email or text informing the landlord they have left the property.

If a landlord lives near the rental property, then I recommend driving by–but do not make contact with the tenants–and look to see if there are signs that they are moving. For example, is there a moving truck in the driveway? Are people carrying out boxes? If you drive by at night are the cars gone and lights turned off?

Or, conversely, when you drive by the rental property are cars in the driveway and lights on in the house? If so, this is a good indication that the tenants have not left and have no intentions of leaving.

what if the tenants leave their belongings?

If the tenants leave behind their belongings, then an Arizona landlord must maintain the tenant’s belongings for a minimum of 14 days from the date the Writ of Restitution is executed. Click HERE to learn more about the 14-day process.

If you are an Arizona landlord and would like to know more about Writs of Restitution, then call the Dunaway Law Group by phone at 480-702-1610 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 Statistics in Arizona

There is a distinct pattern or cycle to the volume of residential evictions that occur throughout the year in Arizona. For instance, each year there is a spike of evictions in January, why is this?

landlords DELAY EVICTIONS DURING HOLIDAYS

Contrary to popular believe most landlords are actually nice people who have feelings too. Many landlords will not evict tenants during the holiday season. Beginning with Thanksgiving and going through New Year’s Day, landlords will often say, “I don’t want to evict someone during the holiday season and so I’ll just wait until the new year to begin the eviction process.”

justice COURTS WILL DELAY THE EVICTIONS

Experienced Arizona landlord – tenant attorneys and property managers know that the justice court judges and constables will do whatever they can to not evict an Arizona resident during the holiday season. After an eviction judgment has been granted by the court the tenants have just five (5) calendar days to vacate! If the Arizona tenant does not vacate within those five (5) calendar days, then we can go back into court and file for a Writ of Restitution. Writs must first be signed by the judge and then delivered to the constable for service.

Judges know that evictions are time sensitive and so they typically sign the order granting the Writ of Restitution almost immediately upon receiving it. However, during the holidays judges are often out of town which means there is no one to sign the writ. Additionally, even when the judges are in the office they are very slow to sign the writs. This is done in an attempt to slow down the actual eviction. Judges “misplace” them or are “too busy” working on other matters to sign the writs immediately. So it can take days before a judge will sign the writ.

Once the writ gets to the Arizona constables there is another big slow down in the eviction process. Similar to judges many constables leave town during the holiday season and so they are not physically able to execute the Writs of Restitution. Furthermore, I have had constables tell me to my face that they will not execute writs near Thanksgiving or Christmas.

For the reasons mentioned above there has been a build-up of delayed evictions that are then started in January.

arizona EVICTIONS AND TAX REFUNDS

I believe the decreased number of Arizona evictions in February, March, and April are directly correlated to tax refunds. Many people receive large tax refunds that they can use to pay their rent. I remember the first time I passed through those months as an eviction attorney. Sure enough each year when the tax refund season is over then the evictions increase.

One of the highest months for evictions each year is June. I think the spike during the beginning of summer has something to do with kids getting out of school and families wanting to move. When families are struggling economically and they want to move and they may stop paying rent at their current home and use that would-be rent money and use it as rent and security deposit, etc. at the new property.

pima county eviction statistics

The Pima County Consolidated Justice Court has a webpage with very detailed eviction statistics for its precinct. Click HERE.

If you are an Arizona landlord and need help resolving a dispute with a tenant, then please contact the Dunaway Law Group at 480-702-1608 or message us HERE.

When Tenant Files Bankruptcy

What Should You do if a Tenant Files Bankruptcy?

A landlord must immediately stop an eviction if a tenant files bankruptcy. If you receive a notice from the bankruptcy court that a tenant you are trying to evict has filed bankruptcy then stop the process! Bankruptcy law is very complicated, with severe penalties for any creditors seeking to take action against someone who has filed for bankruptcy. If a tenant files for bankruptcy before you have obtained the eviction judgment then you must stop with the eviction lawsuit.

As soon as a person files bankruptcy an “automatic stay of protection” goes into effect. The Automatic stay of bankruptcy is an injunction that stops; garnishments, lawsuits, foreclosure, repossession, evictions, etc. It is the equivalent of a restraining order that prevents creditors from taking collection actions.

The Automatic Stay is not Absolute

The automatic stay is not an absolute and landlords are given the right to file a Motion with the bankruptcy court requesting the bankruptcy to “lift” the automatic stay. Once the automatic stay has been “lifted”, the landlord may proceed with the eviction. It takes approximately 30 days for the bankruptcy court to grant permission to proceed with the eviction. If the tenant files an “objection” to the lift-stay motion then a hearing will be set in the bankruptcy court. If a hearing is required, then it may be 2 to 3 months before a hearing has been set and the request to lift the stay can be argued in front of a bankruptcy judge.

If you are an Arizona landlord whose tenant has filed for bankruptcy 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 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.

Eviction Trials in Arizona

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

Every eviction in Arizona requires an Eviction hearing, and occasionally a case will be set for 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 a tenant appears and presents a legitimate legal defense. Depending on how strict the judge interprets this statute, the hearing may be immediately stopped and matter 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 entering judgment 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.

Rule 11(c) of the Rules of Civil Procedure for Eviction Actions states that “The court may order the continuance of a trial date by up to three court days in justice court or ten days in superior court on the request of a party for good cause shown or to accommodate the demands of the court’s calendar… No continuance of more than three court days in justice courts or ten days in superior courts may be ordered unless both parties are in agreement”.

What Can I Expect at an Eviction Trial?

Eviction trials can last from 30 minutes to several hours. At trial, both parties are given the opportunity to make brief introductory statements. Landlords and tenants may introduce evidence and question witnesses. Evidence will consist of pictures, emails, text messages, lease agreements, etc.

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.

“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 11(d) of the Rules of Procedure for Eviction Actions

1. What happens at the initial hearing? Eviction hearings are bunched into tight blocks of time. It is not uncommon for 30 eviction hearings to be scheduled in a 60 minute block! During these hearings, the courtroom is packed with attorneys, landlords, 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 the hearing and a default judgment is granted.

This short period of time does not allow for testimony, opening arguments, or to review evidence. So, just because a case was set for trial it does not mean that the opposing party did something right or that we did anything wrong.

2. Why would a judge set a case for trial? If a tenant 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 if the eviction case was filed for a material 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 an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

Arizona Eviction Process

Steps to Residential Evictions in Arizona

1. notice to tenants

In Arizona, a written notice must be sent to the tenant(s) before beginning a residential eviction.

5-day Notice: for non-payment of rent.
10-day Notice: for material breach of lease agreement.
30-day Notice: to terminate month to month lease agreement.
Proper Mailing of Notices– Timing of the Notices to Arizona tenants.

2. Filing the Lawsuit and Serving Tenants

An eviction Complaint, Summons, 6-month payment history, lease, residential eviction explanation sheet and proposed form of judgment are prepared by our Firm and filed with the corresponding court.

Once the pleadings have been filed with the court, they must be served on the tenants by a licensed process server.

3. Eviction Hearing

Every eviction case has a hearing. One of our attorneys will appear at the hearing on your behalf so you do not have to take time out of your schedule to come to one of the justice court, courthouse.

Eviction Trial– Occasionally, an eviction case will be set for trial. An eviction trial is completely different than an eviction hearing. Click HERE to read more about eviction trials.

4. Eviction Judgment

An Eviction Judgment is the goal of an eviction hearing. An Arizona eviction judgment is made up of two basic components.

Monetary Award– The monetary portion of the judgment, orders the tenants to pay the landlord all back rent, late fees, court costs, and attorney’s fees.

Vacate the Property– The second part of the eviction judgment orders the tenants to vacate the rental property within 5 calendar days. If the Arizona tenants do not voluntarily vacate within that time, then you must file a Writ of Restitution. This writ orders the court constable to go to the rental property and remove the renters, by force if necessary.

5. Writ of Restitution

A Writ of Restitution is filed with the Court if the tenant fails to vacate the Arizona rental property within 5 calendar days of us obtaining the eviction judgment.

Filing Fee- As of 2023 the filing fee for the Writ of Restitution in the Maricopa County justice court system is $115. Also, in cases where the rental property is rural and far from the court then the constable may charge an additional travel fee.

Tenant’s Belongings– If a tenant vacates but leaves behind their belongings then the landlord must store the tenant’s belongings for 14-days.

An Arizona landlord can charge a tenant the actual cost of moving their belongings and the actual cost of storing their belongings. However, the landlord cannot hold a tenant’s belongings hostage demanding that the eviction judgment is paid until the belongings will be released. Again, if an Arizona tenant reimburses the landlord for the actual cost of moving and storing the belongings then they must be returned.

If you have additional questions about the Arizona eviction process then contact the Dunaway Law Group at 480-389-6529 or HERE.