Partial Rent Payments

Should landlords Accept Partial Payments?

Accepting a partial rent payment will prevent an Arizona landlord from evicting a tenant during that month for non-payment of rent. If an Arizona landlord accepts any money from a tenant–even one dollar–that tenant cannot be evicted during that month for non-payment of rent.

A.R.S. 33-1371(A) states in part:

“acceptance of rent, or any portion thereof,..by the landlord constitutes a waiver of the right to terminate the rental agreement for that breach.”

A.R.S. 33-1371(A)

The above statute makes it impossible for an Arizona landlord to accept a partial payment and then evict that tenant during that same month for non-payment of rent. As a landlord, if you accept even $1 from your Arizona tenant then you must wait until the next month to begin the eviction process.

On the flipside, Arizona landlords have no obligation to accept partial payments. See the following statute.

A.R.S. 33-1371(A) states in part:

“A landlord is not required to accept a partial payment of rent or other charges.”

A.R.S. 33-1371(A)

What Should You do if a Tenant makes a Partial Payment?

If your Arizona tenant gives you a partial rent payment you should formally reject it. You need to return the payment along with a Notice of Formal Rejection of Partial Payment. Many tenants will submit partial payments hoping their landlord will accept it.

If you are an Arizona landlord and have questions about a tent making partial rent payments, then contact the Dunaway Law Group by messaging us HERE or calling our offices at 480-389-6529.

* 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 State of Arizona.

Arizona Eviction Process

Steps to Residential Evictions in Arizona

  1. Notice to Arizona Tenant(s)
    • 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 Eviction Lawsuit and Serving the 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
    • Eviction Hearing-Every eviction case has an in-person/telephonic 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 2022 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 residential eviction process in Arizona then contact the Dunaway Law Group at 480-389-6529 or HERE.

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.

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. an Arizona Landlord and Arizona Tenant sign a 24 month lease agreement. Tenant promises to pay $2,000 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 Arizona 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 an Arizona 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. An Arizona 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 Arizona 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.

Motion In Limine

What is a Motion in Limine?

A motion in limine is a pleading filed with the court where on party is asking the judge to prevent certain pieces of evidence from being used during a trial.

What is the Definition of Motion in limine?

The phrase, in limine is a Latin phrase that means “at the threshold”. Hence if granted a Motion in limine will stop certain evidence “at the threshold” or prevented from even being let “in the door”.

At What Point is a Motion in limine Filed?

In Arizona these Motions must typically be filed by a certain date established at an earlier time by the court. For instance, the judge may say, “all Motions in limine” must be filed by this certain date or you may not raise the argument at a later date.

What are the Factors Determined by the Judge?

Historically three elements must be met before a judge will grant the Motion in limine.

  1. When the evidence is not relevant to any of the issues at dispute in the current case.
  2. When evidence is extremely prejudicial to one party without helping the jury decide on the case in front of them.
  3. When admitting the evidence would violate a state or federal law or the rules of evidence. 

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.