Eviction lawsuits are designed to address the issue of possession and not ownership. Eviction lawsuits are to provide 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 tenants were permitted to deny the landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law.
The merits of the title may not be inquired into in eviction actions, otherwise the action would not afford a summary, speedy and adequate remedy for obtaining possession of the rental property. The limited scope of eviction cases is explained in A.R.S. § 22-201(D) which states;
Justice Court Judges, “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)
transfer to the superior court
Notice of Transfer to Superior Court. If the Justice Court judge rules that the eviction case should be transferred to the Superior Court then the Justice Court will file a Notice of Transfer and send the complete file to the Superior Court.
Beginning of the Eviction in the Superior Court. Once an eviction lawsuit has been transferred from the Justice Court to the Superior Court, it’s as if the case was re-starting. For instance, the filing fee of $333 (as of 2024) must be paid and the tenants must be re-served with the date and time of the upcoming hearing.
Initial Eviction Hearing in the Superior Court. The initial eviction hearing in the Superior Court will be fairly quick, similar to that of the Justice Court. If the tenant appears and presents legal arguments of ownership then the Superior Court judge will set the matter for trial.
Eviction Trials in the Superior Court. At the eviction trial, both parties will present their legal arguments, documentation and testimony that support their positions. At the conclusion of the trial the Superior Court judge will decide whether or not there is a landlord-tenant relationship between the two parties or a buyer-seller relationship. If the judge determines that there is a landlord-tenant relationship then he or she will enter judgment in favor of the landlord. However, if the judge finds that there is a buyer-seller relationship then he or she will dismiss the eviction lawsuit at which point the party seeking the eviction is free to file a quiet title action to settle the dispute of ownership.
Landlord Frustration. Often, when an eviction case is transferred from the Justice Court to the Superior Court, a landlord will respond, “But my tenant doesn’t own the property! It’s mine! They’re just lying! Why does the judge believe them?”
The frustration is understandable, but it is important to remember that the Justice Court Judge is just following the law, it does not mean that he or she necessarily believes the tenant. So, it should not be interpreted as a sign that the landlord did something wrong or the tenant made some brilliant legal maneuver. It simply means the Justice Court Judge is following the law.
If you need help from an experienced eviction 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.
A 48 hour notice must be given to Arizona tenants before their landlord can legally enter the rental property. Arizona landlords have the right to periodically enter their rental properties, however, the Arizona Residential Landlord Tenant Act states that entering the property is a right with limitations. In particular, landlords should not use the 48 hour notice as a way to harass or intimidate tenants.
Proper Notice to Arizona Tenant
A.R.S. § 33-1343(D) states that, “the landlord shall give the tenant at least two days’ notice of the landlord’s intent to enter and enter only at reasonable times.” Although the law does not specify that the notice must be written (as opposed to verbal), it is a good idea to post written notice of intent to enter, or send via mail, so that you as a landlord have proof that you followed the proper procedure.
See A.R.S. § 33-1343(D)
A.R.S. § 33-1343(A) states in part that “the tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements…” or show the property to potential buyers. If the tenant won’t allow you to enter the property, it is grounds for eviction.
See A.R.S. § 33-1343(A)
Emergency access to rental property
Per, A.R.S. § 33-1343(C) an Arizona landlord may enter the rental property without delivering a 48 hour notice in the case of emergency. For example, if there is smoke billowing from the windows or water is pouring out from under the doors, an Arizona landlord does not have to provide a 48 hour notice before entering.
Landlord Harassment
Arizona landlords cannot use ability to enter the property as a way of harassing or intimidating a tenant. According to A.R.S. § 33-1343(D) “the landlord shall not abuse the right to access or use it to harass the tenant.” One of the most common defenses a tenant brings up in court is that their landlord was harassing them. Avoid anything that even resembles harassment so your tenant can’t use that as a defense if you end up having to evict them.
tenants’ rights to wrongful access
Arizona law requires that landlords give tenants at least a 48 hour notice prior to entering the property. However, what options do tenants have if their landlord just enters the rental property without proper notice? The Arizona Residential Landlord Tenant Act addresses this exact issue. A.R.S. § 33-1376(B) states:
“If
the landlord makes an unlawful entry or a lawful entry in an
unreasonable manner or makes repeated demands for entry otherwise lawful
but which have the effect of unreasonably harassing the tenant, the
tenant may obtain injunctive relief to prevent the recurrence of the
conduct or terminate the rental agreement. In either case, the tenant
may recover actual damages not less than an amount equal to one month’s
rent.”
So this statute provides an Arizona tenant with two different options if the landlord enters the property without permission or is constantly demanding to enter the rental property to the point that it becomes a form of harassment.
Two Options Available to Arizona Tenants
Obtain Injunctive Relief– This is a fancy way of saying the Arizona tenant must obtain an Injunction Against Harassment or Restraining Order against the landlord. With either of these tools you will have the backing of the court to stop the harassment.
Terminate the Rental Agreement– Regardless of how much or how little time is left on your lease, if your Arizona landlord has repeatedly entered the rental property without giving you a 48 hour notice then a tenant may have the right to cancel the lease.
Monetary Damages Against Trespassing Landlord
The second part of A.R.S. § 33-1376(B) requires an Arizona landlord to pay the tenant a “fine” equal to one month’s rent for trespassing without a 48 hour notice. So for example, if rent is $1,500 per month then a court could require the Arizona landlord pay $1,500 to the tenant.
However, in order to recover the one months rent from the landlord a tenant must elect one of the two options from above. Meaning, the tenant must either obtain an Injunction Against Harassment / Restraining Order or actually terminate the lease agreement. An Arizona tenant cannot say, “well, the landlord entered my property without giving me a 48 hour notice and so now I want my money.”
Conclusion
Arizona landlords, give your tenants 48 hour notice before entering the rental property and tenants, do not unreasonably deny your landlord access to their rental property!
If you are an Arizona landlord and have questions about 48 hour notices then contact the Dunaway Law Group at 480-702-1608 or message us HERE.
* These blog posts are not intended, nor shall they be deemed to render legal advice. Reading these blog post does not create an attorney-client relationship, nor shall it impose an obligation on the part of the law firm to respond to further inquiry. The Dunaway Law Group limits its practice to the states of Arizona and New York.
Arizona does not permit “rent-striking”. Meaning, a tenant cannot legally withhold rent except in a very few exception.
Arizona does not permit “rent-striking” by tenants. Meaning, a tenant cannot legally withhold rent from a landlord except in a very few exceptions.
A.R.S. 33-1363(A) and (B) of the Arizona Residential Landlord and Tenant Act specifically address what a tenant must do prior to withholding rent from the landlord.
Section 33-1363(A) states in part: A tenant “may notify the landlord of the tenant’s intention to correct the condition at the landlord’s expense. After being notified by the tenant in writing, if the landlord fails to comply within ten days or as promptly thereafter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and after submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work, not exceeding”…an amount less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater.
“A tenant may not repair at the landlord’s expense if…the condition repaired does not constitute a breach of the fit and habitable condition of the premises.”
A.R.S. 33-1363(B)
before a tenant withhold rent they must:
Write the landlord and notify him of their intention to correct the condition at the landlord’s expense;
The tenant must give the landlord ten days to fix the problems outlined in the written notice;
Give the landlord ten days to fix the problem before seeking any self-help solutions;
Have the repairs completed by a licensed contractor;
Submit the landlord with an itemized statement;
Provide the landlord a waiver of lien;
Deduct from their rent the actual and reasonable cost of the work;
Not to exceed $300 (three hundred dollars), or half of the month rent, whichever is greater; and
The repairs must constitute a breach of the fit and habitable condition of the premises.
If you are a landlord and have questions about tenants withhold rent 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.
What is considered normal wear and tear to a rental property in Arizona? During a rental period, a certain amount of wear and tear is to be expected and it is reasonable that the paint on the interior walls will become dingy and that traffic wear will be shown on carpet. However, broken windows, missing window screens, holes in the walls and stained carpet are NOT considered normal wear and tear to an Arizona rental property.
A tenant shall exercise diligence to maintain the premises in as good condition as when he took possession, ordinary wear and tear excepted.
If the landlord fails to comply with subsection D of this section, the tenant may recover the property and money due the tenant together with damages in an amount equal to twice the amount wrongfully withheld.
The Arizona Residential Landlord and Tenant Act states that normal wear and tear cannot be deducted from a tenant’s refundable security deposit. Additionally, Arizona courts hold that landlords cannot deduct the cost to paint interior walls and clean carpets.
NOT normal wear and tear to a rental property
Holes in walls, large stains on the carpet, and broken appliances are considered to be in excess of normal wear and therefore a landlord can deduct the cost to repair these items from the tenant’s refundable security deposit.
If you are an Arizona landlord and need help from an Arizona real estate 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 state of Arizona and New York.
Arizona law provides tenants the opportunity to appeal an eviction judgment. Appealing an eviction in Arizona is so expensive, time consuming, and cumbersome that I’ve never seen a tenant successfully overturn an eviction.
Appeals on Justice Court decisions go to the Superior Court. A Superior Court judge will look at the facts as they were originally presented and determine if the first judge did not properly follow the law. On appeal neither party presents witnesses, and no new evidence is introduced.
Below are the steps to appealing an eviction in Arizona.
There are two stages to appealing 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 or the appeal will be dismissed.
STAGE ONE – Notice of Appeal
Notice of Appeal: 5-day Deadline. 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 the deadline is missed then the eviction cannot be appealed.
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.
Rent Pending Appeal: The tenants must pay rent to the court clerk during the appeal process. Failure of the appellant to pay any rent due as it accrues is cause for the appellee to seek an order allowing it to enforce a writ of restitution, but shall not be cause for the dismissal of the appeal. In this event, the appeal will proceed despite the appellant’s loss of possession of the premises while it is pending.
supersedeas bonds
There are two bonds that must be paid to the court by the Tenant.
First Supersedeas Bond: The purpose of the first supersedeas bond is to prevent the landlord from enforcing the financial portion of the judgment. The purpose of this bond is to stay collection proceedings on the money judgment awarded.
Amount of the First Supersedeas Bond. The amount of the first bond is the total amount of the judgment ordered by the justice court, including court costs, attorney’s fees, damages, etc. The stay becomes effective when the bond is posted. Meaning the judgment creditor will not be able to try and collect on the judgment. For example, a landlord is prevented from garnishing the tenant’s 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 used to stay the eviction proceedings enforced by a Writ of Restitution.
Amount of the Second Supersedeas Bond. 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.
It is not necessary for an appealing tenant to post either of the two supersedeas bonds, however, they must be paid to prevent enforcement of the eviction judgment.
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.
Appellant’s Memorandum: Within 60 days of filing an appeal the tenant must file a written memorandum with the court. The memorandum must explain why the justice court’s ruling was legally flawed. It should cite specific Arizona 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.
Landlord’s Memorandum: The landlord as 30 days to file a response to the tenant’s memorandum. Once both parties have filed their respective memorandum they must wait for further instruction from the Superior Court.
Once all of the steps listed above have been completed the case will be transferred to 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.
Notice of Appeal– A tenant / Defendant must file a Notice of Appeal within five (5) calendar days of the judgment entry. If the Notice of Appeal is not filed within the five days then the defendant is 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.”
Appellate Court. An eviction appeal from a case that started in the Superior Court will be ultimately transferred into the Court of Appeals. The Defendant must file a memorandum explaining to the Court of Appeals Judge why the Superior Court Judge was wrong for entering judgment in favor of the landlord. The Plaintiff / landlord must then file its own memorandum in response in which it is argued that the Superior Court judge was correct in its ruling.
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.
