Landlord - Tenant Law Archives | Dunaway Law Group, PLC

Evictions and Claims of Ownership

Claims of Ownership in Justice Court Evictions

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)

Notice of Transfer to Superior Court. The Justice Court will file a Notice of Transfer and send the complete file to the Superior Court where a hearing will be scheduled.

transfer to the superior court

Once an eviction lawsuit has been transferred from the Justice Court to the Superior Court its almost as if the case is re-starting. For instance, the filing fee of $333 (as of 2024) must be paid and the tenants must be served with the date of the upcoming hearing. The initial eviction hearing in the Superior Court will be fairly quick, similar to that of the Justice Court. When the tenant appears and presents their argument 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?”

This 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 we the landlord did something wrong or the tenant make some brilliant legal maneuver. It simply means the 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.

48 Hour Notice to Enter

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.

Rent Striking in Arizona

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.R.S. 33-1363(A)

Additionally Section 33-1363(B) states in part;

“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

Appeal Arizona Eviction

How to Appeal an Arizona Eviction

Appealing an eviction in Arizona is so expensive, time consuming, and cumbersome that I’ve never seen a tenant successfully overturn an eviction.

However, Arizona law provides tenants the opportunity to appeal a forcible detainer (eviction) judgment.

There are two (2) main stages to appeal 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 the appeal will be dismissed.

STAGE ONE – Notice of Appeal

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 you miss this deadline then you will not be able to proceed with the eviction appeal.

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.

supersedeas bonds

Two Different Bonds that are Paid by the Tenant

Supersedeas Bond(s): One and Two: The purpose of the first supersedeas bond is to prevent enforcement of the judgment. Meaning the judgment creditor will not be able to try and collect on the judgment. For example, they are prevented from trying to garnish the tenants 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 for the amount of the judgment that was obtained.

It is not necessary for a tenant to post either of the two types of bonds. But they must post one or the other to prevent enforcement of the eviction judgment.

How much are the supersedeas bonds? The amount of the bond is the total amount of the judgment ordered by the justice court, including court costs, attorney’s fees, damages, etc. The purpose of this bond is to stay collection proceedings on the money judgment awarded. The stay becomes effective when the bond is posted.

The second supersedeas bond is used to stay the eviction proceedings enforced by a Writ of Restitution. 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.

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.

The Appeal Memorandum: The Appellant’s memorandum is a written explanation of why the justice court ruling was legally wrong. This is where the tenant can provide a legal explanation for why the justice court’s ruling was wrong. The memorandum should cite specific 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.

The landlord then has 30 days to file a response to the tenant’s memorandum. Once both sides have filed their respective memorandum we must wait for further instruction from 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.

An appeal from a Superior Court residential eviction is governed by Rule 17 of the Rules Procedure for Eviction Actions.

Notice of Appeal– A Notice of Appeal must be filed within five (5) calendar days of the judgment entry. If you do not file the Notice of Appeal within the five days then you are 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.”

Motion to Set Aside the Judgment. A tenant appealing a residential eviction from the Superior Court may also file a Motion for Reconsideration–also known as a Motion for Relief, or Motion to Stay the Judgment.

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.

Eviction After Foreclosure of Home

In Arizona, as a homeowner whose house has been foreclosed you have a finite amount of time to vacate. If you do not vacate during that time then you can be evicted by the new homeowner.

Non-judicial foreclosure:

Non-judicial foreclosures in Arizona are much faster and less formal than judicial foreclosures. Most residential mortgages and deeds of trust in Arizona include a power-of sale clause that allows the lender to foreclose non-judicially if the borrower defaults on the loan. In a non-judicial foreclosure, the lender follows a specific process outlined in state law and the mortgage agreement. This typically involves giving the borrower notice of default and an opportunity to cure the default.

Power of Sale Clause: Most residential mortgages and deeds of trust in Arizona include a power of sale clause. This clause allows the lender to foreclose non-judicially if the borrower defaults on the loan.
Notice Requirements: The non-judicial foreclosure process in Arizona is initiated by the lender providing the borrower with specific notices of default and intent to sell. These notices are typically sent by certified mail and must comply with statutory requirements.
Trustee Sale: The lender appoints a trustee, who is typically a neutral third party, to oversee the foreclosure process. The trustee is responsible for conducting the foreclosure sale.
Auction: The property is sold at a public auction, often held on the courthouse steps or at another designated location. The highest bidder at the auction becomes the new owner of the property.
No Deficiency Judgment: In most cases of non-judicial foreclosure, the lender is prohibited from seeking a deficiency judgment against the borrower. However, there are exceptions, such as if the borrower engaged in fraud or waste.
Timeline: Non-judicial foreclosures in Arizona are typically faster and less formal than judicial foreclosures. The timeline can vary but is generally quicker, often taking a few months to complete.
Redemption Period in Non-Judicial Foreclosure: Arizona does not have a statutory right of redemption period after a non-judicial foreclosure sale. (A.R.S. 33-811(E)). In non-judicial foreclosures, the lender can sell the property without court involvement as long as the deed of trust or mortgage includes a power of sale clause. In Arizona, the ownership interest passes to the new buyer at the foreclosure auction! This means that as soon as the house is foreclosed, the former owner is trespassing and the new owner may start the eviction process.

However, after a non-judicial foreclosure, borrowers may try and work out some kind of a deal with the new owner to stay in the house after the foreclosure date. But the new owner isn’t required to allow you to keep living on the property once they’ve purchased the house. For this reason, many home owners who are losing their house to foreclosure will vacate prior to the auction date. Additionally, all personal property located in the property at the time of the foreclosure auction becomes the property of the new owner and the former owner may have no rights to remove them.

Judicial Foreclosures in Arizona

Lawsuit Initiation: Judicial foreclosures in Arizona involve a lawsuit filed by the lender (typically the mortgage holder or beneficiary) against the borrower to obtain a court-ordered foreclosure sale.
Court Involvement: The entire judicial foreclosure process is carried out through the court system. The lender files a complaint in court, and the borrower is served with a summons and complaint, giving them an opportunity to respond to the lawsuit.
Court Decision: If the court finds in favor of the lender, it will issue a judgment of foreclosure and specify the terms of the foreclosure sale. This judgment specifies the terms of the foreclosure sale, including the date and location of the auction.
Auction: The property is then sold at a public auction, and the proceeds from the sale are used to satisfy the debt. If the sale does not cover the entire debt, the borrower will likely be protected by Arizona’s anti-deficiency statute.
Redemption Period in Judicial Foreclosure: A redemption period refers to the window of time in which a borrower can reclaim their foreclosed property by paying off what they owe on the loan and any other delinquent debt attached under the loan agreement. In Arizona, only properties that went through the judicial foreclosure process are eligible for a redemption period. If you meet these conditions, then you have six months from the date of the foreclosure sale to pay all outstanding loan amounts, fees, and costs to redeem the property. However, if the foreclosure occurs out of court, in a nonjudicial foreclosure, then there is no right to redeem the property.

ARIZONA RENTERS WITH LEASE AGREEMENTS

Arizona renters with a valid month-to-month lease may remain in the foreclosed property for up to 30 days from the date of the foreclosure.
Arizona renters with valid leases can stay in the foreclosed property until the termination of their lease. For example, if an Arizona renter has a lease that ends September 30, 2023, and a new property owner takes possession of the property May 1, 2023, the Arizona renter may remain in the home until September 30, 2023.
Exception to this Rule. The exception to this rule occurs when the new Arizona owner intends to move into the foreclosed property and make it their primary residence. In that case, the renter may NOT live in the foreclosed property for more than 90 days from the date of foreclosure.

eviction of former owner after foreclosure

Step One- Mail Notice to the Former Owners. Must be sent via certified mail.

Step Two- File a Forcible Detainer in Superior Court. My be filed in the Superior court, unlike typical evictions where they are filed in the Justice court.

Step Five- Writ of Restitution Against the Former Property Owners.

**The following paragraphs only apply to the eviction of the former owners of residential property lost to foreclosure in Maricopa County Arizona. For information on Writs of Restitution in traditional eviction cases click HERE. **

Former Owner’s Belongings Must Be Removed Prior to Writ. In Maricopa County, the new property owner is required to move the former owner’s belongings out of the property before the Maricopa County Sheriff’s Office (MCSO) will execute the Writ of Restitution. The new property owner must hire hire licensed and bonded movers with truck(s) capable of handling all of the occupants’ personal property. The new property owner must also pay for one month’s storage at an insured storage facility.

The occupants, former owners, do not have a contractual obligation to pay rent, rather they are unauthorized occupants that refuse to vacate. Although it is common for a judgment to include a monetary component for rents owed, that is a statutory result that is not based on a default of the lease.

It can be frustrating to new owners who are required to go through the normal eviction process, but then are not allowed to obtain a writ in the traditional way. The MCSO will not execute a writ against a former property owner under these strict rules are met with precision.

The MCSO does not provide a checklist or how-to instructions for new property owners and so we have created one from our experiences and conversations with the MCSO.

Step By Step Instructions for Coordinating the Execution of the Writ as a new property owners.

A deputy will contact the former owners/occupants and ask them to vacate the property in order to avoid the move-out/lock-out. The deputy provides them with a copy of the deed and writ and explains that they can move out voluntarily or they will be forcefully removed.
The deputy will give the occupants reasonable time to move all of their property so the property owner does not have to do so. The deputy will follow up with the occupants to determine whether they are making progress to voluntarily vacate.
If the occupants are making progress and demonstrating a good-faith effort to vacate, the deputy may allow them more time to move out on their own. The deputy may grant the occupants a few weeks to move.
The deputy will apprise the property owner of the occupants’ progress.
The landlord is free to negotiate a “cash-for-keys” agreement with the occupants to encourage a voluntary move-out prior to a move-out/lock-out. In this scenario the property owner MUST NOT enter into a lease agreement with the occupants that enables them in the property as tenants. The occupants should be paid only after they have vacated the property and removed all of their personal property.
The property owner must notify the deputy if the occupants move out, so the deputy knows that there is no longer a need to execute the writ of restitution.
If the occupants refuse to voluntarily vacate then the deputy will show up to supervise the move-out process on a designated date. The deputy will coordinate a move-out date with the occupants.
The deputy will show up at 8 a.m. on the move-out date and give the occupants approximately 30 minutes to pack up essentials and leave. The deputy will discuss with the occupants what personal property can and cannot be removed.
If the occupants will not leave at that time, they will be escorted from the property by law enforcement.
Once the former occupants are escorted from the property, the property owner is then free to take physical possession of their property.
The property owner is required to complete the move-out done in a single day! This means the property owner must figure out the logistics of the move. The deputy will NOT execute the writ if the move-out is incomplete or is not done correctly. The writ gets served on the property after the house is cleared out and the occupants’ personal property is secured in a storage facility.
The deputy will oversee the removal of the property to ensure that the occupants’ personal property is properly packed for transportation. The deputy will assist in determining whether something is trash or could reasonably be considered personal property.
The property owner must hire licensed/bonded movers to pack and move the occupants’ personal property. FYI, the MCSO Judicial Enforcement Division will NOT work with AZ Moves for Less b/c they have a history of doing a bad job. It is important to hire a reputable moving company that will do it right the first time.
The deputy will stop the move-out if he determines that the movers do not appear capable of getting the move complete in one day or if they are doing such a lousy job that the occupants’ property is at risk of damage.
The deputy will NOT start the move-out if he determines that there are insufficient movers to pack up the house or if there is not sufficient transportation to move all the occupants’ personal property to storage. It is very important to have enough movers, a large enough moving truck (possibly multiple trucks), and a large enough storage unit to contain all the property.
Movers are required to pack up and move anything that can reasonably be moved. This may include furniture, pictures on the wall, appliances, etc. Movers may be required to move large and heavy items. Anything not hard-wired and/or affixed should be moved.
Movers are not required to move food and perishable items. Movers are not permitted to remove fixtures, cabinets, doors, ceiling fans, etc.
The belongings must be transported to an insured storage facility. The property owner is required to pay for one full month of storage (30 days). The storage unit must be put in the occupants’ names so they may retrieve their property from the unit.
The occupants are responsible for retrieving their property before the 30 days ends. The occupants are responsible to pay for any extension of storage time.
The deputy will stay only a reasonable amount of time in the evening to complete the move-out. Movers do not have until midnight to finish the move should try to have the move completed during business hours or as close as possible.
The deputy will execute the writ when the house is empty, and the occupants’ belongings are in storage.
The locks can be changed upon execution of the writ.
Defendants are NOT allowed to return to the property for any reason after execution of the writ. They will be considered criminal trespassers and can be arrested.

If you recently purchased an Arizona property at foreclosure and have questions about the occupancy of the former owner, then 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. 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