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 strictly defined by 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)

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?”

While a landlords’ frustration is understandable, it is important to remember that the Justice Court Judge is just following the law, it 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.

If you 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 State of Arizona.

Eviction Statistics in Arizona

Believe it or not, there are patterns to evictions in Arizona. There is a distinct pattern in the number of evictions that take place during different times of the year. 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 won’t 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 a landlord and need help resolving a dispute with a tenant, then please contact the Dunaway Law Group at 480-389-6529 or message us HERE.

Improperly Recorded Documents

In Arizona, there are no real protections that prevent someone from recording fraudulent documents with a county recorder. A person can literally quit claim the Arizona State Capital building to themselves and the county will record it. The recorder’s office does not have the ability or duty to confirm that the documents are legitimate. Obviously this can cause real problems!

There are multiple occasions where I’ve had a client come into my office panicked because some type of fraudulent document had been recorded involving one of their properties. I’ve seen cases where easements were added without the owner’s knowledge or permission. Plus, I’ve seen parcels split or property completely transferred to another person!!!

WHAT CAN YOU DO IF SOMEONE RECORDS A FRAUDULENT DOCUMENT?

Arizona law will not prevent someone from wrongfully recording documents with the county, however, state law provides for severe punishment against those who do.

Under A.R.S. § 33-420(C), provides penalties against anyone who wrongly records a document. If found guilty, the court can award a minimum penalty of $5,000, or treble damages for the actual financial harm, and attorney’s fees.

A.R.S. § 33-420(A) states:

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.
A.R.S. 33-420(A)

B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if he prevails.
A.R.S. 33-420(B)

C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he willfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.
A.R.S. 33-420(C)

D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.
A.R.S. 33-420(D)

E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.
A.R.S. 33-420(E)

How to Remove an Invalid Lien

Occasionally, I am approached by clients who believe someone has recorded an invalid lien against their property and want to know what they can do to remove it.

A.R.S. 33-420: Discusses the issue of removing groundless or fraudulent liens that have been recorded with the county.

A.R.S. 33-420(A): Provides a property owner at least $5000, or treble the actual damages caused by the recording of forged, groundless, misstated, or contains false claims.

A.R.S. 33-420(C): Provides the property owner $1000, or treble actual damages, whichever is greater, and attorney fees and costs, if he willfully refuses to release or correct such document of record within 20-days from the date of a written request from the owner or beneficial title holder of the real property.

If you need help from an experienced shared well attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

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 rent 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?

An Arizona landlord should formally reject any partial payments made by a tenant. 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.

tenants receiving government subsidies

A.R.S. 33-1371 makes it clear that the acceptance of a housing assistance payment by a landlord does not constitute an acceptance of partial payment of rent or waive the landlord’s right to terminate a rental agreement for any breach by the tenant.

B. For the purposes of this section, a landlord’s acceptance of a housing assistance payment does not constitute an acceptance of a partial payment of rent or a waiver of a landlord’s right to terminate the rental agreement for any breach by the tenant.
A.R.S. 33-1371(B)

Specifies that acceptance of a housing assistance payment by a landlord does not constitute an acceptance of partial payment of rent or waive the landlord’s right to terminate a rental agreement for any breach by the tenant.

“Housing assistance payment” means any payment made to the landlord by a government agency, a public housing authority or any third party on behalf of a government agency, a public housing authority or any for-profit entity pursuant to a separate written rental assistance or subsidy contract between the landlord and the government agency, public housing authority or third party on behalf of a government agency, public housing authority or for-profit entity. Housing assistance payment does not include any payment made by a faith-based organization, a community action agency program or a nonprofit entity.
A.R.S. 33-1310(6)

A.R.S. 33-1310(6) Defines housing assistance payment to include any payment made to a landlord pursuant to a separate written rental assistance or subsidy contract by a:
- government agency;
- public housing authority;
- third party on behalf of a government agency, public housing authority; or
- for-profit entity.
  - Examples include (but are not limited to): A city or county public housing authority providing “Housing Choice Vouchers” or “Section 8” vouchers or a for-profit entity such as HOM, Inc., providing Rapid Rehousing or Permanent Supportive Housing vouchers.
A housing assistance payment does not include any payment made by a:
- faith-based organization;
- community action agency program; or
- non-profit entity.
- Acceptance of a partial payment of rent or any housing subsidy from a faith-based organization, community action agency or non-profit entity (absent of a contemporaneous written agreement) will waive the landlord’s right to terminate a rental agreement for any previous breach of the rental agreement by the tenant.
- If a landlord wishes to accept a partial payment of rent or any housing subsidy from a faith-based organization, community action agency or non-profit entity and not waive their right to terminate the rental agreement, then the landlord and tenant must enter into a contemporaneous written agreement at the time that the partial payment of rent or housing subsidy is made.

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 480-702-1608.

Eviction Trials in Arizona

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

Every eviction in Arizona requires an Eviction hearing but occasionally the case will be set for trial. At an Eviction hearing the landlord’s attorney appears and shows a judge the necessary paperwork to receive a judgment. For good cause shown the judge may set the matter for trial.

Why Would a Judge Set it for a 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; the tenant appears and makes a legal defense to the attorney’s claims. Depending on how strict a judge interprets this statute, the hearing may be stopped the moment a tenant presents a legal defense and 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 dismissing the case 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. Typical evidence is; pictures, text messages, lease agreements, and emails. Eviction trials can last for several hours.

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. Under Rule 11(d) of the Rules of Procedure for Eviction Actions-

“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 12(a) of the Rules of Procedure for Eviction Actions provide us with the necessary steps for having a jury trial. The court will permit seven jurors in the justice court and 9 jurors in the superior court.

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 their hearing.

This short period of time does not allow for testimony, opening and closing statements, or review evidence. So just because the 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 in the case that the Complaint was filed for 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.