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.

* 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.

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?

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.

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 480-389-6529.

* 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.

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.

* 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 tenants

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

    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.

    * 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.