Book of Landlord Tenant Law

For several years I worked on a book, What to Expect When You’re Evicting as a tool to help Arizona landlords become better landlords and to avoid the pitfalls of having bad tenants. this book. If you would like a completely free, hard-copy of the book click HERE and send us a message. The book is our gift to you, it’s completely free. You don’t even pay for shipping or handling.

If you are an Arizona landlord and have a landlord – tenant dispute then please contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

Disputes of Real Estate Ownership

Arizona state law and Arizona case law are clear that eviction cases, also known as, Forcible Entry and/or Forcible detainers) are designed to only address the issue of possession and not any issues addressing the ownership of the property involved. The limited scope of a forcible entry and detainer action has been strictly defined by Arizona statute. A.R.S. § 12-1177(A) states in relevant part:

On the trial of an action of Forcible Entry or Forcible Detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

Evidence offered to the Superior Court to show anything other than who is entitled to possess the property will be excluded from an eviction hearing. So, if a defendant wants to make a claim for ownership of the rental property then they must file a quiet title action and not raise the issue during an eviction hearing.

Proof of Ownership 

The Superior Court’s inquiry into property ownership is limited to the extent that Plaintiff holds title to the property in dispute. If the Plaintiff/Landlord’s name appears on the trustees’s deed then the Court should not inquire into ownership any further.

The issuance of the Trustee’s Deed to Plaintiff is conclusive evidence that all statutory requirements for the Trustee’s Sale were satisfied and that Plaintiff has the right to possession of the Property.

A.R.S. § 33-811(B) further provides:

…the Trustee’s deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing, and posting of the notice of sale and the conduct of the sale.

The Courts have held that litigation as to the validity of title “would convert a forcible detainer action into a quiet title action and defeat its purpose as a summary remedy.” Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996).

For example, in Merrifield v. Merrifield, 95 Ariz. 152, 154, 388 P.2d 153, 155 (1963), the plaintiff held title to property pursuant to quitclaim deed which was valid on its face. The lower court nonetheless inquired into the merits of that title and refused to find the defendant guilty of forcible entry and detainer. The Arizona Supreme Court reversed the lower court’s ruling because plaintiff was entitled to possession as the title holder and pursuant to A.R.S. § 12-1177, the trial court was prohibited from considering the merits of the plaintiff’s title. Accordingly, any evidence offered by Defendants to raise extrinsic issues or disprove Plaintiff’s title must be excluded.

In another case demonstrating the Superior Courts inability to inquire into ownership in a forcible detainer (see Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946)), the Arizona Supreme Court stated: “[T]he statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action.” Id. at 204, 397. The Court also discussed the legislative intent in limiting the scope of a forcible entry and detainer action stating:

The object of a forcible entry and detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the defendant were permitted to deny his landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises.

Id. at 204-05, 397. Because the trustee’s deed is conclusive evidence of Plaintiff’s title under A.R.S. § 33-811(B), and because the court is prohibited from inquiring into the merits of that title under A.R.S. § 12-1177(A), judgment must be rendered in favor of Plaintiff regardless of any defense of ownership the Defendants may raise.

Ownership Disputes and Eviction in the Justice Court

The ownership of property and their interaction with evictions can become very complex. The above article discusses issues of ownership disputes and evictions in the Superior Court, however, the rules that apply to ownership disputes and evictions in the Justice Court (where most evictions take place) are completely different. Follow this link to read about a blog post I wrote that discusses ownership disputes and evictions in the Justice Court.

If you need help from an Arizona real estate attorney then contact Clint Dunaway at clint@dunawaylg.com or 480-389-6529.

In Arizona, residential eviction cases are usually brought in the Justice Court system. A Judge (also known as a Justice of the Peace in the Justice Court system) has the authority to evict tenants for a myriad of reasons. They can evict for; nonpayment of rent, material breach of lease agreement, wrongful holdover, etc. However, a Justice Court judge cannot make decisions or even hear arguments over ownership of the property in an eviction case.

A.R.S. § 22-201(D) addresses this issue:

Justices of the peace have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.

A.R.S. § 22-201(F) adds further clarification:

In actions between landlord and tenant for possession of leased premises, the title to the property leased shall not be raised nor made an issue.

This means that if a Defendant/Tenant tells the Justice Court Judge they have an ownership interest in the property then the hearing will immediately be stopped and the matter forwarded on to the Superior Court.

Occasionally when a case is sent to the Superior Court a landlord will respond, “but my tenant doesn’t own the property! It’s mine! They’re just lying! Why is the judge believing them? What could have been done to prevent this?”

While the landlords’ frustration is understandable it’s important to remember that the Justice Court judge is just following the law. Just because a Justice Court Judge moves a case into the Superior Court 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.

Learn about what happens when an eviction case is sent to the Arizona Superior Court because the tenant claims an ownership interest. If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at clint@dunawaylg.com or 480-389-6529.

Recovering Future Rents from Tenant

If a tenant that is under a current lease agreement who is evicted or abandons the property; can that landlord sue for all future rents thru the end of the lease? The answer is; “yes”, “no” and “maybe”.

Let me answer this question by using an example. Landlord and Tenant sign a 24 month lease agreement. Tenant promises to pay $1,000 each month for rent. However, 6 months into the lease term the tenant does not pay rent and so the landlord evicts him. Tenant still has 18 months left on his 2 year lease. Can landlord sue tenant for the remaining 18 months? Maybe, I will answer the question in greater detail below.

“No”, a Landlord may not sue for future rents.

Hypothetically, if the landlord finds a new tenant who begins paying rent the very next month then landlord may not sue the initial previous tenants for the future rent he should have paid. A landlord may not sue a tenant for future unpaid rents at an eviction hearing. Because the landlord won’t know how long the property will sit empty and therefore the courts award would be based off of speculation. But a landlord can sue for all past rents owed during an eviction lawsuit.

A landlord has a duty to “mitigate” his losses. A landlord mitigates his losses after an eviction by doing everything possible to re-rent the property. Landlord must take the same actions they would if re-renting the property under normal circumstances. The Arizona landlord cannot simply let the property sit empty for 18 months and then sue the tenant because the property sat empty. He must take all reasonable actions to re-rent the property as soon as possible. Again, a landlord may not sue a tenant for future rent through an eviction lawsuit. However, there is another option a landlord may take to recoup losses from a breaching tenant.

Yes, a Landlord MAY sue a former tenant for unpaid rents.

Yes, a landlord may sue a former tenant for unpaid rents after they were evicted from the Property. However, the landlord must first market and re-rent the Property before suing the former tenant. The law doesn’t allow for double-dipping, meaning you cannot sue a former tenant for terminating a lease 16 months earlier while collecting rent each month from a new tenant.

However, you can sue a previous tenant for all the months the Property sat vacant until it was re-leased to a new person. Using the example from above, let’s assume the landlord re-rented the Property one month after evicting the previous tenant. In this situation the Property only sat empty for one month and so the previous tenant is only liable to one months rent to the Landlord. Regardless of how many more months or years were left on a previous tenants lease, a landlord can only sue for the months the Property actually sat empty.

If you need help from an Arizona landlord – tenant attorney then contact the Dunaway Law Group at office@dunawaylg.com or 480-389-6529

Motion In Limine

What is a Motion in Limine?

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

What is the Definition of Motion in limine?

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

At What Point is a Motion in limine Filed?

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

What are the Factors Determined by the Judge?

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

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

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

48 Hour Notice to Enter

Arizona landlords have the legal right to periodically enter their rental properties. The law does not place limitations on why landlords want to enter the property. However, entering a rental property is a right with limitations and landlords should use this to harass or intimidate.

Proper Notice to 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)

Emergencies

Per, A.R.S. § 33-1343(C) a landlord may enter the dwelling unit without consent of the tenant in case of emergency. So, for example, if there is smoke billowing out of the windows or water is pouring out from under the doors, a landlord does not have to provide a 48-hour notice before entering.

Landlord Harassment

Don’t use the 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.

What should you do if a landlord enters into your property without your permission?

Arizona law requires that landlords give tenants at least a 48 hour notice prior to entering the property. However, what options do you have if the landlord just enters into the property? The Arizona 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 property to the point that it becomes a form of harassment.

Two Options Available If Your Landlord Enters Without Your Permission

  1. Obtain injunctive relief- This is a fancy way of saying of getting 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. 
  2. Terminate the Rental Agreement- Regardless of how much or how little time is left on your lease if your landlord has entered your house without your permission then you can cancel your lease. 

Monetary Damages Against Trespassing Landlord

The second part of A.R.S. § 33-1376(B) requires the landlord to pay the tenant a “fine” equal to one month’s rent. So for example, if your rent is $1,500 per month then you would be able to recover $1,500 from the landlord.

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 or actually terminate the lease agreement. A tenant cannot just say, “well, the landlord entered my property without my permission and now I want my money.”

Conclusion

Landlords, don’t enter without giving the tenants a 48-hour written notice of your intent to enter! Tenants, don’t unreasonably deny your landlord access to their property!.

If you have questions regarding a 48 hour notices to enter rental properties then call the Dunaway Law Group at: office@dunawaylg.com or call: 480-389-6529.