Serving Notice to Tenants

In Arizona, every eviction begins with the landlord mailing some type of a notice to the tenant, i.e., 30-day, 10-day, 5-day, etc. Once the tenant has received the notice–or 5 days from the date of mailing has passed at which time it is considered to have been legally received–the tenant has a certain number of days to take action.

timing of notice

When a tenant has legally received a notice can be a little confusing. Proper calculation of time is explained in A.R.S. § 33-1313(B).

If notice is mailed by certified mail, the tenant is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.

A.R.S. 33-1313(B)

For example, if a 5 day notice is sent to the Arizona tenant via certified mail and the tenant does NOT sign for the notice then we must wait 11 days before filing the eviction. Because it is legally received 5 days after mailing, plus they have the 5 days to make their rent payment.

However, if the Arizona tenant actually signs for the certified letter then the counting begins on that day. For example, if we sent the letter on Monday and the tenant signs for the letter on Tuesday then the 5 days to pay begins on Wednesday.

mailing the 5 day notice

In Arizona, the process of evicting a tenant for non-payment of rent begins with mailing a 5 day notice. If the tenant never signs for the 5 day notice it is still legally considered having been received 5 days after it was mailed.

A 5 day notice demands that the tenant pay ALL past due rent, late fees, and other outstanding fees in full within 5 days. If, the tenant attempts to tender the full amount owed within the 5 day period then it must be accepted. A landlord cannot reject the full outstanding balance owed and then turn-around and try to evict them for non-payment of rent.

It is important to note that if an Arizona landlord accepts a partial payment, even one dollar from a tenant then they cannot be evicted in that same calendar month for non-payment of rent.

If rent is not tendered within 5 days then an eviction lawsuit can be filed with the appropriate Arizona justice court. Within 6 days of filing the Complaint an eviction hearing will be held.

If you are an Arizona landlord and need help evicting a tenant then contact the Dunaway Law Group at 480-702-1608 or by messaging 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.

Eviction Statistics in Arizona

There is a distinct pattern or cycle to the volume of residential evictions that occur throughout the year in Arizona. 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 will not 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 480-702-1608 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.

When Tenant Files Bankruptcy

What Should You do if a Tenant Files Bankruptcy?

A landlord must immediately stop an eviction if a tenant files bankruptcy. If you receive a notice from the bankruptcy court that a tenant you are trying to evict has filed bankruptcy then stop the process! Bankruptcy law is very complicated, with severe penalties for any creditors seeking to take action against someone who has filed for bankruptcy. If a tenant files for bankruptcy before you have obtained the eviction judgment then you must stop with the eviction lawsuit.

As soon as a person files bankruptcy an “automatic stay of protection” goes into effect. The Automatic stay of bankruptcy is an injunction that stops; garnishments, lawsuits, foreclosure, repossession, evictions, etc. It is the equivalent of a restraining order that prevents creditors from taking collection actions.

The Automatic Stay is not Absolute

The automatic stay is not an absolute and landlords are given the right to file a Motion with the bankruptcy court requesting the bankruptcy to “lift” the automatic stay. Once the automatic stay has been “lifted”, the landlord may proceed with the eviction. It takes approximately 30 days for the bankruptcy court to grant permission to proceed with the eviction. If the tenant files an “objection” to the lift-stay motion then a hearing will be set in the bankruptcy court. If a hearing is required, then it may be 2 to 3 months before a hearing has been set and the request to lift the stay can be argued in front of a bankruptcy judge.

If you are an Arizona landlord whose tenant has filed for bankruptcy 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 or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the states of Arizona and New York.

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.

* 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.

Eviction Trials in Arizona

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

Every eviction in Arizona requires an Eviction hearing, and occasionally a case will be set for 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 a tenant appears and presents a legitimate legal defense. Depending on how strict the judge interprets this statute, the hearing may be immediately stopped and matter 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 entering judgment 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. Evidence will consist of pictures, emails, text messages, lease agreements, etc.

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.

“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 11(d) of the Rules of Procedure for Eviction Actions

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 the hearing and a default judgment is granted.

This short period of time does not allow for testimony, opening arguments, or to review evidence. So, just because a 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 if the eviction case was filed for a material 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 states of Arizona and New York.