Partitioning Real Estate

Partitioning Arizona real estate is a way to resolve a situation where two people who own real estate together but disagree about whether to sell the property and or how to manage it. I typically see this scenario where a boyfriend-girlfriend purchased a home together and then later have a falling-out.

In this situation they are both equal owners, so can one of the parties force the other to sell even if they don’t want to? Yes! There is an Arizona Statute that specifically addresses what to do in these situations.

A.R.S. § 12-1211 states:

A. The owner or claimant of real property or any interest therein may compel a partition of the property between him and the owners or claimants by filing a complaint in the superior court of the county in which the property, or a portion thereof, is situated.

B. The complaint shall state: (1) The names and residences, if known, of each of the owners or claimants. (2) The share or interest which plaintiff and the owners or claimants own or claim, so far as known to plaintiff. (3) A description of the real property to identify it and its estimated value. 

A.R.S. 12-1211

Once the Arizona real estate is sold the net proceeds will be distributed between the owners. If you need an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

These blog posts are not intended nor shall they be deemed to be the rendering of legal advice. Reading these blog posts does not create an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry.

Rent Striking by AZ Tenants

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”. Meaning, a tenant cannot legally withhold rent except in a very few exceptions.

Section 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. 333-1363(B)

before a tenant withhold rent they must:

  1. Write the landlord and notify him of their intention to correct the condition at the landlord’s expense;
  2. The tenant must give the landlord ten days to fix the problems outlined in the written notice;
  3. Give the landlord ten days to fix the problem before seeking any self-help solutions;
  4. Have the repairs completed by a licensed contractor;
  5. Submit the landlord with an itemized statement;
  6. Provide the landlord a waiver of lien;
  7. Deduct from their rent the actual and reasonable cost of the work;
  8. Not to exceed three hundred dollars, or half of the month rent, whichever is greater; and
  9. The repairs must constitute a breach of the fit and habitable condition of the premises.

Unless, and until a tenant has completed each of the steps noted above they cannot withhold rent from their landlord. If you are an Arizona landlord and have a tenant who is wrongfully withholding rent then we may be able to help. Contact the Dunaway Law Group at 480-389-6529 or message us HERE.

These blog posts are not intended, nor shall they be deemed to be the rendering of legal advice. Reading these blog posts does not create an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry.

Fraudulently Recorded Documents

In Arizona, there are no real protections that prevent fraudulently recording documents with the county recorder. I could literally quit claim deed the Arizona State Capital building to myself, and the county will record it. The recorder’s office does not have the ability or duty to confirm that the documents are legitimate and so 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 won’t prevent someone from wrongfully recording documents against your property. However, Arizona provides strict punishment for those who wrongfully record documents with the county recorder. A.R.S. § 33-420(C) provides for damages against the person who wrongly recorded the document. It allows for a minimum penalty of $5,000, or for treble the actual damage suffered, and attorney’s fees.

A.R.S. § 33-420 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)

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at [email protected] or 480-702-1608.

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 issues of remove groundless or fraudulent liens that have been filed.

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 State of Arizona.

Arizona’s Anti-Deficiency: A.R.S 33-729

In Arizona, certain home owners are free to stop making payments on their home and walk away from it with no financial recourse against them. These people are protected by what is commonly known as Arizona’s Anti-Deficiency Statute.

Protection for residential borrowers is set forth primarily in A.R.S. §§ 33-729(A) which provides in part:

“if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment.”

A.R.S. 33-729(A)

qualifying properties

To obtain anti-deficiency protection the property securing the loan must be (1) two and one-half acres or less, and (2) limited to a single one-family or a single two-family dwelling. The Arizona Supreme Court has interpreted this language to require that the dwelling actually be built and at least occasionally occupied. The property will qualify under the statute for anti-deficiency protection whether occasionally occupied by the owners or third party renters.

qualifying mortgages

Additionally, the Arizona mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

*** NOVEMBER 2019 UPDATE ***
The Arizona Court of Appeals ruled that a loan used to expand and upgrade a home is not entitled to anti-deficiency protection because it is not a home construction loan. Arizona’s anti-deficiency statutes may protect the homeowner from a deficiency judgment if the loan’s proceeds were used for a certain purpose. A “construction loan” qualifies for protection, but a “home-improvement loan” does not qualify. the anti-deficiency statutory provisions do not define “home construction loan”. Under its common sense meaning, “home construction loan” means a loan used to build a new residence from scratch, not a loan used to pay to transform an existing home over time with significant improvements, additions, and upgrades. Helvetica Servicing, Inc. v. Pasquan, 1 CA-CV 7-0699.

arizona debtor protection

If the property meets Arizona’s anti-deficiency statute, the lender may not obtain a deficiency judgment against the debtor. If a qualifying property is sold by the lender “no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses”. A.R.S. §§ 33-814(G). Therefore, certain Arizonian’s are able to walk away from their homes and face no financial recourse from their lender. 

If you have questions about how the Arizona anti-deficiency law protects you then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

How to Transfer Title to Land

This blog post touches on a few different scenarios of the same topic but the

how do you transfer real estate from the name of a deceased person?

If a real property is held in the name of one person, and that person dies, how do you transfer the deed to the name of a new person?

how to transfer the title if it had been held in a trust and the trustee has passed away?

If a real property is held in a trust and the trustee dies. How do you change the name on the deed?

  • Affidavit of Death of Joint Tenant– In a Joint Tenant in a Right of Survivorship.
    • Record the Affidavit . Automatically becomes the sole owner of the property.

what if one of the trustees is still living?

If the real property is held as Community Property or as Joint Tenants with Rights of Survivorship then when on of the property owner dies, their ownership portion is automatically transferred to the person still living.

Many people who are the survivors of the real property that is held as Community Property or as Joint Tenants with Rights of Survivorship want the deed to be changed to reflect that they now own the real property as a single person.

If you have questions about changing the name on an Arizona deed then contact the Arizona real estate attorneys at the Dunaway Law Group at 480-389-6529 or message us HERE.

how to rename a deed if a person changed their name

It is quite common for woman to take the last name of their husband when their are married, how can you change the name of the property into the spouse’s new name?

Affidavit of Name Change

*** IT IS IMPORTANT TO TAKE NOTE THAT THIS BLOG POST APPLIES ONLY TO REAL PROPERTIES IN ARIZONA. ***
*** AS A COMMUNITY PROPERTY STATE ARIZONA HAS VERY UNIQUE LAWS WHEN IT COMES TO REAL PROPERTY OWNERSHIP ***