Real estate issues related to property located in Arizona.
Charity is in the heart of man, and righteousness in the path of men. Pity the man who has lost his path and does not follow it and who has lost his heart and does not know how to recover it. When people’s dogs and chicks are lost they go out and look for them and yet the people who have lost their hearts do not go out and look for them. The principle of self-cultivation consists in nothing but trying to look for the lost heart.
Mengzi Meng-tse (c.370-300 BC), Chinese Philosopher
THE LAW CITED BELOW MAY CHANGE OVER TIME. PLEASE REVIEW THE CURRENT STATUTES.
Possession after a judicial foreclosure of a mortgage is dictated by A.R.S. § 33-727(b)
Possession after a trustee’s sale or judicial foreclosure of a Deed of Trust – A.R.S. § 12-1173.01(A)(2).
Possession after an agreement for sale forfeiture – A.R.S. § 12-1173.01
Possession after an agreement for sale foreclosure as a mortgage – A.R.S. § 33-727(B).
Possession after a lease default – residential – A.R.S. § 12-1171
Possession after a lease default – commercial – A.R.S. § 33-361
TITLE 12, CHAPTER 8 ARTICLE 4.
A person is guilty of forcible entry and detainer, or of forcible detainer, as the case may be, if he:
Makes an entry into any lands, tenements or other real property, except in cases where entry is given by law.
Willfully and without force holds over any lands, tenements or other real property after termination of the time for which such lands, tenements or other real property were let to him or to the person under whom he claims, after demand made in writing for the possession thereof by the person entitled to such possession.
A “forcible entry,” or an entry where entry is not given by law within the meaning of this article, is:
An entry without the consent of the person having the actual possession.
As to a landlord, an entry upon the possession of his tenant at will or by sufferance, whether with or without the tenant’s consent.
There is a forcible detainer if:
A tenant at will or by sufferance or a tenant from month to month or a lesser period whose tenancy has been terminated retains possession after his tenancy has been terminated or after he receives written demand of possession by the landlord.
The tenant of a person who has made a forcible entry refuses for five days after written demand to give possession to the person upon whose possession the forcible entry was made.
A person who has made a forcible entry upon the possession of one who acquired such possession by forcible entry refuses for five days after written demand to give possession to the person upon whose possession the first forcible entry was made.
A person who has made a forcible entry upon the possession of a tenant for a term refuses to deliver possession to the landlord for five days after written demand, after the term expires. If the term expires while a writ of forcible entry applied for by the tenant is pending, the landlord may, at his own cost and for his own benefit, prosecute it in the name of the tenant.
A. In addition to other persons enumerated in this article, a person in any of the following cases who retains possession of any land, tenements or other real property after he receives written demand of possession may be removed through an action for forcible detainer filed with the clerk of the superior court in accordance with this article:
If the property has been sold through the foreclosure of a mortgage, deed of trust or contract for conveyance of real property pursuant to title 33, chapter 6, article 2.
If the property has been sold through a trustee’s sale under a deed of trust pursuant to title 33, chapter 6.1.
If the property has been forfeited through a contract for conveyance of real property pursuant to title 33, chapter 6, article 3.
If the property has been sold by virtue of an execution and the title has been duly transferred.
If the property has been sold by the owner and the title has been duly transferred.
B. The remedies provided by this section do not affect the rights of persons in possession under a lease or other possessory right which is superior to the interest sold, forfeited or executed upon.
C. The remedies provided by this section are in addition to and do not preclude any other remedy granted by law.
A. When a party aggrieved files a complaint of forcible entry or forcible detainer, in writing and under oath, with the clerk of the superior court or a justice of the peace, summons shall issue no later than the next judicial day.
B. The complaint shall contain a description of the premises of which possession is claimed in sufficient detail to identify them and shall also state the facts which entitle the plaintiff to possession and authorize the action.
C. The summons shall be served at least two days before the return day, and return made thereof on the day assigned for trial.
A. 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.
A. If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for all charges stated in the rental agreement and for costs and, at the plaintiff’s option, for all rent found to be due and unpaid through the periodic rental period, as described in § 33-1314, subsection C, as provided for in the rental agreement, and shall grant a writ of restitution. If the defendant’s social security number is contained on the complaint at the time of judgment, the person designated by the judge to prepare the judgment shall ensure the defendant’s social security number is contained on the judgment.
B. If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for costs, and if it appears that the plaintiff has acquired possession of the premises since commencement of the action, a writ of restitution shall issue in favor of the defendant.
C. No writ of restitution shall issue until the expiration of five calendar days after the rendition of judgment. The writ of restitution shall be enforced as promptly and expeditiously as possible. The issuance or enforcement of a writ of restitution shall not be suspended, delayed, or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion unless a judge finds good cause.
The proceedings under a forcible entry or forcible detainer shall not bar an action for trespass, damages, waste, rent or mesne profits.
FORCIBLE ENTRY AND DETAINER CASE LAW
Camelback Plaza vs Hard Rock Café (1 CA-CV 00-0516) (AZ Ct Appeals) 7/2001 – refuses to expand “charges” in a rental agreement to include attorney fees in a forcible entry and detainer. Therefore, court refused to allow collection of attorney fees in a commercial FED.
A Forcible Entry and Detainer is an action that a landlord, or new property owner can take if the existing occupant refuses to leave after appropriate notice. This occupant could be either a tenant or original owner of property that was sold at a foreclosure or trustee’s sale. The laws governing forcible entry and detainer actions are different if the property is residential or non-residential.
The tenant/occupant receives a written demand to vacate the property. The term of the period to vacate is dictated by the type of occupancy – whether commercial or residential and whether a tenant or a owner that was foreclosed on. This term normally is either 5 or 7 days, unless the contract states otherwise. After the 5-7 days expire and the tenant/occupant still refuse to leave then a complaint for a forcible detainer action can be filed. The statutes provide for a very short notice period before a court hearing.
A. A tenancy from year to year terminates at the end of each year unless written permission is given to remain for a longer period. The permission shall specify the time the tenant may remain, and upon termination of such time the tenancy expires.
B. A lease from month to month may be terminated by the landlord giving at least ten days notice thereof. In case of nonpayment of rent notice is not required.
C. A tenant from month to month shall give ten days notice, and a tenant on a semimonthly basis shall give five days notice, of his intention to terminate possession of the premises. Failure to give the notice renders the tenant liable for the rent for the ensuing ten days.
D. When a tenancy is for a certain period under verbal or written agreement, and the time expires, the tenant shall surrender possession. Notice to quit or demand of possession is not then necessary.
E. A tenant who holds possession of property against the will of the landlord, except as provided in this section, shall not be considered a tenant at sufferance or at will.
B. A tenant may not withhold rent for any reason not authorized by this chapter. If rent is unpaid when due and the tenant fails to pay rent within five days after written notice by the landlord of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement by filing a special detainer action pursuant to section 33-1377. Before the filing of a special detainer action the rental agreement shall be reinstated if the tenant tenders all past due and unpaid periodic rent and a reasonable late fee set forth in a written rental agreement. After a special detainer action is filed the rental agreement is reinstated only if the tenant pays all past due rent, reasonable late fees set forth in a written rental agreement, attorney fees and court costs. After a judgment has been entered in a special detainer action in favor of the landlord, any reinstatement of the rental agreement is solely in the discretion of the landlord
E. The landlord shall hold the tenant’s personal property for a period of twenty-one days beginning on the first day after a writ of restitution or writ of execution is executed as prescribed in section 12-1181. The landlord shall use reasonable care in moving and holding the tenant’s property and may store the tenant’s property in an unoccupied dwelling unit owned by the landlord, the unoccupied dwelling unit formerly occupied by the tenant or off the premises if an unoccupied dwelling unit is not available. If the tenant’s former dwelling unit is used to store the property, the landlord may change the locks on that unit at the landlord’s discretion. The landlord shall prepare an inventory and promptly notify the tenant of the location and cost of storage of the personal property by sending a notice by certified mail, return receipt requested, addressed to the tenant’s last known address and to any of the tenant’s alternative addresses known to the landlord. To reclaim the personal property, the tenant shall pay the landlord only for the cost of removal and storage for the time the property is held by the landlord. Within five days after a written offer by the tenant to pay these charges the landlord must surrender possession of the personal property in the landlord’s possession to the tenant upon the tenant’s tender of payment. If the landlord fails to surrender possession of the personal property to the tenant, the tenant may recover the possessions or an amount equal to the damages determined by the court if the landlord has destroyed or disposed of the possessions before the twenty-one days specified in this section or after the tenant’s offer to pay. The tenant shall pay all removal and storage costs accrued through the fifth day after the tenant’s offer to pay is received by the landlord or the date of delivery or surrender of the property, whichever is sooner. Payment by the tenant relieves the landlord of any further responsibility for the tenant’s possessions.
F. A tenant does not have any right of access to that property until all payments specified in subsection E of this section have been made in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and identification or financial documents including all those related to the tenant’s immigration status, employment status, public assistance or medical care. If the landlord holds the property for the twenty-one day period and the tenant does not make a reasonable effort to recover it, the landlord, upon the expiration of twenty-one days as provided in this subsection, may administer the personal property as provided in section 33-1370, subsection E. The landlord shall hold personal property after a writ of restitution or writ of execution is executed for not more than twenty-one days after such an execution. Nothing in this subsection shall preclude the landlord and tenant from making an agreement providing that the landlord will hold the personal property for a period longer than twenty-one days.
§33-1370. Abandonment; notice; remedies; personal property; definition (NOTE THE FOLLOWING DOES NOT CONTAIN THE ENTIRE STATUTE)
A. If a dwelling unit is abandoned after the time prescribed in subsection H of this section, the landlord shall send the tenant a notice of abandonment by certified mail, return receipt requested, addressed to the tenant’s last known address and to any of the tenant’s alternate addresses known to the landlord. The landlord shall also post a notice of abandonment on the door to the dwelling unit or any other conspicuous place on the property for five days.
D. After the landlord has retaken possession of the dwelling unit, the landlord may store the tenant’s personal possessions in the unoccupied dwelling unit that was abandoned by the tenant, in any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available. The landlord shall notify the tenant of the location of the personal property in the same manner prescribed in subsection A of this section.
E. The landlord shall hold the tenant’s personal property for a period of ten days after the landlord’s declaration of abandonment. The landlord shall use reasonable care in holding the tenant’s personal property. If the landlord holds the property for this period and the tenant makes no reasonable effort to recover it, the landlord may sell the property, retain the proceeds and apply them toward the tenant’s outstanding rent or other costs which are covered in the lease agreement or otherwise provided for in title 33, chapter 10 or title 12, chapter 8 and have been incurred by the landlord due to the tenant’s abandonment. Any excess proceeds shall be mailed to the tenant at the tenant’s last known address. A tenant does not have any right of access to that property until the actual removal and storage costs have been paid in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including all those related to the tenant’s immigration status, employment status, public assistance or medical care. If provided by a written rental agreement, the landlord may destroy or otherwise dispose of some or all of the property if the landlord reasonably determines that the value of the property is so low that the cost of moving, storage and conducting a public sale exceeds the amount that would be realized from the sale.
How does the process work? Frequently asked questions.
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