Warning: like so many laws this area of law is constantly changing.
Real estate issues related to property located in Arizona.
WARNING: These forms are unique to Arizona. Before using any form make sure it complies with the current law and fits your client’s unique situation. If this is not your area of legal expertise make sure to talk to an experienced attorney.
◙ Information the Lender must provide our firm in order for us to start a Trustee’s Sale
◙ Auctioneer’s Outline
◙ Arizona Revised Statute Forms for trustee sales:
• Notice of Trustee’s Sale
• Substitution of Trustee
• Request for Notice
• Cancellation of Trustee’s Sale
◙ What is exempt from real estate taxes
◙ Temporary Restraining Order
25-211 – Liability of community property and separate property for community and separate debts
33-401 – Formal requirements of conveyance; writing; subscription; delivery; acknowledgment; defects
33-402 – Forms for conveyances; quit claim; conveyance; warranty; mortgage
33-405 – Beneficiary deeds; recording; definitions
Article 2 – Foreclosure
33-721 – Foreclosure of mortgage by court action
33-722 – Election between action on debt or to foreclose
33-723 – Right of junior lien holder upon foreclosure action by senior lien holder
33-724 – State as party to foreclosure actions
33-725 – Judgment of foreclosure; contents; sale of property; resale
33-726 – Redemption of property by payment to officer directed under foreclosure judgment to sell the property
33-727 – Sale under execution; deficiency; order of liens; writ of possession
33-728 – Recording upon record that mortgage is foreclosed and judgment satisfied; effect
33-729 – Purchase money mortgage; limitation on liability
33-730 – Limitation on deficiency judgment on mortgage or deed of trust as collateral for consumer goods
33-807 – Sale of trust property; power of trustee; foreclosure of trust deed
33-808 – Notice of trustee’s sale
33-809 – Request for copies of notice of sale; mailing by trustee or beneficiary; disclosure of information regarding trustee sale
33-810 – Sale by public auction; postponement of sale
33-811 – Payment of bid; trustee’s deed
33-812 – Disposition of proceeds of sale
33-813 – Default in performance of contract secured; reinstatement; cancellation of recorded notice of sale
33-814 – Action to recover balance after sale or foreclosure on property under trust deed
Article 5 – Judgment Liens on Real Property
* (Homestead exception to lien enforcement (ARS 33-964(B)
Article 6 – Mechanics’ and Materialmen’s Liens
Article 7 – Personal Property Liens
ARTICLE 22 A.R.S. Section 44-1378, et seq. Foreclosure Consultants – prohibited acts and fraud against the homeowner.
– Residential Mortgage Fraud A.R.S. 13-2320
How does a deed of trust differ from a mortgage? Arizona treats deeds of trust as conveying a lien, not as conveying title. See, e.g. Brant v. Hargrove, 129 Ariz. 475 (1981) (“Commonly referred to as the lien theory, this approach views a mortgage as not passing legal title, the right of possession, or the other incidents of ownership to the grantee-mortgagee.”). Under a title theory, the creditor is permitted to enter the land upon default, but in lien states, the creditor is required to foreclose in order to obtain a right of possession. In Arizona, creditors secured either by a mortgage or a deed of trust have no right of possession pre-foreclosure. See ARS 33-703.
A deed of trust conveys legal title in real property to a third party—the trustee—to secure the performance of a contract. A.R.S. §§ 33–801(8), –805; Snyder v. HSBC Bank, USA, N.A., 873 F.Supp.2d 1139, 1153 (D.Ariz.2012). The trustee holds legal title until the loan balance is paid or the security reclaimed. See A.R.S. § 33–801(8), (10); Hatch Cos. Contracting, Inc. v. Ariz. Bank, 170 Ariz. 553, 556, 826 P.2d 1179, 1182 (App.1991) (explaining “deed of trust ‘conveys’ the trust property to a trustee who holds the property for the benefit of the beneficiary designated in the deed of trust”). In the interim, the trustee holds only “bare legal title—sufficient only to permit him to convey the property at the out of court sale.” Eardley v. Greenberg, 164 Ariz. 261, 264, 792 P.2d 724, 727 (1990) (quoting Brant v. Hargrove, 129 Ariz. 475, 480 n. 6, 632 P.2d 978, 983 n. 6 (App.1981) (internal quotations omitted). A deed of trust is therefore “ ‘[i]n practical effect … little more than a mortgage with a power to convey upon default,” ’ id. (quoting In re Bisbee, 157 Ariz. 31, 34, 754 P.2d 1135, 1138 (1988)), and the two are treated similarly. See Brant, 129 Ariz. at 480, 632 P.2d at 983 (agreeing with reasoning in Hamel v. Gootkin, 20 Cal.Rptr. 372, 374 (App.1962), that it would be unrealistic to treat deeds of trust differently from mortgages, in determining whether a deed of trust defeated a joint tenancy, where the two “perform the same basic function”).
Although the beneficiary under a deed of trust, like a mortgagee, may have an interest in the property itself, the fact remains he has no interest in the title. See Saxman v. Christmann, 52 Ariz. 149, 154, 79 P.2d 520, 522 (1938). “Such encumbrancers cannot maintain an action to quiet title, for they have no title.” Id.; see also Berryhill v. Moore, 180 Ariz. 77, 88, 881 P.2d 1182, 1193 (App.1994) ( “[A] mortgagee’s interest does not attach to the title. Rather, it attaches to the land. Thus, under Arizona law, a mortgagee cannot bring an action to quiet title because the mortgagee has no title.”) (internal citations omitted).
Biel Properties, LLC v. CRG Partners, II, LLC (2015 WL 1605657) (April 9, 2015).
Note: Berryhill and Stat-o-matic are still good law.
Pence v. Glaze, 1 CA-CV 02-0520, 1/29/04: A layman who files what may be an invalid deed of trust on a debtor’s residence because the deed of trust was not signed by the debtor’s spouse who jointly owned the residence cannot be liable for filing an invalid lien under ARS Section 33-420(a) unless the layman knows or has reason to know the deed is invalid. Such knowledge cannot be presumed on the theory that every person is presumed to know the law.
Cecelia M. and Randall Lewis v. Ann and Ray C. Debord October 6, 2014 – 2 CA-CV 2014-0004 –
Does interest in property have priority over recorded judgment?: Whether a judgment creditor may satisfy his or her judgment by executing on the judgment debtor’s real property that was transferred to a subsequent purchaser after recordation of the judgment pursuant to A.R.S. § 33-961(A) but before attachment of the information statement required under A.R.S. §§ 33-961(C) and 33-967(A). Here, the Debords acquired their interest in the property in July 2012.But the Lewises did not attach an information statement to their recorded judgment until August 2013. Because the Debords acquired their interest in the property before the Lewises complied with § 33-967(A), the Debords’ interest in the property has priority over the Lewises’ judgment lien. Accordingly,the Lewises cannot satisfy their judgment by executing on the Debords’ property. The trial court therefore did not err in granting summary judgment in favor of the Debords. See Ochser, 228 Ariz. 365, ¶ 11, 266 P.3d at 1065;Pi’Ikea, 234 Ariz. 284, n.7, 321 P.3d at 454 n.7 Read Opinion.
Tax liens: Daystar vs Maricopa County Treasurer (Az Ct App, Div One 5-6-04) good review of tax liens statutes and governing law.
Predatory Lending: A recent New Jersey appeals court decision could spark a series of lawsuits against lenders and extend liability for predatory practices all the way up the mortgage food chain.
The Appellate Division of New Jersey Superior Court ruled in Associates Home Equity Services Inc. v. Troup that borrowers can sue lenders for “reverse redlining,” the practice of using race, income, and other demographic information to target high-cost loans to certain neighborhoods. It also said lenders buying loans in the secondary market could be held responsible for the actions of the loan’s originator.
Attorney General’s re predatory lending and other scams.
He who commits injustice is ever made more wretched than he who suffers it. Plato, BC 427?-347?, Greek Philosopher
A Forcible Entry and Detainer is an action that a landlord or new property owner to remove 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.
You can file a forcible entry and detainer action in either Justice or Superior Courts. An individual can file an action without an attorney, so long as they are filing on their own behalf, not on behalf of their corporation or another person. The process is not extremely complicated, but the procedures must be followed in precise order. If there is any deviation the judge will ask that you start the process over. Using an attorney experienced in this particular area will save you time, money and aggravation.
The sole issue at the court hearing is whether or not the tenant/occupant has the right to possession. If they do not then they will be found guilty of a forcible entry and detainer. The court will enter an order directing the tenant/occupant to vacate within 5 judicial days. After that period has expired the Sheriff’s office can then evict the tenants/occupants, remove their personal property and give the rightful owner possession and control of the property.
It would be wise for the rightful owner to change the locks and take steps to protect the property.
The definition of a forcible entry is “anyone who retains possession of any land, tenements or other real property after he receives written demand to surrender that possession.” Therefore, any occupant who refuses to leave property after they have received the appropriate notice to vacate can be found “guilty of a forcible entry and detainer”.
There is no stock answer to that question. Normally the process after a trustee’s sale is the following:
Get a copy of the Trustee’s Deed and serve it on the occupant of the property. Include the appropriate notice to vacate, how you took title and giving the requisite period to vacate – either 5 or 7 days.
If, after the 5 to 7 days the occupant still refuses to vacate, then file a complaint, summons and civil cover sheet with the court (either Justice or Superior).
Obtain a date for the hearing at the time of filing the complaint and serve all documents on the occupant within 24 hours. That hearing date is usually within 10 days of the filing of the complaint.
File proof of personal service with the Court and bring a copy to the hearing.
At the hearing you must set forth the facts as to how you took title to the property, provide proof that you served the initial demand letter and proof that you served the complaint and summons within the requisite period.
If there is no objection then the Judge will sign a Judgment giving the occupant 5 judicial days (regular work days) to vacate the property.
If the occupant still refused to vacate then you will need to contact the Sheriff, provide him with a conformed copy of the Judgment, plus the Writ of Restitution, along with the fees for his service.
The sheriff will then service additional notice to the occupant giving them 3 days to vacate.
If the occupant still refused to vacate then you must make arrangements to have a moving van, movers, the sheriff and any other necessary people (locksmith, animal control) all meet you at the property to coordinate removing the occupant and their possessions.
You would be very wise to video tape the property and all the personal possessions as they are being packed.
You may store the occupant’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. You are required to notify the tenant of the location of the personal property pursuant to subsection A of A.R.S. § 33-1370.
In most cases the rightful owner can sue for recovery of rents, or a fair and reasonable satisfaction for the use and occupation of the property, pursuant to A.R.S. §12-1271. In addition to determining the right to actual possession, the court may assess damages, attorney fees and costs pursuant to A.R.S. §12-1178.
Absolutely, in fact I suggest this as the first option. Consider offering the occupant a small amount of money to vacate. Perhaps the amount that you would be spending if you brought the forcible entry and detainer action. This agreement could be a win-win for both of you. You will save money, time and aggravation, perhaps the property will be in better condition and the occupant will receive some sorely needed moving cash. But beware the occupant that is just buying additional time and never intends on moving until the Sheriff is at his door.
If the lien has continued for twenty days after the charges accrue and remain unpaid, the person holding the property may notify the owner, if in the county where the property is located, to pay the charges. Upon failure of the owner within ten days thereafter to pay the charges, the holder of the property may sell it at public auction and apply the proceeds to payment of the charges. The balance of the proceeds shall be paid to the person entitled thereto. If the owner’s residence is not in the county where the property is located, the holder is not required to give the ten days’ notice before proceeding to sell. Five days’ notice of sale shall be given to the owner if he can be found, and if not, then by two publications in a newspaper published in the county.
If the person legally entitled to receive the balance is not known or has removed from the county, the holder shall pay the balance to the department of revenue. If the party, at any time within two years from the date of payment to the department of revenue, establishes his right to the money to the satisfaction of the director of the department of administration, it shall be paid to him. After two years, all unclaimed monies shall be deposited in the permanent state school fund. A.R.S. §33-1023.
What is “abandonment”? A.R.S. §33-1370. For the purposes of this section it means either the absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent for the dwelling unit is outstanding and unpaid for ten days and there is no reasonable evidence other than the presence of the tenant’s personal property that the tenant is occupying the residence or the absence of the tenant for at least five days, if the rent for the dwelling unit is outstanding and unpaid for five days and none of the tenant’s personal property is in the dwelling unit.
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.
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.
For a period of twelve months after the sale the landlord shall keep adequate records of the outstanding and unpaid rent and the sale of the tenant’s personal property. Hold any excess proceeds which have been returned as undeliverable for the benefit of the tenant.
If the tenant notifies the landlord in writing on or before the date the landlord sells or otherwise disposes of the personal property that the tenant intends to remove the personal property from the dwelling unit or the place of safekeeping, the tenant has five days to reclaim the personal property. To reclaim the personal property the tenant must only pay the landlord for the cost of removal and storage for the period the tenant’s personal property remained in the landlord’s safekeeping.
Under the non-residential landlord-tenant laws if the tenant fails to pay rent then the landlord shall have a lien on all property of his tenant not exempt by law, placed upon or used on the leased premises, until the rent is paid. The lien shall not secure the payment of rent accruing after the death or bankruptcy of the lessee, or after an assignment for the benefit of the lessee’s creditors. When premises are sublet, or when the lease is assigned, the landlord shall have the same lien against the sub lessee or assignee as he has against the tenant and may enforce the lien in like manner. A.R.S. § 33-362.
If the tenant refuses or fails to pay rent owing and due, the landlord shall have a lien upon and may seize as much personal property of the tenant located on the premises and not exempted by law as is necessary to secure payment of the rent. If the rent is not paid and satisfied within sixty days after seizure as provided for in this section, the landlord may sell the seized personal property in the manner provided by A.R.S. §33-1023. When premises are sublet or the lease is assigned, the landlord shall have a like lien against the sub lessee or assignee as the landlord has against the tenant and may enforce it in the same manner. A.R.S. §33-361.
See also article by Andy Hull Dealing with the Tenant’s Personal Property.
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.
Carrington Mortgage Services v. Woods (Div ONE Az Ct Apps, 6/22/17) affirmed the superior court’s judgment in favor of plaintiff in its forcible entry and detainer (FED) action. Rejecting defendant’s analysis, the court held that plaintiff’s FED action accrued when defendant initiated that action by serving plaintiff with its written demand for possession in 2016. It did not accrue when plaintiff’s predecessor in interest purchased the property in a trustee’s sale in 2010. Therefore, plaintiff’s FED action was not time-barred
Living Will – Sample