Arizona law explaining how a trustee’s sale (called a foreclosure) work. Some very practical tips and flow charts.
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.