FORECLOSURE, EVICTION & MORE QUESTIONS
Eviction – Forcible Entry & Detainer FAQs
On this page you will find answers to common questions related to FED and other eviction related topics. I recommend taking the time to go through each of the topics below to learn more.
An Arizona Forcible Entry and Detainer is a legal action that can be taken by a landlord or property owner if an existing occupant refuses to leave after being given adequate notice. This occupier could be a tenant or the original owner of a home that was foreclosed or sold in a trustee’s sale. If the property is residential (ARS 33-1377) or non-residential (ARS 33-361), the laws regulating forcible entry and detainer actions are different (ARS 33-361).
The tenant/occupant is served with a written notice to vacate the premises. The length of the notice to vacate is determined by the type of occupancy, type of lease – commercial or residential, and whether the property is occupied by a renter or a foreclosed owner. Unless the contract specifies otherwise, this period is usually 5 or 7 days. If the tenant/occupant refuses to leave after the 5-7 days have passed, a complaint for forceful detainer action might be initiated. The statutes need only a few days’ notice before a court hearing.
Residential – Landlord Tenant Provisions for Abandonment & Storage of Personal Property, see A.R.S. §33-1370.
For the purposes of this section, it means either the tenant’s absence from the dwelling unit for at least seven days without notice to the landlord if the 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 tenant’s absence for at least five days if the rent for the dwelling unit is outstanding and unpaid for ten days and none of the tenant’s personal property is in the residence.
The landlord may store the tenant’s personal belongings in the unoccupied housing unit that was abandoned by the tenant, in any other available unit or any storage space held by the landlord, or off the premises if no dwelling unit or storage space is available. In the same manner as described in subsection A of this section, the landlord must notify the renter of the location of the personal property.
After the landlord declares abandonment, the tenant’s personal property is held by the landlord for ten days. The landlord must hold the tenant’s personal belongings with reasonable care. If the landlord holds the property for this period and the tenant makes no reasonable effort to recover it, the landlord may sell it, keep the proceeds, and apply them to the tenant’s outstanding rent or other costs that are covered by the lease agreement or otherwise provided for in title 33, chapter 10 or title 12, chapter 8 and that the landlord has incurred as a result of the tenant’s abandonment. Any remaining funds will be mailed to the tenant at his or her last known address. Except for clothing, 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, a tenant does not have any right of access to that property until the actual removal and storage costs have been paid in full. The landlord may destroy or otherwise dispose of some or all of the property if the landlord reasonably decides that the expense of moving, storage, and conducting a public auction exceeds the amount that would be realized from the sale, as stated by a written rental agreement.
The landlord must preserve adequate records of the overdue and unpaid rent, as well as the sale of the tenant’s personal property, for a period of twelve months after the sale. For the tenant’s advantage, save any surplus funds that have been returned as undeliverable.
If the tenant notifies the landlord in writing on or before the date the landlord sells or otherwise disposes of the personal property, the tenant has five days to retrieve the property from the housing unit or place of safekeeping. To reclaim the personal property, the tenant needs only pay the landlord the cost of removal and storage for the time the tenant’s personal property was kept secure by the landlord.
If the tenant fails to pay rent, the landlord has a lien on all of his tenant’s property that is not excluded by law (such as exempt property) and is placed on or utilized on the leased premises until the rent is paid, according to non-residential landlord-tenant legislation. The lien does not protect rent owed after the lessee’s death or bankruptcy, or after an assignment for the benefit of the lessee’s creditors. When a property is sublet or a lease is assigned, the landlord has the same lien against the sub lessee or assignee as he does against the tenant and can enforce the claim in the same way. A.R.S. § 33-362.
If a tenant refuses or fails to pay rent when it is due, the landlord shall have a lien on and may confiscate as much of the tenant’s personal property located on the premises that is not exempted by law as is necessary to ensure rent payment. The landlord may sell the confiscated personal property in the manner specified by A.R.S. §33-1023 if the rent is not paid and satisfied within sixty days following seizure as provided in this section. When a property is sublet or a lease is assigned, the landlord has a same lien against the sub lessee or assignee as he does against the tenant and can enforce it in the same way. A.R.S. §33-361.
Absolutely, and I recommend it as the first choice. Consider paying the occupant a modest sum of money to get them to leave. Perhaps the amount you’d have to spend if you filed a forcible entry and detainer action (court costs, lawyer fees, sheriff’s fees, moving and storage costs, plus your time and energy). This may be a win-win situation for both of you. You’ll save money, time, and annoyance, plus the property may be in better condition, giving the occupant some much-needed moving funds. However, be wary of the occupant who is simply buying time and will not leave until the Sheriff arrives at his door.
According to A.R.S. §12-1271, the legitimate owner can sue for rent recovery or a fair and reasonable compensation for the use and possession of the property in most instances. A.R.S. §12-1178 allows the court to award damages, attorney fees, and costs in addition to determining the right to actual possession.
There is no one-size-fits-all response to that question. Following a trustee’s sale, the procedure is usually as follows:
Obtain a copy of the Trustee’s Deed and serve it on the property’s occupant. Include the proper notice to leave, how you obtained title, and the required notice time – either 5 or 7 days.
If the occupant still refuses to leave after 5 to 7 days, file a complaint, summons, and civil cover sheet with the court (either Justice or Superior).
At the time of filing the complaint, obtain a hearing date and serve all documents on the occupant within 24 hours. The hearing date is normally set within 10 days of the complaint being filed.
Make a copy of the proof of personal service and present it to the hearing.
You must present the facts of how you obtained title to the property during the hearing, as well as proof that you served the initial demand letter and the complaint and summons within the required timeframe.
If no objections are raised, the Judge will sign a judgment giving the occupier 5 judicial days (normal working days) to remove the premises.
If the occupant continues to refuse to leave, you must contact the Sheriff and provide him with a conformed copy of the Judgment, as well as the Writ of Restitution and the fees for his services.
The sheriff will next serve the occupant with a final notice, giving them three days to depart.
If the occupant continues to refuse to leave, you must arrange for a moving van, movers, the sheriff, and any other relevant individuals (locksmith, animal control) to meet you at the property to coordinate the removal of the occupant and their belongings.
It’s a good idea to videotape the property and all of the personal belongings as they’re being packed.
If a dwelling unit or storage space is not available, you may store the occupant’s personal belongings in the unoccupied dwelling unit that was abandoned by the renter, in any other available unit or any storage space controlled by the landlord, or off the premises. According to subsection A of A.R.S. § 33-1370, you must advise the tenant of the whereabouts of the personal property.
Anyone who retains possession of any land, tenements, or other real property after receiving written demand to surrender that possession may be found “guilty of a forcible entry and detainer.”
The quick answer is yes.
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:
1. 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.
2. If the property has been sold through a trustee’s sale under a deed of trust pursuant to title 33, chapter 6.1.
3. If the property has been forfeited through a contract for conveyance of real property pursuant to title 33, chapter 6, article 3.
4. If the property has been sold by virtue of an execution and the title has been duly transferred.
5. 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.
Reference Arizona Revised Statutes: 12-1173.01
The tenant’s or occupant’s right to possession is usually the only issue at the court hearing. If they don’t, they’ll be charged with forcible entry and detention. The court will issue an order requiring the tenant/occupant to remove the premises within 5 days. After that time period has passed, the Sheriff’s office has the authority to evict the tenants/occupants, remove their personal goods, and relinquish custody and control of the property to the legal owner.
The legitimate owner should change the locks and take precautions to secure the property.
A forceful entrance and detainer action can be filed in either the Justice or Superior Courts. Individuals do not need to hire an attorney to bring a lawsuit if they are suing on their own behalf, not on behalf of a corporation or another person. The process is not overly complicated, but it must be followed in the proper order. The court will ask you to start the process over if there is any deviation. Using a lawyer who specializes in this area will save you time, money, and aggravation.
ABANDONMENT, NOTICE, REMEDIES, PERSONAL PROPERTY (NOTE: THE FOLLOWING MAY HAVE CHANGED. CHECK CURRENT LAW)
Arizona Revised Statutes §33-1370. Abandonment; notice; remedies; personal property; definition
A. If a dwelling unit is abandoned after the time prescribed in subsection J 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.
B. Five days after the notice of abandonment has been both posted and mailed, the landlord may retake the dwelling unit and rerent the dwelling unit at a fair rental value if no personal property remains in the dwelling unit. After the landlord retakes the dwelling unit, money held by the landlord as a security deposit is forfeited and shall be applied to the payment of any accrued rent and other reasonable costs incurred by the landlord by reason of the tenant’s abandonment.
C. If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent the dwelling unit at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement is deemed to be terminated as of the date the new tenancy begins. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.
D. After the landlord retakes possession of the dwelling unit, and if the tenant’s personal property remains in the dwelling unit, the landlord shall prepare an inventory and notify the tenant of the location and cost of storage of the personal property in the same manner prescribed in subsection A of this section.
E. After the landlord retakes 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, 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 is not required to store the tenant’s perishable items, plants and animals on behalf of the tenant. The landlord may remove or dispose of, as appropriate, the perishable items, including plants. At the landlord’s discretion, the landlord may remove and dispose of any personal property in the dwelling unit that is contaminated, may be considered a biohazard or poses a health and safety risk. After notifying any person who was authorized by the tenant to retrieve the tenant’s animal as prescribed in section 33-1314 and no retrieval occurs after one calendar day, the tenant’s abandoned animals may be immediately removed and released to a shelter or boarding facility. The landlord shall keep a record of the name and location of the shelter or boarding facility to which the animal was released. If the landlord does not immediately remove and release the abandoned animals to a shelter or boarding facility, the landlord shall provide reasonable care for the abandoned animals for the period prescribed by subsection F of this section. If the landlord is unable or unwilling to provide reasonable care to the abandoned animals, the landlord shall notify the county enforcement agent as defined in section 11-1001 or an animal control officer as prescribed in section 9-499.04 of the presence of the tenant’s abandoned animals on the property to be seized pursuant to section 13-4281. The landlord is not liable for any actions taken in good faith related to the removal, release, seizure or care of the abandoned animals pursuant to this section.
F. The landlord shall hold the tenant’s personal property for a period of fourteen calendar days after the landlord retakes possession of the dwelling unit. The landlord shall use reasonable care in moving and 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 donate the personal property to a qualifying charitable organization as defined in section 43-1088 or otherwise recognized charity or sell the property. If the landlord sells the property, the landlord shall retain the proceeds and apply them toward the tenant’s outstanding rent or other costs that are covered in the lease agreement or otherwise provided for in this chapter or title 12, chapter 8 and that have been incurred by the landlord, and 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. 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 and storing the property and conducting a public sale exceeds the amount that would be realized from the sale. Any tax benefit associated with the donation of the personal property belongs to the tenant. A landlord that complies with this section is not liable for any loss to the tenant or any third party that results from moving, storing or donating any personal property left in the dwelling unit.
G. For a period of twelve months after the sale, the landlord shall:
1. Keep adequate records of the outstanding and unpaid rent and the sale of the tenant’s personal property.
2. Hold for the benefit of the tenant any excess proceeds that have been returned as undeliverable.
H. 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 for the costs associated with removal and storage for the period the tenant’s personal property was stored. Except as provided in subsection E or I of this section for personal property exempt from storage requirements, within five days after a written offer by the tenant to pay the applicable storage or removal costs the landlord must surrender possession of the personal property in the landlord’s possession to the tenant on 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 fourteen days specified in this section or after the tenant’s offer to pay.
I. Notwithstanding subsections D, E, F and G of this section, if the tenant returns to the landlord the keys to the dwelling unit and there is personal property remaining in the dwelling unit, the landlord may immediately remove and dispose of the personal property without liability to the tenant or a third party unless the landlord and tenant have agreed in writing to some other treatment of the property.
J. For the purposes of this section, “abandonment” means either of the following:
1. 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.
2. 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.
Original Source: Arizona Revised Statutes §33-1370. Abandonment; notice; remedies; personal property; definition
ARIZONA RESIDENTIAL TERMINATION OF TENANCY (NOTE: THE FOLLOWING MAY HAVE CHANGED. CHECK CURRENT LAW)
§33-1368. Noncompliance with rental agreement by tenant; failure to pay rent; utility discontinuation; liability for guests; definition
A. Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement, including material falsification of the information provided on the rental application, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than ten days after receipt of the notice if the breach is not remedied in ten days. For the purposes of this section, material falsification includes the following untrue or misleading information about the:
1. Number of occupants in the dwelling unit, pets, income of the prospective tenant, social security number and current employment listed on the application or lease agreement.
2. Tenant’s criminal records, prior eviction record and current criminal activity. Material falsification of information in this paragraph is not curable under this section.
If there is a noncompliance by the tenant with section 33-1341 materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than five days after receipt of the notice if the breach is not remedied in five days. However, if the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate. If there is an additional act of these types of noncompliance of the same or a similar nature during the term of the lease after the previous remedy of noncompliance, the landlord may institute a special detainer action pursuant to section 33-1377 ten days after delivery of a written notice advising the tenant that a second noncompliance of the same or a similar nature has occurred. If there is a breach that is both material and irreparable and that occurs on the premises, which may include an illegal discharge of a weapon, homicide as prescribed in sections 13-1102, 13-1103, 13-1104 and 13-1105, prostitution as defined in section 13-3211, criminal street gang activity as prescribed in section 13-105, activity as prohibited in section 13-2308, the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in section 13-3451, threatening or intimidating as prohibited in section 13-1202, assault as prohibited in section 13-1203, acts that have been found to constitute a nuisance pursuant to section 12-991 or a breach of the lease agreement that otherwise jeopardizes the health, safety and welfare of the landlord, the landlord’s agent or another tenant or involving imminent or actual serious property damage, the landlord may deliver a written notice for immediate termination of the rental agreement and shall proceed under section 33-1377. The foregoing list of actions which may constitute a material and irreparable breach of a tenant’s lease is not exhaustive.
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.
C. The landlord may recover all reasonable damages resulting from noncompliance by the tenant with the rental agreement or section 33-1341 or occupancy of the dwelling unit, court costs, reasonable attorney fees and all quantifiable damage caused by the tenant to the premises.
D. The landlord may discontinue utility services provided by the landlord on the day following the day that a writ of restitution or execution is executed pursuant to section 12-1181. Disconnections shall be performed only by a person authorized by the utility whose service is being discontinued. This section does not supersede standard tariff and operational procedures that apply to any public service corporation, municipal corporation or special districts providing utility services in this state.
E. On the day following the day that a writ of restitution or execution is executed pursuant to section 12-1181, the landlord shall comply with section 33-1370, subsections D, E, F, G, H and I regarding the tenant’s personal property.
F. For the purposes of this chapter, the tenant shall be held responsible for the actions of the tenant’s guests that violate the lease agreement or rules or regulations of the landlord if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent those actions to the best of the tenant’s ability.
G. For the purposes of this section, “days” means calendar days.
Source: §33-1368. Noncompliance with rental agreement by tenant; failure to pay rent; utility discontinuation; liability for guests; definition
ARIZONA NON-RESIDENTIAL TERMINATION OF TENANCY (NOTE: THE FOLLOWING MAY HAVE CHANGED. CHECK CURRENT LAW)
§33-341. Termination of tenancies
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.
Reference “§33-341. Termination of tenancies” for more information
A tenancy termination is not the same as an eviction. A termination occurs when the landlord terminates the rental agreement and requests that the tenant vacate the rented unit. A tenant’s tenancy can be cancelled and they can move out without being evicted. An eviction is the actual court process and lawsuit used to remove a tenant from a property if they do not depart.
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If the lien has continued unpaid for twenty days after the charges have accrued, the person holding the property may inform the owner, if the property is located in the same county as the lien, to pay the charges. If the owner does not pay the charges within ten days, the property holder may sell the property at public auction and use the revenues to pay the charges. The remaining proceeds will be paid to the person who is entitled to them (the original owner). If the owner’s domicile is not in the same county as the property, the holder is not required to give the ten-day notice before selling. If the owner can be traced, a five-day notice of sale must be given, and if not, two notices must be published in a county newspaper.
The holder must pay the amount to the county if the person legally entitled to receive the balance is unknown or has moved out of the county. If the party establishes his entitlement to the money to the satisfaction of the county within two years of the date of payment to the department of revenue, the money shall be paid to him. All unclaimed funds must be deposited to a specific fund after two years.
Please read the current statute because the advice above may be out-of-day. A.R.S. §33-1023.