This website does not provide legal advice.  It is for informational purposes only. Please do not act or refrain from acting based on anything you read on this site. The information contained in this web site, article or link may be outdated, incorrect or not applicable; it is your obligation to confirm the accuracy. Using this site or communicating with Law Office of D.L. Drain, or any agent/employee of our firm, through this site does not form an attorney/client relationship. This site is legal advertising. Please review the full disclaimer for more information.

It is very important that you obtain legal advice from an experienced attorney regarding your particular situation. Consultation before you take action will certainly cost you less than it will cost to fix your unintentional errors.

evictionCharity 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

ARIZONA FORCIBLE ENTRY & DETAINER OR “EVICTION” LAWS

IMPORTANT: THIS FIRM MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR CURRENT STATUS OF ANY LAW, CASE, ARTICLE OR PUBLICATION CITED HEREIN OR LINKED TO. WARNING: THE LAW CITED BELOW MAY CHANGE OVER TIME. PLEASE REVIEW THE CURRENT STATUTES.

There are different procedures for an Arizona forcible entry and detainer depending on the type of occupancy and how title was obtained:

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.

Arizona Forcible Entry and Detainer

A.R.S §12-1171. Acts which constitute forcible entry or detainer

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.

Makes such an entry by force.

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.

§12-1173. Definition of forcible detainer; substitution of parties

There is an Arizona 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.

§12-1173.01. Additional definitions of forcible detainer

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.

§12-1175. Complaint and answer; service and return (Arizona specific)

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.

§12-1177. Trial and issue; postponement of trial (Arizona specific)

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.

§12-1178. Judgment; writ of restitution; limitation on issuance (Arizona specific)

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.

§12-1183. Proceedings no bar to certain actions (Arizona specific)

The proceedings under a forcible entry or forcible detainer shall not bar an action for trespass, damages, waste, rent or mesne profits.

Arizona law as of fall 2018: After a landlord retakes possession of a dwelling unit, if the tenant’s personal property remains in the unit, the landlord is required to hold the tenant’s personal property for 14 calendar days, instead of 10 days or 21 days if the tenant was evicted. The landlord is not required to store the tenant’s perishable items, plants and animals, and is permitted to remove and dispose of any personal property in the unit that is contaminated or poses a health and safety risk, at the landlord’s discretion. The tenant’s abandoned animals may be immediately removed and released to a shelter or boarding facility or the landlord is required to notify animal control. If after 14 days the tenant makes no reasonable effort to recover the personal property, the landlord is permitted to donate the personal property to a qualifying charitable organization (in addition to the current authorization to sell the personal property). A landlord that complies with statutory requirements for disposition of personal property 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. If the tenant returns to the landlord the keys to the dwelling unit and there is personal property remaining in the unit, the landlord is permitted to 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.  S1376 (2018)

Arizona Residential Landlord Tenant Act

The relevant law for notice to tenants about foreclosure is A.R.S. Section 33-1331.  Warning – just because a landlord has an obligation to do something does not mean they will.

33-1331. Notice of foreclosure; effect on lease; damages

  1. If a rental agreement is entered into after the foreclosure action was initiated, the owner shall include written notice of possible foreclosure with the rental agreement with the tenant. The notice shall include a statement that is substantially in the following form:

This property is undergoing foreclosure. For more information on this action, you should contact ______ (name, address and phone number of the court where the action is filed or trustee, attorney or other responsible party).

A sale at auction may or may not occur as a result of this foreclosure. Currently, the sale of this property has been set for ______ (time, date and place) or no date for sale of this property has been established.

  1. If the owner receives a notice of trustee’s sale or other notice of foreclosure on the property after a tenant has entered into a rental agreement on the property, the owner shall provide the tenant with written notice as prescribed in subsection A of this section within five business days after receipt of the notice of trustee’s sale.  This subsection applies only to the first notice of trustee’s sale or the first notice of foreclosure received by the owner after the tenant has entered into the rental agreement.
  2. If the owner fails to provide notice as prescribed in this section the tenant may deliver a written notice pursuant to section 33-1361 and recover damages and obtain injunctive relief.  The security deposit shall be returned to the tenant as prescribed in section 33-1321.
  3. This section shall not apply to multifamily residential rental units consisting of four or more connected units.

The relevant law is 33-1331.  WARNING: just because a landlord has an obligation to do something does not mean they will.

33-1331. Notice of foreclosure; effect on lease; damages

  1. If a rental agreement is entered into after the foreclosure action was initiated, the owner shall include written notice of possible foreclosure with the rental agreement with the tenant. The notice shall include a statement that is substantially in the following form:

This property is undergoing foreclosure. For more information on this action, you should contact ________________ (name, address and phone number of the court where the action is filed or trustee, attorney or other responsible party).

A sale at auction may or may not occur as a result of this foreclosure. Currently, the sale of this property has been set for _________ (time, date and place) or no date for sale of this property has been established.

  1. If the owner receives a notice of trustee’s sale or other notice of foreclosure on the property after a tenant has entered into a rental agreement on the property, the owner shall provide the tenant with written notice as prescribed in subsection A of this section within five business days after receipt of the notice of trustee’s sale.  This subsection applies only to the first notice of trustee’s sale or the first notice of foreclosure received by the owner after the tenant has entered into the rental agreement.
  2. If the owner fails to provide notice as prescribed in this section the tenant may deliver a written notice pursuant to section 33-1361 and recover damages and obtain injunctive relief.  The security deposit shall be returned to the tenant as prescribed in section 33-1321.
  3. This section shall not apply to multifamily residential rental units consisting of four or more connected units.

FEDERAL PROTECTING TENANTS AT FORECLOSURE ACT (EXPIRED 12/31/14 THEN REINSTATED 12/2017)

Stark & Stark Friday, August 21, 2015

In the aftermath of the 2008 financial crisis, one of the pieces of legislation that was intended to be considered “Main Street”-friendly, which is another way of referring to legislation that is supportive of locally owned small businesses and residences, was the Protecting Tenants at Foreclosure Act (“PTFA”).  In short, this statute provided protection for tenants who occupied residential real estate that was subject to mortgage foreclosure.

The PTFA permitted any occupant who was a non-relative of a foreclosure defendant who occupied real estate under an arms-length, bona fide lease for fair rental value, to remain in the property for the balance of the lease term. If the lease did not have a fixed remaining term, occupants were allowed to remain in the property for 90 days before a foreclosing mortgagee could commence ejectment proceedings.

Despite its good intentions, unfortunately the PTFA wound up creating more problems than it solved before it was eventually retired at the end of 2014, because it effectively turned foreclosing lenders into reluctant landlords.  Even worse, there was very little case law, be it federal or state, that arose to properly interpret the PTFA, as its originally written provisions were less than clear, and any case law that did exist often varied from jurisdiction to jurisdiction.


RESIDENTIAL EVICTION ACTIONS (REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 5TH)
Bona Fide Lease Defense Following a Trustee’s Sale:

After a trustee’s sale, the new owner is prohibited from evicting any existing tenants in
certain situations. If an existing tenant wishes to keep possession of the property
following a trustee’s sale, the existing tenant must prove that a “bona fide” lease was in
place at the time of the trustee’s sale.
To qualify as a “bona fide” lease, [defendant/tenant] must prove:
1. That the lease was entered into before the trustee’s deed is delivered;
2. That the tenant is not the defaulting borrower;
3. That the lease is the result of an arm’s length transaction; and
4. That the lease requires an amount of rent that is not substantially less than the “fair
market rent” for the property.
An arm’s length transaction is an agreement between two parties who are not related to
each other and who are not on close terms with each other.

++++++

SOURCE: The Protecting Tenants at Foreclosure Act of 2009 (PTFA), Pub. L. No. 111-22, Sec.
702, 123 Stat. 1660 (2009), 12 U.S.C. § 5220; Bank of New York Mellon v. De Meo, 227 Ariz. 192,
254 P.3d 1138 (Ct. App. 2011) (purchaser at trustee’s sale was required to provide 90 days actual
notice to vacate to tenant even though eviction action hearing did not occur until 97 days after
five-day notice). BLACK’S LAW DICTIONARY, 103 (1999) (arm’s length transaction). See also Dewey
v. Arnold, 159 Ariz. 65, 70, 764 P.2d 1124, 1129 (1988) (Contains a discussion of arm’s length
transactions). An amendment to the PTFA provided that “the date of a notice of foreclosure
shall be deemed to be the date on which complete title to a property is transferred to a successor
entity or person as a result of an order of a court or pursuant to provisions in a mortgage, deed
of trust, or security deed.” Pub. L. 111-203, Title XIV, § 1484(1), 124 Stat. 2204 (2010); 12
U.S.C.A. § 5220, note. See also Logan v. U.S. Bank Nat’l Ass’n, ___ F.3d ___, 2013 WL 3614465
(9th Cir. 2013) (PFTA does not provide a right of action).

COMMENT: Under the PTFA, if a “bona fide” lease exists, then the new owner is required to
honor the lease unless the new owner intends to occupy the property as their primary residence.
If the new owner intends to occupy the property as their primary residence, then the new owner
must provide the tenant with 90-days notice to vacate. The effect of foreclosure on Section 8
tenancies is governed by amendments to the United States Housing Act of 1937. See generally 42
U.S.C. § 1437(f). See also Curtis v. Morris, 186 Ariz. 534, 925 P.2d 259

FEDERAL PROTECTING TENANTS AT FORECLOSURE ACT (EXPIRED 12/31/14, BUT REINSTATED PERMANENTLY)

Stark & Stark Friday, August 21, 2015

In the aftermath of the 2008 financial crisis, one of the pieces of legislation that was intended to be considered “Main Street”-friendly, which is another way of referring to legislation that is supportive of locally owned small businesses and residences, was the Protecting Tenants at Foreclosure Act (“PTFA”).  In short, this statute provided protection for tenants who occupied residential real estate that was subject to mortgage foreclosure.

The PTFA permitted any occupant who was a non-relative of a foreclosure defendant who occupied real estate under an arms-length, bona fide lease for fair rental value, to remain in the property for the balance of the lease term. If the lease did not have a fixed remaining term, occupants were allowed to remain in the property for 90 days before a foreclosing mortgagee could commence ejectment proceedings.

Despite its good intentions, unfortunately the PTFA wound up creating more problems than it solved before it was eventually retired at the end of 2014, because it effectively turned foreclosing lenders into reluctant landlords.  Even worse, there was very little case law, be it federal or state, that arose to properly interpret the PTFA, as its originally written provisions were less than clear, and any case law that did exist often varied from jurisdiction to jurisdiction.


The relevant law is 33-1331.  WARNING: just because a landlord has an obligation to do something does not mean they will.

33-1331. Notice of foreclosure; effect on lease; damages

  1. If a rental agreement is entered into after the foreclosure action was initiated, the owner shall include written notice of possible foreclosure with the rental agreement with the tenant. The notice shall include a statement that is substantially in the following form:

This property is undergoing foreclosure. For more information on this action, you should contact ________________ (name, address and phone number of the court where the action is filed or trustee, attorney or other responsible party).

A sale at auction may or may not occur as a result of this foreclosure. Currently, the sale of this property has been set for _________ (time, date and place) or no date for sale of this property has been established.

  1. If the owner receives a notice of trustee’s sale or other notice of foreclosure on the property after a tenant has entered into a rental agreement on the property, the owner shall provide the tenant with written notice as prescribed in subsection A of this section within five business days after receipt of the notice of trustee’s sale.  This subsection applies only to the first notice of trustee’s sale or the first notice of foreclosure received by the owner after the tenant has entered into the rental agreement.
  2. If the owner fails to provide notice as prescribed in this section the tenant may deliver a written notice pursuant to section 33-1361 and recover damages and obtain injunctive relief.  The security deposit shall be returned to the tenant as prescribed in section 33-1321.
  3. This section shall not apply to multifamily residential rental units consisting of four or more connected units.

FEDERAL PROTECTING TENANTS AT FORECLOSURE ACT (EXPIRED 12/31/14 THEN REINSTATED 12/2017)

Stark & Stark Friday, August 21, 2015

In the aftermath of the 2008 financial crisis, one of the pieces of legislation that was intended to be considered “Main Street”-friendly, which is another way of referring to legislation that is supportive of locally owned small businesses and residences, was the Protecting Tenants at Foreclosure Act (“PTFA”).  In short, this statute provided protection for tenants who occupied residential real estate that was subject to mortgage foreclosure.

The PTFA permitted any occupant who was a non-relative of a foreclosure defendant who occupied real estate under an arms-length, bona fide lease for fair rental value, to remain in the property for the balance of the lease term. If the lease did not have a fixed remaining term, occupants were allowed to remain in the property for 90 days before a foreclosing mortgagee could commence ejectment proceedings.

Despite its good intentions, unfortunately the PTFA wound up creating more problems than it solved before it was eventually retired at the end of 2014, because it effectively turned foreclosing lenders into reluctant landlords.  Even worse, there was very little case law, be it federal or state, that arose to properly interpret the PTFA, as its originally written provisions were less than clear, and any case law that did exist often varied from jurisdiction to jurisdiction.


COMMENT: Under the PTFA, if a “bona fide” lease exists, then the new owner is required to
honor the lease unless the new owner intends to occupy the property as their primary residence.
If the new owner intends to occupy the property as their primary residence, then the new owner
must provide the tenant with 90-days notice to vacate. The effect of foreclosure on Section 8
tenancies is governed by amendments to the United States Housing Act of 1937. See generally 42
U.S.C. § 1437(f). See also Curtis v. Morris, 186 Ariz. 534, 925 P.2d 259

CASE LAW

THIS IS A VERY SMALL SAMPLING OF ARIZONA CASE LAW, AND IS NOT NECESSARILY UP TO DATE.  AS ALWAYS, IT IS YOUR RESPONSIBILITY TO REVIEW THE RELEVANT CASE LAW AND STATUTES.

FORCIBLE ENTRY AND DETAINER CASE LAW

Carrington Mortgage Servs. v. Woods, 1 CA-CV 16-0383, 6/22/17. An action for forcible entry and detainer accrues when a written demand of possession is served. Arizona’s procedure for taking possession of property and evicting persons without a right to possession is called a forcible entry or detainer. Under A.R.S. § 12-542(6), an action for forcible detainer (i.e., eviction) must be brought within two years after the cause of action accrues, and the action accrues “at the commencement of the forcible entry or detainer.” The commencement of a forcible detainer occurs upon service of a written notice demanding possession of the property. Thus, an action for forcible detainer must be brought within two years after service of a written demand for possession.

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.

Tucson Lot 4, LLC v. Sunquest Information Systems, Inc., 1 CA-CV 16-0088, 11/22/16. A court cannot enjoin forcible detainer proceedings, and the denial of a forcible detainer is appealable without language pursuant to Arizona Rule of Civil Procedure 54(b) or (c). A landlord has a statutory right to a forcible detainer proceeding, for which “the only issue shall be the actual right of possession.” A.R.S. § 12-1177(A). Because the “only issue” is right of possession, a court may not enter a preliminary injunction that depends, in part, on relative hardship of parties as an issue. In addition, a landlord may appeal the denial of a forcible detainer even if the denial lacks Rule 54(b) or (c) language. Generally, to be appealable, a superior court’s order must indicate that the order is appealable using language spelled out in Rule 54(b) and (c) of the Arizona Rules of Civil Procedure.

The Arizona Rules of Procedure for Eviction Acts (RPEA), however, state that “[t]he Arizona Rules of Civil Procedure [ARCP] apply only when incorporated by reference in these rules,” and the RPEA do not incorporate ARCP Rule 54. Furthermore, A.R.S. §12-1182(A) provides that an appeal may be taken from a forcible detainer action. Rule 54(b) and (c) do not apply to an order that is independently appealable by statute.

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.

Bank of New York v. Dodev,   cv-17-02772-PHX-JJR (November 20, 2018. The Arizona Court of Appeals, Div. One), affirmed the superior court’s judgment finding defendant guilty of forcible detainer. He had defaulted on his home loan in 2008 but remained in his Gilbert property. The Court of Appeals held that (1) the pendency of defendant’s appeal from a previous dismissal without prejudice did not divest the superior court from jurisdiction to consider the current action; (2) the court did not err by refusing to dismiss the current action based on two prior voluntary dismissals; (3) the court properly allowed alternative service based on sufficient evidence of impracticability; (4) the court did not err by ordering defendant to file an answer after determining it had personal jurisdiction; and (5) A.R.S. § 12-1178 allows for the awarding of attorney’s fees in a forcible detainer action in superior court, but A.R.S. § 12-1182 does not provide for attorney’s fees on appeal.

Iverson v. Nava et al. February 27, 2020. In a case arising from a dispute between a landlord and tenant in a special detainer action, the Arizona Court of Appeals, Div. One, found that some of the counterclaims filed by tenants exceeded the jurisdiction granted to the superior court, so that portion of the final judgment resolving those counterclaims after a bench trial was vacated – without prejudice to the defendants asserting such claims in a separate civil action. The judgment was affirmed in part, reversed in part and remanded. Under the Arizona Rules of Procedure for Eviction Actions – which govern forcible entry and detainer actions – in an action based on the nonpayment of rent, like this case, a tenant may counterclaim for any amount recoverable under the rental agreement if the landlord did not comply with its obligations, but no other counterclaims are allowed.

Justice court lacks jurisdiction to hear a forcible detainer action filed to evict the occupants of property purchased at a trustee’s sale. A.R.S. § 12-1173.01

Secure Ventures v. Hon. Gerlach/Johnson  (May 5, 2020. The Arizona Court of Appeals, Div. One) held that under A.R.S. § 12- 1173.01, the justice court lacks jurisdiction to hear a forcible detainer action filed to evict the occupants of property purchased at a trustee’s sale. A.R.S. § 12-1173.01, read consistently with § 12-1173 and giving effect to the ordinary meaning of the statute’s words, shows the Legislature intended that § 12-1173.01 requires post-trustee’s sale forcible detainer actions be filed only in the superior court. The Court of Appeals acknowledged that this holding may well conflict with the common practice in Arizona, but it could not disregard the statute’s plain language. Therefore, the superior court did not err in determining that, under § 12-1173.01, the justice court lacked jurisdiction over the forcible detainer action brought by petitioner, an owner that acquired title to property in a trustee’s sale.