The information in this web site is not intended to constitute legal advice or to create an attorney-client relationship. The information, documents or forms provided herein is intended for general information purposes only and must not be regarded as legal advice.
This brief outline is not intended to replace the advice of an experienced real estate attorney. It is very important that you obtain legal advice regarding your particular situation. Consultation with a real estate attorney before you take action will certainly cost you less than afterwards. bankruptcy lawyer is usually little or no cost. I do not say this to scare you, I say it to put you on fair warning as to the exposure you may face.
What is a forcible entry and detainer?
Both the landlord and the tenant need to understand their rights and obligations.
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 following is focused on residential evictions.
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.
CAN I FILE A FORCIBLE DETAINER ACTION WITHOUT AN ATTORNEY?
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 ISSUE AT THE COURT HEARING
Usually 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.
CAN THE NEW OWNER USE A FORCIBLE DETAINER ACTION AFTER A TRUSTEE’S SALE?
WHY MUST THE OLD HOMEOWNER OR OCCUPANT PLEAD ‘GUILTY’ OF A FORCIBLE ENTRY AND DETAINER?
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”.
HOW LONG DOES IT TAKE TO COMPLETE A FORCIBLE ENTRY & DETAINER ACTION?
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.
RECOVERY OF RENTS OR FOR USE OF PROPERTY
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.
CAN I OFFER THE OCCUPANT MONEY TO LEAVE WITHOUT FILING A FORCIBLE ENTRY & DETAINER?
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.
SALE OF PERSONAL PROPERTY
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.
RESIDENTIAL - LANDLORD TENANT PROVISIONS FOR ABANDONMENT AND STORAGE OF PERSONAL PROPERTY
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.
NON-RESIDENTIAL LANDLORD LIENS ON PERSONAL PROPERTY
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.