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WHAT IS AN EVICTION IN ARIZONA, also called a FORCIBLE ENTRY AND DETAINER?

eviction questions

Both the landlord and the tenant need to understand their rights and obligations.

WARNING: IT IS YOUR RESPONSIBILITY TO CHECK THE CURRENT STATUTES AND CASE LAW IN ARIZONA. THE FOLLOWING INFORMATION MAY BE OUT OF DATE OR OVER TURNED.

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.

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.

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.

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.”

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.

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.

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.

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.

What is the definition of “abandonment”? 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.

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