Eviction Article

Evictions

In Arizona, eviction actions are called “special detainer” actions (A.R.S. 33-1337). Under the Arizona Residential Landlord and Tenant Act (A.R.S. Title 33 Chapter 10), a landlord may undertake a “special detainer” action if and when (1) a tenant violates one of the tenant’s obligations (such as the obligation to pay rent on time) and (2) as a result of this violation by the tenant the landlord wishes to retake possession of the rental unit.

For what reasons may a landlord seek to have a tenant evicted?

A landlord may ask a court to evict a tenant from a rental unit for any of several reasons:

1. non-payment of rent

A tenant may be evicted for not paying rent.

If a landlord wishes to evict a tenant for not paying rent that the tenant owes, the landlord must give the tenant written notice specifying that the tenant has five days to pay the rent or eviction proceedings will begin (A.R.S. § 33-1368(B)).

IMPORTANT NOTE: partial payment: A landlord is not required to accept partial payment. If, however, after the tenant has received written notice, the landlord chooses to accept only part of the total amount of the rent that is owed, the landlord by doing so gives up the right to terminate the rental agreement for the rest of that month – unless the landlord receives from the tenant a signed written waiver permitting the landlord to proceed with the eviction if the rest of the amount of the rent that is owed is not paid by a specified date (A.R.S. § 33-1371).

2. failure to properly maintain the rental unit in a manner that materially affects health and safety

A tenant may be evicted for failing to properly maintain the rental unit in contravention of A.R.S. § 33-1341 (for example, by violating applicable building codes; by willfully or negligently causing damage or destruction; by not or improperly disposing of garbage and other waste; or by improperly using electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances).

If a landlord wishes to evict a tenant for a failure to maintain the rental unit that materially affects health and safety, then the landlord must give the tenant written notice describing the problem and specifying that the tenant has five days to fix it (if possible) or eviction proceedings will begin (A.R.S. §33-1368(A)).

3. violation of the lease or rental agreement

A tenant may be evicted for violating the lease or rental agreement (for example, by lying on the rental application (about, among other things, current employment or previous evictions or a criminal record) or by having unauthorized pets or guests in the rental unit).

If a landlord wishes to evict a tenant for violating the terms of the lease or rental agreement, then the landlord must give the tenant written notice describing the problem and specifying that the tenant has ten days to fix it (if possible) or eviction proceedings will begin (A.R.S. § 33-1368(A)).

How does the eviction process work?

A landlord must never attempt to physically evict a tenant (for example, by removing the tenant’s belongings or changing the locks on the rental unit). This is called a “self-help” measure, and it is unlawful (A.R.S. § 33-1367).

A landlord must seek an eviction through the formal court process. However, before a landlord may go to court, the landlord first must provide the tenant with written notice (as described in the section above). Given that the landlord will be required by the court to show proof of the fact that written notice was provided to the tenant (and that the 5- or 10-day period during which the tenant may pay all rent due and/or fix the specified problem(s) has elapsed), the landlord should deliver the letter either by hand (with a witness present) or by registered or certified mail.

If, even after receiving this letter from the landlord, the tenant does not either (a) pay the rent or fix the problem (if possible) or (b) voluntarily move out of the rental unit, then the landlord may begin the eviction process.

The eviction (or “special detainer”) process begins when the landlord files a complaint with the justice court (if the amount in dispute is $10,000 or less) or superior court in the county in which the rental unit is located. Once this has happened, the tenant receives a copy of the complaint and a summons. The summons informs the tenant of the date on which the eviction hearing will take place. If the tenant wishes to fight the eviction, the tenant must be present in court for this hearing. (The tenant may request a brief postponement of the hearing if the tenant can show good cause.) At the hearing, a judge will listen to the landlord as well as the tenant. The judge then will decide, on the basis of what the landlord and the tenant have said, whether or not the tenant will be evicted.

When may a tenant fight an eviction?

A tenant may have grounds to fight an eviction if any of the following apply:

1. the tenant has paid rent in full

IMPORTANT NOTE: payment of rent: Given how frequently disputes over payment arise between landlords and tenants, it is strongly advised that tenants pay their monthly rent (and security deposit) by check or money order or otherwise have their landlords sign for receipt of rent payment by cash (on a document that specifies the amount that was paid, the month for which it was paid, and the date on which it was paid).

Under A.R.S. § 33-1368(B):

(i) If the tenant pays the entire rent that the tenant owes within the five-day period after the tenant has received formal written notice from the landlord, then the landlord generally is required to accept that payment and may not continue to seek an eviction on non-payment grounds.

(ii) If the tenant pays the entire rent that the tenant owes (plus any applicable and reasonable late fees as stated in the rental agreement) after the five-day period but before the landlord has filed a complaint with the court to begin the eviction process, then the landlord generally is required to accept that payment and may not continue to seek an eviction on non-payment grounds.

(iii) If the tenant pays the entire rent that the tenant owes (plus any applicable and reasonable late fees as stated in the rental agreement) after the landlord has filed a complaint with the court to begin the eviction process but before the judge has made a final decision, then the landlord generally is required to accept that payment and may not continue to seek an eviction on non-payment grounds if the tenant also pays the landlord’s attorney fees and court costs.

(iv) If the tenant wishes to pay the entire rent that the tenant owes plus any applicable and reasonable late fees as stated in the rental agreement plus the landlord’s attorney fees and court costs after the judge has decided in favor of the landlord and granted the eviction, then the choice of accepting that payment and reinstating the rental agreement is entirely at the discretion of the landlord.

2. the tenant has fixed the problem described by the landlord

Under A.R.S. § 33-1368(A), if the tenant fixes a problem involving a failure to properly maintain the rental unit within 5 days of receiving written notice, or a problem involving a violation of the lease or rental agreement within 10 days of receiving written notice, then the landlord generally may not continue to seek an eviction on those grounds.

3. the landlord did not use the proper procedure for filing an eviction complaint

If, for example, the landlord did not provide the tenant with formal written notice before filing an eviction complaint, then the landlord will have to begin the whole process again, and the tenant will have additional time to either pay the rent that the tenant owes or fix the problem that the landlord describes in the letter to the tenant.

4. the landlord engaged in “self-help” measures to physically evict the tenant from the rental unit

Under A.R.S. § 33-1367, a tenant whose landlord “unlawfully removes or excludes the tenant from the premises or wilfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant” may choose to either (a) recover possession of the rental unit or (b) terminate the rental agreement. And, in either case, the tenant will be owed either two months’ rent or twice the actual damages sustained by the tenant (whichever is greater).

5. the tenant is being evicted for exercising the tenant’s legal rights

Under A.R.S. § 33-1381, a landlord is barred from seeking an eviction in response to any of the following:

(i) the tenant has complained to a government agency about a building or health code violation

(ii) the tenant has complained to the landlord about repairs that the landlord is required to make under A.R.S. § 33-1324 (“Landlord to maintain fit premises”)

(iii) the tenant has organized or become a member of a tenants’ union or similar organization

(iv) the tenant has complained to the government agency in charge of enforcing the wage-price stabilization act

Any attempted eviction that comes within six months of any such prior complaint by the tenant will be presumed by the court to be an act of “retaliation” and the landlord will have the burden of proving otherwise to the judge. (But none of this will matter if the tenant has not paid rent.)

6. the landlord is seeking the eviction for discriminatory reasons

It is unlawful under the Fair Housing Act (Title VIII of the federal Civil Rights Act of 1968) for a landlord to discriminate against a tenant based on race, religion, gender, national origin, disability, and familial status (e.g., whether the tenant is divorced or pregnant or has children under the age of 18).

IMPORTANT NOTE: Re: fighting an eviction: A tenant who fights an eviction (or “special detainer”) action in court and loses may be required by the court to pay the landlord’s attorney fees and court costs. This means that the decision to fight an eviction should not be taken lightly. In some cases, mediation may be an alternative worth exploring.

What happens to an evicted tenant’s personal belongings?

If a tenant is evicted from a rental unit and leaves personal belongings behind, the landlord must hold those belongings for a period of at least 21 days beginning on the day that the court returns possession of the rental unit to the landlord (A.R.S. § 33-1368(E)). The landlord may charge the tenant for any reasonable cost incurred in storing and/or removing the tenant’s belongings.

If the rental unit (i.e., the tenant’s former dwelling) is used to store the property, then the landlord may change the locks on that unit at the landlord’s discretion. The landlord must prepare an inventory and promptly notify the tenant of the location (as well as the cost of storage and removal, if any) of the tenant’s personal belongings by sending a notice by certified mail (return receipt requested) addressed to the tenant’s last known address and to any of the tenant’s alternative addresses known to the landlord.

Within 5 days after a written offer by the tenant to pay any reasonable costs related to the storage and/or removal of the tenant’s personal belongings, the landlord must, upon payment by the tenant, return them to the tenant. If the landlord fails to do so, then the tenant may recover those belongings or an amount equal to the damages determined by the court if the landlord has destroyed or disposed of them before the 21-day period has elapsed or after a written offer by the tenant to pay.

Although a tenant who has been evicted from a rental unit and left personal belongings behind generally has no right of access to those belongings until full payment has been made to the landlord for their storage and removal, this rule does not apply to certain items. The following items must be made available to the tenant by the landlord immediately upon request: (a) clothing, (b) the “tools, apparatus and books of a trade or profession,” and (c) identification or financial documents (including documents related to the tenant’s immigration status, employment status, public assistance ,and medical care) (A.R.S. § 33-1368(F)).

On 7/29/07
Joseph said
installment sales agreement. buyer has not paid mortage for 2 months, and cannot pay the third. contracts stipulates that if late 2 months contract becomes null and void. Do rules apply for this as they do for tenant/landlord?

On 1/13/07
Cindy said
I am appearing in court Jan 16 for a 2nd time in a year due to a Forcable Detainer. In both cases the landlord viewed me as a threat simply because I expect them to pay for necessary repairs to keep my home safe.I was harassed & threatened by them.

On 9/7/06
Patrick said
Excellent information...Thank you for this website. My tenant will be out shortly..