Eviction

questions & answers

Question: I am having trouble reaching my renter. They are military with a job in the US. I haven't received rent and am considering eviction but have no way to serve the papers to them. Any advice?

Answer: Under the Service Members’ Civil Relief Act, a military member can break his or her lease for any of the following four reasons: (1) the lease was signed before starting active duty, (2) the lease was signed by a reserve or guard member being recalled to active duty for at least 180 days, (3) upon receipt of Permanent Change of Station orders or (4) upon receipt of deployment orders where the deployment period is at least 90 days. 50 U.S.C. App. § 535(a). If one of those events occurs, then the landlord cannot refuse to allow the military tenant to leave. This provision of federal law also applies to any of the military member’s family members who may have responsibility under the lease. 50 U.S.C. App. § 535(a)(2). A military tenant who is either moving or being deployed is still responsible for any reasonable repair costs to the residence beyond normal wear and tear.

To terminate a lease under this law, the military member must provide the landlord with written notice and a copy of the orders. 50 U.S.C. App. § 535(c)(1)(A). The military member can either deliver this notice in person or mail it certified mail, return receipt requested, to his landlord. 50 U.S.C. App. § 535(c)(2). Click here for a sample notice.

Leases that end under this law end on the last day of the month following the month where proper notice was given. For example, if the lease is for one year and the notice of termination was given on July 20, the effective date of termination would be August 31.

here are two types of eviction actions. Under the rules that govern eviction actions, an eviction is a type of lawsuit called a forcible or special detainer. A special detainer means that the tenant has remained in or on the property after the landlord has given written notice that the rental agreement has been terminated and that the tenant must leave the property. A landlord can file an eviction action against a tenant for nonpayment of rent, if the tenant has breached the lease, or if the tenant has committed a crime. Eviction actions seek the eviction of the tenant and the repossession of the rental property. They may also be filed if the tenant misrepresented information to the landlord or has unauthorized occupants in the residence.

Most eviction actions involve an allegation that the tenant has not paid rent on time. If a tenant fails to pay rent, the landlord can give notice that he will terminate the lease if the rent is not paid within five days. After the five day notice, the landlord will most likely not be willing to accept partial payment because he will not be able to proceed with the case unless the tenant agrees in writing that the landlord can do so. A.R.S. § 33-1371. On day six, the landlord can file suit. The tenant’s inability to pay the rent is not a legal defense to the lawsuit. However, the tenant does have some options.

The tenant can pay all of the rent and any late fees any time before the lawsuit is filed and avoid eviction. If the eviction action has been filed, then the tenant must pay all past due rent, late fees, attorney’s fees and court costs. If the tenant does so before a judgment is entered, he can avoid eviction. After a judgment has been entered, reinstatement of the lease is solely in the landlord’s discretion.

For service process, consult the courts. Publication in a local newspaper may be an acceptable form of service, however, this is only acceptable under certain conditions. For further information, see the Superior Court website:

http://justicecourts.maricopa.gov/CaseTypes/eviction.aspx