Jun 26, 2019

Appeal Eviction in Arizona

Appealing an eviction judgment in Arizona is expensive, time consuming, and cumbersome. So much so that I've never seen a tenant successfully appeal an eviction judgment. However, Arizona law provides tenants the opportunity to appeal a forcible detainer (eviction) judgment.



There are two (2) main stages to the appeal process. The first stage of the process begins in the Justice Court; the second stage takes place in the Arizona Superior Court. All of the steps must be followed with exactness the appeal will be dismissed.

STAGE ONE - NOTICE OF APPEAL

A Notice of Appeal MUST be filed with the Justice Court within 5 calendar days of the judgment. There is no flexibility with this deadline! If you miss the deadline then you will not be able to proceed. 

Notice of Appeal Fee:A $75 appeal fee is paid to the Justice Court at the time the Notice of Appeal is filed. This fee includes the cost of a copy of the audio recorded proceedings, a certification of the appeal record, and the transmittal of the record on appeal to the Superior Court.

Cost Bond: On or before the deadline to appeal the cost bond must be paid. Currently the cost bond is set at $250. The purpose of this bond is to cover court costs incurred by the Appellee, (landlord) in defending the appeal.

Supersedeas Bond(s): One and Two: The purpose of the first supersedeas bond is to prevent enforcement of the judgment. Meaning the judgment creditor will not be able to try and collect on the judgment. For example, they are prevented from trying to garnish the tenants wages.

Supersedeas Bond Part Two: Payment of the second supersedeas bond will prevent any eviction proceeding resulting from an eviction action judgment.

It is not necessary for a tenant to post either of the two types of bonds. But they must post one or the other to prevent enforcement of the eviction judgment.

How much are the bonds? The amount of the bond is the total amount of the judgment ordered by the justice court, including court costs, attorney's fees, damages, etc. The purpose of this bond is to stay collection proceedings on the money judgment awarded. The stay becomes effective when the bond is posted.

The second supersedeas bond is used to stay the eviction proceedings enforced by a Writ of Restitution. The amount of the bond is the amount of rent due from the date of the judgment to the next periodic rental due date, plus court costs and attorney fees ordered in the judgment. To stay the eviction proceedings a supersedeas bond must be posted before the Writ of Restitution is enforced. The stay becomes active once the bond is paid, but cannot be retroactive if the Writ has already been executed.

Rent Payment: In addition to paying all the necessary fees and bonds, the tenant must continue to pay their rent during the appeal process. All rent payments must be paid to the justice court on or before the rental due date, pending the appeal process.  If the rent is not timely received, the plaintiff may pursue a Writ of Restitution for execution of the judgment for possession.

The Appeal Memorandum: The Appellant's memorandum is a written explanation of why the justice court ruling was legally wrong. This is where the tenant can provide a legal explanation for why the justice court's ruling was wrong. The memorandum should cite specific law and how it was inappropriately applied to the facts of the relevant case. The tenant's memorandum must be filed within 60 calendar days of the deadline to file the Notice of Appeal.

The landlord then has 30 days to file a response to the tenant's memorandum. Once both sides have filed their respective memorandum we must wait for further instruction from the Superior Court.

STAGE TWO - THE SUPERIOR COURT

About 60 days after the tenant files the memorandum, he or she will receive notice from the Superior Court instructing that a filing fee must be paid to the Superior Court.

Court's Ruling: After all of these steps have been completed, the parties will receive a written ruling from the Superior Court. The Superior Court can affirm the trial court, overrule the trial court, modify some of the trial court's decision, or, if the record is not clear order a new trial in the Superior Court.

If the final outcome of the case is that the original ruling stands, or if the tenant's appeal is dismissed for any reason, the court may use the bonds, deposit or payments made to satisfy the obligation under the original judgment.

If you need help from a real estate attorney then call Clint Dunaway at 480-389-6529 or email at clint@dunawaylg.com. 

Jun 21, 2019

Exemptions from the Landlord Tenant Act

There are certain instances when the Arizona Residential Landlord and Tenant Act does not apply to a person living in a property. One of the exceptions to the rule is found in A.R.S. § 33-1308(2) which states:
"Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his interest."
This statute means that when a person is living in a house where there is a contract to purchase that house there is a buyer-seller relationship that exists between the two parties and not a landlord-tenant relationship. As such, the Arizona property owner is not required to make the repairs to the property that he would be otherwise required to make.


If you need help from an Arizona real estate attorney then contact Clint Dunaway at clint@dunawaylg.com or 480-389-6529.

Apr 25, 2019

Green Valley Justice Court - Pima County, Arizona


Green Valley Justice Court -  Pima County
Address: 601 N La Cañada Dr, Green Valley, AZ 85614
Green Valley Justice Court Phone: 520-648-0658

I have traveled just about every corner of Arizona attending hearings for our clients in the justice court system. I've traveled to the Green Valley Justice Court a few times for forcible detainer hearings and so the last time I was there I thought I'd better take a few pictures and post them to the blog. This courthouse was built in 1982 as the result of considerable population growth in the area.

The Honorable Raymond Carroll is currently presiding over the bench in Green Valley Justice Court. Judge Carroll received a Bachelor’s Degree in Philosophy from Regents University.

Green Valley is located 20 miles south of Tucson and 40 miles north of Nogales, Arizona. It is in the heart of the Santa Cruz Valley. Residents of Green Valley, Arizona and tourists enjoy cycling, hiking and bird watching in the nearby Santa Rita Mountains.


Picture of the entrance of the Green Valley Justice Court, located in Green Valley, Arizona.



Green Valley Justice Court is located at 601 N. La Canada Dr., Green Valley, Arizona 85614.


If you need an Arizona landlord - tenant attorney to assist with a dispute regarding a tenant than call Clint Dunaway, Esq. at 480-344-4035 or email at clint@dunawaylg.com. 

Mar 28, 2019

Intentional Destruction to Rental Property

A.R.S. Section 33-322 states; "Removal or intentional and material alteration or damage of any part of a building, the furnishings thereof, or any permanent fixture, by or at the instance of the tenant, without written permission of the landlord or his agent, is a class 2 misdemeanor."

Essentially, if your Arizona tenant intentionally damages your property they may be arrested and charged with a crime. Often when I am speaking with Arizona landlords they express the fear of a tenant trashing their property. The good news is that rarely do tenants intentionally damage a property out of spite. Though tenants often damage properties because of how careless and dirty they are while living in the home.



If your Arizona tenant has intentionally damaged your rental property then contact us right away! Email Arizona real estate attorney Clint Dunaway at clint@dunawaylg.com or Call 480-389-6529.

Jan 23, 2019

30 Day Notice to Vacate Rental Property

In Arizona, a month-to-month lease exists if there is not a written lease agreement or the written lease agreement has expired. Per A.R.S. § 33-1375(B) a landlord or tenant can terminate the month-to-month lease with a 30 day written notice.

It can be somewhat confusing as to when the 30 days starts running. It would be logical if the 30 days started from the time it was mailed or the time it was received. However, it's a little more confusing than that.

The 30 days start at the beginning of the next billing cycle. So if rent is due on the 1st of the month then the tenants will have until the end of the month to stay in the property. For example, if a landlord sends the 30 day notice on the 5th of August. The tenants can stay until September 30th! Make sure you factor this unusual system of counting into your plans. Lastly, make sure the 30 day notice is sent via certified mail!


Furthermore, a tenant who does not vacate by the end of the 30 days may be liable to the landlord for additional damages. A.R.S. § 33-1375(C) states:
"If the tenant remains in possession [of the property] without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is willful and not in good faith the landlord, in addition, may recover an amount equal to not more than two months' periodic rent or twice the actual damages sustained by the landlord, whichever is greater."
So Arizona tenants who do not leave by the end of the 30th day face the risk of having additional fees added onto the judgment obtained by the landlord. If you need help from an Arizona real estate attorney then contact Clint Dunaway at clint@dunawaylg.com or 480-389-6529.