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Apr 11, 2018

What is a Lis Pendens?

What is a Lis Pendens? 
It is a formal notice of pending legal action. The Lis Pendens is filed with the clerk of the court and then filed with the County Recorder. It must be filed subsequent to the beginning of a lawsuit surrounding the property in question.

What's the purpose of filing a Lis Pendens?
A lis pendens provides notice of a claim involving specific real estate to potential buyer, lender, and the general public. It will basically freeze the Arizona property so that it cannot be sold or refinanced.  

What's the effect of filing a Lis Pendens?
Any future person who acquires an interest in the property after a lis pendens is recorded is bound by the ultimate results of the pending lawsuit. So even though the Lis Pendens doesn't legally prevent a sale or loan from a practical point it does. Most prospective buyers, lenders and title insurers are very reluctant to become involved with property that could be adversely impacted by a pending suit.

When will the Lis Pendens be released?
Typically a court will not release the Lis Pendens until the underlying suit has been resolved in favor of the property owner.Therefore, from a practical perspective the lis pendens can tie up a property for years. This can be devastating for the owner and enormous leverage for the claimant. 

Is a Lis Pendens a lien?
No, in and of itself, a Lis Pendens does not place a legal lien on a property.

Apr 5, 2018

Arizona's Anti-Deficiency Statutes

In Arizona, certain home owners are free to stop making payments their home and walk away from it with no financial recourse against them. These people are protected by what is commonly known as Arizona’s Anti-Deficiency Statutes.

Protection for residential borrowers is set forth primarily in A.R.S. §§ 33-729(A) which provides in part:
“if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment.”

Qualifying Properties.
To obtain anti-deficiency protection the property securing the loan must be (1) two and one-half acres or less, (2) limited to a single one-family or a single two-family dwelling. The Arizona Supreme Court has interpreted this language to require that the dwelling be built and at least occasionally occupied. Mid Kan. Fed. Sav & Loan Ass’n, 167 Ariz. At 129, 804 P.2d at 1317. The property will qualify under the statute for anti-deficiency protection whether occasionally occupied by the owners or third party renters. Northern Arizona Properties v. Pinetop Properties Group, 151 Ariz. 9, 725 P.2d 501. (3) Additionally, the mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

Qualifying Mortgages.
Additionally, the mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

Refinanced Original Loan.
In Bank One, Arizona, NA. v. Beauvais, the Arizona Court of Appeals dealt with the extending, renewal or refinance of purchase money loans and held that:
"Given these strong statements concerning the legislature's consumer protection objective, we believe the legislature did not intend that a loan would lose its character as a purchase-money obligation when, as here, it is extended, renewed, or the remaining portion of the original loan is refinanced and the deed of trust on the property that was bought with the original loan continues or is renewed."

Debtor Protection.
If the property meets Arizona’s anti-deficiency statute, the lender may not obtain a deficiency judgment against the debtor. If a qualifying property is sold by the lender “no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses”. A.R.S. §§ 33-814(G). Therefore, certain Arizonian’s are able to walk away from their homes and face no financial recourse from their lender. 

If you need help from an Arizona real estate attorney then call Clint Dunaway at 480-344-4035 or email at cdunaway@davismiles.com.

Mar 30, 2018

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 only 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 Lisa Royal is the currently presiding over the bench in Green Valley Justice Court. Judge Royal received her Bachelor’s Degree in Criminal Justice and Public Administration from the University of Arizona and a Masters in Public Administration from the University of Southern California.

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's Address is: 601 N. La Canada Dr., Green Valley, AZ 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 cdunaway@davismiles.com. 

Mar 21, 2018

Partitioning Real Estate in Arizona

Occasionally people who jointly own Arizona real estate will disagree about whether to sell the property and or how to manage it. I typically see this scenario where a boyfriend-girlfriend purchased a home together and then later have a falling-out. In this situation they are both equal owners, so can one of the parties force the other to sell even if they don't want to? Yes! There is an Arizona Statute that specifically addresses what to do in these situations.

A.R.S. § 12-1211 states:
A. The owner or claimant of real property or any interest therein may compel a partition of the property between him and the owners or claimants by filing a complaint in the superior court of the county in which the property, or a portion thereof, is situated.
B. The complaint shall state:
  1. The names and residences, if known, of each of the owners or claimants.
  2. The share or interest which plaintiff and the owners or claimants own or claim, so far as known to plaintiff.
  3. A description of the real property to identify it and its estimated value. 
Once the property is sold the net proceeds will be distributed between the owners.



If you need help from an Arizona real estate attorney with partitioning your property in Arizona then call me at: 480-344-4035 or email at cdunaway@davismiles.com.

Mar 15, 2018

Landlord Entering Home Without Permission

What should you do if a landlord enters into your property without your permission?

Arizona law requires that landlords give tenants at least a 48 hour notice prior to entering the property. However, what options do you have if the landlord just enters into the property? The Arizona Landlord Tenant Act addresses this exact issue. A.R.S. § 33-1376(B) states:
"If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement. In either case, the tenant may recover actual damages not less than an amount equal to one month's rent."
So this statute provides an Arizona tenant with two different options if the landlord enters the property without permission or is constantly demanding to enter the property to the point that it becomes a form of harassment.

Two Options Available If Your Landlord Enters Without Your Permission

  1. Obtain injunctive relief- This is a fancy way of saying of getting an Injunction Against Harassment or Restraining Order against the landlord. With either of these tools you will have the backing of the court to stop the harassment. 
  2. Terminate the Rental Agreement- Regardless of how much or how little time is left on your lease if your landlord has entered your house without your permission then you can cancel your lease. 
Monetary Damages Against Trespassing Landlord

The second part of A.R.S. § 33-1376(B) requires the landlord to pay the tenant a "fine" equal to one month's rent. So for example, if your rent is $1,500 per month then you would be able to recover $1,500 from the landlord.

However, in order to recover the one months rent from the landlord a tenant must elect one of the two options from above. Meaning, the tenant must either obtain an Injunction Against Harassment or actually terminate the lease agreement. A tenant cannot just say, "well, the landlord entered my property without my permission and now I want my money."

If you have questions about a landlord entering a house without permission then email me at cdunaway@davismiles.com or call us at 480-344-4035.