Dec 6, 2017

Motion for Summary Judgment

A Motion for Summary Judgment is a document filed with the Arizona court where the party is asking that the judge decide an issue—or the whole case—without the need for a trial. In order for a summary judgment to be granted by the court, the party filing the motion for summary judgment must demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

When considering a Motion for Summary Judgment, the Arizona judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Per Arizona Rules of Civil Procedure 56(c), Only if the Arizona court makes a finding that no genuine issue of material fact exists can the moving party be granted a judgment as a matter of law. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Arizona courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

So a summary judgment is provides an award to one party without a full trial. Additionally, the award can be for the full case or just a specific issue in dispute.

Statement of Facts and Affidavit
There are two documents filed in conjunction with the summary judgment itself; a statement of facts and affidavit of facts. The statement of facts lays out the facts as moving party sees them. In addition, to just stating the “facts”, they must also cite to specific documents that supports their statements.

Additionally, the moving party must file an affidavit where they swear under oath that each of the statements that make are true.

Why Did They File a Motion for Summary Judgment?
Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part they are filed because a judge can rule on just one aspect of the case. This will allow them to see if they can “chip at the edges” of our lawsuit and see if they can get anything dismissed at this time.

What Should you Do?
You must file a response to the Motion for Summary Judgment and explain to the Arizona judge why the case should move forward to trial. As part of the response a statement of facts and affidavit must also be filed. Similar to the opposing party's statement of facts you must cite a source for every statement you make to the court. Doing this can be incredibly tedious and time consuming. The response and accompanying documents must be filed within 30 days of receiving their Motion!

What If Motion for Summary Judgment is Granted?
If the motion is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may appeal. An Arizona court of appeal can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done and most summary judgments are upheld on appeal.

If you need the help with a Motion for Summary Judgment from an Arizona real estate attorney then call Clint Dunaway at 480-344-4035 or email me at cdunaway@davismiles.com. 

Dec 4, 2017

What is a Motion in Limine?

A motion in limine is a motion asking the judge to prevent certain pieces of evidence from being used during a trial.

What Does Motion in limine Mean?
Motion in limine is a Latin phrase that means "at the threshold". Hence if granted a Motion in limine will stop certain evidence "at the threshold" or even being let "in the door".

At What Point is a Motion in limine Filed?
In Arizona these Motions must typically be filed by a certain date established at an earlier time by the court. For instance, the judge may say, "all Motions in limine" must be filed by this certain date or you may not raise the argument at a later date.

What are the Factors Determined by the Judge?
Historically three elements must be met before a judge will grant the Motion in limine.

  1. When the evidence is not relevant to any of the issues at dispute in the current case.
  2. When evidence is extremely prejudicial to one party without helping the jury decide on the case in front of them.
  3. When admitting the evidence would violate a state or federal law or the rules of evidence. 

Dec 1, 2017

Requesting Formal Discovery in Law Suit


Requesting Formal Discovery from the Opposing Party

During a lawsuit each party has the opportunity to request formal “discovery” from the opposing party. These requests for discovery is accomplished by sending the opposing party three different “packets” requesting certain types of information.

I have included a copy of our initial drafts requesting information from the opposing party for your review and feedback. Pay particularly close attention to dates, names, and places to make sure that they are factually correct.

1.            Non-Uniform Interrogatories: Give us the opportunity to write our own questions for the opposing party. For example, we could ask the opposing party, “Explain in detail why you did not make the payments as agreed”.
2.            Request for Admissions: This allows us the opportunity to present statements to the opposing party in a way where they should respond in the affirmative. If they do not respond in the affirmative then they must provide an explanation of why they denied the statement. For example, we could write a statement, “Admit you did not pay back the money as agreed”. They are forced to “admit” the statement or deny it and then give a detailed explanation as to why they denied the statement.  
3.            Request for Documents: We are given the opportunity to request up to 10 different sets of documents from the opposing party.

In Arizona, the opposing party has 30 days--in the Arizona Superior Court or 40 days in the Justice Court--to produce the documents requested and their written responses.

Lastly, these packets are not exchanged with the Court. In fact, the Judge will never see this information unless a specific piece of information is formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply trying to gain useful information.

If you need help from a litigating lawyer in Tempe, Arizona then call me at 480-344-4035 or email to cdunaway@davismiles.com.

Oct 29, 2017

Exemptions from the Landlord Tenant Act

There are certain instances where the Arizona 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 if 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 the advice of an experienced Arizona real estate attorney then email us at: cdunaway@davismiles.com or call 480-344-4035.

Sep 27, 2017

Adding Rent and Damages to a Judgment

Rule 13(c)(2)(A) of the Eviction Action Rules of Procedures establishes that: “…if the plaintiff is entitled to rent incurred after the judgment has been entered, then the plaintiff may seek that amount in a separate civil action.”

            Rule 13(c)(2)(E) of the Eviction Action Rules of Procedures indicates that damages can be award if they have been “…properly pled in the complaint and when such damages resulted from the breach giving rise to the eviction.” Plaintiff may also seek those damages in a separate action.

            Rent or damages sought post-eviction must be sought in a separate civil suit, rather than an eviction action. While an eviction judgment can be obtained in just a couple of weeks, a civil judgment takes much longer to get – usually a couple of months. However, if the damage to your property is extensive, and you believe you have a good chance of recovering the money from your tenant (see section on debt collection), then it can be worth the time and money it takes to pursue.

            An Arizona landlord may sue a former tenant for damage to the property while they were living there. Cost of repairs that are above the normal wear and tear of tenants is recoverable. The security deposit is held in reserve to help off-set the cost of rehabilitating the property for new renters. However, after subtracting the deposit from the cost to rehab the property a landlord may decide to sue the former tenants for the full extent of damages sustained. 

This This highlights the importance of during a thorough walk-through when the tenant moves in and out of the property. Take very detailed notes, videos, and pictures of the property and any damage. Give the tenants a copy of these records. Keep very detailed records of the cost to make the repairs. We must be able to prove to the court exactly how much it cost to repair the significant damage caused by a former tenant.

Sep 17, 2017

Suing For Unpaid Rent AFTER the Eviction

If a tenant that is under a current lease agreement who is evicted or abandons the property; can that landlord sue for all future rents thru the end of the lease? The answer is; "yes", "no" and "maybe".

Let me answer this question by using an example. Landlord and Tenant sign a 24 month lease agreement. Tenant promises to pay $1,000 each month for rent. However, 6 months into the lease term the tenant does not pay rent and so the landlord evicts him. Tenant still has 18 months left on his 2 year lease. Can landlord sue tenant for the remaining 18 months? Maybe, I will answer the question in greater detail below.

"No", a Landlord may not sue for future rents.

Hypothetically, if the landlord finds a new tenant who begins paying rent the very next month then landlord may not sue the initial previous tenants for the future rent he should have paid. A landlord may not sue a tenant for future unpaid rents at an eviction hearing. Because the landlord won't know how long the property will sit empty and therefore the courts award would be based off of speculation. But a landlord can sue for all past rents owed during an eviction lawsuit.

A landlord has a duty to "mitigate" his losses. A landlord mitigates his losses after an eviction by doing everything possible to re-rent the property. Landlord must take the same actions they would if re-renting the property under normal circumstances. The Arizona landlord cannot simply let the property sit empty for 18 months and then sue the tenant because the property sat empty. He must take all reasonable actions to re-rent the property as soon as possible. Again, a landlord may not sue a tenant for future rent through an eviction lawsuit. However, there is another option a landlord may take to recoup losses from a breaching tenant.

Yes, a Landlord MAY sue a former tenant for unpaid rents.

Yes, a landlord may sue a former tenant for unpaid rents after they were evicted from the Property. However, the landlord must first market and re-rent the Property before suing the former tenant. The law doesn't allow for double-dipping, meaning you cannot sue a former tenant for terminating a lease 16 months earlier while collecting rent each month from a new tenant.

However, you can sue a previous tenant for all the months the Property sat vacant until it was re-leased to a new person. Using the example from above, let's assume the landlord re-rented the Property one month after evicting the previous tenant. In this situation the Property only sat empty for one month and so the previous tenant is only liable to one months rent to the Landlord. Regardless of how many more months or years were left on a previous tenants lease, a landlord can only sue for the months the Property actually sat empty.

For this, and other reasons it rarely makes sense to sue a tenant for the months a Property sat vacant before you re-rented it. Call experienced real estate attorney Clint Dunaway at 480-344-4035 or send me an email at cdunaway@davismiles.com. 

Jul 26, 2017

Southwest Regional Court Center in Avondale, Arizona

This morning I had the opportunity to go to the new Southwest Regional Court Center in Avondale, Arizona. This new Regional Court Center houses four justice courts; Agua Fria, Country Meadows, Maryvale, and White Tank.






Previously these four justice courts were scattered across the west valley in extremely old and outdated facilities. Agua Fria was in a dilapidated strip mall. Maryvale was in a larger strip mall.

Jul 12, 2017

Arizona Contractor's Recovery Fund

How can a homeowner collect from an Arizona contractors' license bond?


How Much Can Be Paid from the Recovery Fund?
The recovery fund does not guarantee payment to anyone. If a homeowner is found to be eligible for payment from the fund, they can recover a maximum $30,000 per residence. An award shall not exceed an amount necessary to complete or repair the construction project.

The maximum payout for residential contractors license is $200,000. Once the $200,000 has been disbursed to be your claims no further payments from the fund against that contractor's license shall be allowed. See A.R.S. 32 – 1132. A and 32 – 1139. A.

Who Selects the Arizona Contractor to Make the Repairs?
After an award is made from the recovery fund, who selects the contractor to make the repairs? ROC or homeowner?

Jul 3, 2017

Cyclical Patters in Arizona Evictions

Oddly enough I love analyzing "big-data" and looking at the patterns that form. In Arizona, there is a distinct patter in the number of evictions that take place year over year in a given month. For instance, every year there is a huge spike of evictions in January, why is this? I’ve thought about this same question and I feel like I have answers for the patterns that appear year after year.

Contrary to popular believe most landlords are actually nice people who have feelings tooJ I know a lot of landlords who just won’t evict tenants during the holiday season. Beginning with Thanksgiving and going thru New Year’s day landlords will often say, “I don’t want to evict someone during the holiday season and so I’ll just wait until the new year to begin the eviction process.”

Plus, experienced attorneys and property owners know that the judges and constables will do whatever they can to not evict an Arizona resident during the holiday season. As you know, after a judgment has been granted by the court the tenant has five days to vacate. If the tenant doesn’t vacate within those 5 days then we can go back into court and file for a Writ of Restitution. Writs must first be signed by the judge and then delivered to the constable for service.

Judges know that evictions are time sensitive and so they typically sign the order granting the Writ of Restitution almost immediately upon receiving it. However, during the holidays judges are often out of town which means there is no one to sign the writ. Additionally, even when the judges are in the office they are very slow to sign the writs. This is done in an attempt to slow down the actual eviction. Judges “misplace” them or are “too busy” working on other matters to sign the writs immediately. So it can take days before a judge will sign the writ.

Once the writ gets to the Arizona constables there is another big slow down in the eviction process. Similar to judges many constables leave town during the holiday season and so they are not physically able to execute the Writs of Restitution. Furthermore, I have had constables tell me to my face that they won’t execute writs near Thanksgiving or Christmas.

For the reasons mentioned above there has been a build-up of delayed evictions that are then started in January.

I believe that the slump in evictions in February, March, and April are directly correlated to tax refunds. Generally speaking, most people are evicted for non-payment of rent. Someone who is unable to pay rent is typically of modest means, and many people who are of modest means receive monster tax refunds. I remember the first time I passed through those months as an eviction attorney. I didn't know what had happened because the phone stopped ringing from landlords and I was not hearing from our regular property owners - property managers. Sure enough each year when the tax refund season is over then the evictions increase. 

One of the highest months for evictions each year is June. I think the spike during the beginning of summer has something to do with kids getting out of school and families wanting to move. When families are struggling economically and they want to move and they may stop paying rent at their current home and use that would-be rent money and use it as rent/securing deposit, etc. at the new property.

If you are an Arizona real estate investor and have questions about landlord - tenant law then give us a call at 480-344-4035 or email at: cdunaway@davismiles.com. 

Jun 12, 2017

Skaters Inside Your Rental Property?


If any of these skaters are renting one of your properties just give a call and we can help!








Call landlord - tenant attorney Clint Dunaway at 480-344-4035.

Jun 4, 2017

Earnest Money Disputes in Arizona


Settling Earnest Money Disputes
Generally speaking, when purchasing a home the buyers must put "earnest money" into escrow an escrow account until the home has been actually purchased. The amount required to put into escrow for the purchase of a residential home is usually between $2,000 and $5,000. most earnest money disputes are governed by the contract itself and here in Arizona most purchases are made with the Arizona Association of Realtors' (AAR) purchase contract. Sections three and seven of the contract address earnest money disputes.

Mediation
Section seven of the purchase contract states that the Arizona buyer and seller must mediate before taking any legal action. This mediation can take place either through a private mediatore or the AAR Dispute Resolution System.

Cost - Benefit Analysis
When is an earnest money dispute worth litigating over? In many instances disputes over earnest money just aren't worth litigating, especially surrounding the purchase of residential properties. When dealing with commercial real estate purchases the money placed in escrow can be in the hundreds of thousands of dollars.

May 7, 2017

Appealing a Justice Court Ruling

*** ATTENTION- This Blog Post Only Discusses Appealing NON-Eviction Cases ***
Click HERE to Read About Appealing EVICTION Cases

Appealing an Arizona Justice Court Ruling

A party may appeal a judgment entered in an Arizona Justice Court civil case. FYI, these rules do not apply to eviction cases but traditional lawsuits filed in the Justice Court. There are two separate stages to appeal a Justice Court ruling. The first stage begins in the Justice Court; the second stage takes place in the Superior Court. The party filing an appeal is the Appellant and the opposing party is the Appellee.

Stage 1 of an Appeal: the Justice Court

The Notice of Appeal
The first step to appeal the judgment a Notice of Appeal must be filed in the Justice Court within 14 calendar days from the date of the judgment. If you do not file this Notice of Appeal within the 14 calendar days then you lose the right to appeal. The time to file this Notice of Appeal cannot be extended so do not miss the deadline! Currently the Notice of Appeal fee is $78.

Appeal Fees
On or before the deadline to appeal, you must pay an appeal fee. The fee includes the cost of creating a copy of the audio recording of the proceedings and the transmittal of this recording to the Superior Court.

The Court Record
The Justice Court record is made by CD or video. The Arizona Justice Court will notify us when a copy of the audio recording is ready to be picked up. The record is usually available within 10 days of filing the Notice of Appeal. If the audio record is more than 90 minutes in length, it will be necessary for us to pay a court reporter to prepare a transcript of the proceedings within the deadline to appeal. The transcript must be filed with the Justice Court at the same time we file our memorandum.

Designate the Record
Within the time to appeal you must designate the record with the trial court by filing a formal list of the items you want to include in the record on appeal.

The Cost Bond
On or before the deadline to appeal you must pay a cost Bond. Currently, the cost bond is set at $250. The purpose of this bond is to cover court costs incurred by the Appellee for defending the appeal.

Supersedeas Bond(s)
The purpose of a supersedeas bond is to prevent enforcement of the Judgment. The two supersedeas bonds have separate purposes. One will stay collection actions on the amount of the Judgment awarded, i.e., garnishment proceedings.

The amount of the supersedeas bond is the total amount of the Judgment ordered by the court, including court costs, attorneys’ fees, damages, etc. The purpose of this bond is to postpone collection proceedings on the money judgment awarded. For example, levying a bank account or garnishing wages. The stay becomes effective when the bond is paid.  

You may still exercise your right to appeal without posting a supersedeas bond. But you must post one or both supersedeas bond to prevent enforcement of the Judgment.

The Appeal Memorandum
The Appellant's memorandum is a written explanation of why the trial court ruling was legally wrong. This memorandum should refer to specific portions of the record of the trial to point out where the Justice Court errored. That is why a written record, the transcript, must be prepared. The memorandum should be typed or printed on letter-sized white paper, double-spaced, and not to exceed 15 pages in length. In addition, you may also attach exhibits from your hearing to the memorandum. The original is filed with the Justice Court and one copy of the memorandum is mailed to every party in the case. Once the memorandum has been filed, we have to wait for further instructions from the Arizona Superior Court as outlined in Stage 2.

Stage 2 of an Appeal: the Superior Court

Paying the Superior Court filing Fee
Once all of the steps from the First Stage have been completed the case moves to the Superior Court. About 60 days after we file the memorandum you will receive a notice from the Superior Court instructing us to pay the Superior Court filing fee.

Superior Court Action on the Appeal
Once we have completed all of these steps, we will receive a ruling from the Superior Court. The Arizona Superior Court has the right to affirm the Justice Court, overrule the Justice Court, modify some of the 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 ruling stands, or if your appeal is dismissed for any reason, the court may use any bond, deposit or payments made to satisfy the obligation under the original judgment.


*** ATTENTION- This Blog Post Only Discusses Appealing NON-Eviction Cases ***

Click HERE to Read About Appealing Arizona EVICTION Cases


Mar 23, 2017

Eviction Trials in Arizona

What is the Difference between an Eviction Hearing and Eviction Trial?
Every eviction case in Arizona requires an Eviction hearing but occasionally the matter will be set for trial. At an Eviction hearing the landlord or landlord's attorney appears and shows a judge the necessary paperwork to receive a judgment. For good cause shown the judge may set the matter for trial.

Why Would a Judge Set it for a Trial?
Under certain circumstances the Arizona Residential Landlord and Tenant Act requires that an eviction case be set for a trial. The case will be set for trial if; the tenant appears and makes a legal defense to the attorney's claims. Depending on how strict a judge interprets this statute, the hearing may be stopped the moment a tenant presents a legal defense and set for trial. Other judges will allow the landlord's attorney and the tenant an opportunity to present their best arguments for a moment before dismissing the case or setting it for trial. However, most judges will not listen to any testimony or view evidence at the initial hearing and just set it for trial.

What Can I Expect at an Eviction Trial in Arizona?
Eviction trials can last from 30 minutes or so to several hours. During eviction trials both parties are given the opportunity to make brief introductory statements. Landlords and tenants may introduce evidence and question witnesses. Typical evidence is; pictures, text messages, lease agreements, and emails. Eviction trials can last for several hours.

If you eviction matter has been set for trial then contact an experienced eviction attorney Clint Dunaway at 480-344-4035 or by email at cdunaway@davismiles.com. 

Mar 6, 2017

Eviction from Arizona Mobile Home Park

***This Specific Post Only Applies to Arizona Mobile Home Parks***

The landlord-tenant relationship with Arizona Mobile Home Parks is very different from the law that pertains to renting a traditional home or apartment. One major different between mobile home parks and traditional rental properties is the types of notices that are used to terminate a tenant's lease.

For instance, when a renter is behind on rent in a house then the landlord delivers a 5-day notice to pay or quit. However, A.R.S. § 33-1476 of the Arizona Mobile Home Parks Act requires the landlord to provide a 7-day notice to pay or quit. 

A second major distinction between the two Acts is requiring justification for non-renewal or termination of lease. In a traditional lease agreement a landlord can provide a tenant with a 30-day notice "without cause". Meaning the landlord does not have to give justification to the tenant as to why they are terminating the lease. 

However, per A.R.S. § 33-1476(A),
"The landlord shall specify the reason or reasons for the termination or non-renewal of any tenancy in the mobile home park. The reason or reasons relief on for the termination or non-renewal shall be stated in writing with specific facts..." 

Additionally, under A.R.S. § 33-1476(B) the landlord cannot terminate the tenancy without good cause. "Good cause" means;
  1. Non-compliance with any provision of the rental agreement.
  2. Non-payment of rent.
  3. Change in use of land.
  4. Clear and convincing evidence that a tenant has repeatedly violated any provision of this chapter and established a pattern of non-compliance with such provisions. 
Furthermore, A.R.S. § 33-1476(C) says there is a second part to section (B) and that until the landlord has complied with subsection D. E or H they cannot continue with the eviction. Wow!

A.R.S. § 33-1476(D)(1) States that before there can be a material non-compliance by the tenant, the landlord shall deliver a written notice to the tenant specifying the acts and omissions constituting the breach of the rental agreement. If the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days. If the tenant remedies the situation within the time specified in the notice, the landlord shall issue a notice to the tenant releasing the tenant from the termination of rental agreement notice.
A.R.S. § 33-1476(D)(2) States: If there is a material breach by the tenant consisting of a noncompliance affecting health and safety, the landlord must deliver a notice terminating their lease in not less than 20 days. But, if the tenant remedies the situation within 10 days then the landlord must deliver another notice to the tenant informing them that their lease is not being terminated.
A.R.S. § 33-1476(D)(3) States: If there is a material and irreparable breach that occurs from shooting, murder, gang activity, prostitution, selling of drugs, threaten or intimidating, assault then the landlord may deliver a notice immediately terminating their tenancy.
A.R.S. § 33-1476(D)(4) States: If a tenant engages in repetitive poor behavior of two or more incidents of the same type within a 12 month period, the landlord may deliver a notice to the tenant stating that on the next incident of the same type final notice will be given and the rental agreement will be terminated 30 days after the date of the notice. 
A.R.S. § 33-1476(D)(5) States: If a tenant has been involved in three or more documented incidents, the landlord may deliver notice to the tenant advising that on documentation of the next incident final notice will be given and the lease will be terminated within 30 days.

So if you are having problems with an Arizona tenant in your mobile home park then do not hesitate to contact us at: 480-344-4035 so you can discuss your situation with an experienced eviction attorney.

***This Specific Post Only Applies to Arizona Mobile Home Parks***

Mar 1, 2017

Normal Wear and Tear to Rental Property

What is Considered Normal Wear and Tear?

During a rental period a certain amount of wear and tear is to be expected. For instance, it is reasonable that the paint on the interior walls will become dingy and that traffic wear will be shown on carpet.

Normal Wear & Tear and the Security Deposit

The Arizona Landlord and Tenant Act states that normal wear and tear cannot be deducted from a tenant's refundable security deposit. Courts have held that landlords can expect to repaint interior walls and clean carpets.

However, holes in the walls, large stains on the carpet, and broken appliances are considered to be in excess of normal wear and therefore a landlord can deduct the cost to repair these items from the Security Deposit.

Learn how refundable Security Deposits should be refunded to Arizona tenants.

Feb 16, 2017

Eviction Cases and Claims of Ownership

Arizona state law and Arizona case law are clear that eviction cases (formally known as Forcible Entry and/or Forcible detainers) are designed to only address the issue of possession and not any issues addressing the ownership of the property involved. The limited scope of a forcible entry and detainer action has been strictly defined by Arizona statute. A.R.S. § 12-1177(A) states in relevant part:
On the trial of an action of Forcible Entry or Forcible Detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.
Evidence offered to the Superior Court to show anything other than who is entitled to possess the property will be excluded from an eviction hearing. So, if a defendant wants to make a claim for ownership of the rental property then they must file a quiet title action and not raise the issue during an eviction hearing.

Proof of Ownership 

The Superior Court's inquiry into property ownership is limited to the extent that Plaintiff holds title to the property in dispute. If the Plaintiff/Landlord's name appears on the trustees's deed then the Court should not inquire into ownership any further.

The issuance of the Trustee's Deed to Plaintiff is conclusive evidence that all statutory requirements for the Trustee's Sale were satisfied and that Plaintiff has the right to possession of the Property.

A.R.S. § 33-811(B) further provides:
...the Trustee's deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing, and posting of the notice of sale and the conduct of the sale.
The Courts have held that litigation as to the validity of title "would convert a forcible detainer action into a quiet title action and defeat its purpose as a summary remedy." Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996).

For example, in Merrifield v. Merrifield, 95 Ariz. 152, 154, 388 P.2d 153, 155 (1963), the plaintiff held title to property pursuant to quitclaim deed which was valid on its face. The lower court nonetheless inquired into the merits of that title and refused to find the defendant guilty of forcible entry and detainer. The Arizona Supreme Court reversed the lower court's ruling because plaintiff was entitled to possession as the title holder and pursuant to A.R.S. § 12-1177, the trial court was prohibited from considering the merits of the plaintiff's title. Accordingly, any evidence offered by Defendants to raise extrinsic issues or disprove Plaintiff's title must be excluded.

In another case demonstrating the Superior Courts inability to inquire into ownership in a forcible detainer (see Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946)), the Arizona Supreme Court stated: "[T]he statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action." Id. at 204, 397. The Court also discussed the legislative intent in limiting the scope of a forcible entry and detainer action stating:
The object of a forcible entry and detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the defendant were permitted to deny his landlord's title, or to interpose customary and usual defenses permissible in the ordinary action at law. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises.
Id. at 204-05, 397. Because the trustee's deed is conclusive evidence of Plaintiff's title under A.R.S. § 33-811(B), and because the court is prohibited from inquiring into the merits of that title under A.R.S. § 12-1177(A), judgment must be rendered in favor of Plaintiff regardless of any defense of ownership the Defendants may raise.

Ownership Disputes and Eviction in the Justice Court

The ownership of property and their interaction with evictions can become very complex. The above article discusses issues of ownership disputes and evictions in the Superior Court, however, the rules that apply to ownership disputes and evictions in the Justice Court (where most evictions take place) are completely different. Follow this link to read about a blog post I wrote that discusses ownership disputes and evictions in the Justice Court.


Agua Fria Justice Court in Tolleson, Arizona

*** FYI: The Agua Fria Justice Court Has Moved to its New Location in Avondale ***

Currently the Agua Fria Justice Court is located in a strip mall at: 9550 W. Van Buren Tolleson, Arizona 85353. Their phone number is 623-936-1449.

As mention before, the Agua Fria Justice Court will be moving to it's new location at: 10420 W. Van Buren St., Suite 101 Avondale, Arizona 85323 on February 21, 2017. The Agua Fria Justice Court's new number will be: 602-372-8001.






Feb 15, 2017

Ownership Disputes and Evictions in the Justice Courts

In Arizona, residential eviction cases are usually brought in the Justice Court system. A Judge (also known as a Justice of the Peace in the Justice Court system) has the authority to evict tenants for a myriad of reasons. They can evict for; nonpayment of rent, material breach of lease agreement, wrongful holdover, etc. However, a Justice Court judge cannot make decisions or even hear arguments over ownership of the property in an eviction case.

A.R.S. § 22-201(D) addresses this issue:
Justices of the peace have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.
A.R.S. § 22-201(F) adds further clarification:
In actions between landlord and tenant for possession of leased premises, the title to the property leased shall not be raised nor made an issue.
This means that if a Defendant/Tenant tells the Justice Court Judge they have an ownership interest in the property then the hearing will immediately be stopped and the matter forwarded on to the Superior Court.

Occasionally when a case is sent to the Superior Court a landlord will respond, "but my tenant doesn't own the property! It's mine! They're just lying! Why is the judge believing them? What could have been done to prevent this?"

While the landlords' frustration is understandable it's important to remember that the Justice Court judge is just following the law. Just because a Justice Court Judge moves a case into the Superior Court does not mean they believe the tenant. Additionally, it does not mean that the tenant did something right or that we made some kind of a mistake. It simply means the Judge is following the law.

Learn about what happens when an eviction case is sent to the Arizona Superior Court because the tenant claims an ownership interest. If you need the help of an Arizona landlord tenant lawyer then call us at: 480-344-4035 or email me at cdunaway@davismiles.com.

Feb 8, 2017

New Maricopa County Justice Court in Avondale, Arizona

***Agua Fria, Country Meadows, Maryvale, and White Tank Justice Courts are Moving!***

Be advised that the Country Meadows, Agua Fria, Maryvale, and White Tank Justice Courts will be moving to the New Maricopa Southwest Regional Court Center located at 10420 West Van Buren St. Avondale, Arizona 85323.

These courts will be closed on February 17, 2017 as part of their transition into the new courthouse. The Southwest Regional Court Center will open for service on February 21, 2017.

Country Meadows Justice Court:
10420 W. Van Buren St., Suite 100
Avondale, Arizona 85323
Phone: 602-372-8000
Court Fax: 602-372-8024

Agua Fria Justice Court:
10420 W. Van Buren St., Suite 101
Avondale, Arizona 85323
Phone: 602-372-8001
Court Fax: 602-372-8201

Maryvale Justice Court:
10420 W. Van Buren St., Suite 102
Avondale, Arizona 85323
Phone: 602-372-8002
Court Fax: 602-372-8203

White Tank Justice Court:
10420 W. Van Buren St., Suite 103
Avondale, Arizona 85323
Phone: 602-372-8003
Court Fax: 602-372-8205





Feb 1, 2017

Serving Notice to Tenants

In Arizona, every eviction begins with the landlord sending some type of notice to the tenant. For a landlord who has never been through the eviction process the timing of when a Notice is deemed received can be a little confusing. Proper service is explained in A.R.S. § 33-1313(B)
If notice is mailed by certified mail, the tenant is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.
So, for example, if a 10-day notice for material breach of the lease agreement is sent to the tenant via certified mail and the tenant  does NOT sign for the notice then an eviction lawsuit cannot be filed for 16 days after it was mailed!

Another example could be with the 5-day notice for non-payment of rent. If the 5-day notice is sent to the tenant via certified mail and the tenant does NOT sign for the notice then we must wait 11 days before filing the eviction.

However, if the tenant actually signs for the certified notice then we begin counting on that day. For example, if we send a 5-day notice via certified mail and the tenant signs for it on the second day then the tenant will have a total of 7 days from the date of mailing to pay rent.

If you need help evicting an Arizona tenant then call us at 480-344-4035 or email me at cdunaway@gmail.com.