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 is evicted before their lease was completed, can a landlord sue for all the future rents until the end of the scheduled 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 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? The answer is "yes" and the answer is "no". I will address the "No" answer first.

No, a Landlord may not sue for future rents after an eviction.

A landlord may not sue a tenant for future unpaid rents through the eviction lawsuit. 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.

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 showing 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.

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. It can be assumed that paint on the interior walls will become dingy and that traffic wear will be shown on the 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.

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.

Lastly, click HERE to learn more about Security Deposits and how they should be refunded to tenants.

Feb 16, 2017

Eviction Cases and Claims of Property Ownership in Superior Court

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.

REQUISITE 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 EVICTIONS 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

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.

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

All hearings scheduled on or after February 21, 2017 will be held in the Southwest Regional Court





Feb 1, 2017

Service of Notice - A.R.S. 33-1313

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. So, 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.