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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.




Feb 23, 2018

Terminating a Commercial Lease

*** This Blog Post Applies to Commercial Lease Agreements ***

Most commercial lease agreements have what is called a "holdover provision". The holdover provision details what will happen when the original lease ends and a formal extension is not filed. The holdover provision will say something like, "either the tenant or the landlord can terminate the lease with a 60-day notice".

However, in the event that the commercial lease is silent on how to terminate the lease once it has become month to month then A.R.S. § 33-341(B) which states in part: "A lease from month to month may be terminated by the landlord giving at least ten days notice thereof."

I find this amazing that a landlord can terminate a commercial lease by only giving the tenant ten days to vacate! What if you have a large warehouse full of supplies? What if you have a thriving medical practice? Without a pre-negotiated terms you may be subject to a ten day notice to vacate! A.R.S. § 33-1375(B) of the Arizona Residential Landlord - Tenant Act requires landlords to give their tenants at least 30 days to vacate. It's amazing that businesses are given even less time to pack up their stuff and leave!

What Should Commercial Tenants Do?

If you are negotiating a commercial lease agreement you need to specifically negotiate a "holdover provision". This provision should detail exactly how a lease will terminate. Depending on your type of business you may want to require a 90 day notice from the landlord.

Commercial lease agreements are usually for many years and involve hundreds of thousands of dollars in rent so before signing on the dotted-line make sure you have negotiated the terms that will protect your needs.

If you would like assistance from a commercial real estate attorney call us at 480-344-4035 or email me at cdunaway@davismiles.com.   

Jan 31, 2018

What is a 26.1 Initial Disclosure Statement?


Rule 26.1 of the Arizona Rules of Civil Procedure requires both parties of a law suit to exchange Initial Disclosure Statements. These disclosure statements are often referred to as "Rule 26.1 Statements" or "Rule 26.1 Disclosures" for short.

Rule 26(d)(1) of the Arizona Rules of Civil Procedure requires that the disclosure statement is provided to the opposing party within forty (30) days of the defendant filing an answer. These statements are not filed with the court but simply shared with the opposing party. Many years ago Arizona courts decided to do what they can to help avoid "trial by ambush". That is, that want parties to share whatever information that exists with the opposing party. In theory this is supposed to increase the likelihood of parties settling without court intervention.

What Must the Rule 26.1 disclosure statement must contain?:
  1. A list of all possible trial witnesses. Note, just because a person is listed it does not mean that they must later testify. It simply gives the opposing party notice that you may be interested in having this person testify at the trial and what they may be testifying about.
  2. A list of other people with knowledge. This list is to include all persons who will not be called as trial witnesses, but who have information that may be pertinent to the subject of the lawsuit.
  3. Statements. Each party to the lawsuit must provide a list of any written or recorded statements within their possession to the other party. 
  4. Copies of exhibits and information. Each party must disclose all documents or exhibits they wish to use to support their claim or defense. Including any electronically stored documents. 
  5. List of all other Documents. This list must include all other relevant documents that are known to exist, regardless of whether or not they are favorable to your case. 
If either party discovers new information after having shared an initial 26.1 disclosure statement then they are required to provide an "amended" disclosure statement with the opposing party.

If you have questions about how we can help you with your real estate litigation needs then email me at cdunaway@davismiles.com or call 480-344-4035.


Jan 30, 2018

Refunding a Tenant's Security Deposit

How to Properly Handle a Tenant's Security Deposit

Per A.R.S. § 33-1321(D) of the Arizona Residential Landlord and Tenant Act, a landlord must send a disposition of deposit letter to the former tenant within 14 business days. If the cost of the damage doesn’t exceed the deposit, the remainder of the deposit should be included. On the other hand, if the cost of the damage exceeds the deposit, this is your chance to state how much they owe you.

This letter needs to be sent within fourteen business days from the date your tenant vacated the property or the landlord can be subject to civil penalties.

If lawsuit arises in which a tenant claims their security deposit was kept unlawfully, and you didn’t send this letter, you could be at risk for “treble damages” – that is, three times what you kept unlawfully A.R.S. § 33-1321(E). Sending this letter goes a long way towards making sure all your bases are covered.

Our firm offers a free form letter which you can fill in and send to your tenant, or use as a template to create your own. Click here to download this form letter.

In cases where the tenant was evicted for nonpayment of rent, you can keep the deposit to cover the judgment amount, but you will still need to send a letter informing your tenant of such.  Additionally, if you have a judgment for unpaid rent, and there are a lot of damages to the property, you don’t have to put the deposit towards the judgment – you can still use it to cover the damages, and then pursue the judgment amount using wage garnishment or bank levy, which you can read about here.

If you need the help of an Arizona landlord - tenant attorney then give us a call at 480-344-4035 or email cdunaway@davismiles.com.

Jan 11, 2018

Evicted Tenant's Possessions


Often tenants will leave personal property on the premises after they have been evicted. As a landlord you cannot simply keep or throw away the former tenant's belongings. The Arizona Landlord-Tenant Act requires to you maintain their possessions for 21 days. 

Per A.R.S. § 33-1368(E) a landlord, must hold the evicted tenant's possessions for a minimum of 21 days from the day the Writ of Restitution was issued. As the landlord, you may;
  • Keep the tenant's belongings that the rental property for the 21 days,
  • Move the tenant's belongings to an off-site storage facility,
  • Require the tenant to reimburse you for the actual cost of moving and storing their belongings during the 21 day period,
  • Prohibit the tenants from ever returning to the property without your explicit permission.
As a landlord you may NOT;
  • Require the tenant pay for the judgment you obtained against them prior to releasing the belongings to them. Meaning you cannot require a tenant pay you for all back rent, late fees, attorneys' fees, and court costs prior to returning their belongings. (Again, you can only demand payment for the actual cost of storing and moving the belongings.)
  • Dispose of the tenant's property prior to the expiration of the 21 days.  
If you do choose to remove the tenant's belongings from the rental property use considerable care, you will be responsible for any damage to their belongings. It is a good idea to photograph, or video the premises, so that you have an inventory of what was left behind. Make sure the date can be verified through the images and video. This will also give you the opportunity to catalog any damage to the rental unit itself. Take the inventory prior to moving any of the personal property from the rental unit.

After the 21 day period, if there has been no contact from the evicted party, and they have not claimed, or made and agreement to claim their property, a landlord may sell the items or dispose of the items that were left behind.

Questions regarding the eviction of your Arizona tenant?  Contact Arizona Real Estate Attorney Clint Dunaway at 480-344-4035 or cdunaway@davismiles.com