Fitzgibbons Law Offices
1115 E. Cottonwood Lane
Casa Grande, AZ 85122
This article appeared in the Holiday 2017 issue of
Golden Corridor Living Magazine
Residential Eviction: What Arizona Landlords and Tenants Should Know
Understanding the Arizona eviction process can help ease the transition of the home being returned to the landlord.
Disputes between landlords and tenants, especially for
the turnover of the home, can heat up rapidly. To resolve such disputes quickly,
the Arizona court system follows special procedural rules in eviction actions
that ensure that the rights and obligations of landlords and tenants are being
observed before the disputes boil over.
This article looks at the eviction process, which if
followed properly, can lead to the tenant peacefully vacating the home and
returning the keys to the landlord.
The Eviction Process
If the tenant commits a material breach of the lease,
such as not paying rent, and the landlord wants to start the eviction process,
the landlord must provide the tenant with a written notice that sets forth the
breach. Assuming the tenant does not cure the breach, the landlord can file an
eviction action, which is a lawsuit to terminate the lease and recover the home
from the tenant. It should be noted that a tenantís inability to pay rent is not
a legal defense to the lawsuit, and the judge cannot give the tenant more time
to pay even though the tenant is having financial problems.
Before the Hearing Date. When the lawsuit
is filed, the court will schedule a hearing date before the judge that, by
statute, is not more than six nor less than three days from the filing date. If
the tenant disagrees with the allegations in the lawsuit, the tenant can file a
written answer. If the tenant believes that the landlord has not fulfilled the
landlordís obligations under the lease, the tenant can file a counterclaim. Both
sides can hire their own attorneys to represent them, but the court will not
provide an attorney to either side.
Hearing and Trial
If the tenant fails to appear at the hearing and the
landlord or the landlordís attorney is present, a default judgment will likely
be entered against the tenant that will require the tenant to vacate the home
in, at the most, five days or, at the least, 12 hours (i.e., based upon a
finding of a material and irreparable breach of the lease).
If both sides are present when the judge calls the case,
the judge will ask the tenant if the allegations in the lawsuit are true. If the
tenant says ďnoĒ and/or believes that the landlord has not fulfilled the
landlordís obligations under the lease, the tenant will be permitted to give a
brief explanation of the tenantís position. If the position is a legal defense
and/or claim, the judge will need to hear testimony and take evidence from both
sides and make a decision after a trial.
At the Trial. To support each sideís
position, each side can present any necessary witnesses and documents for the
judge to consider in reaching the decision. If the judge decides in favor of the
landlord, the judge will grant the landlord a judgment that can set forth
damages and will require the tenant to vacate the home in, at the most, five
days or, at the least, 12 hours. If the judge decides in favor of the tenant,
the judge will dismiss the lawsuit and can award the tenant a judgment that also
can set forth damages and will permit the tenant to continue to live in the
After a Judgment
Either party can appeal a judgment and has five days to
do so after the judgment is entered.
If the tenant is appealing the judgment and wants to
remain in the home during the appeal, the tenant must post a bond and pay the
homeís rent to the court as it becomes due. If the tenant prevails, the lawsuit
will be dismissed and the monies will be released.
If the tenant loses or is not appealing the judgment,
the tenant must vacate the home in accordance with the judgment (unless the
landlord permits the tenant to remain in the home). If the tenant fails to
vacate the home in accordance with the judgment, the landlord can apply to the
court for a writ of restitution to remove the tenant and all other occupants
from the home. The writ of restitution is served by a constable or sheriff, who
will direct the occupants to leave the home. The tenant can avoid a writ of
restitution and the potential disruption of a forced removal by, before the
deadline set forth in the judgment, vacating the home and returning the keys to
the landlord. This would peacefully end the tenantís possession of the home.
When it comes to disputes over the turnover of the home,
it is advantageous for landlords and tenants to try and settle their disputes
before resorting to the court system. However, if the sides are unable to settle
their disputes, it is helpful to understand and properly follow the eviction
process. By doing so, there can be a peaceful ending to the tenantís possession
of the home.