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Arizona Landlord Tenant Law - Evictions
by Norm Keyt, Arizona leasing attorney
How to Evict an Arizona Residential Tenant with a Special Detainer Lawsuit
This article is for owners and property managers of residential real estate property located in Arizona who want to evict tenants themselves without hiring an Arizona attorney.
Investing in Arizona residential property can be a prudent strategy to
increase your net worth. It can also generate monthly income, as long as your
tenant pays the rent. When your tenant won't pay rent, you may need to take
legal action to evict the tenant by filing a type of lawsuit called a "special
This article explains the special detainer (eviction) process step by step. After we cover the eviction process I will address a list of actions Arizona law prohibits landlords from taking against tenants when they stop paying rent. Then the article will describe a number of issues of special concern for Arizona residential real estate investors.
The Arizona Residential Landlord and Tenant Act
Arizona residential property owners' rights and obligations with respect to tenants are governed by the "Arizona Residential Landlord and Tenant Act" found in Arizona Revised Statues, Title 33, beginning at A.R.S. § 33-1301. The laws governing forcible detainer actions are found beginning at A.R.S. § 12-1171. The landlord tenant act calls an eviction a "special detainer" and says the process is the same as the "forcible detainer" laws found in Title 12 of the Arizona Statutes. The terms "forcible detainer" and "eviction" are often used interchangeably when referring to residential evictions.
The Forcible Detainer
If the tenant is late paying rent landlords start the Arizona residential eviction process by providing the tenant with a written notice of default called a "five day notice" letter. At a minimum, the five day notice must tell the tenant that the tenant is behind in the rent and state the amount of money the tenant must pay to cure the default. The notice must also tell the tenant, in clear language, that the lease will terminate unless the tenant pays the entire amount due on or before the expiration of five days from the date the tenant receives the five day notice. See my sample five day notice letter.
The landlord may demand payment of an amount of money in the five day notice letter that includes the past due rent and any penalties or late charges that are authorized in the lease between the landlord and the tenant. If the tenant pays the landlord all of the money demanded in the five day notice on or before the deadline for payment, the landlord must accept the money and continue to honor the lease. Remember, a lease is a contract to allow the tenant to occupy the leased premises as long as the tenant pays the agreed to rent and is not in default under any provisions of the lease.
If the tenant has committed some other type of material breach of the lease agreement, the landlord can give the tenant a “ten day notice letter.” This type of notice letter should clearly identify the breach of the lease and tell the tenant they must cure the material breach within ten days or the lease will terminate. If the tenant fails to cure the breach the landlord may file an Special Detainer lawsuit to evict the tenant.
How to Deliver the Notice to the Tenant
The landlord should take care to deliver the five day, or ten day, notice properly because if a lawsuit must be filed to evict the tenant, the landlord must be able to prove to the court that the tenant received the notice as required by law.
The best way to deliver the notice is to hand it directly to the tenant. You may also deliver the notice to a person of suitable age residing at or in charge of the leased premises. Handing the five day notice to the tenant's five year old daughter would not be acceptable, but handing it to his twelve year old daughter might be. Sometimes tenants won't come to the door when you knock. It is acceptable to post the notice conspicuously on the front door of the residence if you also send the notice by certified mail to the tenant the same day you post the notice.
Whoever delivers the five day notice should prepare a written statement that states, that "the five day notice in the form of Exhibit A was personally delivered by the undersigned to [name of tenant or describe to whom the notice was given to] at [street address of leased premises] on [date of delivery] at [time am/pm]." Modify the text as necessary to describe exactly how and to whom the notice was delivered. The person who delivered the five day notice should sign and the document. It would help to have the signature notarized, but it is not necessary.
The landlord or the landlord's agent could deliver the notice, but also consider having the five day notice delivered by an independent third party or process server. The advantage in using a professional process server is that he or she will prepare an affidavit of service that you can present to the court and the affidavit will be difficult for the tenant to challenge.
Registered or Certified Mail
Arizona residential landlord tenant law also allows the landlord to deliver the five day notice by registered or certified mail. The law does not require that the certified mail be sent with a return receipt requested, but the best practice is to send the tenant certified mail, return receipt requested. If the tenant signs for the letter, the five day period begins to run the day of the signature. However, tenants frequently have creditors chasing them or routinely refuse to sign for a registered or certified letter. When the landlord sends the five day notice via registered or certified mail, the Arizona residential landlord tenant law provides that the tenant is "deemed" to have received the notice five days after the notice was mailed. So, when the five day notice is mailed to the tenant via registered or certified mail, the tenant who refuses to sign actually gets ten days to cure the default before the landlord can file a forcible detainer. The tenant is deemed to have received the notice five days after mailing, which means that the five day notice period begins on that date.
Proof of Mailing
A landlord who elects to send the five day notice via registered or certified mail must be able to prove to the court that the notice was, in fact, sent to the tenant via a registered or certified notice letter to the tenant. It is sufficient to prove receipt if you can show the court the "Domestic Return Receipt" (USPS form 3811), signed by the tenant or some other person of suitable age at the premises. The landlord will not have the Domestic Return Receipt when a tenant refuses to sign for the letter.
The landlord should always assume that the tenant will not sign the Domestic Return Receipt and be prepared to prove the date the landlord mailed the registered or certified letter to the tenant. The way to prove that five day notice was mailed registered or certified mail is to obtain a "Receipt for Certified Mail" (USPS form 3800) postmarked (stamped) by the United States Postal Service. It is possible to send a registered or certified letter without completing a form 3800, but do not do so. The landlord must present the Receipt for Certified Mail to the court to prove the date of mailing. The landlord or the landlord's agent must go to the U.S. Post Office, present the five day notice letter to the postal clerk at the service window and ask for and obtain a postmark on the Receipt for Certified Mail" (USPS form 3800).
Tenant Fails to Cure the Default During the Cure Period
If the tenant does not pay all money due after receiving the five day notice, or cure a material breach within ten days of the notice, the landlord may file a forcible detainer lawsuit in the appropriate court to evict the tenant and get a judgment for the amount owed. Before filing a forcible detainer lawsuit, the landlord must make sure the tenant does not have a valid defense to the eviction lawsuit.
The forcible detainer action is limited in scope. The only issue that the court will decide is who has the right to possession of the premises. Generally, if the landlord has a written lease requiring rent payments or an established month-to-month tenancy and the tenant has not timely paid the rent, the landlord has the right to possess the leased premises. There are some exceptions set out in the law that can be a defense to a forcible detainer action for the tenant. A landlord should not file a forcible detainer lawsuit if the tenant has a valid defense.
Tenant's Possible Defenses to Eviction
A tenant may have a valid defense to a forcible detainer action if the landlord has not complied with the landlord's duties under the Arizona Residential Landlord and Tenant Act. Arizona law requires that a landlord maintain the premises in a fit and habitable condition. The landlord must comply with applicable health and safety codes, make repairs necessary to keep the premises in a fit and habitable condition, and maintain in safe working order electrical, plumbing, sanitation and any supplied air-conditioning or appliances.
Some residential rental property such as a single family home may allow the tenant to have exclusive control water and electricity supplied to the premises. A lease can specify that the tenant is responsible for obtaining and paying for water and electricity. If a lease does not specifically provide that the tenant is responsible for providing water and electricity to the premises, the landlord is obligated to provide it.
If the landlord fails to meet the obligations imposed on residential landlords by the Arizona Residential Landlord and Tenant Act, the tenant may undertake "self-help" for minor defects under three hundred dollars or one half of the monthly rent, whichever is greater. A self-help procedure is set out in the law and if the tenant follows it, the tenant can deduct the cost of the self-help repairs from the rent.
A special situation arises if a landlord is obligated to provide running water, hot water, gas or electrical service, but does not do so. If the tenant provides the landlord with reasonable notice of the problem and the landlord does not fix the problem, the tenant may move out until the problem is fixed. During this "move out" period the tenant is not obligated to pay rent and the landlord is liable to the tenant for the tenant's rent expense in excess of the rent payable to the landlord.
Preparing and Filing the Forcible Detainer Complaint
After proper notice has been served and the tenant has failed to cure the breach within the time required by the notice and the tenant has not vacated the premises, and the landlord has satisfied all obligations under the Arizona Residential Landlord and Tenant Act., the landlord can file a forcible detainer lawsuit in the appropriate court. The Arizona Residential Landlord and Tenant Act., directs landlords to use the forcible detainer laws found in Title 12 of the Arizona Revised Statutes to evict residential tenants. The forcible detainer laws found in Title 12 are used not only for residential evictions, but also for commercial evictions and evictions after a trustee's or sheriff's sale of real property.
To Use or Not Use an Attorney
Do you need to hire an attorney to handle the eviction? No, many landlords who have experience with residential evictions do their own evictions without an attorney. Individuals who own residential rental property may file the actions and act on their behalf in Arizona courts. If the landlord is a legal entity such as a limited liability company or a corporation, a duly authorized member or officer of the entity may appear on behalf of the entity. The officer must have authority to undertake the representation and representation in court can't be the officer's main duty.
Of course I recommend that landlords who are not experienced in preparing, filing and prosecuting residential evictions hire an experienced Arizona residential landlord / tenant attorney to represent them. To hire me to evict your tenant, call me at 602-265-0273 or send an email to me at firstname.lastname@example.org.
File the Complaint with the Proper Court
Typically, forcible detainer actions are filed in an Arizona justice court.
Justice courts sit on the bottom tier of Arizona's court system. They are
intended to be "community courts" providing inexpensive resolution of legal
disputes. Arizona counties are divided into geographic justice court precincts.
A landlord who elects to file a forcible detainer action in justice court should
file it in the justice court precinct where the residential rental property is
located. To determine which justice court has jurisdiction over specific
If the landlord seeks a judgment for more than $10,000 against the tenant, the forcible detainer must be filed in Superior Court. Arizona justice courts do not have jurisdiction to hear cases involving more than $10,000.
The Summons and Complaint
A forcible detainer lawsuit requires that the landlord prepare a summons and a complaint. You can obtain forms for both of these documents at your justice court. The Arizona Supreme Court provides the following sample justice court eviction forms:
The Maricopa County Justice Court provides the following evictions forms:
The landlord should name as defendants in the lawsuit everybody who signed the lease, everybody known to reside at the residence and to be safe at least one "John Doe" and one "Jane Doe." The complaint should ask for a writ of restitution (eviction), possession of the premises, all late rent, all late fees, rent due through the end of the current periodic rental period and the landlord's court costs. Court costs typically will be the court filing fee and the cost of a process server to serve the summons and complaint on the defendants. A landlord who hires an attorney for the forcible detainer may add the attorney's fees to the amount of the judgment obtained against the tenant. Attach a copy of the lease agreement and the five day notice to the complaint.
The complaint must be signed by the landlord or the landlord's authorized representative in the presence of a notary public. Forcible detainer complaints must be made under oath. The landlord must present the summons and sworn complaint to the clerk at the appropriate court and pay the filing fee. Filing fees vary by court. See the court's website for the fees in your jurisdiction.
Filing the Summons & Complaint with the Court
Generally, the court will set the forcible detainer trial three to six days after the complaint is filed. Forcible detainers are summary proceedings, rarely continued to another date by the court. The landlord must have all evidence collected and ready to go on the trial date.
Service of Process
The court clerk will issue to the landlord stamped/sealed copies of the
summons and complaint (the "process"). The landlord must have the summons and
complaint served on the tenant immediately. It is the landlord's responsibility
to make sure the summons and complaint are properly served. The law requires
that the process be served at least two days before the trial date. I recommend
that landlords diligently attempt to serve the summons and complaint on the
defendants immediately after filing the complaint.
Alternative Method of Service
The alternative method of service involves posting the summons and complaint on the front door of the residence and on the same day sending the summons and complaint by certified mail, return receipt requested, to the tenant's address. Using the alternative method of service, the law deems the tenant to have received service of process three days after the process (the paperwork) is mailed. The landlord must be able to prove mailing, just as required for the five day notice.
The alternative service method is only good if you have attempted personal service. The alternative service method also requires that the landlord post the summons and complaint on the front door within one day of filing the complaint. The reason I recommend starting the alternative method immediately is the fact that trial dates are set so quickly in forcible detainer actions there is no time to waste. If the tenant is avoiding service of process, using the alternative method of service will enable the landlord to obtain a judgment when the trial date arrives as long as the trial date is set at least four days after the complaint is filed and the alternative service occurs on the day of filing the complaint.
If your process server succeeds in obtaining personal service on the tenant, he will file an "affidavit of service" with the court. If your process server cannot serve the tenant, he or she will file an "affidavit of attempted service" with the court. The landlord must be able to prove to the court that the landlord either personally served the tenant or that the landlord attempted personal service without success and correctly served the tenant using the alternative method of service. If the landlord fails to serve the summons and complaint properly and timely on the tenant, the court will not evict the tenant at the hearing.
Your process server's affidavit is usually all you will need to prove
service. He will file the affidavit with the court prior to the trial. However,
because of the short time line on forcible detainer actions, sometimes the
affidavit of service does not make it to the court's file before the trial date.
For this reason, it is always good to bring a copy of the affidavit with you to
court the day of the trial. Ask your process server to fax a copy of the
affidavit to you the day before trial.
Beware of Partial Payments
Tenants frequently contact their landlords and attempt to reach a settlement of a rent dispute by paying less than the entire amount in arrears to entice the landlord to allow them to remain in the residence. Partial payments can be a problem for landlords. The landlord is not obligated to accept a partial payment of the amount owed. A landlord who accepts a partial payment waives the right to terminate the lease and waives the right to have the court evict the tenant for the breach of the lease which is the basis of the dispute.
It is possible to accept a partial payment and still proceed with the eviction if the landlord and tenant enter into a new written agreement continuing the tenancy, binding the tenant to pay the balance on a certain date and expressly giving the landlord the right to proceed on the "old" breach if the tenant breaches the new agreement.
Tenant Pays in Full Before the Trial
What do you do if the tenant tenders payment in full after the landlord files the forcible detainer action, but before the trial? The Arizona Residential Landlord and Tenant Act says that the rental agreement is reinstated if the tenant pays all past due rent, reasonable late fees set forth in the rental agreement, attorney's fees and court costs. If the tenant does in fact pay all amounts owed before the forcible detainer trial, the complaint will be dismissed. The landlord may require that the amount owed be paid in cash or certified funds to insure that the debt is actually paid.
Preparing for the Forcible Detainer Trial in Justice Court
If it is necessary to actually have a court trial to complete the eviction, the landlord must not go into court unprepared. The landlord must be prepared to go to trial when the landlord files the complaint with the court because trials occur so quickly in forcible detainer cases.
The landlord must prove the case to the court. First, the landlord should assemble all of the documents necessary to prove the landlord's right to possess the premises. At a minimum, the landlord will need copies or originals of the following documents;
These records must be kept in the ordinary course of business and not prepared specially for trial.
The landlord must also make sure that all of the landlord's witnesses appear at the trial. Usually in a forcible detainer case, there are only one or two witnesses. One witness is a person who can testify that a lease exists. Another witness is the person who posted the five day notice. Another witness is the person who can testify to the court that rent has not been paid. Many times, all of these facts can be proven by one witness.
The landlord must also be able to prove that process was properly served on the tenant. The landlord may prove proper service of process by submitting to the court the process server's affidavit of service or the documents that show the alternative method of service was properly accomplished. If the process server attempted service, but could not accomplish it within the short time period, he or she may have filed an "affidavit of attempted" service. Show this document to the court to prove that the landlord attempted to serve the tenant. If the landlord attempted to serve the defendant, but does not have an affidavit of attempted service, a witness with knowledge about the attempted service can testify.
Tenant Fails to Appear at the Trial in Justice Court
An Arizona justice court will typically hear a very large number of forcible detainer actions and dispose of them quickly. The landlord must make sure that he or she is not late to the trial. Determine the location of the court in advance and be early. A landlord who has never participated in a forcible detainer lawsuit should take some time a week or two before his or her trial date to spend an hour or two in the same justice court observing other forcible detainer actions. You can learn a lot from observing other forcible detainers.
At the time of the trial, the judge will call the landlord's and defendant's names and look around the court room to see if anyone stands and approaches the bench. Since the vast majority of tenants don't show for the trial, the judge will only linger for five or ten seconds before he looks down into the court file to review the copy of the complaint, five day notice and proof of service. If the documents are present in the file, and assuming the landlord or his counsel are present in the courtroom, the judge will announce a default judgment for the landlord (the plaintiff) and ask the landlord for a form of judgment. A default judgment means that the landlord wins the case without a trial. The judge will then sign the judgment and move on to the next case.
The Form of Judgment
A form of judgment is a piece of paper that records the court's order in the case. It should say that judgment is granted to the plaintiff, that a writ of restitution is ordered, that the tenant is ordered to pay rent, penalties, costs and attorney's fees to the landlord. This form, just like the summons and complaint, can be obtained at any justice court.
Tenant Appears for the Trial in Justice Court
Most of the time, tenants do not appear for the trial. However, if the tenant actually appears for the trial, the court will probably tell the parties to wait until the end of its calendar for the trial. The judge will then call the next default case. As soon as the court finishes all of the default cases on the calendar, the court will turn its attention to the few remaining trials.
If the tenants appears at the trial and enters a plea of "not guilty," he or she must file a written answer with the court before the trial begins. To file a written answer, the tenant must pay the appropriate answer fee required by the court. If the tenant appears at the trial, pleads not guilty and fails to file a written answer, the landlord should ask the court to issue a default judgment.
When the court calls the landlord's case for trial, the landlord will have
the burden of proving his or her case. The landlord is the plaintiff. The
plaintiff goes first, i.e., the plaintiff is the first party that presents
evidence to the court. The plaintiff must present the documents to the court
that prove the case and offer the witnesses to testify and prove that the tenant
was obligated to pay rent and failed to do so.
If the plaintiff proves all three of these elements to the court the plaintiff will win and obtain a judgment against the defendant/tenant.
After the landlord wins the trial, the judge will sign a form of judgment, just like the one in the default cases, ordering the tenant to pay the landlord rent, late fees, costs and any attorney's fees. This judgment can be collected like any other civil judgment. The tenant may not automatically pay the judgment, in which case the landlord must take legal action to collect the judgment. The law provides a number of remedies to judgment holders (creditors) such as garnishment, attachment and execution.
The Writ of Restitution
The judgment obtained in a forcible detainer case should also order possession of the premises returned to the landlord. If the tenant fails to return possession to the landlord, the landlord must obtain a writ of restitution from the court.
The writ of restitution is required to legally remove the tenant from the premises. The court does not automatically issue a writ of restitution. In fact, the court may not issue a writ of restitution until the sixth calendar day after the judgment. The landlord may only go back to the court and ask it to issue the writ of restitution if the tenant does not voluntarily vacate the premises.
The writ of restitution empowers the constable or sheriff to go to the premises, physically remove the tenant and seize the tenant's property if it is still inside the residence. The constable or sheriff charges a fee for this eviction service. Arizona law provides that the tenant is responsible to pay the cost charged by the constable or sheriff.
Considering the large number of forcible detainer actions filed in Arizona, the courts actually issue of a writ of restitution in a small number of cases. It is quite common for most tenants, even uncooperative tenants, to vacate the premises shortly after being served with the summons and complaint. If this happens, the landlord should still proceed with the trial and obtain a judgment for the back rent, fees and costs. For those tenants who choose to stay in the premises after being served with the summons and complaint, a significant number of them will vacate the premises after the landlord obtains a judgment and explains to them that the sheriff will physically remove them and lock up their property if they do not vacate the premises.
Affect of the Writ of Restitution
The writ of restitution is a powerful tool. If the court issues the writ and it is served on the tenant, two standard prohibitions of the Landlord Tenant Act disappear. The Act prohibits landlords from shutting off utility services for non-payment of rent. However, if a writ of restitution is issued by the court, the landlord may turn off utilities to the residence the following day. The Act also prohibits landlords from locking tenants out and seizing their property for non-payment of rent. But, if a writ is executed on the residence the landlord may lock the former tenant out the same day the writ is served.
Disposition of Tenant's Property Left in the Premises
It is common for evicted tenants to leave personal property on the premises. The landlord may not simply throw it away. The landlord must hold the evicted tenant's personal property for twenty-one days beginning on the first day after the writ of restitution is issued. The landlord may change the locks on the residence and hold the personal property at the unoccupied residence, or move it to another safe and secure location. The landlord has an obligation to use reasonable care holding or moving the tenant's personal property. The landlord may also charge the tenant a reasonable amount to store the tenant's personal property.
Inventory the Tenant's Property
If the tenant leaves any personal property at the premises, the landlord must
immediately prepare an inventory of the property and attempt to deliver the
inventory along with a notice to the former tenant. I recommend that when the
landlord first enters the premises after an eviction, the landlord do the
The reason I suggest landlords follow the three steps listed above is to be able to defend a claim by the former tenant that he or she left valuable property on the premises. A landlord may owe the former tenant damages for improperly disposing of the property.
In all likelihood, the former tenant will contact the landlord about retrieving the former tenant's property. The landlord should deliver the inventory of the tenant's personal property and the notice to the former tenant by certified mail, return receipt requested. If the landlord does not know the former tenant's mailing address, mail the inventory and notice to the former tenant's last known address or any known alternative contact address.
Contents of the Notice to Tenant About Personal Property
The notice to the former tenant about the personal property must:
The landlord may not hold the personal property and demand that the former tenant pay the personal property removal and storage costs plus the entire amount of the judgment before releasing the property.
Former Tenant's Right to Obtain Certain Personal Property
The former tenant has no right of access to the personal property, with several exceptions. The exceptions are necessary clothing, tools of a trade, identification documents, financial documents or documents relating to his or her medical care. If the former tenant offers to pay for storage and removal, the landlord must release the property to the former tenant when he or she tenders payment. Failure to release the personal property to a former tenant who offers to pay the storage and removal costs may cause the landlord to be liable for any damages or loss suffered by the former tenant.
If the former tenant does not pay for storage and removal costs and take the personal property within twenty-one days, the landlord may sell the property and apply proceeds toward payment of the judgment or any other costs the former tenant has incurred after judgment. If the sale generates more than the amount owed to the landlord, the landlord must forward the excess to the former tenant at his or her last known address.
The landlord may make any kind of agreement with the former tenant that the parties mutually agree to. If the parties want to allow the landlord to hold the personal property longer than twenty-one days before selling it or give the former tenant a longer period within which to reclaim the property, the parties may agree to do so. However, take care to document everything in a written agreement signed by the landlord and former tenant and retain the agreement, inventory, and other records for at least one year.
Things a Landlord Cannot Do If the Tenant Fails to Pay Rent
The Arizona Residential Landlord and Tenant Act prohibits landlords from taking a wide range of retaliatory actions against tenants. Generally, the landlord's only remedy when the tenant fails to pay rent, other than negotiation, is to file a forcible detainer action in court and use the legal process to evict the tenant. A landlord may not take any of the following actions if a tenant default in the obligation to pay rent without filing a forcible detainer action, obtaining a judgment and a writ of restitution:
Norm Keyt's Residential Eviction Service
By following the steps described in this article, a landlord may file a forcible detainer lawsuit against a tenant who has not paid rent, obtain a judgment against the tenant and evict the tenant. The process may appear daunting, but a layman may file and successfully prosecute a forcible detainer action in a justice court. However, the process is fairly complex and has many potential pitfalls for the landlord.
If you value your time or want to make sure that your eviction is handled properly, you should hire an Arizona leasing attorney to do your forcible detainer and eviction. If you would like Arizona attorney Norm Keyt to handle the eviction process for you, if there are special circumstances with respect to your tenant or situation, or if you need to evict a commercial property tenant, please call Norm at 602-265-0273 or send him an email at email@example.com.
This article was first published on November 25, 2004 and revised on June 26, 2008.
About Norman Keyt
Norm Keyt has been an Arizona lawyer since 1975. He practices commercial civil litigation, including landlord-tenant disputes and evictions. In his thirty plus years of law practice, Norm has been lead counsel in over 100 jury trials. Norm can be reached by telephone at 602-265-0273, email at firstname.lastname@example.org and fax at 602-265-5964. Communicating with Norman Keyt via email or otherwise does not cause you to become a client or cause your communications to be confidential or subject to the attorney client privilege.
How to Hire AZ Landlord's Attorney to Evict a Tenant
To hire Arizona landlord's attorney Norm Keyt to evict a residential tenant or to advise you with respect to residential leases and problems with tenants, follow this link, call Norm at 602-265-0273 or send an email to email@example.com. No charge for quick questions about evicting a tenant.
This page was last modified on March 25, 2012.
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