One of the most common, but frequently misunderstood, types of civil litigation is eviction of a residential tenant by a landlord for nonpayment of rent. Simple civil litigation, even in justice court, can take from three months to over a year to complete. Fortunately, the Arizona Residential Landlord and Tenant Act (the "Act") affords landlords an expedited procedure for evicting a tenant for nonpayment of rent. The procedure is fairly simple and straightforward, but you must properly complete each step. Properly done, the landlord can have the tenant out of the rental unit and have a money judgment against the tenant for past due rent within three weeks after rent first became overdue. Improperly done, the court may dismiss the action, allow the tenant to stay in the unit and award the tenant a judgment against the landlord for the tenant's attorney's fees (if the tenant hired an attorney).
The proper procedure is best illustrated by an example. Terry Tenant has a written rental agreement with Larry Landlord. The agreement provides that rent is due on the first day of the month and that late fees begin to accrue after the fifth day of the month at the rate of $10.00 per day. Today is second day of the month. Terry Tenant has not yet paid his rent and Larry Landlord wants to begin eviction proceedings.
The first step in an eviction for nonpayment of rent is delivery of a Five-Day Notice to Pay or Quit (the "Notice") by the landlord (or his agent) to the tenant. The Notice must state that rent is overdue and that the landlord intends to terminate the tenant's rental agreement if rent is not paid within five calendar days (not business days) after delivery of the Notice (do not count the day the Notice is delivered). A.R.S. § 33-1368(B) and (H). The Notice may be served on the first day that "rent is unpaid when due." A.R.S. § 33-1368(B). Our rental agreement states that late fees will not accrue until after the fifth, but clearly states that rent is due on the first day of the month. Although late fees and the rental due date are related, they are separate and distinct dates. Even if a landlord does not charge a late fee at all, rent still is due on a certain date and may be evicted if rent is not timely paid. The language of the rental agreement controls when rent is due and overdue. Therefore, in our example, Larry may serve the Notice on or after the second day of the month. In the case of an oral agreement or a written agreement that does not specify the due date, rent is due "at the beginning of each month" (i.e., the first day of the month). A.R.S. § 33-1314(C).
Larry serves the Notice upon Terry by hand-delivering it to him on the second day of the month. Larry could have had someone else deliver the Notice (i.e., a friend, property manager, process server, etc.) or could have sent the Notice by certified mail. If the Notice is served by mail, the five days begin to run the day after: (1) actual receipt by the tenant, or (2) five days after the Notice is mailed, whichever occurs first. A.R.S. § 33-1313(B).
If Terry does not pay the rent within the five days, then, on the sixth day of the month, Larry may file the eviction action (properly called a "special detainer" action, but commonly referred to as a forcible detainer action). A.R.S. §§ 33-1368, 33-1377.
If the total amount of past due rent sought does not exceed $10,000.00, then Larry may file the special detainer action in justice court, which is typically were most eviction actions are filed. A.R.S. § 22-201(C). If the total amount due is over $10,000, then Larry must file in superior court. A.R.S. § 22-201(C).
To file a special detainer action, Larry completes a form called a Complaint and files it with the court. The court then issues a Summons for each tenant/defendant named in the Complaint (this is somewhat of a misnomer -- Larry will actually fill out the Summons form, the clerk of the court merely writes in the date and time of the "return date" (discussed below), stamps the form and gives it back to Larry). In some courts (i.e., justice court), the Summons and Complaint forms have been combined into one form.
Larry then gives the Summons and Complaint to a process server, who, in turn, "serves" (i.e., hand-delivers) a copy of the Summons and Complaint upon Terry. The Summons and Complaint must be served on each named tenant/defendant at least two (2) days before the return date. A.R.S. § 33-1377(B). Alternatively, if personal service is attempted but not successful, service may be effected by the process server by posting a copy of the Summons and Complaint on the subject property (i.e., on the front door) and, on the same day, mailing a copy of the Summons and Complaint via certified mail, return receipt requested, to the tenant's last known address, which is usually the rental property address. A.R.S. § 33-1377(B). Posting and mailing (commonly referred to as "nail & mail" service) must be accomplished, however, within one day of issuance of the Summons. A.R.S. § 33-1377(B).
Larry then goes to court on the return date specified on the Summons, at the time and place indicated. The "return date" is the date specified on the Summons by the clerk of the court at the time the Summons was issued. Terry will enter his plea -- guilty or not guilty -- on the return date. In justice court, trial may follow immediately after entry of the tenant's plea or be set for a few days later. In superior court, if the tenant pleads not guilty, a trial date will be set for a few days later. In both justice court or superior court, if the tenant pleads guilty on the return date, judgment will be entered that day.
On the trial date, whether or not Terry shows up, Larry must present evidence to the court that indicates he is entitled to possession of the rental unit and, if applicable, a money judgment for past due rent. If Terry does show up, Terry will be permitted to explain why rent was not paid. "Hard times" (i.e., loss of job, disability, etc.) will not be an acceptable defense. Acceptable defenses available to tenants include:
a. The rent was not yet due when the tenant was served with the Five-Day Notice or the Notice itself was defective (i.e., lacks required information).
b. The Complaint was filed before the five day period (after service of the Notice) expired.
c. The special detainer action was filed in the wrong court.
d. The Summons and/or Complaint was improperly served.
e. The tenant no longer lives in the rental unit and the landlord has accepted surrender of possession.
f. The special detainer action is an unlawful retaliation against the tenant (i.e., retaliation for reporting building code violations, etc.).
g. There was a justification for nonpayment of rent, based on some type of breach of the rental agreement by the landlord (i.e., failure to repair, failure to provide heat/cooling, etc.).
h. The rent has been paid or part of the rent was paid and accepted after service of the Five-Day Notice.
i. The landlord inconsistently enforces of the terms in the rental agreement (i.e., s/he allows some tenants to be late with the rent, but not others). Provided the tenant can demonstrate to the court that s/he is the victim of "selective enforcement," the court may dismiss the landlord's action.
j. The language of the rental agreement provides (or suggests) that the landlord must accept partial rent payments and the tenant has offered a partial payment, but the landlord has refused to accept it.
If Larry wins, he is entitled to a judgment for possession of the rental unit and a money judgment for past due rent. Larry will not receive actual possession of the rental unit, however, until five business days (not calendar days) after entry of judgment. A.R.S. § 12-1178(C). If Terry does not voluntarily move out of the rental unit on or before the fifth business day, Larry may pay a fee and obtain a Writ of Restitution from the court. Larry may then give the writ to the sheriff or constable, who will forcibly remove Terry from the rental unit. Larry must then arrange to have the locks changed and all personal property left in the unit, if any, moved and stored.
And that is all there is to it. Okay, so it doesn't sound all that simple. The first one never is. You now have two choices: (1) hire an attorney to do it for you, or (2) do it yourself. If you decide to prosecute a special detainer action yourself, at a minimum, you should consult with your attorney at two stages: (1) before you file the action, to ensure that you have complied with all the procedural requirements, and (2) any time you have a question or run into a problem. You must also make a point of obtaining and reading the "Rules of Procedure for Eviction Actions," which became effective January 1, 2009. These rules require that certain language be included in the special detainer Complaint and on the judgment form and that various other procedures are followed. You can get a copy of these rules here (right side bar).
Comply with the Act and the Rules of Procedure, follow the steps above and you will do fine -- you can do this.
Landlords should conduct a background check of their future tenant, but they should also consider the side of the tenant if they want also to have a clear background of their landlords.
Posted by: background service | May 21, 2009 at 10:08 AM
A very helpful article. This should serve as a reminder to future tenants about tenant screening which is not just conducted by the landlord themselves but avails a background check service so any past delinquencies and disputes from your previous landlords are revealed. Be wary now and pay on time!
Posted by: aurore | April 29, 2009 at 02:17 PM