Anatomy of an Arizona Eviction Action

Arizona has separate Rules of Procedure governing eviction actions that apply to cases filed in Arizona Justice Courts and Arizona Superior Courts.  Here is a summary of those rules. 

The Initial Notice

Before most eviction cases may be filed, the landlord must give the tenant Notice of the intent to do so. This notice must tell the tenant what the problem is and what can be done to fix it. Different problems with the tenancy require different types of notices. 

Filing the Action in Court

Once the notice period expires, the landlord must then prepare and file an eviction complaint in court to complete the eviction.  At the time of filing the court will issue a summons which gives all the parties the date for the eviction hearing. This date must be at least 3 but no more than 6 days after the filing date.

Service of Process

The landlord must serve tenant with the summons and complaint after filing the action.  Service of the summons and complaint must be made by personal service or post and mail service for a special detainer action.  For a forcible detainer action, service may be accomplished by personal delivery or by leaving copies of the papers at the tenant’s dwelling with a person of suitable age and discretion.

 Service of process must be done by a sheriff, a sheriff’s deputy, or a private process server registered with the clerk of the court.

Answer & Counterclaims

On or before the initial return date, the defendant can file an answer indicating whether the defendant admits or denies the allegations of the complaint. The defendant’s answer can also include any defenses the defendant seeks to assert to the plaintiff’s claims.

Counterclaims are only allowed if they arise from the landlord’s violation of the rental agreement or the Arizona Residential Landlord and Tenant Act. The allegations of the counterclaim are considered and decided at the time of trial.

The Trial

The judge typically begins the eviction hearing by inquiring into the basis for the eviction and verifying that the necessary paperwork is present. The judge will then ask the tenant if they agree that they owe the money or committed the other breach.

Except for stipulated judgments, in each eviction action the court must decide whether (1) the service of the summons and complaint was proper and timely, and whether the summons and complaint included all the information and notice(s) required under Rule 5, (2) the tenant or occupant of the premises received proper termination notice if one was necessary, and was afforded any applicable opportunity to cure, (3) the facts alleged, if proven, would be sufficient to rule that plaintiff has a right of superior possession due to a material breach of the lease agreement or for any other basis in law, and (4) the landlord accepted a partial payment without securing a partial payment agreement and waiver from the tenant. 

Default Judgment

If the defendant fails to appear in person or through counsel on the initial return date, and no continuance is granted, the court will enter a default judgment against the defendant. In an action alleging an immediate and irreparable breach, the court will hear evidence establishing such a breach before ordering a writ of restitution in not less than 12 nor more than 24 hours.

Relief Granted

If the judgment is for the plaintiff, he or she will be awarded possession of the premises. No writ of restitution can be issued until five calendar days after the judgment is signed, unless the landlord is entitled to immediate termination of the rental contract due to a material and irreparable breach of the lease agreement.  In that scenario the judgment shall provide for the writ of restitution to issue between 12 and 24 hours after entry of judgment. If the defendant is found not guilty, judgment would be entered in favor of the defendant. The court may award damages to the party entitled to possession if the party seeking money damages provided proof to the court of a factual and legal basis for an award of such damages. 

Application for Writ

If the tenant is ordered to move and does not, the landlord may obtain a Writ of Restitution from the court. This is an order directing the constable to remove the tenant from the unit. A party who obtains a judgment for possession must wait 5 days before applying for a writ of restitution and has up to 45 days to apply for a writ of restitution.

Relief from Judgment or Order

Either party may file a motion to set aside a judgment on one of the grounds specified in : (1) lack of the court’s jurisdiction to hear the case; (2) the defendant tendered all amounts due under the lease agreement prior to a judgment being entered or made a partial payment under the Arizona Residential Landlord Tenant Act, A.R.S. §§ 33-1301 to -1381, which was accepted by the landlord; (3) A party did not receive proper notice or was not properly served; (4) Mistake, inadvertence, surprise, or excusable neglect; (5) Newly discovered material facts exist that could establish a defense to an allegation; (6) A party is subject to protection under bankruptcy laws; (7) A party is requesting relief under the Servicemembers’ Civil Relief Act; (8) The parties have stipulated to set aside the judgment; (9) The judgment is contrary to the law; or (10) Fraud, misrepresentation, or other misconduct of an adverse party. The motion must be filed within a reasonable time, and, for reasons (2), (4), and (5), not more than 60 days after the judgment or order was entered.

Appeals

Either side may appeal an adverse judgment.  Any notice of appeal must be filed within five days after the judge has signed the judgment.

The appellant must also post a bond or file an affidavit instead of the bond. The bond is usually equal to the amount of rent that will accrue during the appeal, plus costs and attorney fees. The affidavit must state that you are unable to pay the bond and that your appeal is not for delay or harassment.

The Court will review the record and issue a decision. The decision may affirm, reverse, or modify the eviction judgment, or remand the case back to the lower court for further proceedings.

If you are an Arizona landlord and have questions regarding the above, please contact Lynx Legal at 888-441-2355 or info@lynxlegal.com.  You may also schedule a telephonic consultation on our website to discuss your specific eviction issues and/or start your case.  Our experienced professionals are standing by to assist in any way we can.