Is there anything a tenant can do to challenge a judgment of eviction in the landlord’s favor? The answer is “yes”. Landlords need to be aware of a tenant’s rights in this respect, particularly because one of the tenant’s options will have the effect of prolonging a tenant’s stay at the property for an indefinite period of time.

There are two possible strategies for seeking to overturn a trial court’s ruling restoring possession of the subject rental unit back to the landlord. Under Arizona law, a tenant is entitled to challenge that ruling by way of (1) an appeal, (2) a motion to vacate the judgment, or both. Here is a brief overview of those procedures.

Appeal of the Trial Court’s Ruling

A notice of appeal must be filed within five days after the judge has signed the judgment. Filing the notice of appeal, alone, will not allow the tenant to remain in the rental unit. A supersedeas bond must be filed with the trial court to stay the writ of restitution, which will allow the tenant to remain in the rental unit while the appeal is being heard. This bond cannot be waived or deferred. In the case of an immediate termination, the supersedeas bond must be paid to the trial court before the writ of restitution is issued.

The amount of the bond varies depending on the amount of rent due (from the date of judgment until the next periodic rental date), costs, and attorney fees. Additionally, the tenant must pay monthly rent to the court on or before the monthly due date during the appeal to remain in the property while the appeal is being heard. An appeal can take several months or even years to resolve, but at least the landlord will be getting paid rent during the process.

Motion To Vacate Trial Court Judgment

There are 10 specific reasons to file a motion to set aside the judgment. Specifically, the statute provides that either party may file such a motion on any of the following grounds:

(1) The court did not have jurisdiction to hear the case;

(2) The defendant tendered all amounts due under the lease agreement before entry of judgment or made a partial payment 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.

For certain reasons (Nos. 2, 4 and 5), a motion to set aside the judgment must be filed with the trial court not more than 60 days after the judgment. For other grounds, the motion must be filed within a “reasonable time.”. What constitutes a reasonable time is determined by review of the facts and circumstances of the particular case before the court.

Arizona law treats a post judgment motion affecting possession of the property as an “emergency motion” to be decided within three court days after it is filed. Significantly, unlike an appeal accompanied by a supersedeas bond, the filing a motion to set aside the judgment does not prevent the execution of a writ of restitution or allow the tenant to stay in the rental unit.

If you have any questions regarding the above, please contact us for a free consultation. We can be reached at 888-441-2355 or by email at [email protected] Our experienced representatives are standing by to answer any questions you may have.