A self-help lockout is prohibited on residential real property in Arizona. An Arizona landlord is, however, entitled to pursue a self-help commercial eviction if the required procedure is followed. Since such an eviction occurs without a court order, it is most appropriate where the tenant’s default cannot reasonably be disputed, and the landlord is otherwise clearly entitled to declare a breach of the rental contract.
Benefits of a Commercial Self-Help Eviction
The primary advantages of self-help lockouts are their speed and low cost. Another advantage is that the process creates a perfected lien on all the tenant’s personal property located on the premises. Specifically, the landlord’s right to possession, and lien interest, arise immediately upon expiration of the required notice period.
Potential Downsides of a Commercial Self-Help Eviction
A major potential downside with self-help lockouts is the liability exposure created by a faulty procedure. In retaking possession, the landlord may not exercise force or otherwise breach the peace. If that occurs, or if the lock-out is otherwise wrongful, the landlord may be liable for any resulting damages the tenant sustains. If the landlord’s lockout involves a breach of the peace, or the tenant is otherwise legally entitled to possession, the landlord may also be liable on a claim for forcible entry and detainer. Emotional distress and/or punitive damages are recoverable where excessive force or other outrageous conduct is used to reacquire possession. A tenant can also sue for damages on the theory that the wrongful closure of its business resulted in a loss of goodwill.
Mechanics of a Commercial Self-Help Lockout
Given the above exposure, the key to a successful lockout is avoiding a breach of the peace. The easiest way to avoid such a result is by way of an agreement with the tenant that he will move by a date certain. The next best option is to wait until the premises is empty, which is why lockouts usually occur in the early morning hours, on weekends, and on holidays. In extreme cases, the landlord may employ a security guard to assist with the lockout. Official law enforcement officers rarely agree to become involved, except where the tenant has a history of violence or other serious criminal activity.
A locksmith should accompany you on the date of the scheduled lockout. To complete the lockout a locksmith typically requires a copy of the lease, a statement of breach, and an official letter from a legal professional stating the landlord’s authority to proceed.
Once inside the premises, a complete inventory of personal property and fixtures should be taken to avoid later claims of lost, stolen, or damaged property. A detailed written inventory will also be needed if the landlord plans to sell the tenant’s personal property to satisfy outstanding debts owed to the landlord (see below).
After the premises are secured, notice should be posted giving third parties someone to contact if they claim a legal or equitable interest in any personal property left behind. At that point the landlord may seize the tenant’s property located on the leased premises. If the rent is not paid within sixty days after seizure, the landlord may sell the seized property in the manner provided by A.R.S. § 33-1023. At least ten days prior to the sale date, the landlord must make demand upon the tenant for amounts owed. If the tenant fails to pay the outstanding balance within the ten days, the landlord may proceed with the sale. Thereafter, the tenant must receive at least five days’ advance notice of the date, time, and place of the sale, which must be by public auction. A.R.S. § 33-1023(B).
If the tenant cannot be located, the landlord must publish notice of the sale in a county newspaper on two separate occasions. The proceeds of the sale are applied to the accrued charges. A.R.S. § 33-1023(A). Any remaining proceeds are paid to other creditors, and then the tenant, respectively. A.R.S. § 33-1023(C).
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.