In Arizona, there are two types of eviction actions – a “forcible detainer” case and a “special detainer” action. Here are the major differences between the two actions.
Forcible Detainer Requirements
There is a forcible detainer if the tenant retains possession of the rental unit after his tenancy has been terminated or after he receives written demand of possession by the landlord. For example, if the tenant gives notice to the landlord that she is moving out at the end of the month, and then does not move, the landlord would serve a complaint for forcible detainer. There is also a forcible detainer if the tenant remains at the property after it has been sold, including property sold through foreclosure.
To properly plead forcible detainer, the landlord must allege that the landlord was in actual possession of the apartment at the time of entry and that a forcible entry has occurred (i.e., the landlord did not consent to the tenant’s possession). The complaint must also state that the landlord was deprived of possession of the apartment; the landlord is seeking to recover possession; the landlord sent the tenant a demand for possession; the tenant refused to vacate, and the landlord is entitled to possession.
Special Detainer Requirements
The special detainer action is limited to residential landlord-tenant leases and is part of the Arizona Residential Landlord and Tenant Act, which is the action most often used for residential evictions. special detainer include actions based on a tenant’s material noncompliance with a rental agreement or failure to pay rent to the landlord. A special detainer action is also permitted where the tenant misrepresents or falsifies material information in the rental application. This includes misrepresentations regarding the number of occupants in the dwelling unit, pets, income of the prospective tenant, social security number and current employment. It also includes a misrepresentation regarding the tenant’s criminal records, prior eviction record and current criminal activity.
Scope of Relief Differences
In a forcible detainer action, the only issue before the court is whether the landlord is entitled to possession of the rental unit. The scope of relief in a special detainer action the landlord is broader, including possession and all damages resulting from the tenant’s noncompliance with the rental agreement. This includes unpaid rent, court costs, reasonable attorney fees and all quantifiable damage caused by the tenant to the premises.
Service of Process Differences
Another difference between a forcible detainer and a special detainer involves how to serve the Summons and Complaint. In a special detainer action, the summons and complaint can be served by personal service or by posting the documents at the main entrance of the tenant’s residence. In a forcible detainer action, by contrast, service of process must be accomplished by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies thereof at that individual’s dwelling house with a person of suitable age and discretion.
Noncompliance with the specific requirements of the respective procedures could be fatal to the case. For example, in a 2010 case captioned Arizona Real Estate Investment v. Schrader, the plaintiff filed the case as a forcible detainer, but it was served in accordance with the special detainer rules. Specifically, it was served by posting and mailing. The court held that this was improper, as the forcible detainer provisions of Arizona law did not permit service of a forcible detainer in this manner without proof that the possessor could not be served by the regular methods of service of civil actions.
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.