Nonpayment of rent is the leading cause of an eviction in Arizona and elsewhere. Here are the steps for an eviction based on the tenant’s failure to timely pay rent in Arizona.
In Arizona a landlord can evict a tenant for not paying rent by the due date in the parties’ lease or rental contract. The process is initiated by the landlord’s preparation and service of a Five Day Notice to Pay Rent or Quit. The notice must inform the tenant that he or she has 5 days to pay the unpaid rent, and that If the tenant fails to pay in full within the 5-day period, the rental agreement will be terminated, and eviction proceedings will be initiated. A landlord can serve notice the day after rent is due.
There is no grace period for paying rent in Arizona. Rent is late starting the day after it’s due. On the 6th day after the notice is served, the landlord can file a forcible detainer action with the court to move ahead with the eviction.
Service of Notice
The notice must be personally delivered to the tenant or served by certified mail. When sending the notice by certified or registered mail, add five (5) additional calendar days to the notice period or the number of days until the notice is received by the Tenant, whichever occurs first , as required by law If the tenant was not properly served with the termination notice, the court must dismiss the eviction action.
Payment of Amount Due
If the tenant pays the entire rent owed within the five-day period after receiving the formal written notice from the landlord, the landlord generally is required to accept that payment and may not continue to seek an eviction on non-payment grounds.
If the tenant pays the entire rent owed, plus reasonable late fees as stated in the rental agreement) after the five-day period but before the landlord has filed an eviction action, the landlord generally is required to accept that payment and may not continue to seek an eviction on non-payment grounds.
If the tenant pays the entire rent owed plus late fees after the landlord has filed a complaint with the court to begin the eviction process but before the judge has made a final decision, the landlord generally is required to accept that payment and may not continue to seek an eviction on non-payment grounds if the tenant also pays the landlord’s attorney fees and court costs.
If the tenant seeks to pay the entire rent owed plus late fees, plus the landlord’s attorney fees and court costs after the judge has decided in favor of the landlord, the choice of accepting that payment and reinstating the rental agreement is entirely at the discretion of the landlord.
A landlord is not required to accept partial payment. If the landlord chooses to accept only part of the total amount of the rent that is owed, the landlord waives the right to terminate the rental agreement based on the notice unless the tenant signs a written waiver permitting the landlord to proceed with the eviction if the rest of the amount owed is not paid by a specified date.
The next step in the eviction action is to prepare, file and serve the complaint. The papers must include a copy of the lease and 6 months of accounting records showing charges and payments.
Service of Complaint
Generally, an eviction action summons and complaint must be served by a constable or sheriff either by personal delivery or by posting the papers in an obvious place at the premises and sending them by certified mail.
Answer and Affirmative Defenses
The tenant may file a written answer or answer orally in open court on the record. If the court sets a trial date, the tenant may be ordered to file a written answer.
In the answer the tenant may include affirmative defenses, which are reasons the tenant believes the action has no merit. For example, the tenant may claim the rent was paid in full and on time. The tenant may also claim he or she made repairs to the unit after notifying the landlord, then subtracted the actual and reasonable costs of the work from the rent due (up to $300.00 or half the monthly rent, whichever is greater). There are many other affirmative defenses that can be asserted by the tenant.
The tenant has a right to a trial if the court determines a valid defense or meritorious counterclaim exists. The tenant has a right to a jury trial if there are factual disputes to be resolved by a jury.
A default judgment may be entered against the tenant if the tenant fails to appear at the hearing. If the tenant appears at trial the court will hear the evidence and enter judgment thereafter. The judge may award the landlord possession of the property plus rent, late fees, attorney fees, court costs, and other damages if proved by the landlord. The fact finder may also render judgment in favor of the tenant based on a finding that an asserted defense or counterclaim has merit.
The parties may also enter into a stipulated judgment whereby the tenant agrees that the claims in the complaint are true. If they do, the tenant cannot offer a defense and cannot appeal this judgment.
Writ of Restitution
if the tenant does not voluntarily leave after judgment is entered, the landlord can obtain a writ of restitution. For eviction judgments of immediate and irreparable breach, the landlord can get a writ of restitution the next court day. In most cases, the landlord must return to court after five days secure a writ of restitution.
The landlord may not change the locks or enter the rental unit until the writ of restitution has been issued by the court and served by the constable or sheriff. Once the writ of restitution has been lawfully executed, the tenant may not remain at or return to the rental unit without the express permission of the landlord. If the tenant stays or returns to the rental unit without permission, the tenant can be charged with criminal trespass.
Please contact Lynx Legal with any questions regarding the above, and for all your eviction needs. We can be reached at 888-441-2355 or firstname.lastname@example.org. You can also schedule a telephonic consultation on our website. Our experienced professionals are standing by to answer any questions or complete the intake if you are ready to start a case.