Forcible Detainers
A Forcible Entry and Detainer action is a special proceeding for returning possession of real property to a person who has been wrongfully deprived of use of the land. This is a common proceeding used in landlord/tenant disputes, also known as eviction.
Choosing the court
A complaint for eviction may be filed in either the justice court precinct or in the superior court for the county in which the rental property is located. The Justice Courts have concurrent jurisdiction with the Superior Court in cases of forcible entry and detainer when the amount involved, exclusive of interest, costs and awarded attorney fees when authorized by law, is $10,000 or less. Concurrent jurisdiction means that these cases can be filed in either court. Rent owed and/or damages greater than this amount requires that the case be filed in the Superior Court. Both court costs and processing time are less for cases filed in the Justice Court.
Who may represent a party in court?
Attorneys are not required to initiate eviction proceedings, or to represent the parties involved. In the justice court, an officer of a corporation that owns the property can represent it if authorized by the corporation, if going to court is not the officer's main duty and if the lawsuit is filed in the corporation's name.
Termination notice, eviction complaint/rent due
The landlord must give the tenant written notice that the tenant has five calendar days to pay the rent, or the rental agreement will be terminated and the tenant will be evicted. The notice can be given to the tenant when nonpayment occurs. The notice may be hand-delivered to the tenant or sent by certified or registered mail. If notice is sent by certified or registered mail, the judge will assume the tenant received the notice on the date the tenant signs for it, or five calendar days after it was mailed, whichever occurs first.
Court action begins when a complaint -made in writing and under oath - is filed with the court.
The complaint must name as defendants all tenants listed on the rental agreement, all other occupants known by the landlord and any unknown occupants who shall be listed as John Doe or Mary Doe. The complaint must show the address of the rental premises, how the five-day notice was delivered and the amount of money due. It is helpful, but not required, to attach a copy of the rental agreement and five-day notice to the complaint.
Trial will be set by the court clerk three to six business days after the complaint is filed.
Summons and service of complaint
The court issues a summons the day the landlord files a complaint. The summons should contain all of the names of known and unknown tenants (use "John Doe" or "Mary Doe" if unknown) listed on the complaint. The summons must be served along with the complaint, at least two business days before the trial. The combined summons and complaint form is available on this website.
The landlord must make arrangements to have the summons and complaint served in person by a private process server or the sheriff or constable. There is a fee for this service. If this method is unsuccessful, service can be completed by posting the summons and complaint on the front door of the rental unit if these documents are also sent the same day by registered or certified mail to the tenant's last known address. The tenant will be assumed to have received it three days after mailing.
The summons and complaint must be served at least two business days before the trial. The summons requires the tenant(s) to appear in court and respond to the complaint.
Trial and Defenses
Landlord:
Trial must be held no sooner than three and no later than six business days after the complaint was filed.
If the landlord accepts payment of all rent due and reasonable late fees identified in the written agreement, attorney fees and court costs, the rental agreement is reinstated and the case will be dismissed
The landlord should bring to the trial all documents related to the action. This may include the written rental agreement if one exists, a copy of the five-day notice, proof of service or hand delivery of the complaint, proof of certified or registered mailing of notice, receipt book or rental-payment records showing when rent was due and how much tenant owed through the established rental period, and any other documents the landlord wants the judge to see. Witnesses, if appropriate, should also be present at the trial so the court can hear all the evidence at one time.
Tenant:
The tenant may plead guilty or not guilty -"Guilty" means the defendant/tenant agrees that everything in the landlord's complaint is true and the tenant has no defense against the eviction. "Not guilty" means the tenant has a legal defense to the eviction complaint.
The tenant should bring rent receipts and all papers he/she wants the judge to see and any witnesses who can provide relevant information.
The trial may be on the same day as the plea, or a few days later. Any request to postpone a trial must be made under oath. The justice of the peace will consider the request and MAY grant the continuance for a brief period, based upon "good cause shown".
The tenant can respond in writing to the landlord's complaint, but can also go to trial without sending a written answer. To file a written answer, the tenant must pay a fee set by law. The tenant must appear in court at the trial to explain any legal defense to the judge. If the tenant fails to appear at trial, the court will very likely enter an automatic plea of guilty for the tenant and enter a default judgment in favor of the plaintiff/landlord.
The tenant can show as possible defense: rent not yet due, five-day notice not properly given, complaint filed before the five-day notice expired, summons improperly served, retaliation by the landlord, rent already paid by the tenant, full rent payment including late fees and applicable costs refused by the landlord, or some other breach of rental agreement by the landlord.
The tenant may file a counterclaim against the landlord -in writing -for any money he/she is entitled to arising out of the rental agreement or the Arizona Residential Landlord and Tenant Act. Fees must be paid to file a counter-claim.
Judgment by the court and eviction order
Landlord:
If, after the trial or hearing, the tenant is to be evicted, the judge shall order:
- rent due as provided in the rental agreement;
- any charges due as allowed by the rental agreement
The judge may also order:
- attorney fees and filing fees,
- damages alleged and proven.
The landlord can garnish or otherwise collect amounts due from the tenant based upon a monetary judgment even after the tenant is evicted or leaves. Garnishment actions follow specific procedures and processes.
To evict the tenant the landlord must go back to the court after the trial and have the court issue an eviction order -a Writ of Restitution. An eviction order is issued no earlier than the sixth calendar day after judgment, if the tenant has not moved out of the rental unit. The order instructs the sheriff or constable to evict the tenant. A fee will be charged by them to serve the Writ.
The landlord should not accept any post-judgment payments from the tenant without a clear written agreement about the conditions the tenant must observe to remain in the dwelling.
Personal property of the tenant that remains on the premises after the Writ of Restitution has been issued, shall be held by the landlord for a period of up to 21 calendar days unless the parties agree to a longer period. The landlord must prepare an inventory and notify the tenant of the cost and location of storage. Personal property may be stored in an unoccupied dwelling unit owned by the landlord including the unit vacated by the tenant named on the Writ or off premises if an unoccupied dwelling is not available. IF the tenant does not pay the landlord for the cost of removal and storage for the time held, the landlord may dispose of the property as established by law.
The landlord may bring a separate action after eviction to recover damages associated with the tenant's breach of the rental agreement.
Tenant:
Rent ordered due by the court cannot be greater than the amount that was due under the rental agreement. Other charges cannot be ordered paid to the landlord by the tenant unless such charges are provided for in a written rental agreement.
The judge may award attorney fees and court costs against the landlord if the tenant wins the trial.
The landlord may be ordered to pay amounts due to the tenant for violations of the rental agreement or the Arizona Residential Landlord and Tenant Act if the tenant files a counterclaim against the landlord and "wins" the counterclaim.
No eviction papers can be served on the tenant by the sheriff or constable unless:
The landlord wins at trial;
The landlord gets an order of eviction (Writ of Restitution) from the court.
No eviction papers may be served earlier than six calendar days after the trial or judgment.
The landlord can agree to let the tenant stay on the premises after an eviction action. Any agreements to permit the tenant to stay should be in writing and specific about the conditions of the agreement.
Mobile Home Park Evictions
The relationship between owners of manufactured homes located on rented spaces in parks, and park owners is governed by a special law the Arizona Mobile Home Parks Residential Landlord & Tenant Act. The stakes are high in these cases because eviction means moving the manufactured home, which usually costs thousands of dollars. For these reasons, a park owner, unlike the owner of an ordinary house or apartment, must have "good cause" for refusing to renew a lease for mobile home park space. Nevertheless, most of the discussion of forcible detainer actions applies to eviction from mobile home parks.
Appeals
Either party can appeal the decision of the court. There are several different elements to an appeal, and additional costs may be incurred.
Contact the clerk's office in the court where the case was heard if you wish to appeal the decision.
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