How Do I Avoid Eviction in Arizona is I have been served with eviction papers?
Full Question:
I live in a house in Arizona where our signed lease agreement went out last April. We have been paying rent since then without signing a new lease. My wife was involved in a car accident on May 15, taken to an emergency room, missed 2 days of work, and so on. We had to pay a $1000 deductible to get our car out of the shop as well as some car rental fee's. So because of this we have not paid rent for June. On Friday, July 3, we were served court papers to appear in court. One month late and they are sending us to court. They are demanding both months rent all fees and late fees by this date. We also only had 2 business day from time we were served papers to time of court. We were told we will only have 5 to 7 days to get out of house if we cant pay the total in full. Is there nothing I can do?
07/06/2009 |
Category: Landlord Ten... ยป Lease Termin... |
State: Arizona |
#17355
Answer:
Payment of the rent amount due is a way to avoid eviction. Inability to pay is not a defense to an eviction action. Defenses to eviction include waiver by acceptance of partial payment, or fault on the part of the landlord, such as failure to make repairs. Retaliatory eviction for the tenant's exercise of legal rights, such as reporting a building code violation, is also a defense. Improper service of an eviction notice may be a legal defense to eviction, particularly if you did not receive the notice on time because of the way it was served.
The following are Arizona statutes:
33-341. Termination of tenancies
A. A tenancy from year to year terminates at the end of each year unless
written permission is given to remain for a longer period. The permission
shall specify the time the tenant may remain, and upon termination of such
time the tenancy expires.
B. A lease from month to month may be terminated by the landlord giving
at least ten days notice thereof. In case of nonpayment of rent notice is
not required.
C. A tenant from month to month shall give ten days notice, and a tenant
on a semimonthly basis shall give five days notice, of his intention to
terminate possession of the premises. Failure to give the notice renders
the tenant liable for the rent for the ensuing ten days.
D. When a tenancy is for a certain period under verbal or written
agreement, and the time expires, the tenant shall surrender possession.
Notice to quit or demand of possession is not then necessary.
E. A tenant who holds possession of property against the will of the
landlord, except as provided in this section, shall not be considered a
tenant at sufferance or at will.
33-361. Violation of lease by tenant; right of landlord to reenter; summary
action for recovery of premises; appeal; lien for unpaid rent; enforcement
A. When a tenant neglects or refuses to pay rent when due and in arrears
for five days, or when a tenant violates any provision of the lease, the
landlord or person to whom the rent is due, or the agent of the landlord or
person to whom the rent is due, may reenter and take possession, or,
without formal demand or reentry, commence an action for recovery of
possession of the premises.
B. The action shall be commenced, conducted and governed as provided for
actions for forcible entry or detainer and shall be tried not less than
five nor more than thirty days after its commencement. In addition to
determining the right to actual possession, the court may assess damages,
attorney fees and costs pursuant to section 12-1178.
C. If judgment is given for the plaintiff, the defendant, in order to
perfect an appeal, shall file a bond with the court in an amount fixed and
approved by the court and payable to the clerk of the superior court,
conditioned that the appellant will prosecute the appeal to effect and will
pay the rental value of the premises pending the appeal and all damages,
attorney fees, costs and rent adjudged against the appellant.
D. If the tenant refuses or fails to pay rent owing and due, the landlord
shall have a lien upon and may seize as much personal property of the
tenant located on the premises and not exempted by law as is necessary to
secure payment of the rent. If the rent is not paid and satisfied within
sixty days after seizure as provided for in this section, the landlord may
sell the seized personal property in the manner provided by section
33-1023.
E. When premises are sublet or the lease is assigned, the landlord shall
have a like lien against the sublessee or assignee as the landlord has
against the tenant and may enforce it in the same manner.
33-362. Landlord's lien for rent
A. The landlord shall have a lien on all property of his tenant not
exempt by law, placed upon or used on the leased premises, until the rent
is paid. The lien shall not secure the payment of rent accruing after the
death or bankruptcy of the lessee, or after an assignment for the benefit
of the lessee's creditors.
B. The landlord may seize for rent any personal property of his tenant
found on the premises, but the property of any other person, although found
on the premises, shall not be liable therefor. If the tenant fails to allow
the landlord to take possession of such property, the landlord may reduce
the property to possession by an action to recover possession, and may hold
or sell the property for the payment of the rent.
C. The landlord shall have a lien for rent upon crops grown or growing
upon the leased premises, whether the rent is payable in money, articles of
property or products of the premises, and also for the faithful performance
of the terms of the lease, and the lien shall continue for a period of six
months after expiration of the term of the lease.
D. When premises are sublet, or when the lease is assigned, the landlord
shall have the same lien against the sublessee or assignee as he has
against the tenant and may enforce the lien in like manner.
33-1304. Applicability of chapter
This chapter shall apply to the rental of dwelling units. Any conflict
between the provisions of chapter 3 and chapter 7 of this title with the
provisions of this chapter shall be governed by the provisions of this
chapter.
33-1368. Noncompliance with rental agreement by tenant; failure to pay
rent; utility discontinuation; liability for guests; definition
A. Except as provided in this chapter, if there is a material
noncompliance by the tenant with the rental agreement, including material
falsification of the information provided on the rental application, the
landlord may deliver a written notice to the tenant specifying the acts
and omissions constituting the breach and that the rental agreement will
terminate upon a date not less than ten days after receipt of the notice
if the breach is not remedied in ten days. For the purposes of this
section, material falsification shall include the following untrue or
misleading information about the:
1. Number of occupants in the dwelling unit, pets, income of prospective
tenant, social security number and current employment listed on the
application or lease agreement.
2. Tenant's criminal records, prior eviction record and current criminal
activity. Material falsification of information in this paragraph is not
curable under this section.
If there is a noncompliance by the tenant with section 33-1341 materially
affecting health and safety, the landlord may deliver a written notice to
the tenant specifying the acts and omissions constituting the breach and
that the rental agreement will terminate upon a date not less than five
days after receipt of the notice if the breach is not remedied in five
days. However, if the breach is remediable by repair or the payment of
damages or otherwise, and the tenant adequately remedies the breach before
the date specified in the notice, the rental agreement will not terminate.
If there is an additional act of these types of noncompliance of the same
or a similar nature during the term of the lease after the previous remedy
of noncompliance, the landlord may institute a special detainer action
pursuant to section 33-1377 ten days after delivery of a written notice
advising the tenant that a second noncompliance of the same or a similar
nature has occurred. If there is a breach that is both material and
irreparable and that occurs on the premises, including but not limited to
an illegal discharge of a weapon, homicide as defined in sections 13-1102
through 13-1105, prostitution as defined in section 13-3211, criminal
street gang activity as prescribed in section 13-105, activity as
prohibited in section 13-2308, the unlawful manufacturing, selling,
transferring, possessing, using or storing of a controlled substance as
defined in section 13-3451, threatening or intimidating as prohibited in
section 13-1202, assault as prohibited in section 13-1203, acts that have
been found to constitute a nuisance pursuant to section 12-991 or a breach
of the lease agreement that otherwise jeopardizes the health, safety and
welfare of the landlord, the landlord's agent or another tenant or
involving imminent or actual serious property damage, the landlord may
deliver a written notice for immediate termination of the rental agreement
and shall proceed under section 33-1377.
B. A tenant may not withhold rent for any reason not authorized by this
chapter. If rent is unpaid when due and the tenant fails to pay rent within
five days after written notice by the landlord of nonpayment and the
landlord's intention to terminate the rental agreement if the rent is not
paid within that period of time, the landlord may terminate the rental
agreement by filing a special detainer action pursuant to section 33-1377.
Before the filing of a special detainer action the rental agreement shall
be reinstated if the tenant tenders all past due and unpaid periodic rent
and a reasonable late fee set forth in a written rental agreement. After a
special detainer action is filed the rental agreement is reinstated only if
the tenant pays all past due rent, reasonable late fees set forth in a
written rental agreement, attorney fees and court costs. After a judgment
has been entered in a special detainer action in favor of the landlord, any
reinstatement of the rental agreement is solely in the discretion of the
landlord.
C. The landlord may recover all reasonable damages, resulting from
noncompliance by the tenant with the rental agreement or section 33-1341 or
occupancy of the dwelling unit, court costs, reasonable attorney fees and
all quantifiable damage caused by the tenant to the premises.
D. The landlord may discontinue utility services provided by the landlord
on the day following the day that a writ of restitution or execution is
executed pursuant to section 12-1181. Disconnections shall be performed
only by a person authorized by the utility whose service is being
discontinued. Nothing in this section shall supersede standard tariff and
operational procedures that apply to any public service corporation,
municipal corporation or special districts providing utility services in
this state.
E. The landlord shall hold the tenant's personal property for a period of
twenty-one days beginning on the first day after a writ of restitution or
writ of execution is executed as prescribed in section 12-1181. The
landlord shall use reasonable care in moving and holding the tenant's
property and may store the tenant's property in an unoccupied dwelling unit
owned by the landlord, the unoccupied dwelling unit formerly occupied by
the tenant or off the premises if an unoccupied dwelling unit is not
available. If the tenant's former dwelling unit is used to store the
property, the landlord may change the locks on that unit at the landlord's
discretion. The landlord shall prepare an inventory and promptly notify the
tenant of the location and cost of storage of the personal property by
sending a notice by certified mail, return receipt requested, addressed to
the tenant's last known address and to any of the tenant's alternative
addresses known to the landlord. To reclaim the personal property, the
tenant shall pay the landlord only for the cost of removal and storage for
the time the property is held by the landlord. Within five days after a
written offer by the tenant to pay these charges the landlord must
surrender possession of the personal property in the landlord's possession
to the tenant upon the tenant's tender of payment. If the landlord fails to
surrender possession of the personal property to the tenant, the tenant may
recover the possessions or an amount equal to the damages determined by the
court if the landlord has destroyed or disposed of the possessions before
the twenty-one days specified in this section or after the tenant's offer
to pay. The tenant shall pay all removal and storage costs accrued through
the fifth day after the tenant's offer to pay is received by the landlord
or the date of delivery or surrender of the property, whichever is sooner.
Payment by the tenant relieves the landlord of any further responsibility
for the tenant's possessions.
F. A tenant does not have any right of access to that property until all
payments specified in subsection E of this section have been made in full,
except that the tenant may obtain clothing and the tools, apparatus and
books of a trade or profession and identification or financial documents
including all those related to the tenant's immigration status, employment
status, public assistance or medical care. If the landlord holds the
property for the twenty-one day period and the tenant does not make a
reasonable effort to recover it, the landlord, upon the expiration of
twenty-one days as provided in this subsection, may administer the personal
property as provided in section 33-1370, subsection E. The landlord shall
hold personal property after a writ of restitution or writ of execution is
executed for not more than twenty-one days after such an execution. Nothing
in this subsection shall preclude the landlord and tenant from making an
agreement providing that the landlord will hold the personal property for a
period longer than twenty-one days.
G. For the purposes of this chapter, the tenant shall be held responsible
for the actions of the tenant's guests that violate the lease agreement or
rules or regulations of the landlord if the tenant could reasonably be
expected to be aware that such actions might occur and did not attempt to
prevent those actions to the best of the tenant's ability.
H. For purposes of this section, "days" means calendar days.
33-1373. Remedy after termination
If the rental agreement is terminated, the landlord may have a claim for
possession and for rent and a separate claim for actual damages for breach
of the rental agreement.
33-361. Violation of lease by tenant; right of landlord to reenter; summary
action for recovery of premises; appeal; lien for unpaid rent; enforcement
A. When a tenant neglects or refuses to pay rent when due and in arrears
for five days, or when a tenant violates any provision of the lease, the
landlord or person to whom the rent is due, or the agent of the landlord or
person to whom the rent is due, may reenter and take possession, or,
without formal demand or reentry, commence an action for recovery of
possession of the premises.
B. The action shall be commenced, conducted and governed as provided for
actions for forcible entry or detainer and shall be tried not less than
five nor more than thirty days after its commencement. In addition to
determining the right to actual possession, the court may assess damages,
attorney fees and costs pursuant to section 12-1178.
C. If judgment is given for the plaintiff, the defendant, in order to
perfect an appeal, shall file a bond with the court in an amount fixed and
approved by the court and payable to the clerk of the superior court,
conditioned that the appellant will prosecute the appeal to effect and will
pay the rental value of the premises pending the appeal and all damages,
attorney fees, costs and rent adjudged against the appellant.
D. If the tenant refuses or fails to pay rent owing and due, the
landlord shall have a lien upon and may seize as much personal property
of the tenant located on the premises and not exempted by law as is
necessary to secure payment of the rent. If the rent is not paid and
satisfied within sixty days after seizure as provided for in this
section, the landlord may sell the seized personal property in the manner
provided by section 33-1023.
E. When premises are sublet or the lease is assigned, the landlord shall
have a like lien against the sublessee or assignee as the landlord has
against the tenant and may enforce it in the same manner.
