In a residential eviction action the landlord must first give the tenant written notice that the tenant has five calendar days to pay the rent. At a minimum, the five day notice must tell the tenant that the tenant is behind in the rent and state the amount of money the tenant must pay to cure the default. The notice must also tell the tenant that the lease will terminate unless the tenant pays the entire amount due on or before the expiration of five days from the date the tenant receives the five day notice. The notice may be hand-delivered to the tenant or sent by certified or registered mail. If the 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.
If the tenant does not cure the default, the landlord can file a forcible detainer complaint in court. Typically, forcible detainer actions in Arizona are filed in justice court. If damages are greater than $10,000, then the case must be filed in superior court. The complaint should ask for a writ of restitution (eviction), possession of the premises, all late rent, all late fees, rent due through the end of the current periodic rental period, the landlord’s court costs, and attorney’s fees if applicable. Attach a copy of the lease agreement and the five day notice to the complaint.
Trial is typically set by the court clerk three to six business days after the complaint is filed. The landlord must have the summons and complaint served on the tenant at least two days before the trial date. The tenant should be personally served with the summons and complaint either by a constable or by a private process server.
If personal service cannot be obtained, then the process server may post the summons and complaint on the front door of the residence within one day of filing the complaint, and on the same day the summons and complaint must be sent to the tenant’s address by certified mail, return receipt requested. If the process server succeeds in obtaining personal service on the tenant, he will file an “affidavit of service” with the court. If the process server cannot personally serve the tenant, he will file an “affidavit of attempted service” with the court.
In most cases the tenant will not have a valid defense, and therefore, the tenant will not show up for the court hearing. The Judge will then proceed by default. The landlord should have a form of judgment prepared to hand to the Judge to sign in the event of a default.
If the tenant shows up to court to contest the eviction, a short trial will usually take place that same day. The only issues that the judge will be concerned with at trial are: 1) was the tenant obligated to pay rent, 2) did the tenant fail to pay the rent and 3) did the landlord give the tenant the legally required notice? If the landlord proves all three of these elements to the court, the landlord will win and obtain judgment against the tenant. Most tenants will vacate the premises after the landlord obtains a court order.
The tenant will be given five days to vacate the property. If the tenant leaves any personal property at the premises, the landlord must immediately prepare an inventory of the property and attempt to deliver an inventory along with a notice to the former tenant. The landlord cannot throw the property away. The landlord must hold the evicted tenant’s personal property for twenty-one days beginning on the first day after the writ of restitution is issued.
If the tenant fails to return possession of the residence within the five day period, then the landlord must obtain a writ of restitution from the court. The writ of restitution empowers the constable or sheriff to go to the premises, physically remove the tenant and seize the tenant’s property if it is still inside the residence. Even if you believe that the tenant has vacated the property, absent the tenant returning the keys and/or providing you with written notification that they no longer live in the premises, before entering the property you should either file a Writ of Restitution or post a Notice of Abandonment (§ A.R.S. 33-1370) conspicuously on the door and send a copy certified mail to a last known address (usually the residence).
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