HB2361 - 481R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-1173.01, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1173.01. Additional definition of forcible detainer

A. In addition to other persons enumerated in this article, a person in any of the following cases who retains possession of any land, tenements or other real property after he receives receiving written demand of possession may be removed through an action for forcible detainer that is filed with the clerk of the superior court in accordance with or a justice of the peace pursuant to this article:

1. If the property has been sold through the foreclosure of a mortgage, deed of trust or contract for conveyance of real property pursuant to title 33, chapter 6, article 2.

2. If the property has been sold through a trustee's sale under a deed of trust pursuant to title 33, chapter 6.1.

3. If the property has been forfeited through a contract for conveyance of real property pursuant to title 33, chapter 6, article 3.

4. If the property has been sold by virtue of an execution and the title has been duly transferred.

5. If the property has been sold by the owner and the title has been duly transferred.

B. The remedies provided by this section do not affect the rights of persons in possession under a lease or other possessory right which that is superior to the interest sold, forfeited or executed upon.

C. The remedies provided by this section are in addition to and do not preclude any other remedy granted by law.

d. If the case is before a justice of the peace and the defendant provides credible evidence that the sale of any property subject to this section was defective or invalid, the justice of the peace shall refer the matter to the superior court.

Sec. 2. Title 12, chapter 8, article 4, Arizona Revised Statutes, is amended by adding section 12-1173.02, to read:

START_STATUTE12-1173.02. Rent; notice; disposition of personal property

A. A person who wrongfully retains possession of real property of another is liable for rent for the use and occupancy of the premises.

B. At least five days before the commencement of any forcible detainer action a party who holds possession of a residential unit other than through a rental agreement shall be given a notice demanding surrender of possession of the premises. The notice provisions of section 33-1313 apply to this section.

C. Except as provided in section 33-1368, subsections E and F and section 33-1370, the landlord may not dispose of any personal property that is on the premises of a person who is occupying the premises for residential purposes and who is not subject to title 33, chapter 10.END_STATUTE

Sec. 3. Section 12-1175, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1175. Complaint and answer; service and return

A. When a party aggrieved files a complaint of forcible entry or forcible detainer, in writing and under oath, with the clerk of the superior court or a justice of the peace, summons shall issue no later than the next judicial day.

B. The complaint shall contain a description of the premises of which possession is claimed in sufficient detail to identify them the premises and shall also state the facts which entitle the plaintiff to possession and authorize the action.

C. The summons shall be served at least two days before the return day, and return made thereof on the day assigned for trial.

C. Service of the summons and complaint in a special detainer action and in a forcible detainer action shall be made pursuant to section 33-1377.

D. The summons shall set forth specific information prescribed by court rule to enable the defendant to determine the location and telephone number of the court, the date and time set for trial and the consequences of failing to appear. The complaint shall clearly identify the plaintiff, the location of the property at issue, the nature and consequences of the proceeding, the specific relief being sought and the reasons for the relief sought.END_STATUTE

Sec. 4. Title 12, chapter 8, article 4, Arizona Revised Statutes, is amended by adding section 12-1175.01, to read:

START_STATUTE12-1175.01. Counterclaims; cross-claims

A. A counterclaim may be filed only pursuant to statute in a special detainer action or forcible detainer action as prescribed by court rule.

B. A cross-claim or third party complaint may not be filed in a forcible or special detainer action.END_STATUTE

Sec. 5. Section 12-1176, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1176. Demand for jury; trial procedure

A. The clerk or justice of the peace shall at the time of issuing the summons, if requested by the plaintiff, issue a venire to the sheriff or constable of the county commanding him to summon a jury of eight persons, if the proceeding is in the superior court, and six persons, if the proceeding is in the justice court, who are qualified jurors of the county, to appear on the day set for trial to serve as jurors in the action. The venire shall be served and returned on the day assigned for trial. The trial date shall be no more than five judicial days after the aggrieved party files the complaint.

B. If the plaintiff does not request a jury, the defendant may do so when he appears, and the jury shall be summoned in the manner set forth in subsection A.

C. If a jury trial is demanded and the court finds that the party making the demand has validly waived the right to a jury trial, the jury trial demand shall be denied and the matter shall proceed to a trial by the court.

C. D. If any jurors fail to attend, or are excused after being challenged, the jury shall be completed by causing other qualified jurors to be summoned immediately.

D. E. The action shall be docketed and tried as other civil actions. END_STATUTE

Sec. 6. Section 12-1177, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1177. Trial and issue; postponement of trial

A. On the trial of an action of forcible entry, special detainer or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into. If a permissible counterclaim has been filed, the court shall decide the counterclaim by determining the amount of damages if the court finds in favor of the defendant or by dismissing the counterclaim if the court finds in favor of the plaintiff.

B. If a jury is demanded pursuant to section 12-1176, it the jury shall return a verdict of guilty or not guilty of the charge as stated in the complaint and shall decide any permissible counterclaim. If a jury is not demanded or has been validly waived, the action shall be tried by the court.

C. For good cause shown, supported by affidavit, the trial may be postponed for a time not to exceed three calendar days in a justice court or ten calendar days in the superior court.

D. At trial the court shall determine the relief the plaintiff is entitled to, if any. If a permissible counterclaim has been filed, the court shall determine the relief the defendant is entitled to, if any.END_STATUTE

Sec. 7. Section 12-1178, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1178. Judgment; writ of restitution; limitation on issuance

A. If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for all charges stated in the rental agreement and for damages, attorney fees, court and other costs and, at the plaintiff's option, for all rent found to be due and unpaid through the periodic rental period, as described in section 33‑1314, subsection C, as provided for in the rental agreement, and shall grant a writ of restitution. If the defendant's social security number is contained on the complaint at the time of judgment, the person designated by the judge to prepare the judgment shall ensure that the defendant's social security number is contained on the judgment.

B. If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for damages, attorney fees, and court and other costs, and if it appears that the plaintiff has acquired possession of the premises since commencement of the action, if requested, a writ of restitution shall issue in favor of the defendant unless possession has thereafter been transferred to a nonparty to the action. If judgment is given for a defendant on a counterclaim, the judgment shall include damages in an amount determined by the court.

C. Except as provided in section 33-1377, section 33-1485 and section 33-2143, subsection d, PARAGRAPH 3, no writ of restitution shall issue until the expiration of five calendar days after the rendition of judgment. The writ of restitution shall be enforced as promptly and expeditiously as possible. The issuance or enforcement of a writ of restitution shall not be suspended, delayed, or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion unless a judge finds good cause.

D. The court shall enter a default judgment against the defendant if the defendant fails to appear and the court determines that the action has been properly filed and served and that the plaintiff is entitled to the relief being sought.

E. In any special detainer or forcible detainer action that is brought following expiration or termination of a tenancy pursuant to title 33, chapter 10, 11 or 19 for possession of a property used for residential purposes, if the defendant appears for trial and admits the allegations the court shall enter judgment in favor of the plaintiff.

F. In any special detainer or forcible detainer action that is brought following expiration or termination of a tenancy pursuant to title 33, chapter 10, 11 or 19 for possession of a property used for residential purposes, the court shall grant the following relief on the entry of a judgment:

1. Except as provided in paragraph 2 of this subsection, if the judgment is for the plaintiff, the court shall award possession of the premises to the plaintiff. A writ of restitution shall not be issued until the expiration of five calendar days after rendition of the judgment.

2. If an immediate termination has been requested and ordered due to a breach that is both material and irreparable pursuant to section 33-1368 or section 33-1485, the judgment shall provide for the writ of restitution to issue between twelve and twenty-four hours after the entry of judgment or longer if the plaintiff requests.

3. If the judgment is for the defendant and the plaintiff has possession of the premises, the defendant may request possession of the premises with a writ of restitution to issue after five calendar days.

4. A writ of restitution date shall not be delayed or extended beyond the date ordered unless the parties stipulate otherwise.

5. In addition to determining the right to possession, the court may assess damages as follows:

(a) The court shall award rent to a prevailing plaintiff together with any additional periodic rent that has accrued since the complaint was filed, if requested in the complaint. In the case of an unexpired lease, rent through the balance of the lease term shall not be awarded.

(b) If the landlord charged utilities to the defendant under a rental agreement, the court shall award any unpaid amount to a prevailing plaintiff.

(c) If a written rental agreement provides for periodic late charges in the event of a rent default, the court shall award the prevailing plaintiff reasonable late charges. In an action involving a mobile home park or a recreational vehicle park the court shall limit the award of periodic late charges to the statutory amount and the court shall not reduce a late charge calculated in accordance with that limitation.

(d) The court may award to the prevailing plaintiff any fees that are specified in a written rental agreement and that are collected periodically together with other rental charges.

(e) If the plaintiff prevails, the court may award damages for breach of the rental agreement including property damages.

(f) If a defendant prevails on a counterclaim, the court shall award damages and shall determine the prevailing party for the purposes of awarding costs and reasonable attorney fees.

(g) The court shall award court costs pursuant to section 12-341.

(h) If the court finds that a rental agreement or lease provides a rent concession that in the event of a default becomes due and payable the court shall include the amount of the concession as additional damages in the judgment to a prevailing plaintiff, if pled in the complaint, unless the court finds good cause to not award the rent concession.

(i) The court shall award reasonable attorney fees to the prevailing party if the fees are provided for by statute or in a written contract. The award may not exceed the amount the party has paid or agreed to pay.

G. The court shall promptly issue a writ of restitution on timely application. A judge, a justice of the peace or the clerk of the superior court may issue the writ of restitution if it appears that a judgment granting possession has been entered in favor of the party filing the writ and the action has not been stayed subject to the following conditions:

1. Unless the court finds good cause, the issuance or the enforcement of a writ of restitution will not be suspended, delayed or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion.

2. The writ of restitution shall be enforced as promptly and expeditiously as possible. The constable or sheriff executing the writ shall not delay execution of the writ unless the court orders a delay or suspension of enforcement of the writ pursuant to paragraph 1 of this subsection or the party attempting to enforce the writ agrees to or requests a delay in writing. Notwithstanding this, in executing the writ, the sheriff or constable has the authority to:

(a) If there is no response when the sheriff or constable announces his presence, enter the premises with the use of force if necessary for the purpose of determining whether it is occupied.

(b) Remove any and all occupants who refuse to peacefully vacate the premises with the use of force if necessary, advise the occupant and the landlord that the occupant may remove clothing, tools of the trade and identification documents at any time without charge, explain that the occupant's property will be inventoried and stored and explain the process to obtain the property.

(c) Grant a reasonable amount of time, not to exceed three calendar days from the date of service, for the occupants to vacate when in the judgment of the sheriff or constable an extension of time is justified by exigent circumstances.

(d) Require the occupant of the premises to remove any household pets found in the home or, if the premises are unoccupied, require the party entitled to possession to remove any household pets and to place them with appropriate authorities for safekeeping.

(e) Authorize the party entitled to possession to install appropriate devices on all doors and windows to prevent reentry by the occupants after the home is vacated.

(f) Post an appropriate notice of eviction on the home or on the interior of a front window of the home.

3. A party who obtains a judgment for possession has up to forty-five days to apply for a writ of restitution.

4. If a party applies for a writ of restitution more than forty-five days after the date of judgment, the party shall explain the reason for the delay in making the application and shall certify that the tenancy has not been reinstated since the date of the judgment. The court shall determine whether to issue the writ pursuant to court rule.

5. After a writ of restitution is issued, a party may file a motion to quash the writ. If the court finds good cause to believe that the writ was improperly applied for or issued the court may stay enforcement and schedule a hearing on the motion. The hearing shall be conducted within three business days after the filing of the motion.END_STATUTE

Sec. 8. Section 12-1179, Arizona Revised Statutes, is amended to read:

START_STATUTE12-1179. Appeal to superior court; notice; bond

A. Either party may appeal from a justice court to the superior court in the county in which the judgment is given by giving notice as in other civil actions within five calendar days after rendition of the judgment pursuant to this section. The appeal shall be filed in accordance with this section, and the time to appeal shall not be extended or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion.

B. A party seeking to appeal a judgment shall file with the notice of appeal a bond IN THE AMOUNT OF two HUNDRED DOLLARS for costs on appeal. The justice of the peace shall set the bond in an amount sufficient to cover the costs on appeal. The bond shall be payable to the clerk of the justice court. If a party is unable to file a bond for costs on appeal, the party shall file with the justice court a notice of appeal along with an affidavit stating that the party is unable to give bond for costs on appeal and the reasons therefor. Within five court days after the filing of the affidavit, any other party may file, in the justice court, objections to the affidavit. The justice of the peace shall hold a hearing on the affidavit and objections within five court days thereafter. If the justice court sustains the objections, the appellant shall file, within five court days thereafter, a bond for costs on appeal as provided for in this section or in such a lesser amount as ordered by the justice court.

C. A party seeking to appeal a judgment may stay the execution of either the judgment for possession or any judgment for money damages by filing a supersedeas bond. The justice court shall hold a hearing on the motion within five court days after the parties advise the justice court of their failure to stipulate on the amount of the bond. The stay is effective when the supersedeas bond or bonds are filed.

D. The party seeking to stay the execution of the judgment for possession shall file a supersedeas bond in the amount of rent accruing from the date of the judgment until the next periodic rental date, together with costs and attorney fees, if any. The tenant shall pay to the clerk of the justice court, on or before each periodic rental due date during the pendency of the appeal, the amount of rent, UTILITIES AND OTHER RELATED CHARGES due under the terms of the lease or rental agreement. Such amounts shall be made payable by the justice court to the owner, landlord or agent as they accrue to satisfy the amount of periodic rent due under the lease or rental agreement. In all cases where the rent due under the terms of the lease or rental agreement is paid through the justice court as set forth in this subsection, the order of the court may include a one‑time handling fee in the amount of ten dollars to be paid by the party seeking to stay the execution of the judgment for possession. In no event shall the amounts paid per month exceed the amount of monthly rent charged by the owner for the premises. If the tenant IN A SPECIAL DETAINER ACTION raises habitability as provided for in sections 33‑1324 and 33‑1364 as an affirmative defense to the nonpayment of rent or the tenant has filed a counterclaim asserting a habitability issue, the justice court shall retain all money paid under this subsection pending a final judgment.

E. If during the pendency of the appeal the party seeking to stay the execution of the judgment for possession fails to pay the rent AND OTHER CHARGES on OR BEFORE the periodic rental due date, the party in whose favor a judgment for possession was issued may move the justice court to lift the stay of the execution of the judgment for possession. The justice court shall hear the motion to lift the stay of the execution of the judgment for possession and release accrued monies, if any, within five court days from the failure of the party to pay the periodic rent due under the terms of the lease or rental agreement. If the judgment appealed from involves a finding of a material and irreparable breach pursuant to section 33‑1368 or section 33‑1476, subsection D, paragraph 3 the justice court shall treat it as an emergency matter and conduct a hearing on a motion to lift the stay of execution of the writ of restitution within three days. If the third day is a Saturday, Sunday or other legal holiday, the hearing shall be held on the next day thereafter.

F. The party seeking to stay the execution of the judgment for money damages shall file a supersedeas bond in the amount of the judgment, together with costs and attorney fees, if any. The amount of the bond shall be fixed by the court and payable to the clerk of the justice court.

G. If the judgment appealed from has a finding of a material and irreparable breach by the tenant of a dwelling unit or a tenant in a mobile home park or recreational vehicle park, the court may decide not to permit rents to be deposited and may allow a writ of restitution to be enforced notwithstanding the appeal or the court may impose such conditions in addition to the deposit of rents as it deems appropriate in the interests of safety. If the court determines that personal injury or serious property damage is unlikely to occur while the appeal is pending or that serious criminal conduct is unlikely to take place on the premises, the court shall permit rents to be deposited. If rent payments are not kept current pursuant to subsection D of this section or if additional prohibited acts of conduct by the appellant occur, a motion to lift the stay may be filed. The court shall treat a motion to lift the stay of execution of the writ of restitution as an emergency matter and conduct a hearing within three days. If the third day is a Saturday, Sunday or other legal holiday the hearing shall be held on the next court day. END_STATUTE