HB2361

House of Representatives

landlord tenant; forcible detainer actions

Sponsors: Representatives Reagan, Meza

DP	Committee on Commerce
DPA	Caucus and COW
X	House Engrossed

HB 2361 establishes requirements for the pertinent parties in a forcible detainer action.

History

Forcible entry and detainer action is a quick and simple legal proceeding for regaining possession of real property from someone who has wrongfully taken, or refused to surrender, possession. (Black’s Law Dictionary)

Title 12, Section 1173.01, Arizona Revised Statutes, outlines several situations in which a person who retains real property illegally, and after receiving written notice of demand of possession, may be removed through a forcible detainer action. The action must be filed with the Clerk of the Superior Court. Some examples include if the property has been: sold through foreclosure of a mortgage, deed of trust, or trustee sale; or sold through execution or by the owner and the title has been transferred.

When an aggrieved party files a complaint of forcible entry or forcible detainer in writing, under oath with the Clerk of the Superior Court or Justice of the Peace (JP), summons must be issued no later than the next judicial day. The complaint must contain a description of the premises and a statement of the facts that entitle the plaintiff to possession of the property. Statute outlines the requirements for the trial procedure.

Provisions

· Establishes that in addition to an action for forcible detainer that is currently filed with the clerk of the superior court, an action for forcible detainer may also be filed with a justice of the peace (JP). Further, permits such a filing (in JP court) when there has been a foreclosure or trustee sale. Refers the action to the superior court if a defendant provides credible evidence that the sale was defective or invalid. (ARS §12-1173.01)

· Stipulates that a person who wrongfully retains possession of real property of another is liable for rent for the use and occupancy of the premises. Prescribes the current notice requirements as effective, requiring five days’ notice prior to commencement of any forcible detainer action (except in rental cases). (ARS §12-1173.02)

· Mandates service of the summons and complaint according to current law. Requires the summons to provide specific information as outlined that may be prescribed by court rule. (ARS §12-1175)

· Establishes that a counterclaim may only be filed pursuant to law in a special detainer action or a forcible detainer action as prescribed by court rule. States that a cross-claim or third party complaint cannot be filed in a forcible or special detainer action. (ARS 12-1175.01)

· Provides that if a jury trial is demanded and the court finds that the party has validly waived the right to a jury trial, the jury trial demand shall be denied and the matter shall proceed to trial by the court. (ARS §12-1176)

· Directs the court to decide any permissible counterclaim that has been filed, by determining the amount of damages if the court finds in favor of the defendant or by dismissing the counterclaim if it finds in favor of the plaintiff. Additionally, directs the court to determine the relief to which the plaintiff is entitled, if any; or, in the case of a counterclaim, the court must determine any relief to which the defendant is entitled. (ARS §12-1177)

· Outlines requirements when the court finds the defendant not guilty, and judgment is given to the defendant, including a writ of restitution of the premises, if requested by the defendant, unless possession had already been transferred to a nonparty to the action. If judgment is given to a defendant on a counterclaim, requires the judgment to include damages in an amount determined by the court. (ARS §12-1178)

· Provides that if the defendant fails to appear, the court shall enter a default judgment if it finds that the action was properly filed and served, and the plaintiff is entitled to the relief being sought. (ARS §12-1178)

· Establishes that in any special or forcible detainer action in which the defendant admits the allegations, the court shall enter a judgment in favor of the plaintiff. (ARS §12-1178)

· States that if judgment is for the plaintiff, then the court must award possession of the premises to the plaintiff, and a writ of restitution shall not be issued until after five calendar days. (ARS §12-1178)

· If there is judgment for the plaintiff due to a material and irreparable breach that involves health and safety, the judgment must provide for a writ of restitution to issue between 12 and 24 hours after the entry of the judgment (or longer if the plaintiff requests). (ARS §12-1178)

· If judgment is for the defendant, and the plaintiff has possession of the premises, then the defendant may request possession of the premises with a writ of restitution to issue after five calendar days. (ARS §12-1178)

· Prescribes the damages the court may award as well as the requirements for the writ of restitution. (ARS §12-1178)

· Requires a party seeking to appeal a judgment to file a $200 bond with the notice of appeal. (ARS §12-1179)

· States that pending the appeal, the tenant shall pay to the clerk of the justice court, the amount of the utilities and other related costs, in addition to the current requirement to pay the rent due under the terms of the lease/rental agreement. (ARS §12-1179)

· Requires the writ of restitution application to certify that all rent and other charges have not been paid to the court, and the court shall immediately issue the writ of restitution if the court has not received payment. (ARS §12-1179)

---------- DOCUMENT FOOTER ---------

Forty-eighth Legislature