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REFERENCE TITLE: residential property; transient occupant; remedies |
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State of Arizona Senate Fifty-sixth Legislature Second Regular Session 2024
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SB 1638 |
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Introduced by Senator Carroll: Representative Carbone
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An Act
amending title 12, chapter 8, article 4, Arizona Revised Statutes, by adding section 12-1173.02; relating to forcible entry and detainer actions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 8, article 4, Arizona Revised Statutes, is amended by adding section 12-1173.02, to read:
12-1173.02. Unlawful possession by transient occupant; affidavit; remedies; trespass; factors; definition
A. A transient occupant unlawfully detains a residential property if the transient occupant remains in occupancy of the residential property after the party entitled to possession of the property has directed the transient occupant to leave. A transient occupancy terminates when a transient occupant begins to reside elsewhere, surrenders the key to the dwelling or leaves the dwelling when directed by a law enforcement officer who has an affidavit under subsection B of this section, the party who is entitled to possession or a court. A transient occupancy is not extended by the presence of personal belongings of a former transient occupant.
B. Any law enforcement officer, on receipt of a sworn affidavit of the party who is entitled to possession that states that a person who is a transient occupant is unlawfully detaining residential property, may direct a transient occupant to surrender possession of residential property. The sworn affidavit must set forth the facts, including the applicable factors listed in subsections J and K of this section, that establish that a transient occupant is unlawfully detaining residential property.
C. A person who fails to comply with the direction of the law enforcement officer to surrender possession or occupancy violates section 13-1504. In any prosecution of a violation of section 13-1504 related to this section, whether the defendant was properly classified as a transient occupant is not an element of the offense, the state is not required to prove that the defendant was in fact a transient occupant and the defendant's status as a permanent resident is not an affirmative defense.
D. A person who is wrongfully removed pursuant to this section has a cause of action for wrongful removal against the person who requested the removal and may recover injunctive relief and compensatory damages, except that a wrongfully removed person does not have a cause of action against the law enforcement officer or the agency employing the law enforcement officer absent a showing of bad faith by the law enforcement officer.
E. A party who is entitled to possession of real property has a cause of action for unlawful detainer against a transient occupant pursuant to this article. The party who is entitled to possession is not required to notify the transient occupant before filing the action. If the court finds that the defendant is not a transient occupant but is instead a tenant of residential property governed by title 33, chapter 10, the court may not dismiss the action without first allowing the plaintiff to give the transient occupant the notice required by that chapter and to thereafter amend the complaint to pursue eviction under that chapter.
F. The party who is entitled to possession of a dwelling shall allow a former transient occupant to recover the transient occupant's personal belongings at reasonable times and under reasonable conditions. Unless otherwise agreed to, a reasonable time for the recovery of the former transient occupant's personal belongings is presumed to be ten days after termination of the transient occupancy, when the party who is entitled to possession of the dwelling or a trusted third party can be present at the dwelling to supervise the recovery of the belongings.
G. If the party who is entitled to possession of the dwelling reasonably believes that the former transient occupant has engaged in misconduct or has a history of violence or drug or alcohol abuse, the party who is entitled to possession of the dwelling may impose additional conditions on access to the dwelling or the personal belongings. These conditions may include the presence of a law enforcement officer, the use of a mover or the use of a trusted third party to recover the personal belongings. For the purposes of this subsection, "misconduct" includes all of the following:
1. Intentional damage to the dwelling, to property owned by the party who is entitled to possession of the dwelling or to property owned by another occupant of the dwelling.
2. Physical or verbal abuse directed at the party who is entitled to possession of the dwelling or another occupant of the dwelling.
3. Theft of property belonging to the party who is entitled to possession of the dwelling or property of another occupant of the dwelling.
H. The person who is entitled to possession of a dwelling may presume that the former transient occupant has abandoned personal belongings at the dwelling if the former transient occupant does not seek to recover the personal belongings within a reasonable time after the transient occupant surrenders occupancy of the dwelling. The time period to recover personal belongings may be extended due to the unavailability of the party who is entitled to possession of the dwelling to supervise the recovery of the personal belongings, or it may reasonably be shortened due to the poor condition or the perishable or hazardous nature of the personal belongings, the intent of the former transient occupant to abandon or discard the belongings or the significant impairment of the use of the dwelling by the storage of the former transient occupant's personal belongings.
I. If the person who is entitled to possession of the dwelling unreasonably withholds access to a former transient occupant's personal belongings, the former transient occupant may bring a civil action for damages or the recovery of the property. The court shall award the prevailing party reasonable attorney fees and costs.
J. Factors that establish that a person is a transient occupant include the following, except that Minor contributions made for the purchase of household goods or minor contributions towards other household expenses do not establish residency:
1. The person does not have an ownership interest, financial interest or leasehold interest in the property entitling the person to occupancy of the property.
2. The person does not have any property utility subscriptions.
3. The person cannot produce documentation, correspondence or identification cards sent or issued by a government agency, including the Department of Motor Vehicles or the county recorder that show that the person used the property address as an address of record with the agency within the previous twelve months.
4. The person pays minimal or no rent for the stay at the property.
5. The person does not have a designated space for the person's exclusive use, such as a room, at the property.
6. The person has minimal, if any, personal belongings at the property.
7. The person has an apparent permanent residence elsewhere.
K. The person is presumed to be a transient occupant if the person is unable to produce at least one of the following:
1. A notarized lease that includes the name and signature of the owner of the property.
2. A receipt or other reliable evidence demonstrating that the person has paid to the owner or the owner's representative rent for the last rent payment period. For monthly rental tenancies and rental tenancies for any lesser period of time, a receipt or other reliable evidence must be dated within the last sixty days.
L. For the purposes of this section, "transient occupant":
1. Means a person whose residency in real property intended for residential use has occurred for a brief length of time and is not pursuant to a lease and whose occupancy was intended as transient in nature.
2. Does not include a tenant under title 33, chapter 10.