Non-Payment of Rent


A.R.S. § 33-1368(B)
The following does not apply to mobile home park evictions, recreational vehicle park evictions, and certain subsidized housing. Below is information that may be helpful to landlords and tenants but is not a substitute for legal advice. There are other rules and laws that may be applicable to your situation, but these are common rules and laws that apply in eviction actions.

A.R.S. means Arizona Revised Statutes and RPEA means Rules of Procedure for Eviction Actions.
1  NOTICE
  • The landlord must give the tenant written notice that rent is unpaid, and that the rental agreement will terminate if rent is not paid in 5 days. A.R.S. § 33-1368(B).
  • In an action for non-payment of rent, landlord cannot file the eviction action until after the final day of the notice.
  • If the tenant did not receive a termination notice and a chance to pay the rent and late fees, or the notice does not comply with the law or was not properly served, the court must dismiss the eviction action. RPEA 13(a)(2).
2  SERVICE

Generally, an eviction action summons and complaint must be served by a constable or sheriff in one of two ways:

  1. personally served on the tenant, or
  2. posted in an obvious place and mailed to the tenant by certified mail. RPEA 5(f).
3  ANSWER
  • The tenant may file a written answer or answer orally in open court on the record. If the court sets a trial date, the tenant may be ordered to file a written answer. RPEA 7.
  • If a party cannot afford the filing fee, ask the clerk for a fee waiver/deferral application in order to not pay the fee when filing. http://www.azcourts.gov/courtfilingfees
4  REINSTATING THE RENTAL AGREEMENT

If the eviction is only for non-payment of rent, the rental agreement will be reinstated if the tenant pays all past due rent, late fees that appear in a written rental agreement, attorney fees, and court costs before judgment is entered. A.R.S. § 33-1368(B).

5  DEFENSES
  • The tenant paid rent in full and on time (provide proof of payment to the court).
  • The landlord accepted rent, or a portion of rent with knowledge of a default by the tenant and did not obtain a writing signed by the tenant at the time of accepting rent informing the terms and conditions of accepting the rent. A.R.S. § 33-1371, RPEA 13(a)(4). This defense applies even if part of the rent is paid by a third party unless the third party has a contract with the landlord and is a government agency, housing authority, agent for government agency/housing authority, or agent of a for-profit organization. However, the defense does apply if the third party is a faith-based organization, community action agency, non-profit, friend, family member, or anyone else.
  • The tenant made repairs to the unit after notifying the landlord that they would do so at the landlord’s expense, gave the landlord an opportunity to make repairs, tenant hired a licensed contractor to perform the work, tenant provided a lien waiver signed by the contractor, proof of payment for those items, and list of work performed to the landlord, and subtracted the actual and reasonable costs of the work from the rent due (up to $300.00 or half the monthly rent, whichever is greater). A.R.S. § 33-1363.
  • The tenant does not pay rent or pays less than what the landlord is claiming because the tenant is in subsidized housing – see Legal Info Sheet: Eviction Actions: Section 8 (Section 8, tax credit, etc.).
6  TRIAL
  • The tenant has a right to a trial if the court determines that the tenant MAY have a defense or proper counterclaim. RPEA 11(b)(1).
  • Unless waived in writing in the lease, the tenant may have a right to a jury trial, but must ask for it the first time they see the judge. The judge will then decide if there are factual matters to be determined by a jury. If there are no factual matters appropriate for a jury, the case will be heard by the judge. RPEA 11(d).
7  EVIDENCE AND TESTIMONY
  • Evidence and testimony must be relevant to the proceeding.
  • A witness must testify from personal knowledge – the witness telling the court what somebody else told the witness is generally not allowed.
  • Both parties have a duty to make timely objections. If a witness testifies to a fact he or she does not have personal knowledge of or the testimony is not relevant to the proceeding, immediately tell the judge you object to the testimony or evidence.
8  JUDGMENT
  • Default judgment may be entered against the tenant if the tenant is not present in the court when the case is called by the judge. RPEA 13.
  • Stipulated judgment – the tenant is agreeing that the allegations in the complaint are true and judgment will be entered against the tenant. The tenant will not have an opportunity to offer a defense and cannot appeal from this type of judgment.
  • The judge may award the landlord possession of the property plus rent, late fees (if there is a written rental agreement), attorney fees, court costs, and other damages if there is a legal and factual basis to award these damages.
  • See Legal Info Sheet: Eviction Actions: After an Eviction Judgment for important information if the judge rules against you.



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