Some tenants just don’t work out. Others take full advantage of your generosity. Let’s face it, a non-paying tenant costs more than the agreed rent they are not paying. Not knowing how to properly evict a tenant can easily add to those costs. Fortunately, we handle eviction court papers on a regular basis and are here to help. Follow these steps to set up your eviction.
Step 1: Deliver the notice to terminate lease (aka 5-day notice or notice to pay or quit):
Once your tenant has broken the terms of their lease and you have the legal authority to evict them, you must give them notice that you intend to evict them. Here are the 4 options per AZ law:
Non-Payment of Rent
Before a lawsuit requesting that the tenant be evicted for non-payment of rent can be filed, the tenant must be given a five-day notice and an opportunity to pay the amount due in full. The eviction lawsuit can be filed on or after the sixth calendar day. Click here for a sample five-day notice.
If the landlord alleges a material noncompliance with the lease, (e.g. violating the rules of the apartment complex, unauthorized pets) then the landlord must give the tenant a ten-day notice and an opportunity to come into compliance with the terms of the lease. The eviction lawsuit can be filed on or after the eleventh day. Click here for a sample notice.
Material Non-Compliance Affecting Health and Safety
If the landlord alleges a material noncompliance with the lease that affects health and safety, then the landlord must give the tenant a five-day notice and an opportunity to come into compliance with the terms of the lease. The eviction lawsuit can be filed on or after the sixth day. Click here for a sample notice.
Material and Irreparable Breach
If the landlord alleges that the tenant has committed a material and irreparable breach, then the landlord can deliver a notice of immediate termination of the rental agreement. The lawsuit requesting an eviction can be filed on the same day. Examples of a material and irreparable breach include but are not limited to gang activity, the discharge of a weapon on the premises or inflicting serious bodily harm on another. Click here for a sample notice.
These notices can be hand delivered or posted in a conspicuous place at the usual place of abode aka “nail and mail”. Notices are not legal documents, which means you can give this to your tenant yourself. However, using a process server to deliver the notice will come with proof of the delivery leaving no room for your tenant to contest. After the 5 or 10 day time line, you can move to step two.
Step 2: File the Summons and Complaint (Eviction Action/Special Detainer):
So you delivered your notice to pay or quit and your tenant has not paid. This is when you can begin your legal action. Frist, use the links below to file a case in your respective county. If your property is in Maricopa County you will also need to know which precinct your property is in.
Once you have downloaded and prepared your Arizona Eviction form, take the original form with your wet ink signature to the court to file in the correct Justice Court Precinct. When you file, the clerk will set a court date for you. It is very important that you select a court date 7 days or more from the date you file (not counting holidays). There are more details on why you want your court date set for 7 days from your filing date in step 3. FYI, we can file your documents for you and set everything up correctly. Give us a call at 877-655-2874 to learn more.
Step 3: Serve your summons and complaint (eviction action):
Now comes the fun part, serving your tenant. Some tenants are easy to serve and will accept the documents willingly. Others will actively avoid a process server which will add even more cost to an already expensive situation. Fortunately, if you set up your eviction correctly, this will not be an issue. In Arizona, your tenant must receive the documents 48 hours before your hearing. This gives you a small window to serve your documents, so we recommend RUSHING your attempts. This will give you the most opportunities to serve your tenant. However, if you set your court date 7 days from your file date, a process server can post and mail your documents the same day you filed, guaranteeing service. Beware of some process servers or even the court telling you that a server can post up to 48 hours before your court date. This is not correct and will leave room for your tenant to contest! Why take a risk on a case that has already taken so much time and resources? We see time and time again where a tenant who knows how to play the system and take advantage of inexperienced landlords. Don’t let your tenant take advantage of you and take action to suit your best interest! Once your documents have been served, we will file the original affidavit of service with the court and send you a copy. Print that affidavit out and take it with you to court. The court will add the affidavit to the docket; however, this process can take a few weeks which is much longer than the days that this timeline operates on. Taking a copy of the affidavit with you to court, especially if your defendant does not show, will help eliminate issue that would arise if you did not take your affidavit with you.
Set 4: Show up to court
Now that your documents have been filed and served, you will be going to court to recover the damages you have suffered from your tenant. From here on out, everything is up to the judge. If you win your case, your tenant will owe you for the damages. The court may issue a judgement in your favor that your defendant will have to pay. Five days after the date of the judgement, you may file a writ of restitution to reclaim the property. Writs of restitution must be served by a constable.
Step 5: Collect rent owed and other damages
Now that you have won your initial case in court, the next step is to collect the money owed to you. Some defendants will pay without issue while others will refuse. You may need to serve a writ of garnishment. Some tenants may have also caused damage to the property (often as retaliation for being evicted). You may need to serve a small claims summons and complaint or a civil summons and complaint. Learn more about that here. <- Needs link