A forcible entry and detainer action can be used by a property owner or landlord whenever an occupant is illegally occupying a dwelling. The occupant could be a tenant or a previous owner if the property was foreclosed upon with the owner in possession.
A.R.S. § 12-1171 provides that a person is guilty of forcible entry and detainer if they:
1. Makes an entry into any lands, tenements or other real property, except in cases where entry is given by law.
2. Makes such an entry by force.
3. Willfully and without force holds over any lands, tenements or other real property after termination of the time for which such lands, tenements or other real property were let to him or to the person under whom he claims, after demand made in writing for the possession thereof by the person entitled to such possession.This could be a tenant that is overstaying their lease term or one that has failed to pay rent and must be evicted. For residential property, the landlord or owner must make a written demand to the occupant, who has five days to comply. After that, a lawsuit can be filed and the occupants must be served. At the court hearing, the sole issue will be whether or not the tenant has the right to possession. If not, the tenant will be ordered to surrender the property, and the sheriff has the authority to enforce the order, if necessary.
A.R.S. § 33-361 provides a similar remedy for commercial property. The landlord actually has the right to enter the property and lock the tenant out, but only if the tenant is at least five days late on paying rent or has otherwise materially breached the lease agreement. The landlord also has the right to a lien on the tenant’s property that is left on the premises.
Alternatively, the landlord can file a forcible entry and detainer action for a judicial resolution of the case. This may be preferable if the landlord wishes to avoid any potential liability for a wrongful lockout. Once again, the hearing will be limited to issues relating to the landlord’s right to possession of the premises.
Chernoff Law handles business and real estate litigation matters throughout Arizona. Contact us to discuss your case with an experienced real estate attorney.