Forcible Detainer

Justice Court Links:

Holbrook Winslow Snowflake Show Low Pinetop-Lakeside Kayenta

Filing A Special Detainer Action

A Special Detainer Action is filed for alleged violations of the lease or rental agreement or of the Landlord & Tenant Act. AT ISSUE is the right to possession of the property.

Jurisdiction: The total amount due shall not exceed $10,000.

Venue: The property subject to the action must be located within the court’s precinct boundaries.

Notice: The proper notice must have been served on the Tenant. You may not file prematurely (before the time allowed in the notice has expired). If the notice is a 5-day notice, you may file the complaint on the 6^th day after the tenant received the notice. If the notice was served by certified mail, five days are added to the notice period. You must attempt to serve the tenant in person. If after attempting to serve him, you may serve the notice by attaching the notice to the front door and sending it to his last known mailing address certified mail.

Complaint: The complaint shall be under oath and state a description of the premises and the facts that entitle the landlord to possession. The complaint may also state any damages alleged. The allegations set forth in the complaint must follow the allegations of the notice. You may ask the clerk for a Forcible Detainer Complaint.

Parties: The party in interest is the property owner. The property owner or the property owner’s attorney must file the complaint.

Court Fees: Click on the Court Fees button at left.

The Summons: The summons will issue on the same day the complaint if filed.

Setting the Court Date: The court will set the court date for not more than 6 nor less than 3 days from the date of the summons. If the complaint alleges an irreparable breach, the date shall be set not more than 3 days away. All days refer to Judicial days. Understand that if the court has a full docket, the court may sua sponte (on its own motion) set the date out further.

Service: A licensed process server must serve the tenant with a copy of the summons and complaint. The summons must be served at least two days before the scheduled trial date. Service may also be done by the constable. Each court in Navajo County has a constable.

The summons may be served on the defendant pursuant to Rule 4.1. If the defendant cannot be served as allowed by the Rules, after an attempt is made, a copy of the summons may be posted on the main entrance of the residence. On that same day the summons shall be mailed by certified mail, return receipt requested. The summons is deemed to have been served 3 days after the mailing.

REMEMBER: You still must allow that the summons be served 2 days before the court date. If the court date is shortened at your request, time may not allow for service by "post & mail", in which case personal service must be made.

An Affidavit of service must be filed with the Court by the scheduled court date.

Process Servers: Process Servers may be found in the yellow pages of the phone directory, or you may contact the court constable.

Continuing the Court Date: Any request made to continue the court date must be in writing. A continuance will only be granted for good cause and will not be granted for a period greater than three judicial days.

Appearing In Court:

An Individual may appear personally, pro per, or by an attorney.

A Corporation may be represented by an officer of the corporation (who has been specifically authorized to represent the corporation in Justice Court and has primary duties to the corporation other than representing the corporation in court), or by an attorney.

A Partnership may be represented by any partner or by an attorney.

One spouse can not represent the other spouse.

Managers: Apartment/Park managers cannot represent the owner.

The Court Date: If you did not file your notice with the court at the time of filing the complaint, you must bring it with you on your scheduled court date. The Judge will ask you to briefly assert the allegations of the complaint. The Judge will review the allegations of the complaint and determine if proper notice was given. The tenant will be asked to enter a plea.

Guilty/No Contest: If the plea is guilty or no contest, the Judge will proceed to determine how much, if any, rent is due and owing through the end of the rental period along with the amount of any alleged damages, costs of court and attorney fees, if allowed, and interest on the unpaid judgment. The Judge will also order that the tenant vacate the property and that possession be returned to the property owner.

Not Guilty: If the tenant pleads not guilty, the Judge may order a pre-trial hearing. You will be asked to meet with the defendant to discuss settlement , define the issues for trial, and disclose any exhibits and witnesses you intend to present at trial. If the tenant has filed a counterclaim, it will also be considered at the time of trial. Generally, the trial is held that same day. The court may reset the trial for a date not more than 3 judicial days away.

Either party can request a jury trial. Both parties will be required to exchange disclosure and submit prepared jury instructions to the court before trial. The requesting party will be assessed jury fees and costs if the jury does not find in their favor. If a jury is not requested, the Judge will hearing the case. If you are representing yourself (acting as your own attorney) you will be held to the same standard as an attorney.

The plaintiff will proceed first and may call witnesses and/or introduce exhibits. You may cross-examine any witnesses or object to the admission of any exhibit. After the Plaintiff rests, the defendant will then present their case. They may call witnesses and/or introduce exhibits that may prove or defend their position.

Writ of Restitution: If judgment is entered, among other things, the Judge will order that a Writ of Restitution will issue five judicial days from the date of judgment or, in the case of irreparable breach, not less than 12 nor more than 24 hours after judgment (or as soon thereafter as normal court hours allow) [See the Court Clerk for the appropriate form and fees]. If the tenant has not moved as ordered, the Constable will enforce the eviction process with a Writ of Restitution.

Appeal: Either party may appeal from a Justice Court judgment by filing a Notice of Appeal within five (5) days from the date of judgment. The court clerk can provide you with this information. Should the tenant loose in the action and wish to file an appeal, the court will require the posting of a supersedas bond on appeal.

Defendant's Rights in Forcible Detainer Actions

The plaintiff is seeking return of the rental property because of your alleged non-compliance with the rental agreement or to terminate the rental agreement. A Forcible Detainer action has been filed in this court. You have been served with a copy of the plaintiff’s complaint. The complaint alleges:

That this court has venue over this matter (the property in dispute is located within the boundaries of this Justice Court).
The plaintiff is the owner of the property and is entitled to possession.

Pay and Stay Right before Judgment is Entered.

If the complaint has been filed pursuant to a 5-day notice for non-payment of rent, the tenant can stay

All unpaid rent

Reasonable late Fees (only if provided for in a written agreement)

Any unpaid utilities

Attorney fees (if allowed in the rental agreement)

Court Costs incurred for filing and serving the complaint

After Judgment is Entered.

Even if you pay the entire judgment amount, the plaintiff may still proceed with the eviction.

AT THE HEARING

This is the time for you to enter a plea.

ADMITTING. If you plea guilty or no contest (you do not intend to dispute the allegations), the Court shall proceed to determine:

If you received a Notice.
How much rent is due and owing through the end of the month.
What the plaintiff’s court costs are, plus attorney fees, if allowed.
When a Writ of Restitution will Issue. (Five days from the date of Judgment or 12-24 hours if the complaint alleges an "irreparable breach").

A plea admitting to the allegations of the complaint will result in a judgment being entered against you. The Judgment may include an Order for:

Unpaid rent through the end of the month.
Reasonable late fees (only if provided for in a written agreement).
Damages to the property resulting from failure to maintain the premises. However, most courts will require you to bring a separate action for damage to the premises, such as a small claims case.
Any unpaid utilities.
Attorney Fees if allowed (only if provided for in a written agreement).
Court Costs.
Annual interest on the unpaid judgment.
Possession of the property returned to the owner.

DENYING: If you plea not guilty, the Judge will ask you WHY - to determine if your reason appears to be a legal defense that should be heard at trial. Non-payment of rent simply because you don’t have the money (for whatever reason) is not a legal defense. With few exceptions, if you deny the allegation for non-payment of rent, the court will set a trial 2-3 days later, and require you to post a bond in the amount allegedly owed and file a written answer with court before the hearing.

You will be required to file a written ANSWER asserting your defenses. The filing fee is $11.00. You must provided the plaintiff with a copy of your Answer. You will be asked to meet with the plaintiff for a pre-trial conference to discuss settlement,

define the issues for trial and disclose exhibits and witnesses you intend to present at trial. The trial will be tried at the end of today’s forcible detainer calendar or, if time does not allow, the trial will be reset within three judicial days.

COUNTERCLAIM. A counterclaim may be considered in a forcible detainer action only if the counterclaim is the result of a breach of the rental agreement or the Arizona Residential Landlord & Tenant Act. A counterclaim is filed at the same time the answer is filed.

The Trial. If a jury is not requested the Judge will hear the case. If you request a trial by Jury, you will be expected to provide the court with your requested jury instructions (direction to the jury informing them of the rules or principles of law applicable to the case). If you are representing yourself (acting as your own attorney) you will be held to the same standard as an attorney. A losing party is required to pay jury costs, in addition to any judgment awarded.

The plaintiff will proceed first and may call witnesses and/or introduce exhibits. You may cross-examine any witnesses or object to the admission of any exhibit. After the plaintiff rests, you will then present your case. You may call witnesses and/or introduce exhibits that may prove or defend your position.

Appeal. Either party may appeal from a Justice Court judgment by filing a Notice of Appeal within five (5) days from the date of judgment. Ask the court clerk for information regarding bonds and costs of appeal.

Deposit. The landlord is required to provide you with an itemized list of all deductions (disposition of deposits) made from any refundable deposit due you. This form must be sent to you within 14 days after you move out. If the landlord fails to do this, the tenant may recover the amount of the deposit, plus damages in an amount equal to twice the amount wrongfully withheld.