Unwavering Tenants – Secure in Their Places

Recently I’ve noticed an imbalance in the “landlord-tenant” mix of my articles; it seems like I’m biased toward the landlord’s issues and concerns in leasing disputes. To redress the inequity, this post is for you tenants.

One of the critical portions of reviewing a commercial lease is the need to be careful about what a tenant is being asked to give up, especially in the area of statutory rights. And I’ve become extra-sensitive to a commercial tenant waiving any defense of the statute of limitations in regard to potential landlord claims. The cutting board is A.R.S. §33-361; there, without notice, a landlord has the right to take possession of the premises when 5 days lapse after the due date for any rent installment–with or without “process.” The process referred to there, of course, is a suit for forcible detainer. And that summary proceeding is the subject of this post.

“Forcible detainer” occurs when the tenant remains in the premises after the landlord has demanded possession be turned over (which usually occurs when there’s been a payment default or a material, non-monetary default); but under §33-361, the landlord doesn’t have to give a warning or make a demand for physical possession of the premises before filing the detainer lawsuit. Under this statute, forcible detainer seems to arise on day 6 following the date the rent installment due. Forcible detainer is a sticky wicket for a tenant because he or she can assert just one of these three defenses:

1. There’s no lease–hence, no landlord-tenant relationship; and, therefore, there’s no right-of-possession issue to try before the Superior Court Commissioner.

2. I did too pay rent and comply with the lease! Plaintiff’s lying about my default, and I have the proof!

3. The statute of limitations for forcible detainer has run.

4. The non-monetary default asserted by the 牙齒咬合問題 Landlord is insubstantial, and therefore the tenant cannot be evicted.

Okay, so when does the first defense exist? Not often, but the case to review to understand this is RREEF Mgmt. Co. v. Camex Prods., Inc., 190 Ariz. 75, 79, 945 P.2d 386, 390 (App. 1997). The second defense rarely will be available; no plaintiff would waste lawyer fees to tell a court a tenant didn’t pay rent or perform some other lease obligation if it was untrue. The statute of limitations (2 years under A.R.S. §12-542) begins to run, I believe, on “day 6 after the rent due date”; occasionally, though, landlords lay in the weeds for a few years before, using this detainer process, they try to recover possession, back-due rent and attorneys’ fees. Why roll this way? Well, there are no substantive defenses permitted the tenant defendant, like offsets or landlord denial of quiet enjoyment, that the tenant can introduce at the trial. Our appellate decisions admonish that defenses (other than those numbered above) aren’t supposed to be interposed in the interest of summary adjudication of the landlord’s right to possess the premises under the forcible detainer proceeding, starting with Old Bros. Lumber v. Rushing, 64 Ariz. 199, 205, 167 P.2d 394, 400 (1946).



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