One of the most common questions I hear from landlords and property managers is, “I obtained a judgment, now what do I do?” Landlords are often unsure of what rights and obligations they face post-judgment. The following are the main situations that landlords will be presented with after a judgment has been obtained. (While the following situations will analyze non-payment evictions, some of the laws will be applicable to non-compliance evictions and immediate evictions as well).
1. After a judgment has been obtained in a forcible detainer, tenants often believe that they may pay the amount of the judgment to avoid being locked-out from the property. This is a misconception. Pursuant to A.R.S. 33-1368(b), once a judgment has been entered, any reinstatement of the lease is “solely in the discretion of the landlord.” This means that a tenant can pay off the judgment and they still do not legally have the right to remain in possession of the premises. In other words, a landlord can accept payment of the judgment, and still execute the Writ of Restitution. (More on writs in Paragraph 3.)
While legally a landlord does not waive any rights by accepting payment, I always suggest that a landlord obtain a waiver from a tenant stating that the landlord is accepting payment and that they can still file the writ of restitution and evict the tenant from the property. This waiver will ensure that there are no problems when the constable goes to the property to execute the Writ.
2. It is also common that when a tenant wants to pay part or all of the judgment, the landlord is willing to allow the tenant to remain in possession. Landlords are often willing to work with the tenant to allow the tenant to “pay and stay.” If this is the case, I suggest that landlords create a payment plan that details the amounts of the payments, and the dates when they will be made. In addition, the payment plan should have a waiver in which the tenant acknowledges that the landlord has the right to execute the writ, if payments are not made. This payment plan must be signed by the tenant.
3. If a landlord does not wish a tenant to remain in the property post-judgment, the filing of a Writ of Restitution may be required. In a typical non-payment of rent forcible detainer, a tenant will have 5 days before the Writ of Restitution can be issued. This means that after a judgment has been entered, a landlord must wait 5 calendar days before they can have the constable come to the property and return possession to them. If a landlord does not want to allow a tenant to remain in the property, and the tenant is unwilling to leave, a landlord must file a writ of restitution, and wait for the constable, to obtain possession of the premises. A landlord must not enter the premises without the constable.
4. If a landlord does not want a tenant to remain in the property, and the tenant IS willing to move out, filing of the Writ is not necessary. All that is necessary for the Landlord to re-enter the property is that he obtain the keys from the tenant. Pursuant to A.R.S. 33-1310(3), a tenant returns possession to the landlord upon delivery of the keys.
5. In any of the situations in paragraphs 1-4, it is likely that a landlord may have the tenant’s personal property in the premises after possession has been returned. If this happens, the law is clear regarding the steps that a landlord must take. Pursuant to A.R.S. 33-1368, a landlord must hold the tenant’s property for 21 days. This is calculated from the first day after the writ is executed. The landlord must take an inventory of what property is being stored and the cost of storage, and send this to the tenant by certified mail, return receipt.
If the tenant wishes to obtain the possessions, they will have to pay the cost of storage. The tenant must give written 5 day notice stating that he/she is willing to pay the storage fee and will reclaim the property. However, there is an exception regarding certain property of tenants. Specifically, a tenant may reclaim the following possessions without paying the storage fee: “clothing and tools, apparatus and books of a trade or profession and identification or financial documents,” etc.
If a tenant does not attempt to reclaim the property, the landlord may, after 21 days, sell the property and apply the proceeds to any outstanding balance that the tenant may owe the landlord. Any excess proceeds must be mailed to the tenant.
6. After a tenant has moved out, it is also necessary to do a security deposit accounting pursuant to A.R.S. 33-1321. This law requires that within 14 days of the tenant moving out and making a demand, a landlord must account for the tenant’s deposits, minus unpaid rent or damage to the unit. In other words, the landlord must provide an itemized list of any deductions the landlord withheld from the tenants security deposit.
While the above analysis is a brief over-view of what would otherwise be a lengthy thesis, this article should be used to aide a landlord through the legal steps they should follow after a forcible detainer judgment has been obtained. If there is further interest in these topics, we have more in-depth analysis of these laws and related forms to ensure that landlords follow the laws regarding post-judgment procedures.