The rules governing the rights and responsibilities of landlords and tenants, including when and how a tenant can be evicted, can be found in the Arizona Residential Landlord and Tenant Act, A.R.S. Title 33, Chapter 10. Evicting a roommate in Arizona usually involves giving notice to the roommate, filing an eviction action with the court, serving the roommate with court papers and attending the court hearing. However, when the roommate can be considered a guest and not a tenant, then a landlord or the other tenant may bypass the court system and simply have law enforcement remove the roommate from the property.
Joint and Several Liability of Tenants
When a tenant fails to pay rent, fails to follow another lease term as set out in the lease agreement, and/or commits a crime on the premises, then the landlord can file an eviction action against the tenant. In a situation in which more than one tenant is on the lease, such as in a roommate situation, and one of the tenants does not follow the lease requirements, the landlord may evict one or all of the tenants as long as the lease agreement provides for joint and several liability. Most rental agreements have a joint and several liability clause.
Joint and several liability means that all, as well as each of the tenants named on the lease agreement, can be held responsible for a breach of the lease. This means that when one roommate fails to pay his share of the rent and the other roommate can’t come up with the full amount, then the landlord can evict both tenants from the property. The landlord can also choose to evict only the tenant who is failing to pay rent or who is otherwise breaking a term of the lease. It’s not the landlord’s responsibility to figure out and prove exactly which tenant is breaking the lease agreement.
Cases Involving Joint and Several Liability
In an example of joint and several liability, a landlord who received noise complaints about an apartment with three tenants went to Arizona’s Tenant Resource Center for assistance. The landlord told the center that he was pretty sure which of the three tenants was causing the noise. The center in turn told the landlord that since all three tenants were named on the lease agreement and the agreement included a joint and several liability clause, then the landlord could issue an eviction notice to the individual tenant whom he believed was causing the noise.
In another example, two tenants, also named on a lease agreement with a joint and several liability clause, whose third roommate wasn’t paying her share of the rent, were told that they would have to work out the amount owed among themselves. In other words, they would have to come up with the total rent due, or else the landlord may evict all of them. If they did pay the third roommate’s portion of the rent, they could then choose to pursue that roommate themselves, for example, by suing in small claims court for the amount owed to them.
Filing An Eviction Action
Filing an eviction action with the court requires first giving notice to the tenant. If the tenant does not remedy the breach after having been provided with sufficient notice, then the landlord may file an eviction action with the court. The eviction action needs to be filed in the jurisdiction in which the rental property is located, and the filing fee must be paid to the court at the time of filing. In an eviction case, the total amount that can be asked for, such as for rent payment owed and damages to the property, is limited to $10,000, not including interest, court costs and attorney’s fees.
Giving Notice of Eviction
The type of notice that must be given to the tenant and the amount of time the tenant can receive to fix the problem depend on the breach of the lease agreement. If it’s for nonpayment of rent, then the tenant must be given a five-day notice to pay the rent owed in full, as well as any late charges, or face termination of the lease and eviction. An eviction complaint can be filed on or after the sixth day of the tenant’s receiving the notice. To avoid eviction, the tenant can pay all of the owed rent and any late fees before the lawsuit is filed.
If the eviction action has already been filed, but a judgment has not been entered, the tenant can still avoid eviction by paying all past due rent, late fees, attorney’s fees and court costs. Once a judgment has been entered, it’s up to the landlord whether to reinstate the lease.
For a material noncompliance with the lease, such as having a pet when the lease agreement states a tenant is not allowed to do so or not following the pool rules, the landlord must give the tenant a 10-day notice and the opportunity to come into compliance with the lease. For material noncompliance with the lease that affects health and safety, such as not removing and disposing of garbage, the landlord must give a five-day notice and provide the tenant with the opportunity to come into compliance with the lease. For a material and irreparable breach of the lease agreement, such as engaging in gang activity or inflicting serious bodily harm on another, then the landlord can send a notice of immediate termination of the rental agreement.
Serving the Tenant
After filing the required court documents for an eviction action with the court clerk and paying the filing fee, the landlord then needs to serve the tenant with several of the documents. The required court documents that must be served on the tenant are the Summons, Residential Eviction Information Sheet, the Complaint and a copy of the notice that was given to the tenant. The Summons tells the tenant when and where to appear if she wants to contest the eviction. The Complaint states the lease term that was breached and what the landlord wants.
The Residential Eviction Information Sheet provides information about the eviction process, including what the tenant can do to avoid eviction, what will happen at court and what happens if the landlord receives a judgment.
After the tenant receives the documents, she has the option of filing an answer. The answer form gives the tenant a chance to explain her position and why the eviction should be denied. For example, the tenant may deny that she failed to pay the rent by stating the amount paid, who the payment was made to and when it was made. The tenant must pay the answer filing fee to the court when filing her answer or apply for a fee waiver.
At the Assigned Court Hearing
At the assigned court hearing, if the tenant doesn’t appear, but the landlord or his attorney is present, then the judge will most likely enter a judgment for the landlord. If both parties are there, the judge will give the tenant an opportunity to deny the complaint. If it appears she has a valid legal defense, then the judge will take testimony from both sides and make a decision.
If a judgment is entered for the landlord, then the landlord can apply for a Writ of Restitution five days after the judgment. The Writ of Restitution is carried out by constables, who will oversee the tenant’s departure from the premises. Tenants who don’t want to be forced out by constables can leave the property of their own accord and return the keys to the landlord. If the eviction was for a material and irreparable breach of the lease by the tenant, then the landlord can have a constable carry out a Writ of Restitution 12 to 24 hours after judgment.
Eviction Action Packet
The Arizona Supreme Court hosts a self-service website, AZTurboCourt, that provides assistance to those needing to evict a tenant, whether it’s a landlord removing a tenant from an apartment unit or a property owner who took in a roommate to live with him. The website walks users through completing all the forms necessary for an eviction action.
The documents are generated based on the user’s responses to a set of questions. The user must then print, sign and bring the documents to the court. Users who choose to use this service must also pay a AZTurboCourt application fee in addition to the eviction filing fee to be paid to the court at the time of filing.
The Arizona Supreme Court also has a website that allows people to print, for free, all the forms necessary for an eviction process. Users can then fill out the forms on their own.
Removal of a Guest
When a roommate is not listed on a lease agreement, it may be easier to evict that roommate. That’s because a roommate who is not listed on the lease agreement may be considered a guest. Under A.R.S. Section 33-1378, when a person who is a guest of a tenant and who is not named on the written lease remains on the premises without the permission of either the tenant or the landlord, that person may be removed from the premises by law enforcement at the request of the tenant or the landlord.
Thus, a landlord who wants a tenant’s roommate to go or a property owner whose roommate has overstayed her welcome may not have to go through the formal eviction court process. The landlord or property owner may simply call the police and have the roommate removed, as long as the roommate can be considered a guest and wasn’t on the written lease. If, however, the roommate can establish that he wasn’t a guest but a tenant himself, then the landlord or property owner may be required to go through the eviction court process of giving the tenant notice and filing an eviction complaint. For example, the roommate may argue that he is a tenant by showing that he entered into an oral lease agreement and has been paying rent.