Forcible Entry and Detainer Actions: Courts May Not Consider Tenant’s Hardship

Snell & Wilmer

If you own property and a tenant wrongfully refuses to vacate the premises (for example when the lease expires or after proper written notice of termination), you may have a quick and easy remedy to have the tenant removed. Arizona’s forcible entry and detainer (FED) statute allows a person to bring a speedy, summary action to obtain an order that the person must leave the property immediately. See A.R.S. § 12-1171 – 1183.  To allow for quick resolution, the only question a court may consider in a FED action is who has the right of possession of the property.  A.R.S. § 12-1177(A) (“On the trial of an action of forcible entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.”).  Counterclaims and cross-claims are not permitted in a FED action, and must be addressed in a separate civil action between the parties. If factual questions bear on the right of possession, they will also need to be resolved in a regular civil action.

While a tenant may contend that immediate removal may impose hardship, the Arizona Court of Appeals recently confirmed that a court may not consider hardship in determining whether possession is proper, and therefore, may not grant an injunction in a FED action.  In Tucson Lot 4, LLC v. Sunquest Information Systems, Inc., Tucson Lot 4 (TL4) filed a complaint for forcible detainer, alleging that Sunquest breached the lease. 752 Ariz. Adv. Rep 18 (Ariz. Ct. App. Nov. 22, 2016).  Sunquest asked for an injunction to prevent TL4 from seeking an eviction or otherwise interfering with its use of the premises, which the trial court granted.  The appellate court reversed, finding that the trial court lacked authority to grant the injunction because it required the court to consider Sunquest’s hardship, which is not a proper issue in a FED proceeding.  This opinion reiterated that the only relevant issue in a FED action is the right to possession.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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