There are only two circumstances under which a landlord may access your apartment and remove your belongings: 1) if you abandoned you apartment, or 2) by using a constable operating under a “writ of restitution” issued by a court. If a landlord locks you out of your apartment for any other reason it is considered an illegal eviction under the Arizona Residential Landlord and Tenant Act, A.R.S. § 33-1367, and the landlord can be exposed to significant penalties if he does so. Specifically, if you’re subject to an illegal eviction you can reclaim possession of the apartment and move back in, and the landlord will be subject to statutory damages of double the rent or double your actual damages, whichever is greater. Alternatively, you can terminate your lease and recover your security deposit.
It is important to understand that “illegal eviction” does not only mean removing the tenant’s property. Illegal eviction also means interrupting gas, water, or other essential services.
With respect to a landlord’s claim that you have abandoned the apartment, that is very specifically defined in the landlord/tenant act. A.R.S. §33-1370 defines abandonment as either: 1) the absence of the tenant from the dwelling unit without notice to the landlord for at least seven days if rent is unpaid for ten days and there is no reasonable evidence other than the presence of the tenant’s personal property that the tenant is occupying the residence; or 2) the absence of the tenant for at least five days if the rent is unpaid for five days and none of the personal property is in the dwelling unit. If the landlord reclaims possession of the apartment for any other reason it’s considered an illegal eviction.
For a landlord to reclaim an abandoned apartment, he must first send the tenant a notice of abandonment by certified mail and also post the notice on the apartment door. Five days after notice has been both posted and mailed, he may retake possession of the apartment. In that event, he has specific obligations with regard to storing your furniture and possessions. Under A.R.S. 33-1370(E) he must hold the tenant’s property for ten days after his declaration that the apartment is abandoned. Thereafter, he may sell the property; however, he must then apply the costs towards outstanding rent or other charges that have been incurred by reason of the abandonment.
For all of the statutory authority that exists regarding the landlord’s responsibilities and obligations relative to retaking an apartment, if you’re subject to an illegal eviction, it can still be problematic experience. How do you effectuate your return into the apartment? Can you just break back in? Or if you don’t want to go back, how can you recover your essential items: medications, computer, clothes, etc.?
One of the things that happens all too often in Arizona is that a tenant comes home and finds that he has been subject to an illegal eviction without having received any notice, or he is sitting at home and the constable comes to his door to evict him, and he has not received any prior warning. There are many reasons for this, although it is usually because the landlord has done something underhanded, such as failing to serve you with preliminary notices and removing the summons taped to your door, or falsely swearing to the court that you have been served. If you find this has happened to you, go to the Arizona Justice Court website at www.justicecourts.maricopa.gov and determine whether a writ of restitution has been issued against you. If you’re a member of Arizona Tenants Union, we will help you go through that process and either get you into court that day or refer you to an attorney who can help you.
If it turns out there was court action initiated against you, you’re going to have to go through the legal process to remedy the situation. But if there has not been court action, then you’re going to have to resort to “self-help,” meaning taking the situation into your own hands. One thing you might do is call the police to document the illegal eviction. Unfortunately, the police usually don’t want to get involved in what they consider to be “civil disputes” and they therefore simply maintain the status quo and tell the parties to take it up in court. An illegal eviction will often happen in roommate situations, where you’re not on the lease and don’t have any evidence on you that you live in the unit. So if you’re right in the middle of an illegal eviction and you call the police, there’s some likelihood that your roommate will be ordered to let you back in and be told to go to court. But if you’re already out, it is often you who is kept out of the apartment and told to go to court. The best advice we can give you is to make sure you always have identification on you evidencing that you live in the apartment. As soon as you move into a roommate situation, even if it is just temporary, (or really, any time you change addresses,) go to www.ServiceArizona.com, which is Arizona’s Motor Vehicle Division’s website, and change your address on your drivers’ license. It’s quick and easy and inexpensive, and you’ll get a new license with your new address on it within a few days.
Otherwise, you’ll have to use your judgment as to how to reclaim possession. There’s no one right or wrong answer. If you do think you’ve been subject to an illegal eviction or have had your property wrongly disposed of, call us. We take the time to help our members figure out a strategy for action, and we’ll help you initiate and walk you through whatever legal measures are appropriate. We really do put in the time to serve our members however they need in whatever landlord/tenant dispute arises. Join the Arizona Tenants Union today; protect yourself and stand up for tenants’ rights in Arizona. In the final analysis, the only way to keep landlords legal and honest is by having a strong, vibrant tenants’ movement in Arizona.