One of the top mistakes that investors make, is taking back possession without following the law. To be abundantly clear, just because a unit appears to be vacant, doesn’t mean you can just call it a skip and take possession. This isn’t just a mistake made by people new to the business, seasoned professionals make this mistake as well. In Arizona, there are only 3 ways to get possession back from a resident who is in your home: (1) eviction; (2) abandonment process; and (3) resident returns the keys. If you don’t follow the statute for one of those three means, then you can be sued for illegal access and unlawful eviction. Those a not good lawsuits to be on the receiving end of, so make sure you follow the law.

Please note that these rights and obligations arise out of the Residential Landlord and Tenant Act, but they¡ apply to investors who buy homes. You can’t simply lock out a person that is in a home you own. You need to legally get possession back, even if you don’t have a lease with the person in the unit.

First, the tenant can return the keys to you. This should be simple. However, what if the tenant tells you on Friday
that he will be out on Monday and you can access the property? That is insufficient. First, that is an oral statement and the landlord has no proof that the conversation occurred. Second, it is a promise of a future event – that they will be out in a few days. That is not delivering possession. It’s merely a statement that they hope to leave, but there is no guarantee. Therefore, you cannot take possession on Monday because they may not have vacated. However, if they email you on Monday and unequivocally state that they are already gone and that you may retake possession, that may be sufficient because they are putting in writing something that has already happened. It’s not a promise of some future act. In either case, it’s always better to get the actual keys.

Second, landlords can pursue an eviction action to get possession of the rental property. A landlord can pursue an eviction for several different reasons, most often for nonpayment of rent or non-compliance with a written lease provision. The important fact to know about the eviction
process is that after a judgment has been signed, it is still necessary to file the writ of restitution and have the constable deliver possession of the premises. Just because the landlord has an eviction judgment, doesn’t mean that the tenants have necessarily vacated and delivered possession.

Finally, a landlord can get possession back through the abandonment process. When you can invoke the process depends on whether the tenant’s belongings are still in the unit or whether it’s vacant. However, once the required time has elapsed (see A.R.S. § 33-1370), the landlord can certify mail AND post the Notice of Abandonment. After 5 days, if they have not received a response, they can enter the property and take possession. For landlords, abandonment offers the least legal protection because the only proof you have is the certified mailing slip – you don’t have the keys and you don’t have a judgment. Abandonment should only be used sparingly, such as in those cases where it the tenant has skipped in the night and has no intention of ever returning.

by Mark Zinman, Attorney, Zona Law Group