Improper Service

[jdawg83]

What is the name of your state (only U.S. law)? Arizona


I was improperly served with eviction papers. My question...

If I cured the default (non payment of rent) before proper service was completed, am I still responsible for paying Court Costs and legal fees. The Arizona Revised Statutes specifically state that if you can not personally serve an eviction notice on a tenant that you must post it on their front door AND send a copy of the eviction notice certified mail to the tenant.


I paid my rent on Friday dropping off a money order to my landlord, saturday i came home and there was an eviction notice on my door, and this morning, my landlord left me a note stating that I had to pay her court costs and legal fees, but One I paid my rent before I was served, and two I was not served correctly, becausemy mail man did not leave a CM slip in my mail box notifying me i had certified mail

 

[racer72]

The Arizona Revised Statutes specifically state that if you can not personally serve an eviction notice on a tenant that you must post it on their front door AND send a copy of the eviction notice certified mail to the tenant.

The law says the summons must be attached to the door and mailed by certified mail on the same day. It can take 2 or 3 days before you receive the CM notice.

I paid my rent on Friday dropping off a money order to my landlord, saturday i came home and there was an eviction notice on my door, and this morning, my landlord left me a note stating that I had to pay her court costs and legal fees,

Per the Arizona Landlord/Tenant act:

Tenant Pays in Full Before the Trial
What do you do if the tenant tenders payment in full after the landlord files the forcible detainer action, but before the trial? The Arizona Residential Landlord and Tenant Act says that the rental agreement is reinstated if the tenant pays all past due rent, reasonable late fees set forth in the rental agreement, attorney's fees and court costs.

 

[jdawg83]

Follow up Question

I totally agree with you racer, but i will not lie, I am habitually late on paying my rent, and its not the first eviction notice that I received, I travel a lot doing stand up and am not home most of the time, and 90% of the time (in the four years i lived here Ive gotten about 9 eviction notices) I just pay the Court costs and legal fees, but she NEVER sends me a copy (or the process server never sends a copy) by CM so Im pretty certain she didn't do it this time.

my question is that if I paid before I got served and was not properly served am i still legally responsible for the court costs and legal fees associated with not being served correctly if I do not receive the CM. (plus I paid my rent the night before the eviction notice was placed on my door)


Second question...Abuse of Access by Landlord.

I have had multiple problems with my landlord abusing access, most recently entering my apartment at 7:10 am to do non emergency repairs. I consulted an attorney who stated that "7 am might be considered reasonable to her, and if you want a chance of winning your going to need to prove that it was in an attempt to harass you.", but i7 is not reasonable to me, and the law does not say it has to be to harass, it says "lawful entry at an unreasonable time".

This is the third time and I have provided with her with notice to respect my privacy the first time, and the second time I sued her and we settled out of Court. My concern is that since I travel a lot, these might have been the few times that I actually "caught" her abusing access, but when I am away for a week or sometimes two weeks out of the month I don't know whats going on. When I asked the maintenance guy she sent over why he just came in he stated that "We thought u weren't home", so if this doesn't get settled out of Court I plan on bringing him in as a witness

Upon looking up case law in California the law states between 9 and 5, and in other states like Colorado it says normal business hours 8-5, but also in some states they go by the generic after 8 and before 9 pm.

Does anyone know of any case law that pertains to what times are "reasonable", because the Landlord/Tenant act does set a definitive time. I would think the average person would find that 7 in the morning is not reasonable, but if I pursue it Pro Se, I would want something to substantiate my claim for relief, as Arizona is not favorable to tenants bringing action against their landlord. My lease is up next month so im not worried about the recourse from my landlord

 

[Zigner]

Pursue what?
Move in a month. Make sure to give proper notice (per state law AND your lease) and make sure to document the condition of the place with pictures and video, if possible.

ETA: Yes, you're responsible for the attorney fees and court costs.

 

[jdawg83]

Abuse of Access Statute

§ 33-1343. Access

C. The landlord may enter the dwelling unit without consent of the tenant in case of emergency.

D. The landlord shall not abuse the right to access or use it to harass the tenant. Except in case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days' notice of the landlord's intent to enter and enter only at reasonable times.

A.R.S. 33-1365 states that if the landlord is not in compliance with the lease agreement or the L/T Act that the tenant may counterclaim. and


§ 33-1376. Landlord and tenant remedies for abuse of access

B. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement. In either case, the tenant may recover actual damages not less than an amount equal to one month's rent.


So if I have to pay her Court costs anyways, I might as well counterclaim for the abuse of access (for the third time). I know I have to file an Answer to the Eviction notice (eviction hearing is set for the end of the month), in my answer I can file a motion to dismiss for Improper Service, but technically she could just send it CM after I file my answer. ARCP states that a motion to dismiss for Improper Service must be pleaded in my first response or i lose the ability to plead it. More than likely she will settle again, but I know she will get irritated and send me a 30 notice to vacate on Nov. 1st, but I plan on moving anyway, I live in a small one bedroom, and my kid will be here in Jan. so i have to find a bigger place.

 

[Zigner]

Have at it....

 

[jdawg83]

Status Update

Just a follow up:


Had Court today, Judge recessed the case, Opposing Council and I agreed to waive court costs and legal fees and re credited late fees to next month's rent in addition to giving me a free month in return for me dropping my counter claim