A rise in appeals should serve a reminder to landlords who are unfamiliar with the rules
By Mark B. Zinman, ESQ.
Landlords unfortunately have to know a lot of information about the eviction process. They know about service of the notice and attending the trial if a defense is raised by the tenant.
However, most landlords do not know about the appeal rights that tenants have. This causes problems when a tenant files an appeal and seeks to delay the writ of restitution.
In any civil or criminal case, a party always has the right to appeal the trial court’s decision. Contrary to what many people believe, an appeal does not allow a person to have a new trial and present all of their evidence to a new court.
Appeals are handled primarily upon legal briefs written by the parties. The party appealing (in most evictions this is the tenant) bears the burden of convincing the higher court that the trial court made a factual or legal error based upon something that happened before or during trial.
The appellant is generally not permitted to introduce new evidence or new legal arguments. The responding party (landlord, in our cases) submits their arguments in brief form as well, responding to the arguments raised by the appellant, and explaining how the trial court made the proper decision.
Within five days of judgment being rendered, a tenant has to file his or her Notice of Appeal. This is a document informing the court and the landlord that the tenant is appealing. The Notice does not contain any legal arguments. At the time the Notice is filed, the tenant must pay a $250 cost bond to cover some of the costs the landlord will incur on appeal.
If the tenant wishes to stay in the property during the appeal, they have to pay a second bond (called supersedeas) in an amount to be determined by the trial court. This can often be hundreds or thousands of dollars, depending on how the bond is calculated by the court. The bonds are generally held by the court during the appeal.
Except in limited circumstances, if the second bond is paid, the tenant is then allowed to stay until the next rental period. The tenant has to begin paying into the court the monthly rental value. If the rent is timely paid, then the tenant is permitted to stay for that month. Unlike the bonds, the monthly rent is disbursed to the landlord during the appeal.
After the Notice has been filed, the tenant has 60 days to file his or her written brief explaining all of the factual and legal errors the trial court made. This generally requires appellants to provide specific references to the record and include legal arguments.
From the date it is filed, the landlord has 30 days to file a response brief including factual and legal arguments. After both briefs have been filed, the case is then transferred to the Superior Court, which will require both parties to pay the appeal fee.
While this process should be relatively fast, due the high volume of appeals, the process of transferring the case, sending out the demand for appeal fees, and then assigning the case now takes several months. Therefore, it is often around eight months before we get a ruling from the appellate court.
As most evictions are heard in Justice Court, the appeals are heard by Superior Court. There is one Superior Court Judge that hears all eviction appeals. A new judge has recently been assigned to this work, and has taken a very proactive approach to appeals.
Based upon our tracking of that judge, it appears that the judge is commonly remanding cases based upon what the trial court did. If this happens in your case, this means that you could be stuck with a tenant that previously breached his lease by failing to pay rent or commit some other noncompliance.
It is because of this that landlords must understand how important trials are and how important it is that all evidence is properly submitted at trial. For example, it is not enough that other tenants have complained to the landlord of an incident on property – that is hearsay and the landlord can’t testify about that in court.
The other tenants must come to court to testify about what they saw. When there are documents which are relevant, such as pictures, written notices and even text messages, those must be printed and in a form that can be given to the judge. This ensures the best likelihood of success in your case.
Remember, everything done in a courtroom is done to protect your rights, not just at trial, but on appeal as well.
Mark B. Zinman is an attorney with Williams, Zinman & Parham, P.C. He is a past and present board member with the AMA. He may be reached at 480-994-4732.
Q&A with Denise M. Holliday
The attorneys at Hull, Holliday and Holliday, PLC can be reached at 602-230-0088.
Q: I’m on a lease for an apartment. I informed management that I was looking for a house to buy and may have to break the lease if I found one before the lease end. They informed me that I was getting a $136/month discount and if I broke my lease, they would charge me $136 more per month for the entire length of the lease, plus another $1,230 for an early termination fee.
I’ve always paid my rent early and wondered if these charges are unreasonable because of my being a good renter. It seems pretty high to me.
A: The $136 monthly discount is considered a rental concession. Both rental concessions and early termination fees are recoverable as damages should you prematurely terminate your lease. These fees should be in writing in order to be enforceable. Arizona case law holds that these early termination damages are enforceable only in an amount that is reasonable in light of anticipated or actual loss caused by the breach. The law also requires a landlord a reasonable effort to mitigate its damages.
Landlords can bring a civil lawsuit after a resident prematurely vacates the apartment under A.R.S. § 33-1373. The suit is for all rents owed until the lease expires or management re-rents the unit. Included in this are any concessions, lease break fees and property damages beyond normal wear and tear.
As long as the apartment is not re-rented, you remain liable for the term of the lease.
Q: I am a 72-year old senior living in an apartment complex. I cannot afford an assisted living facility. What are my options for asking this complex for any concessions for senior renters? Rents continue to go up every year, but our Social Security income and some pensions don’t. I am aware of the LITHC (Low-Income Housing Tax Credit) benefit and would like a better understanding of it. Can I request that benefit with the complex that I am currently in?
A: Many people find that a change in their personal circumstances makes their current living situation no longer feasible. Unfortunately, most of those circumstances do not constitute legal grounds to terminate or modify the lease. A landlord is not required to provide a rental discount to some of the residents based upon their finances. Additionally, to treat some residents differently simply based on their financial issues may violate fair housing laws. If a tenant finds themselves in a position where they can’t afford their rent, they may want to investigate the affordable housing options in their community. Certain properties offer or accept affordable housing programs; but there are substantial requirements involved and the traditional apartment community does not qualify for certain programs like the LIHTC tax credit program.
The views expressed here are generalized advice or information. Fact-specific questions should always be referred to legal counsel. Statements and opinions expressed in these legal columns are solely those of the author or authors. This advice does not necessarily represent the views or opinions of the Arizona Multihousing Association.
BY MARK B. ZINMAN, ESQ.
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