ARIZONA HOUSE OF REPRESENTATIVES Fifty-sixth Legislature Second Regular Session
	Senate: JUD DP 4-3-0-0 | 3^rd Read DPA 18-10-2-0-0

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SB 1638: residential property; transient occupant; remedies

Sponsor: Senator Carroll, LD 28

Committee on Judiciary

Overview

Adds a new section of statute relating to unlawful occupancy of residential dwellings by transient occupants.

History

The criminal code includes multiple forms of criminal trespass offenses, one of which is criminal trespass in the first degree. A person commits this offense by knowingly doing any of the following:

1) entering or remaining unlawfully in or on a residential structure (a class 6 felony);

2) entering or remaining unlawfully in or on a residential structure (a class 1 misdemeanor);

3) entering any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant's right to privacy (a class 1 misdemeanor);

4) entering unlawfully on real property that is subject to a valid mineral claim or lease with the intent to hold, work, take or explore for minerals on the claim or lease (a class 1 misdemeanor);

5) entering or remaining unlawfully on the property of another and burning, defacing, mutilating or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property (a class 6 felony);

6) entering or remaining unlawfully in or on a critical public service facility (a class 5 felony) (A.R.S. § 13-1504).

The Arizona Residential Landlord and Tenant Act (ARLTA), codified at A.R.S. title 33, chapter 10 (A.R.S. §§ 33-1301 through 33-1381), governs the relationship between tenants and landlords under residential leases in the state of Arizona, including prescribing their respective rights and obligations and providing remedies for noncompliance.

A.R.S. title 12, chapter 8, article 4 (A.R.S. §§ 12-1171 through 12-1183), relating to forcible entry and detainer, generally provides remedies for obtaining possession of premises that are unlawfully withheld. The chapter delineates the specific acts that constitute forcible entry and detainer and prescribes processes for an aggrieved party to obtain judicial recourse through a forcible entry or detainer action.  

Provisions

1. Adds a new statute to A.R.S. title 12, chapter 8, article 2 relating to a transient occupant, which, for purposes of this new section:

a) means a person whose residency in real property intended for residential use has occurred for a brief length of time and is not pursuant to a lease and whose occupancy was intended as transient in nature;

b) does not include a tenant under ARLTA. (Sec. 1)

2. Outlines multiple factors that may establish whether a person is a transient occupant and states that a person is presumed to be a transient occupant if the person is unable to produce at least one of the following:

a) a notarized lease that includes the name and signature of the owner of the property;

b) a receipt or other reliable evidence demonstrating that the person has paid to the owner or the owner's representative rent for the last rent payment period (for monthly or lessor rental tenancies, such a receipt or other reliable evidence must be dates within the last 60 days). (Sec. 1)

3. Provides that a transient occupant unlawfully detains a residential property if the transient occupant remains in occupancy of the residential property after receiving direction to leave from the party entitled to possession of the property. (Sec. 1)

4. Deems a transient occupancy to terminate when any of the following occurs:

a) a transient occupant begins to reside elsewhere;

b) a transient occupant surrenders the key to the dwelling;

c) a transient occupant leaves the dwelling when directed by a law enforcement officer who has received an affidavit as outlined in the statute, the party who is entitled to possession or a court. (Sec. 1)

5. Specifies that a transient occupancy is not extended by the presence of personal belongings of a former transient occupant. (Sec. 1)

6. Allows any law enforcement officer to direct a transient occupant to surrender possession of residential property if the officer receives a sworn affidavit of the party who is entitled to possession stating that a person who is a transient occupant is unlawfully detaining residential property and setting forth the facts establishing that a transient occupant is unlawfully detaining residential property (including the factors and presumptions previously outlined). (Sec. 1)

7. Stipulates that a person who fails to comply with the direction of the law enforcement officer to surrender possession or occupancy as prescribed above violates A.R.S. § 13-1504 (criminal trespass in the first degree). (Sec. 1)

8. Allows a party who is entitled to possession of real property to bring a cause of action for unlawful detainer against a transient occupant pursuant to A.R.S. title 12, chapter 8, article 4, and states that the party who is entitled to possession is not required to notify the transient occupant before filing the action. (Sec. 1)

9. If the court in an unlawful detainer action finds that the defendant is not a transient occupant but is instead a tenant of residential property governed by ARLTA, prohibits the court from dismissing the action without first allowing the plaintiff to give the transient occupant the notice required by that chapter and to thereafter amend the complaint to pursue eviction under ARLTA. (Sec. 1)

10. Requires a party who is entitled to possession of a dwelling to allow a former transient occupant to recover the transient occupant's person belongings at reasonable times and under reasonable conditions and, unless otherwise agreed to, stipulates that a reasonable time for recovery is presumed to be 10 days after termination of the transient occupancy, when the party who is entitled to possession of the dwelling or a trusted third party can be present to supervise the recovery. (Sec. 1)

11. Allows the party who is entitled to possession of the dwelling to impose additional conditions on access to the dwelling for the recovery of personal belongings, including having law enforcement present or through the use of a mover or trusted third party, if the party reasonably believes that the former transient occupant has engaged in certain outlined misconduct or has a history of violence or drug or alcohol abuse. (Sec. 1)

12. Permits the person who is entitled to possession of a dwelling to presume that the former transient occupant has abandoned personal belongings at the dwelling if the former transient occupant does not seek to recover them within a reasonable time after the transient occupant surrenders occupancy and allows this time period to be extended or shortened in certain circumstances. (Sec. 1)

13. Authorizes a person who is wrongfully removed pursuant to this new section to bring a wrongful removal action against the person who requested the removal to recover injunctive relief and compensatory damages, but prohibits this cause of action against a law enforcement officer or the officer's employing agency absent a showing of bad faith by the officer. (Sec. 1)

14. Additionally, if the person entitled to possession of the dwelling unreasonably withholds access to a former transient occupant's personal belongings, allows the former transient occupant to bring a civil action for damages or the recovery of the property and requires the court to award reasonable attorney fees and costs to the prevailing party. (Sec. 1)

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18.                   SB 1638

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