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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
residential property; transient occupant; remedies
Purpose
Stipulates that a transient occupant unlawfully detains a residential property if the transient occupant remains in occupancy of the residential property after the party entitled to possession of the property or a law enforcement officer, on receipt of the outlined sworn affidavit, has directed the transient occupant to leave and deems that a person who fails to comply with the direction of the law enforcement officer is violating criminal trespass in the first degree.
Background
A person commits criminal trespass in the first degree by knowingly: 1) entering or remaining unlawfully in or on a residential structure; 2) entering or remaining unlawfully in a fenced residential yard; 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 of privacy; 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; 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; or 6) entering or remaining unlawfully in or on a critical public service facility. Criminal trespass in the first degree is a class 6 felony if the person knowingly entered or remained unlawfully in or on a residential structure (A.R.S. § 13-1504).
Forcible detainer occurs if a tenant, at will or by sufferance, retains
possession after the tenancy has been terminated or after the tenant receives
written demand of possession by the landlord (A.R.S.
§ 12-1173). An aggrieved party may file a complaint of forcible entry or
forcible detainer, in writing and under oath, with the clerk of the superior
court or a Justice of the Peace, and the summons must issue no later than the
next judicial day. The complaint must contain a description of the premises of
which possession is claimed in sufficient detail to identify them and must also
state the facts that entitle the plaintiff to possession and authorize the
action (A.R.S.
§ 12-1175).
A class 6 felony carries a presumptive imprisonment sentence of 1 year for a first time felony offender, with a possible maximum sentence of 5.75 years for aggravated offenses committed by a category 3 repetitive offender (A.R.S. §§ 13-702 and 13-703). The fine for a felony may be up to $150,000 (A.R.S. § 13-801).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Stipulates that a transient occupant unlawfully detains a residential property if the transient occupant remains in occupancy of the residential property after the party entitled to possession of the property has directed the transient occupant to leave.
2. Stipulates that transient occupancy terminates when a transient occupant begins to reside elsewhere, surrenders the key to the dwelling or leaves the dwelling when directed by a law enforcement officer who has an affidavit from the party who is entitled to possession or a court.
3. Stipulates that a transient occupancy is not extended by the presence of personal belongings of a former transient occupant.
4. Allows any law enforcement officer, on receipt of a sworn affidavit of the party who is entitled to possession that states that a person who is a transient occupant is unlawfully detaining residential property, to direct a transient occupant to surrender possession of the residential property.
5. Requires the sworn affidavit to set forth the facts, including the outlined applicable factors, that establish that a transient occupant is unlawfully detaining residential property.
6. Deems that a person who fails to comply with the direction of the law enforcement officer to surrender possession or occupancy violates criminal trespass in the first degree.
7. Stipulates that in any prosecution of a violation of criminal trespass in the first degree, whether the defendant was properly classified as a transient occupant is not an element of the offense, the state is not required to prove that the defendant was in fact a transient occupant and the defendant's status as a permanent resident is not an affirmative defense.
8. Stipulates that a person who is wrongfully removed from the property has a cause of action for wrongful removal against the person who requested the removal and may recover injunctive relief and compensatory damages.
9. Stipulates that a wrongfully removed person does not have a cause of action against the law enforcement officer or the agency employing the law enforcement officer absent a showing of bad faith by the law enforcement officer.
10. Stipulates that a party who is entitled to possession of real property has a cause of action for unlawful detainer against a transient occupant.
11. Stipulates that the party who is entitled to possession is not required to notify the transient occupant before filing the action.
12. Prohibits the court, if the court finds that the defendant is not a transient occupant but is instead a tenant of a residential property governed by the Arizona Residential Landlord Tenant Act, from dismissing the action without first allowing the plaintiff to give the transient occupant an outlined notice and to thereafter amend the complaint to pursue eviction under the Arizona Residential Landlord Tenant Act.
13. Requires the party who is entitled to possession of a dwelling to allow a former transient occupant to recover the transient occupant's personal belonging at reasonable times and under reasonable conditions.
14. Stipulates that unless otherwise agreed to, a reasonable time for the recovery of the former transient occupant's personal belongings 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 at the dwelling to supervise the recovery of the belongings.
15. Allows the party who is entitled to possession of the dwelling to impose additional conditions on access to the dwelling or the personal belongings if the party who is entitled to possession of the dwelling reasonably believes that the former transient occupant has engaged in misconduct or has a history of violence or drug or alcohol abuse.
16. Specifies that the outlined conditions relating to the recovery of personal belongings may include the presence of a law enforcement officer, the use of a mover, or the use of a trusted third party to recover the personal belongings.
17. Defines misconduct as:
a) intentional damage to the dwelling, to property owned by the party who is entitled to possession of the dwelling or to property owned by another occupant of the dwelling;
b) physical or verbal abuse directed at the party who is entitled to possession of the dwelling or another occupant of the dwelling; and
c) theft of property belonging to the party who is entitled to possession of the dwelling or property of another occupant of the dwelling.
18. Allows 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 the personal belongings within a reasonable time after the transient occupant surrenders occupancy of the dwelling.
19. Allows the time period to recover personal belongings to be extended due to the unavailability of the party who is entitled to possession of the dwelling to supervise the recovery of the personal belongings.
20. Allows the time period to recover personal belongings to be reasonably shortened due to: 1) the poor condition or the perishable or hazardous nature of the personal belongings; 2) the intent of the former transient occupant to abandon or discard the belongings; or 3) the significant impairment of the use of the dwelling by the storage of the former transient occupant's personal belongings.
21. Allows a former transient occupant, if the person who is entitled to possession of the dwelling unreasonably withholds access to the former transient occupant's personal belongings, to bring a civil action for damages or the recovery of the property and requires the court to award the prevailing party reasonable attorney fees and costs.
22. Outlines the factors that establish a person as a transient occupant as follows:
a) the person does not have an ownership interest, financial interest or leasehold interest in the property entitling the person to occupancy of the property;
b) the person does not have any property utility subscriptions;
c) the person cannot produce documentation, correspondence or identification cards sent or issued by a government agency, including the Department of Motor Vehicles or the county recorder that show that the person used the property address as an address of record with the agency within the previous 12 months;
d) the person pays minimal or no rent for the stay at the property;
e) the person does not have a designated space for the person's exclusive use, such as a room, at the property;
f) the person has minimal, if any, personal belongings at the property; and
g) the person has an apparent permanent residence elsewhere.
23. Stipulates that the 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; or
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.
24. Requires the outlined receipt or other reliable evidence to be dated within the last 60 days for monthly rental tenancies and rental tenancies for any lesser period of time.
25. Defines transient occupant as 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.
26. Exempts a tenant under the Arizona Residential Landlord and Tenant Act from the definition of transient occupant.
27. Becomes effective on the general effective date.
Prepared by Senate Research
February 13, 2024
ZD/SB/cs