I’ve recently noticed an imbalance in the “landlord-tenant” combination of my items; I seem to be biased towards landlord issues and concerns in lease disputes. To correct the inequity, this post is for you.

One of the critical parts of reviewing a commercial lease is the need to be careful about what the tenant is asked to give up, especially in the area of ​​legal rights. And I have become very sensitive to a commercial tenant waiving any statute of limitations defenses regarding potential landlord claims. The cutting board is ARS §33-361; there, without prior notice, the owner has the right to take possession of the property 5 days after the due date of any rental fee, with or without “process”. The process referred to there, of course, is a forcible detention lawsuit. And that summary procedure is the subject of this publication.

A “forced detainer” occurs when the tenant remains in the property after the landlord has demanded that possession be returned to him (which usually occurs when there has been a default or a material, non-monetary default); but under §33-361, the landlord does not have to give a warning or make a demand for physical possession of the premises before filing the detainer. Under this statute, the forcible detainer appears to be issued on the 6th day after the rent is due. Forced detention is a difficult wicket for a tenant because he or she can assert only one of these three defences:

1. There is no lease, therefore there is no relationship between landlord and tenant; and therefore there is no question of right of possession to deal with before the Commissioner of the High Court.

2. I also paid my rent and complied with the lease! The plaintiff is lying about my non-payment, and I have proof!

3. The statute of limitations for forced detention has expired.

4. The non-monetary breach alleged by the Landlord is insubstantial, so the tenant cannot be evicted.

Okay, so when does the first defense exist? Not often, but the case to check to understand this is RREEF Mgmt. Co v. Camex Prods., Inc., 190 Arizona. 75, 79, 945 P.2d 386, 390 (Application 1997). The second defense will rarely be available; no plaintiff would waste attorney’s fees to tell a court that a tenant did not pay rent or perform some other lease obligation if it were not true. The statute of limitations (2 years under ARS §12-542) begins to run, I believe, on the “6th day after the rent is due”; Occasionally, however, landlords find themselves in the weeds for a few years before, using this arrest process, they attempt to repossess possession, back rent, and attorneys’ fees. Why roll this way? Well, there are no substantive defenses allowed to the defendant tenant, such as set-offs or the landlord’s denial of quiet enjoyment, that the tenant can bring up at trial. Our appellate decisions note that defenses (other than those listed above) are not supposed to be brought to a summary adjudication of the landlord’s right to possess the property under the forcible detainer proceeding, beginning with Old Bros. Maderav. Running, 64 Ariz. 199, 205, 167 P.2d 394, 400 (1946).

This can turn into ugly business if the tenant waives their right, at the time the lease is signed, to assert a statute of limitations defense. In a five-year lease term scenario, the plaintiff could sit idly by if the tenant defaults, make minimal effort to mitigate rent loss, and then, in year 4.9, file a stop action and ask the court issue an error. for rent in arrears for the entire period after the tenant’s default. And the tenant can’t present any defense against the back rent claim, but he could argue that the lease had ended more than two years before the date the detainer lawsuit was filed. Except, that is, if the tenant has waived that defense that the landlord has waited too long to bring the tenant’s action. Tenants should read their leases carefully to ensure they are not waiving a statute of limitations defense to forcible detainer proceedings. While tenants must pay their obligations like anyone else, they must also be able to present any evidence in the proper forum that releases a portion of their obligation.

Wait, you ask, didn’t you say that there are only three defenses? So what about item no. 4 up? Well, that’s the defense available as a result of this Arizona Supreme Court decision. Foundation sent Loehmann’s an invoice for its pro rata share of the common area; Loehmann’s claimed it was too high; Foundation explained that another tenant had moved in, increasing Loehmann’s common area percentage; So Loehmann’s sent the payment, but three days later than specified in the landlord’s last demand letter. The Foundation used the language of ARS § 33-361(A) to assert that the law allows for termination and recovery for any breach. Business owners will not be able to repossess for any breach, no matter how trivial, the court said, because a lease is not just a contract but also a conveyance, and modern legal trends see it more as the latter. The common law sought to stabilize economic development by not allowing recovery for trivial breaches. The Arizona legislature surely did not intend to allow recovery for just any minor infraction: modern and complicated transactions make it nearly impossible not to commit some minor infraction along the way. I understand? Think court commissioner with 25 detainer actions on her afternoon docket is ready for a tenant’s analysis of how Foundation Development Corp. v. Loehmann’s, Inc., 163 Ariz. 438, 788 P.2d 1189 (1990), does it apply to your facts? Tenants, don’t give up your defenses!