By Nikki Salgat, Esq., Arizona REALTORS® Assistant General Counsel

Typically, forcible detainer actions are filed in justice courts. However, last month, the Arizona Court of Appeals held that justice courts lack jurisdiction to enforce a forcible detainer action when a property is purchased at a trustee’s sale.  In other words, if the property is purchased at a trustee’s sale and the owner thereafter wants to evict the occupants from the property, the owner must file a forcible detainer action in superior court.

In February 2019, Secure Ventures, LLC (“Owner”) purchased a property at a trustee’s sale.  Thereafter, Owner served the occupants with a notice to vacate ten days later.  When the occupants did not vacate the premises, Owner filed a forcible detainer action in the McDowell Mountain Justice Court.  The justice court granted the eviction and the superior court affirmed the eviction action on appeal. 

Following an appeal to the court of appeals, the Arizona Supreme Court ultimately granted a stay of enforcement of the eviction judgment and remanded the case to the superior court to consider the justice court’s jurisdiction under A.R.S. § 12-1173.01. 

On remand, the superior court held that the justice court lacked jurisdiction to hear the forcible detainer action.  Consequently, Owner filed a special action with the court of appeals which led to this published decision.

In coming to its decision, the court of appeals looked to the plain language of A.R.S. § 12-1173.01 which states:

A. In addition to other persons enumerated in this article, a person in any of the following cases who retains possession of any land, tenements or other real property after he receives written demand of possession may be removed through an action for forcible detainer filed with the clerk of the superior court in accordance with this article:

1. If the property has been sold through the foreclosure of a mortgage, deed of trust or contract for conveyance of real property pursuant to title 33, chapter 6, article 2.

2. If the property has been sold through a trustee’s sale under a deed of trust pursuant to title 33, chapter 6.1.

3. If the property has been forfeited through a contract for conveyance of real property pursuant to title 33, chapter 6, article 3.

4. If the property has been sold by virtue of an execution and the title has been duly transferred.

5. If the property has been sold by the owner and the title has been duly transferred.

B. The remedies provided by this section do not affect the rights of persons in possession under a lease or other possessory right which is superior to the interest sold, forfeited or executed upon.

C. The remedies provided by this section are in addition to and do not preclude any other remedy granted by law.

Emphasis added.

When reading this statute with other forcible detainer statutes, the court reasoned that “the legislature expressly addressed post-conveyance forcible detainers – including forcible detainers brought after trustee’s sales – separately from those forcible detainers set forth in already-existing A.R.S. § 12-1173.”

Because of this distinct separation between the statutes, the court determined that A.R.S. § 12-1173.01 was enacted to make clear the procedure, “that an occupant in those scenarios specifically listed may only ‘be removed through an action for forcible detainer filed with the clerk of the superior court.’”

Finally, the Court of Appeals recognized that its holding may conflict with common practice in Arizona, however, it could not disregard the statute’s plain language.  As such, in the event you find yourself in one of the above scenarios cited in A.R.S. § 12-1173.01, you may only file a forcible detainer action in superior court.

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Nikki J. Salgat, Esq. is Assistant General Counsel to the Arizona REALTORS®. This article is of a general nature and reflects only the opinion of the author at the time it was drafted. It is not intended as definitive legal advice, and you should not act upon it without seeking independent legal counsel.

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