Illegal Lock Out! Getting back in and getting your property.

Our office has recently noticed a spike to landlords illegally locking tenants out of their rental units. This can be a terrifying experience, especially when one is separated from personal property and pets.

Except for surrender of the dwelling by the tenant, there are only two circumstances when a landlord can take back the property: (1) abandonment; and (2) eviction through court action.

Abandonment is a very specific circumstance, and requires a five-day notice by the landlord to the tenant. Rent must have been not paid, the tenant must not be around, and there are two factors regarding time frames of absence depending on whether or not there is any personal property remaining in the dwelling. Check out A.R.S. § 33-1370.

Assuming there has not been any abandonment, or allegation of abandonment, the first thing one should do, in this circumstance, is check with the local justice court to see if the landlord had filed an eviction action, and if there has been a judgment in favor of the landlord. If so, then the landlord is entitled to execute a “writ of restitution” whereby the constable changes the locks. There are a whole series of steps in the eviction process, including notice of violation, issuance of a court summons and complaint, service of the summons and complaint, a court hearing, and then a time frame to vacate prior to the writ be executed. Check out A.R.S. §§ 33-1368, 33-1377, and 12-1178.

If you have been evicted through court action behind your back, without legal notice, contact an attorney.

Okay, say your research finds there was no court action, and you did not abandon the premises, but you are locked out anyway. Then the landlord violated the law, specifically A.R.S. § 33-1374. It is called an illegal ouster. In fact, an illegal ouster may include a landlord turning off services, such as electrical or water, even though the tenant is still living in the place.

Your job, then, is to document what the SOB has done. You need a witness. I like using cops as witnesses, because they are presumed to be more truthful than the average Joe (of course, we all know that cops lie just like everyone else, all the damned time). So see if you can entice the cops to come over and observe that you are locked out. You might need a good story, such as hearing sounds in your place and being fearful of intruders. Then, the cops might even contact your landlord to confirm that the lock-out occurred. Bingo, you got that bastard landlord right where you want him. Get the cop’s name and badge number, and report number if there is one, and then file a lawsuit for illegal ouster. Check out A.R.S. § 33-1367.

If pets are involved, the humane society might be a good ally and witness. The courts may hate tenants, but animals are often treated better.

What next? Maybe you got the “cojones” to actually go back into the dwelling, though a window or whatever. If my ex weren’t on my case all the time for every little thing she can find, I would do that. After all, if the landlord has not taken the proper legal steps to secure possession, then the tenant legally still has possession. Now, if you have to actually break in, just be sure to immediately fix whatever you broke in the process.

Should a tenant continue living in the place after going back? That’s a topic for another day. One thing to consider, though: If a landlord tells you to leave, without cause, absent any kind of mutually agreed document signed by all parties, you would likely be held liable if you complied.

In other words, rarely in landlord-tenant is anything what it seems. Conventional wisdom is out the window.

I would like to hear what others have actually experienced in these type of circumstances. Did you ever sue your landlord after an illegal ouster? What were the results? Were you able to get witnesses, such as cops, to take the stand on your behalf? Were you able to recover your personal property?

- Ken Volk -

9 Responses to “Illegal Lock Out! Getting back in and getting your property.”

  1. nick Says:

    My landlord tried this once till I threatened to sue him. Last month they wouldn’t accept payment, this month they may try to pull the same thing… therefore I’m taking my video camera to record everything and may even call a cop to come witness the landlord refusing rent.

    I think I’ll start looking for a better apt complex in which to live.

  2. Nikki Says:

    What about people who live in apartments who offer a weekly rate-like Budget Suites, for instance?

    What rights do tenants have at these tyes of places?

  3. admin Says:

    Hi, Nikki,

    These tenants are equally protected under the landlord-tenant act. See A.R.S. § 33-1314(D). However, a notice of non-renewal would have a different time frame. See A.R.S. § 33-1375(A).

    That assumes it really is a rental, and not a hotel or inn.

    Ken

  4. Greg Says:

    I’m in a tricky situation where the condo I am renting was foreclosed upon, and I found out about it immediately before Halloween. As of the First of November, the place is now in the hands of the hard money lender that the former owner lost it to. Today I received a 5-day Notice To Quit. I have never missed rent with the former owner, and I have no agreement whatsoever with the new owner. After reading a summary of the rights and responsibilities at http://www.supreme.state.az.us/info/brochures/landlord.htm it appears that the guidelines ensuring 30 days or two months apply to renters and owners in agreement, but what if there is/was no agreement?

    I’m in a tough spot, because if I’m going to move in 5 days, I simply can’t part with that rent I would normally have paid. I absolutely require it for any place I am about to move into, it is essential. I am not the type of person who abdicates on my agreements. I pay my debts, I usually improve the place I rent while living there and I am a good neighbor, but it doesn’t appear that a renter like me has much recourse in this area where there is no agreement whatsoever.

    5 days, that’s my recourse, apparently.

  5. admin Says:

    Greg,

    Your rights in this regard are very circumscribed. Under A.R.S. § 12-1173.01(A) the lender can put you out with a 5-day notice, as can any new owner who acquired the property through a foreclosure sale. As to your relationship with the previous owner, even without a written rental agreement they had been enshrined as a month-to-month tenancy under A.R.S. § 33-1314(D). But that does not do much good for you per foreclosure.

    Your position is akin to that suffered by many other renters in Arizona. You are right, you have no recourse, unless you have an action against the former landlord for fraud. I suggest you read our website materials regarding foreclosure eviction, including the legislative changes we are attempting to implement. At this point, I am about to retain a lobbyist to promote these and some additional/adjusted laws in favor of tenants. If you have a social conscience, when you are ready you can
    contact our office to participate.

    Sorry to hear about your misfortune. I wish there were something I could suggest to alleviate your immediate quandary. Under current law, there is not. Once the lender or new owner files in court, under A.R.S. § 33-1377 there will be a court hearing in 3-6 days, and under A.R.S. § 12-1178 after five days following an adverse judgment a constable could be locking you out. Do not leave your property behind, because you may find yourself separated from it, with possible negative consequences as to its recovery.

    We have a link to the landlord-tenant act through our website, in the Links & Resources section.

    Ken

  6. Tony Says:

    My situation is i have been summoned to the court and they give me 5 days to pay the rent but i have to pay the next month rent too. By right now I can’t afford that. I need 3 more days to get the money. What should i do ?

  7. Alene Wiepert Says:

    I am in the same situation. I am a single mom and have been renting a large house for five years from a property management company in Chandler. Only late on my rent twice, and that was two days late. I started getting forclosure mail addressed to the owner of the house, so I opened it (yeah, sue me). This is not the original owner by the way, from when I moved in. That is how I found out about the foreclosure, and auction April 6th. Then, my daughter accidentally signed for a letter to the “occupant” and “owner” about the foreclosure and auction notice from her mortgage company. But, so far no eviction notice.

    My property management company says keep paying them the rent then play the victim when I get the eviction notice from the mortgage company and ask for an extra month. Lord, is this right? Who exactly is getting this rent I am paying to my rental company?

    Who has my deposits? The property management company or the owner? What about the rent I have paid for the month I get the eviction notice in.. I won’t have another deposit saved up… and how do you know if it is a court ordered eviction notice or not? Will it be obvious? Is there a stamp or seal I can look for, because legal wording can be copied..

    This stress is killing me… and with the auction date of April 6th, I feel like an eviction notice is right around the corner..

  8. meyer Says:

    how does it work with a commercial lease… can the landlord lock you out?!
    because my landlord has changed the locks on my warehouse with out any notice. can i sue him?!

  9. Rev Robert Says:

    I have been dealing with this new Management company about my November rent and now its almost March and they are still demanding it even though I paid the rent back on Oct 29,2008 to another Management Company that said that they had take over. Now my December, January, February and now March rents have been paid on time or early, can the Management company try to evict me even though I sent them a payment under protest on December 16, 2008 for November. I have the money order receipt, yet they are still claiming I owe for November. I feel I don t owe them squat. what should I do?

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