Landlords and property managers might be surprised to find out a tenant can appeal an eviction. You should consider carefully and know your state and local laws. Here are some examples to consider:
Appealing an eviction judgment in Arizona and other states is very expensive, time consuming, and cumbersome.
So much so that I’ve never seen a tenant successfully appeal an eviction judgment.
However, Arizona law provides tenants the opportunity to appeal a forcible detainer (eviction) judgment.
There are two main stages to the appeal process:
- The first stage of the appeal process begins in the Justice Court
- The second stage takes place in the Arizona Superior Court.
All of the steps must be completed or the appeal will be dismissed.
Stage one – the trial court notice of appeal of eviction
In order to appeal an eviction judgment a notice of appeal MUST be filed within five (5) calendar days from the date of the judgment.
Notice of appeal fee
A $75 appeal fee is paid at the time the notice is filed.
This fee includes the cost of a copy of the audio recorded proceedings, a certification of the appeal record, and the transmittal of the record on appeal to the Superior Court.
Cost bond
On or before the deadline to appeal the cost bond must be paid.
Currently in Arizona the cost bond is set at $250. Your state may be different so be sure to check the laws.
The purpose of this bond is to cover court costs incurred by the Appellee, (landlord) in defending the appeal.
Supersedeas bond(s): one and two
The purpose of the first supersedeas bond is to prevent enforcement of the judgment.
Payment of this bond will prevent collection actions on the dollar amount awarded from the judgment, i.e. the ability to garnish wages.
Supersedeas bond part two:
The second supersedeas bond will prevent any eviction proceeding resulting from an eviction action judgment.
It is not necessary for a tenant to post either of the two types of supersedeas bonds. But they must post one or the other to prevent enforcement of the eviction judgment.
How much are the bonds?
The amount of the bond is the total amount of the judgment ordered by the justice court, including court costs, attorney’s fees, damages, etc. The purpose of this bond is to stay collection proceedings on the money judgment awarded. The stay becomes effective when the bond is posted.
The second supersedeas bond is used to stay the eviction proceedings enforced by a writ of restitution.
The amount of the bond is the amount of rent due from the date of the judgment to the next periodic rental due date, plus court costs and attorney fees ordered in the judgment. To stay the eviction proceedings a supersedeas bond must be posted before the writ of restitution is enforced.
The stay becomes active once the bond is paid, but cannot be retroactive if the Writ has already been executed.
Rent payment: The Tenant must continue paying rent
In addition to paying all the necessary fees and bonds, the tenant must continue to pay their rent during the appeal process.
All rent payments must be paid to the justice court on or before the rental due date, pending the appeal process. If the rent is not timely received, the plaintiff may pursue a Writ of Restitution for execution of the judgment for possession.
The written appeal memorandum
The Appellant’s memorandum is a written explanation of why the justice court ruling was legally wrong.
This is where the tenant can provide a legal explanation for why the justice court’s ruling was wrong.
The memorandum should cite specific law and how it was inappropriately applied to the facts of the relevant case. The tenant’s memorandum must be filed within 60 calendar days of the deadline to file the notice of appeal.
Then, the landlord has 30 days to file a response to the tenant’s memorandum.
Once both sides have filed their respective memorandum we must wait for further instruction from the Superior Court.
Stage two – the superior court
About 60 days after the tenant files the memorandum, he will receive notice from the superior court instructing him to pay the superior court filing fee.
After all of these steps have been completed, the parties will receive a written ruling from the superior court. The court can affirm the trial court, overrule the trial court, modify some of the trial court’s decision, or, if the record is not clear order a new trial in the superior court.
If the final outcome of the case is that the original ruling stands, or if the tenant’s appeal is dismissed for any reason, the court may use the bonds, deposit or payments made to satisfy the obligation under the original judgment.
About the author:
Clint S. Dunaway represents landlords and property managers in landlord – tenant disputes. He seeks to provide all of his tenants with useful practical advice, not just legal advice to his clients so they can make the best decisions for themselves and their companies. Errors in renting to the wrong people can be astronomically expensive. He is a graduate of Brigham Young University and University of Dayton School of Law. Visit his website here.
Photo credit designer491 via istockphoto.com
