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When can a tenant appeal an eviction judgment?

If a tenant is evicted and the tenant believes the Justice Court judge ruled incorrectly, the tenant can ask the Superior Court to review the Justice Court decision of the judge by filing an appeal.

  • To have any chance of winning the appeal, the tenant must be able to show that the Justice Court judge did not properly apply the law to the facts of the case at the hearing.
  • The tenant must be able to show that the eviction was against the law, rather than merely unfair.

For example, the tenant may need to show that:

  • the landlord (or the landlord’s attorney) violated a provision of the Arizona Residential Landlord and Tenant Act (or the Arizona Mobile Home Parks Residential Landlord and Tenant Act), the Rules of Procedure for Eviction Actions (R.P.E.A.), other state law, federal law, an executive order, or an administrative order.
  • the Justice Court judge either failed to see, ignored, or misunderstood the violation, which resulted in the tenant being unlawfully evicted.

Can all eviction judgments be appealed?

No. A tenant can only appeal an eviction judgment if the tenant appeared at the hearing (either in person or by telephone or video, with the permission of the Court) and disputed the landlord’s complaint.

  • If the tenant does not appear at the hearing and the judge determines, on the basis of the evidence provided by the landlord (or the landlord’s attorney) that the tenant should be evicted, the judge will enter a “default” judgment against the tenant.
  • A default judgment cannot be appealed.

How long does a tenant have to appeal an eviction judgment?

A tenant has 5 days after the Justice Court judge signs the eviction judgment to appeal the decision.

Why must a tenant file a Notice of Appeal within 5 days after the judgment?

Beginning 5 days after the judge signs the eviction judgment, the judge can issue a writ of restitution. A writ of restitution gives the sheriff or constable permission to change the locks and physically remove the tenant from their home. A.R.S. § 12-1178(C)

The 5 day appeal rule ensures that a tenant who wants to appeal an eviction judgment will do so before the judge has issued the writ of restitution.

NOTE: If a tenant is evicted for a “material and irreparable breach” of the rental agreement, the judge is required to issue the writ of restitution within 12 to 24 hours of signing the judgment. A.R.S. § 33-1377(E) This means that if a tenant wants to continue to live in their home while a judgment for “material and irreparable breach” is under appeal, they need to file their Notice of Appeal right away, rather than wait up to 5 days later.

What is a Notice of Appeal?

A Notice of Appeal is a document that tells the Justice Court that the tenant is appealing the eviction judgment to the Superior Court. S.C.R.A.P. Rule 3

Where does the tenant file their Notice of Appeal?

The tenant files their Notice of Appeal, as part of a set of required forms, with the clerk of the Justice Court that conducted the eviction hearing. The tenant can ask the clerk of the Justice Court for the forms or find the forms on the Justice Court’s website.

Does filing a Notice of Appeal allow the tenant to continue to live in their home?

No, not automatically. If the tenant wants to be able to continue to live in their home while the appeal is being decided, the tenant must pay what’s called a “supersedeas” bond to the clerk of the Justice Court before the judge issues the writ of restitution. A.R.S. § 12-1179(C); R.P.E.A. Rule 17(b)(3); S.C.R.A.P. Rule 6(a).

  • A supersedeas bond is a temporary payment to the Justice Court of the amount of the eviction judgment (rent, late fees, court costs, attorneys’ fees, etc.) that the tenant is appealing.
  • A supersedeas bond is meant to ensure that the landlord will receive what they’re owed (according to the original judgment) if the tenant loses the appeal.
  • The payment of a supersedeas bond “stays” (freezes) the execution of the original eviction judgment, which means the writ of restitution won’t be issued. A.R.S. § 12-1179(C); A.R.S. § 12-1180; S.C.R.A.P. Rule 6(a)(2).
  • The payment of a supersedeas bond also stops the landlord from beginning the collection process (for example, by garnishing the tenant’s earnings).

Must the tenant continue to pay rent while they’re appealing an eviction judgment?

Yes, if the tenant wants to be able to continue to live in their home while the appeal is being decided, they must continue to pay their rent on time and in full (and also comply in all other ways with the rental agreement). A.R.S. § 12-1179(D); R.P.E.A. Rule 17(b)(2); S.C.R.A.P. Rule 6(a)(5)

If the tenant pays the supersedeas bond but then does not pay their future rent on time (or violates the rental agreement in some other significant way), the landlord can ask the Justice Court to lift its stay of the execution of the original eviction judgment and issue the writ of restitution. A.R.S. § 12-1179(E).

Are there other costs involved in appealing an eviction judgment?

It depends. Ordinarily, when a tenant files their Notice of Appeal, the tenant must pay a cost bond to cover the landlord’s taxable costs if the tenant loses the appeal. However, the Court will waive or defer that requirement if the tenant can show that they cannot afford to pay it. A.R.S. § 12-1179(B); R.P.E.A. Rule 17(b)(2); S.C.R.A.P. Rule 5.

A tenant can also apply for a waiver or deferral of their own required court costs and fees, including the appeal fee. A.R.S. § 12-302

Which court will hear a tenant’s eviction appeal?

As a general rule, the Superior Court in the county where the tenant’s rental property is located will hear the eviction appeal.

Does a tenant who has received a default judgment (which can’t be appealed) have any other options?

Yes, any tenant who has received an eviction judgment, including a default judgment, can ask the Justice Court judge to review and “set aside” (cancel) the judgment by filing a Motion for Reconsideration with the clerk of the Justice Court. R.P.E.A. Rule 15(a)

However, unlike an appeal, the filing of a Motion for Reconsideration will not stop a writ of restitution from being issued, so the tenant will not be able to continue to live in their home unless the tenant and the landlord agree in writing that the tenant can stay.

A tenant must file a Motion for Reconsideration within either “a reasonable time” or 60 days after the Justice Court judge signs the eviction judgment. R.P.E.A. Rule 15(a)

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