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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Courts and Civil Proceedings
Chapter : SPECIAL ACTIONS AND PROCEEDINGS RELATING TO PROPERTY
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12-1101 Parties; claim; service on attorney general
A. An action to determine and quiet title to real property may be brought by any
one having or claiming an interest therein, whether in or out of possession, against any
person or the state when such person or the state claims an estate or interest in the
real property which is adverse to the party bringing the action.
B. When the state is made defendant a copy of the summons and complaint shall be
served upon the attorney general.
12-1102 Complaint
The complaint shall:
1. Be under oath.
2. Set forth generally the nature and extent of plaintiff's estate.
3. Describe the premises.
4. State that plaintiff is credibly informed and believes defendant makes some
claim adverse to plaintiff. When the state is made defendant, the complaint shall set
forth with particularity or on information or belief the claim of the state adverse to
plaintiff.
5. Pray for establishment of plaintiff's estate and that defendant be barred and
forever estopped from having or claiming any right or title to the premises adverse to
plaintiff.
12-1103 Disclaimer of interest and recovery of costs; request for quit claim deed; disclaimer of interest by state
A. If defendant, other than the state, appears and disclaims all right and title
adverse to plaintiff, he shall recover his costs.
B. If a party, twenty days prior to bringing the action to quiet title to real
property, requests the person, other than the state, holding an apparent adverse interest
or right therein to execute a quit claim deed thereto, and also tenders to him five
dollars for execution and delivery of the deed, and if such person refuses or neglects to
comply, the filing of a disclaimer of interest or right shall not avoid the costs and the
court may allow plaintiff, in addition to the ordinary costs, an attorney's fee to be
fixed by the court.
C. If, after appropriate investigation, it appears to the attorney general that the
state claims no right or title to the property adverse to plaintiff, he may file a
disclaimer of right and title.
12-1104 Allegation of lien or interest claimed by adverse party; jurisdiction of court to enter decree
A. In an action to quiet title to real property, if the complaint sets forth that
any person or the state has or claims an interest in or a lien upon the property, and
that the interest or lien or the remedy for enforcement thereof is barred by limitation,
or that plaintiff would have a defense by reason of limitation to an action to enforce
the interest or lien against the real property, the court shall hear evidence thereon.
B. If it is proved that the interest or lien or the remedy for enforcement thereof
is barred by limitation, or that plaintiff would have a defense by reason of limitation
to an action to enforce the interest or lien against the real property, the court shall
have jurisdiction to enter judgment and plaintiff shall be entitled to judgment barring
and forever estopping assertion of the interest or lien in or to or upon the real
property adverse to plaintiff.
12-1111 Purposes for which eminent domain may be exercised
Subject to the provisions of this title, the right of eminent domain may be
exercised by the state, a county, city, town, village, or political subdivision, or by a
person, for the following uses:
1. All public uses authorized by the government of the United States.
2. Buildings and grounds for any public use of the state and all other public uses
authorized by the legislature.
3. Buildings and grounds for the use of a county, city, town or school district.
4. Canals, aqueducts, flumes, ditches or pipes, for conducting water for the use of
the inhabitants or for drainage of a county, city, town or village.
5. Raising the banks of streams, removing obstructions therefrom, or widening,
deepening or straightening their channels.
6. Roads, streets and alleys, and all other public uses for the benefit of a
county, city, town or village, or the inhabitants thereof, which is authorized by the
legislature. The method of apportioning and collecting the costs of the improvements
authorized by paragraphs 3, 4, 5 and 6 shall be as provided in the law by which they are
authorized.
7. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads,
plank and turnpike roads and highways.
8. Steam, horse, mule, electric and cable railroads or railways.
9. Telegraph and telephone lines and conduits for public communication.
10. Electric light and power transmission lines, pipe lines used for supplying gas,
and all transportation, transmission and intercommunication facilities of public service
agencies.
11. Aviation fields.
12. Reservoirs, canals, ditches, flumes, aqueducts and pipes, for the use of a
county, city, town or village, or its inhabitants, or for public transportation for
supplying mines and other industrial enterprises, farms and farm neighborhoods with water
for irrigation, domestic and other needful purposes, and for generating electricity.
13. Draining and reclaiming lands, and for floating logs and lumber on nonnavigable
streams.
14. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines, and
outlets, natural or otherwise, for the flow, deposit or conduct of tailings or refuse
matter from mines, and an occupancy in common by the owners or possessors of different
mines, or any place for the flow, deposit or conduct of tailings or refuse matter from
their several mines.
15. Byroads leading from highways to residences and farms.
16. Private canals, ditches, flumes, aqueducts and pipes for conducting water from
natural water courses or bodies or from public sources where the lands to be irrigated
are not directly reached by such natural water course or public sources.
17. Pipe lines to carry petroleum, petroleum products or any other liquid.
18. Rights of way, station grounds, pits, yards, sidetracks and other necessary
facilities for railways.
12-1112 Prerequisites to taking property by condemnation
Except as provided by section 28-7102, before property may be taken, it shall appear
that:
1. The use to which the property is to be applied is a use authorized by law.
2. The taking is necessary to such use.
3. If the property is already appropriated to some public use, the public use to
which it is to be applied is a more necessary public use.
12-1113 Estates in land subject to condemnation
The interests, estates and rights in lands subject to be taken for public use, are:
1. A fee simple, when taken for public buildings or grounds or for permanent
buildings, for use in connection with a right-of-way or for an outlet for the flow or a
place for the deposit of tailings or refuse from a mine or for irrigating ditches. A
leasehold interest in a building may be taken only if the underlying property is taken in
fee title or easement.
2. An easement when taken for any use other than those set forth in paragraph 1.
3. A right of entry on and occupation of lands, and the right to take from the
lands earth, gravel, stone, trees and timber necessary for a public use.
4. A use in the water of a stream, river or spring. 12-1114 Private property subject to condemnation
Private property which may be taken includes:
1. All real property belonging to any person, including any and all water and water
rights for the irrigation of any land condemned, belonging to or used in connection with
the land for the irrigation thereof, with right of way for the water or water rights
condemned through irrigating canals and ditches leading to the land condemned.
2. Lands belonging to the state, or to any county, city, town or village, not
appropriated to some public use.
3. Property appropriated to public use.
4. Franchises for toll roads, toll bridges, and ferries, and all other franchises,
but such franchises shall not be taken unless for free highways, railroads or other more
necessary public uses.
5. All rights of way through canyons, passes or defiles, and all rights of way for
any and all purposes mentioned in paragraph 2 of section 12-1111, and any and all
structures and improvements thereon, and the lands held or used in connection therewith,
intersected by any other right of way or improvements or structures thereon, which shall
also be subject to a limited use in common with the owner thereof when necessary, but
such uses, crossings, intersections and connections shall be made in the manner most
compatible with the greatest public benefit and least private injury.
6. All classes of private property not enumerated, including property for use in
water or water rights, taken for public use when the taking is authorized by law.
12-1115 Right of state to enter and survey property for public use
A. Where land is required for public use, the state, or its agents in charge of
such use, may survey and locate the land, but it shall be located in the manner which
will be most compatible with the greatest public good and the least private injury.
B. The land may be entered upon to make examinations, surveys and maps thereof, and
the entry constitutes no cause of action in favor of the owners of the land, except for
injuries resulting from negligence, wantonness or malice.
C. A person seeking to acquire property for any of the public uses authorized by
this title is an agent of the state.
12-1116 Actions for condemnation; immediate possession; money deposit
A. All actions for condemnation shall be brought as other civil actions in the
superior court in the county in which the property is located except that, at least
twenty days before filing an action for condemnation of property or any interest in
property, the plaintiff shall deliver to the property owner of record and as a courtesy
to the sole lessee of record, if applicable, according to the records of the county
recorder in the county in which the property is located:
1. A written offer to purchase the property or interest in the property and to pay
just compensation for the property or interest in the property and for any compensable
damages to any remaining property. The offer must constitute the plaintiff's estimate of
just compensation. The offer may be made subject to any lessees of record or any lessees
who may claim a compensable interest. The offer does not impose an obligation on the
plaintiff to provide a written offer to purchase the lessee's interest.
2. One or more appraisals that support the amount of the proposed compensation.
B. Except for special taxing districts formed pursuant to title 48, chapter 17, if
no lease is recorded or if more than one lease is recorded for the property with the
county recorder of the county in which the property is located, at least twenty days
before filing an action for condemnation of property or any interest in property, the
plaintiff shall provide notice of the offer and appraisal to the party having a plain and
obvious commercial ownership or operational interest in substantial improvements on the
property by posting the notice in plain sight at the property that may be subject to
condemnation.
C. For special taxing districts formed pursuant to title 48, chapter 17, if more
than one lease is recorded for the property with the county recorder of the county in
which the property is located, at least twenty days before filing an action for
condemnation of property or any interest in property, the plaintiff shall provide notice
of the offer and appraisal by delivering to all property interest holders of record the
notice that an offer has been made and an appraisal has been conducted. The notice does
not apply to lessees of record if the lease or other written agreement governing the
interest holder's rights in the property provides that the property interest holder would
not be entitled to condemnation proceeds.
D. If a lessee that is not noted in the record of the county recorder and has a
commercial ownership or operational interest in substantial improvements on the property
requests a copy of the offer and appraisal the plaintiff shall promptly comply with the
request on presentation of documentation by the lessee of the lessee's interest in the
property.
E. At the time of filing the complaint, or at any time after filing the complaint,
the plaintiff may apply to the court for an order permitting the plaintiff to take
possession of and use the property sought to be condemned for the purpose prayed for.
F. The superior court may waive the requirements of subsection A, B, C or D of this
section if the court determines that the plaintiff will suffer immediate and irreparable
harm that outweighs the property owner's or lessee's interest.
G. On filing the application, the court shall set a time for a hearing. Notice
shall be served on the parties in interest by personal service within the state, or by
publication if without the state, in any manner as the court directs.
H. On the day of the hearing, if it appears that the use for which the property is
sought to be condemned is a necessary use, the court shall receive evidence as to the
probable damages to each owner, possessor or person having an interest in each parcel of
land sought to be condemned and of any unpaid property taxes that have been levied,
including penalties and interest, on the property sought to be condemned and may direct
that on a deposit of money, on direct payment to each owner, possessor or person having
an interest in each parcel, or if the condemnor is the state or a county, city, town or
political subdivision of this state, on posting a bond in a form to be approved by the
court, the plaintiff shall be let into the possession and full use of the parcels of
land, as described in the order, for the purposes specified in the order.
I. The plaintiff may deposit the money or bond with the clerk of the court or the
state treasurer. The money or bond may be held for the use and benefit of each person
having an interest in each parcel of land sought to be condemned, subject to final
judgment after trial of the action, and may be held also as a fund to pay any further
damages and costs recovered in the proceedings and any unpaid property taxes that were
levied as of the date of the order for immediate possession, including penalties and
interest, on the property sought to be condemned, as well as all damages sustained by the
defendant if for any cause the property is not finally taken for public use. The deposit
of the money or bond shall not discharge the plaintiff from liability to maintain the
fund in full, but it shall remain deposited for all accidents, defalcations or other
contingencies, as between the parties to the proceedings, at the risk of the plaintiff,
until the compensation or damage is finally settled by judicial determination, and the
court awards such part of the money or bond as shall be determined to the defendant, or
until the clerk or the state treasurer is ordered by the court to disburse it. The clerk
of the court or the state treasurer is liable to the plaintiff for the deposit or bond if
it is lost or abstracted.
J. If the plaintiff elects to deposit the money or bond in the state treasury, the
state treasurer shall receive the money or bond and return a receipt for the money or
bond to the court, and the state treasurer shall safely keep the deposit in a special
fund to be entered on the state treasurer's books as the condemnation fund. The state
treasurer shall invest and divest monies in the condemnation fund as provided by section
35-313, and monies earned from investment shall be credited to the fund. The state
treasurer shall disburse the money deposited and, if necessary, convert the investments
to cash for the purpose of making the disbursements or forfeit the bond as the court may
direct pursuant to its judgment. After satisfaction of the judgment in a condemnation
action and payment of any unpaid property taxes that were levied as of the date of the
order for immediate possession, including penalties and interest, on the property sought
to be condemned, the excess, if any, of the deposit made regarding the action, including
monies earned by the investment and reinvestment of the deposit, shall be returned by the
state treasurer to the plaintiff by a warrant that the department of administration shall
issue upon direction of the state treasurer after having received a certified copy of the
judgment and without regard to provisions requiring the filing of a claim against the
state. Any monies remaining in the condemnation fund at the end of the fiscal year do not
revert to the state general fund.
K. If the plaintiff elects to deposit the money or bond with the clerk of the
court, the clerk shall receive the money or bond and return a receipt for the money or
bond to the court, and the clerk is liable to the plaintiff if the money or bond is lost
or abstracted. The clerk shall disburse the money or forfeit the bond as the court may
direct pursuant to its judgment. Any money remaining in a deposit after the judgment of
the court and all unpaid property taxes that were levied as of the date of the order for
immediate possession, including penalties and interest, have been fully paid shall be
returned by the clerk to the plaintiff.
L. On application by any party, the court may order that money deposited with the
clerk of the court or the state treasurer be paid to any owner, possessor or person
having an interest in any parcel.
M. Subject to court approval, the parties may also stipulate any of the following
with any owner, occupant or possessor of any parcel:
1. To the amount of money that the plaintiff may deposit with the clerk of the
court or with the state treasurer for any owner, occupant or possessor of any parcel.
2. To the amount of direct payment to any owner, occupant or possessor of any
parcel.
3. To the payment of money deposited with the clerk of the court or the state
treasurer to any owner, occupant or possessor of any parcel.
4. For the release of any bond on payment to any owner, occupant or possessor of
any parcel.
N. A person in interest for whom a deposit has been made pursuant to stipulation
for the person's withdrawal is entitled to interest on the amount that the person is
allowed to withdraw from the date the order for immediate possession is signed by the
court pursuant to subsection C of this section until the date of withdrawal. This person
is also entitled to interest on that portion of the final judgment, exclusive of costs
allowed by the court, that exceeds the amount that is deposited for the person's
withdrawal from the date the order for immediate possession is signed by the court until
the judgment is paid. If the amount that is withdrawn by any defendant exceeds the amount
of the final judgment awarded the defendant inclusive of costs allowed by the court and
any unpaid property taxes that were levied as of the date of the order for immediate
possession, including penalties and interest, on the property sought to be condemned, the
defendant withdrawing the funds immediately shall repay to the plaintiff the excess, with
legal interest from the date of withdrawal to the date of repayment, except that the
amount that is necessary to pay any unpaid property taxes that were levied as of the date
of the order for immediate possession, including penalties and interest, on the property
shall be paid to the county treasurer of the county in which the property sought to be
condemned is located.
O. Any stipulation that is made or any evidence that is introduced pursuant to this
section shall not be introduced in evidence or used to the prejudice of any party in
interest on the trial of the action.
12-1117 Complaint
The complaint shall set forth:
1. The name of the person asserting the public use for which the property is
sought, as plaintiff.
2. The names of all owners and claimants of the property, if known, or a statement
that they are unknown, as defendants.
3. A statement of the right of plaintiff.
4. If a right of way for a road, ditch, canal or other purpose is sought, the
location and general route, accompanied with a map thereof.
5. A description of each piece of land sought to be taken, and whether the land
includes the whole or only a part of an entire parcel or tract.
12-1118 Joint or separate actions; consolidation
A. All parcels lying in the county, and required for the same public use, may be
included in the same or separate proceedings, at the election of plaintiff, but the court
may consolidate or separate them for convenience of the parties.
B. When application for condemnation of a right of way for sewage disposal, or to
obtain water, is made on behalf of a settlement, village or an unincorporated town, the
board of supervisors of the county may be the plaintiff.
12-1119 Summons; contents; service
A. The clerk shall issue a summons containing:
1. The names of the parties.
2. A general description of the whole property.
3. A statement of the public use for which it is sought.
4. A reference to the complaint for descriptions of the respective parcels.
5. Notice to defendants to appear and show cause why the property described should
not be condemned as prayed for in the complaint.
B. The summons in all other particulars shall be as provided in civil actions, and
shall be served in like manner.
12-1120 Right to defend action
All persons occupying, or having or claiming an interest in any of the property
described in the complaint, or in the damages for the taking thereof, though not named,
may appear, plead and defend in respect to his property or interest, or that claimed by
him, as if named in the complaint.
12-1121 Powers of court; precedence
A. The court may determine and regulate the place and manner of making connections
and crossings or of enjoying the common use mentioned in paragraph 14 of section
12-1111. It shall hear and determine all adverse or conflicting claims to the property
sought to be condemned and the claim of damages therefor, and shall determine the
respective rights of different parties seeking condemnation of the same property.
B. The court in which any action brought under articles 2 and 3 of this chapter is
pending shall, at the request of any party, give the action precedence over other civil
actions.
12-1122 Ascertainment and assessment of value, damages and benefits
A. The court or jury shall ascertain and assess:
1. The value of the property sought to be condemned and all improvements on the
property pertaining to the realty, and of each and every separate estate or interest in
the property, and if it consists of different parcels, the value of each parcel and each
estate or interest in the parcel separately.
2. If the property sought to be condemned constitutes only a part of a larger
parcel, the damages that will accrue to the portion not sought to be condemned by reason
of its severance from the portion sought to be condemned, and the construction of the
improvement in the manner proposed by the plaintiff.
3. How much the portion not sought to be condemned and each estate or interest in
the portion will be benefited separately, if at all, by construction of the improvement
proposed by the plaintiff. If the benefit is equal to the damages assessed under
paragraph 2 of this subsection, the owner of the parcel shall be allowed no compensation
except for the value of the portion taken, but if the benefit is less than the damages so
assessed, the benefit shall be deducted from the damages, and the remainder shall be the
only damages allowed in addition to the value.
4. If the property sought to be condemned is for a railroad, the cost of good and
sufficient fences along the line of the railroad, and the cost of cattle guards where
fences may cross the line of the railroad.
B. As far as practicable, compensation shall be assessed for each source of damage
separately.
C. Value shall be determined by ascertaining the most probable price estimated in
terms of cash in United States dollars or comparable market financial arrangements that
the property would bring if exposed for sale in the open market, with reasonable time
allowed in which to find a purchaser, buying with knowledge of all of the uses and
purposes to which it was adapted and for which it was capable.
D. For the purpose of assessing compensation and damages with respect to property
sought to be condemned by this state for transportation purposes, in addition to
subsections A and B of this section, the court or a jury shall assess compensation and
damages pursuant to sections 28-7091 and 28-7097.
12-1123 Accrual of right to compensation and damages; limitation
A. For the purpose of assessing compensation and damages, the right to compensation
and damages shall be deemed to accrue at the date of the summons, and its actual value at
that date shall be the measure of compensation and damages.
B. If there is an order for immediate possession before the final judgment, the
compensation and damages awarded shall draw interest from the date the order is entered
by the court. If the defendant is allowed to withdraw money deposited by the plaintiff
pursuant to section 12-1116, subsection M, the defendant is entitled to interest on the
money that the defendant is allowed to withdraw from the date the order for immediate
possession is signed by the court until the date of the withdrawal.
C. No improvements placed upon the property subsequent to the date of service of
the summons shall be included in the assessment of compensation or damages.
D. If an order is made letting plaintiff into possession before the recording of
the final order of condemnation, the plaintiff shall record the order in the office of
the county recorder of the county or counties in which the property is located and on the
recording so much of the defendant's property as is affected by the order shall
immediately be granted tax exempt status for future tax rolls and any unpaid property
taxes that have been levied, including penalties and interest, on the property shall be
paid to the county treasurer in the county in which the property is located pursuant to
section 12-1116.
12-1124 Payment of compensation; effect of failure to pay
Payment of compensation and damages may be made to a defendant or defendants
entitled thereto, or the money may be deposited in court and distributed to the defendant
or defendants entitled thereto. At the time the money is paid or deposited, all unpaid
property taxes which were levied as of the date of the order for immediate possession,
including penalties and interest, that are due on the property condemned shall be paid to
the county treasurer in the county in which the condemned property is located. If the
money is not so paid or deposited, the defendant or defendants or the county treasurer
may have execution as in civil actions, and if the money cannot be collected on
execution, the court, upon a showing to that effect, shall set aside and annul the entire
proceedings, and restore possession of the property to defendant or defendants, if
possession has been taken by plaintiff.
12-1125 Payment of damages in proceedings by railroad
A. If the property sought to be condemned is for a railroad, plaintiff shall,
within thirty days after final judgment, pay the sum assessed, but may, before payment,
elect to build fences and cattle guards. If plaintiff so elects, he shall execute and
deliver to defendant a bond, with sureties to be approved by the court, in double the
assessed cost thereof conditioned that plaintiff will build the fences and cattle guards
within eighteen months from the time the railroad is built on the land taken, and if bond
is given, plaintiff shall not be required to pay the cost of the fences and cattle guards
to defendant.
B. In an action on the bond reasonable attorney's fees, in addition to all damages,
may be recovered.
12-1126 Final order of condemnation; recording; vesting of property
A. When the final judgment has been satisfied and all unpaid property taxes which
were levied as of the date of the order for immediate possession, including penalties and
interest, on the property that is the subject of the condemnation action have been paid,
the court shall make a final order of condemnation, describing the property condemned and
the purposes of the condemnation.
B. A copy of the order shall be recorded in the office of the county recorder of
the county or counties in which the property is located, and thereupon the property
described shall vest in plaintiff for the purposes therein specified.
12-1127 Possession by plaintiff after judgment or pending appeal; receipt of payment as abandonment; custody of money paid into court; costs of new trial
A. At any time after judgment is entered, or pending an appeal from the judgment to
the supreme court, when plaintiff has paid into court for defendant or defendants the
full amount of the judgment, and such other amounts as required by the court as a fund to
pay further damages and costs which may be recovered in the proceedings, as well as all
damages that may be sustained by defendant or defendants if for any cause the property is
not finally taken for public use, the superior court in which the action was tried may,
upon notice of not less than ten days, authorize plaintiff, if already in possession, to
continue therein, or if not, then to take possession of and use the property until final
conclusion of the litigation, and may, if necessary, stay all actions and proceedings
against plaintiff on account thereof.
B. The defendant or defendants who are entitled to the money paid into court upon
any judgment may demand and receive the money at any time thereafter upon an order of the
court. The court shall, upon application, order the money so paid into court delivered
to the party entitled thereto upon his filing either a satisfaction of the judgment or a
receipt for the money, and an abandonment of all defenses to the action or proceeding
except as to the amount of damages to which he may be entitled if a new trial is
granted. Such payment shall be deemed an abandonment of all defenses, except the party's
claim for greater compensation.
C. The money paid into court on final judgment may be placed by order of court in
the custody of the clerk or state treasurer to be held or disbursed upon order of court,
and plaintiff and such officers shall be subject to the same responsibility, liabilities
and restrictions with respect thereto as provided in this article when money is paid into
court by plaintiff upon application for possession before trial.
D. When a new trial is granted upon application of a defendant, and he fails upon
the trial to obtain greater compensation than was allowed upon the first trial, the costs
of the new trial shall be taxed against him.
12-1128 Costs and jury fees
A. Costs may be allowed or not, and if allowed may be apportioned between the
parties on the same or adverse sides, in the discretion of the court.
B. The jury fee may be assessed or not against the plaintiff, in the discretion of
the court. If jury fees are so assessed, they shall be calculated in the same manner and
amounts as in other civil actions and the plaintiff shall pay such fee to the clerk of
the court for transmittal to the county treasurer who shall dispose such monies in the
same manner as the disposition of other jury fees.
C. In an action for condemnation of property by or on behalf of an educational,
reformatory or penal institution of the state, if the board or officers having charge of
the institution, prior to commencement of the action or proceeding, tender to the owner
of the property such sum of money as the board or officers deem the reasonable value of
the property, and the owner refuses to accept it and transfer the property, then all
costs and expenses of the action or proceeding shall be taxed against the owner unless
the sum of money assessed in the judgment as the value of the property and compensation
to be paid therefor is greater than the amount so tendered.
12-1129 Dismissal of condemnation action; litigation expenses
A. If a plaintiff causes a condemnation action under this article to be dismissed
without prejudice before payment of the compensation and damages awarded the defendant by
the court or jury, the plaintiff shall not initiate any eminent domain proceeding with
respect to the same property for the same or a related project for at least two years
after the date of the verdict or judgment.
B. The court having jurisdiction of a condemnation action under this article shall
award the owner with any right to, title to or interest in the property that is the
subject of the action an amount that will reimburse the owner for the owner's reasonable
costs, disbursements and expenses, including reasonable attorney, appraisal and
engineering fees, actually incurred because of the condemnation proceeding if
EITHER of the following occurs:
1. The final judgment is that the plaintiff cannot acquire the real property by
condemnation.
2. The proceeding is abandoned on a motion by the plaintiff.
C. IF the proceeding is dismissed on a motion by the plaintiff because the
parties have agreed to settle the matter out of court, both parties shall pay their own
costs, disbursements and expenses, including reasonable attorney, appraisal and
engineering fees unless otherwise specified by the parties in the settlement agreement.
12-1130 Fees and expenses; appraisal; relocation benefits; applicability
A. In a proposed condemnation action If an owner-occupant of a residential property
disagrees with the offer and appraisal, the owner-occupant may obtain a second appraisal
from an appraiser who is on the approved list that is maintained by the governmental
entity and The governmental entity shall pay for the second appraisal.
B. Before filing an eminent domain action, the governmental entity shall provide to
the owner-occupant all appraisals of the property that the governmental entity obtains.
C. Any governmental entity that acquires owner-occupied residential property by
condemnation or threat of condemnation shall provide the owner-occupant with a
determination of relocation benefits in an amount that allows the owner-occupant to
purchase a comparable replacement dwelling as provided under applicable relocation law.
D. In a condemnation action to acquire owner-occupied residential property, the
court may award fees and other expenses to any party other than this state or a city,
town or county or any other political subdivision of this state. In making the
determination, the court may consider the amount of the difference between the final
offer and the compensation awarded, the percentage of the difference between the final
offer and the award and any other factors the court deems appropriate. For the purposes
of this subsection, "fees and other expenses" means the reasonable expenses of expert
witnesses, the reasonable cost of any study, analysis, engineering report, test or
project that the court finds to be directly related to and necessary for the presentation
of the party's case and reasonable and necessary attorney fees.
E. This section does not apply to actions for acquisition of property for public
safety, transportation, flood control or utility purposes.
12-1141 Definitions
In this article, unless the context otherwise requires:
1. "Authorized corporation" means a corporation or association engaged or about to
engage in a public works project, as defined in this article, for a public use, but the
construction of the public works project and its conduct thereafter by the corporation or
association is subject to regulation or supervision by a federal agency, as defined in
this article, or a state public body, as defined in this article, whether by virtue of an
agreement, provision of law or otherwise.
2. "Court" means the court in which jurisdiction over proceedings under this
article is vested by the provisions of section 12-1142.
3. "Federal agency" means the United States, the federal emergency administration
of public works or any other agency or instrumentality, corporate or otherwise, of the
United States.
4. "Plaintiff" means the person by whom proceedings for acquisition of real
property, as defined in this article, are instituted pursuant to the provisions of
section 12-1142.
5. "Public works project" means a work or undertaking which is financed in whole or
in part by a federal agency, as defined in this article, or by a state public body, as
defined in this article.
6. "Real property," "property" or "land" means all lands, including improvements
and fixtures thereon, lands under water, all easements and hereditaments, corporeal or
incorporeal, and every estate, interest and right, legal or equitable, in lands or water,
and all rights, interests, privileges, easements, encumbrances and franchises relating
thereto, including terms for years and liens of judgment, mortgage or otherwise.
7. "State public body" means the state or a county, city, town, municipal
corporation, authority or any other subdivision, agency or instrumentality thereof,
corporate or otherwise.
12-1142 Agencies qualified to institute proceedings; jurisdiction of court; right of plaintiff to enter upon land
A. A federal agency, state public body or authorized corporation may institute
condemnation proceedings under this article for acquisition of real property necessary
for a public works project. The proceedings may be instituted in the superior court in a
county in which any part of the real property or the proposed public works project is
located, and they shall be entitled to precedence over other civil actions.
B. The plaintiff may enter upon the real property proposed to be acquired for the
purpose of making a survey thereof, or posting any notice thereon required by this
article. The survey and posting of notice shall be done in such manner as will cause the
least possible inconvenience to the owners of the property.
12-1143 Complaint
A proceeding under this article may be instituted by filing a complaint which shall
be sufficient if it sets forth:
1. The name of plaintiff.
2. A description of the property, sufficient for identification thereof, to which
there may be attached a plat or map thereof.
3. A statement that the acquisition of the property by plaintiff is necessary for a
public works project and a brief general description of the public works project.
4. A statement that the action is instituted under this article.
5. An appropriate prayer for relief.
12-1144 Inclusion of separate parcels in single action
Any number of parcels of land, whether owned by the same or different persons and
whether contiguous or not, may be included and condemned in one action, if the parcels
are to be used for a single public works project.
12-1145 Notice of proceedings; effect of filing notice
A. Notice of the action shall be given by one publication in a newspaper having a
general circulation in each county in which any part of the property sought to be
condemned is located. The notice shall be published at least twenty and not more than
thirty days prior to the date set for the hearing on the validity of the
proceedings. The notice shall be in substantially the following form:
"TO WHOM IT MAY CONCERN:
Notice is hereby given that _______________ (here insert name of plaintiff) has
filed a complaint in the above court under the laws relating to the condemnation of real
property for public works projects to acquire by condemnation for +++++++++++ (here give
brief general description of the public works project for which the land is sought to be
acquired), the following described land:
(Here describe the land sufficiently for identification thereof. The description may
be by a plat or map.)
Notice is further given that on ____________ (here insert date of hearing, which
must be at least twenty days and not more than thirty days after the date of publication)
there will be a hearing in this court, at the opening thereof, for the following
purposes:
1. To determine the validity of the action and the right of plaintiff, if it so
elects, to take title to and possession of such property prior to final judgment, as
authorized by section 12-1155, and any persons having an interest in or lien upon the
above described property shall be deemed to have waived their rights thereafter to object
to the court's decision with respect to such issue, unless prior to that date they have
filed in writing with the clerk of the court their objection thereto.
2. To consider the appointment of a special master to determine the compensation to
be awarded for such property and the persons entitled thereto, unless written demand for
a jury is filed with the court before the date of hearing, in which event the
compensation to be awarded to the person filing such demand shall be ascertained by jury
trial and not by special master.
3. Fixing the date and place at which the special master will hear and determine
the compensation to be paid for such property and the person entitled thereto.
Notice is further given that all claims or demands for compensation because of the
taking and condemnation of such property shall be filed with the above court before
_____________ (here insert a date fifteen days after the date above specified for the
court hearing), or the compensation will be deemed waived.
Dated the _________________ day of ___________________
_______________________
Clerk of the court"
B. Notice of the action shall also be given:
1. By posting a copy of the notice in conspicuous places on the real property
sought to be condemned.
2. By filing a copy of the notice in the office of the clerk of the court in which
such proceedings are pending.
3. By filing, in the same manner as lis pendens is filed, a copy of the notice in
the office of the county recorder in each county in which any part of the real property
is located.
C. The publication, posting and filing shall constitute legal and sufficient notice
of the action to all persons having any interest in or lien upon the property described
in the notice. Filing of the notice in the office of the county recorder shall be
constructive notice of the proceedings to all persons who subsequently acquired an
interest in or lien upon the property, and plaintiff shall take all property condemned
under this article free of the claims of such persons.
12-1146 Waiver of certain rights by persons in interest; determination of issues; judgment on issues; appointment of guardian ad litem
A. All persons who have not filed written objections with the court prior to the
time of the hearing specified in the notice prescribed by section 12-1145, shall be
deemed to have waived the right to file objections as to the sufficiency and validity of
the complaint, the action and the relief sought thereby, and of the right of plaintiff to
take title and possession prior to final judgment, as authorized by section 12-1155. All
persons who have not filed with the clerk of the court prior to the date of hearing
specified in the notice prescribed in section 12-1145, written demand for trial by jury
as to the amount of compensation to be awarded shall be deemed to have waived the right.
B. The court, at the time specified in the notice, after hearing and determining
all issues of fact and law raised by the objections which have been filed, shall enter a
final judgment with respect to such issues, and thereafter there shall remain for
determination only the amount of the compensation to be paid and the persons entitled
thereto.
C. If an infant or other person under legal disability does not appear in the
proceedings by his duly authorized legal representative, the court shall appoint a
guardian ad litem to represent such person's interest in the proceedings before the
special master appointed as provided by section 12-1147.
12-1147 Special master; duties; qualifications; compensation; oath; limitation upon powers
A. The court, at the time of the hearing, shall appoint a special master to fix the
amount of damages and compensation for the taking and condemnation of the property
described in the complaint, to determine the persons entitled thereto and to report such
facts to the court.
B. The special master shall be a disinterested person not related to anyone having
an interest in or lien upon the property sought to be condemned. The compensation of the
special master shall not exceed fifteen dollars per day plus travel and subsistence
expenses.
C. The special master immediately after appointment shall subscribe to an oath that
to the best of his ability he will truly find and return the compensation for the taking
and condemnation of the property and the persons entitled thereto.
D. This section and the succeeding sections of this article pertaining to the
appointment, duties and powers of, and proceedings before, a special master shall not
apply to any person who has filed a written demand for trial by jury as to the amount of
compensation. The rights of such person as to the amount of compensation shall be
determined by jury trial and not by the special master.
12-1148 Notice of hearing by special master
A. Immediately after being appointed and taking the oath, the special master shall
send notice by registered mail to all persons who have appeared in the action, or to
their attorneys of record, and to all others having any interest in or lien upon the real
property sought to be condemned, as shown by the records of the office of the county
recorder, and to guardians ad litem appointed pursuant to the provisions of section
12-1146. The notice shall be addressed to such persons at their respective last known
addresses and shall be substantially in the following form:
"IN THE COURT FOR THE
OF
TO WHOM IT MAY CONCERN:
Notice is hereby given that (here insert
name of plaintiff) has filed a complaint in the above court to acquire by condemnation
under the laws relating to the condemnation of real property for public works projects
for (here give a brief general description of the public works
project for which the land is sought to be acquired), the following described
land: (Here describe the land sufficiently for the identification thereof. The
description may be by a plat or map).
All persons having an interest in or lien upon the above described property, for
which compensation will be demanded, are hereby notified that all claims or demands for
compensation by reason of the taking and condemnation of such property shall be filed in
writing with said court before (here insert date at least fifteen days
after the date set for the court hearing in the notice specified in section 12-1145), and
shall be deemed waived unless so filed, and that on a hearing will be
held by the special master at (insert time and place fixed by the
court for such hearing) with respect to the amount of compensation to be paid for the
property sought to be condemned, and the persons entitled thereto.
Dated day of
Special master appointed by the court."
B. The special master shall also cause a copy of the notice to be posted in
conspicuous places on the property sought to be condemned.
12-1149 Hearing by special master
A. After notice by mailing and posting has been given as provided by section
12-1148, the special master, on the date for hearing specified in the notice, shall
proceed immediately to hear and determine the question of just compensation for the
taking and condemnation of the property and the persons entitled to the compensation.
B. The special master may issue subpoenas, administer oaths to witnesses, receive
evidence and have it recorded.
12-1150 Admissibility of certain evidence before special master; effect of increased property value upon award
A. For the purpose of determining the value of the real property sought to be
condemned and fixing just compensation therefor, the following evidence, in addition to
other evidence which is relevant, material and competent, shall be admitted and
considered relevant, material and competent by the special master:
1. Evidence that a building or improvement is unsafe or unsanitary or a public
nuisance, or is in a state of disrepair, and of the cost to correct the condition, even
though no action has been taken by local authorities to remedy the condition.
2. Evidence that any public body of the state, charged with the duty of abating or
requiring the correction of nuisances or like conditions, or demolishing unsafe or
unsanitary structures, issued an order directing the abatement or correction of such
conditions existing with respect to the building or improvement or the demolition of the
building or improvement, and of the cost which compliance with the order would entail.
3. Evidence of the last assessed valuation of the property for purposes of taxation
and of affidavits or tax return made by the owner in connection with such assessment
which reflect the value of the property, and income tax returns of the owner disclosing
amounts deducted on account of obsolescence or depreciation of the property.
4. Evidence that the buildings and improvements are being used for illegal purposes
or are so overcrowded as to be dangerous or injurious to the health, safety, morals or
welfare of the occupants thereof, and the extent to which the rentals from such buildings
or improvements are enhanced by reason of such use.
5. Evidence of the price and other terms upon a sale or the rent reserved and other
terms of a lease or tenancy relating to the property or to similar property in the
vicinity when the sale or leasing occurred or the tenancy existed within a reasonable
time of the hearing.
B. The award of compensation shall not be increased by reason of an increase in the
value of the property resulting from the public works project to be placed thereon.
C. No allowance shall be made for improvements begun on property after publication
of the notice specified in section 12-1145, except upon good cause being shown.
12-1151 Limitation on time for filing report of special master
The report of the special master shall be filed with the clerk of the court in which
the action is pending within thirty days after the date of the master taking the oath,
unless further time is granted by the court. The court shall grant additional time for
filing the report only on a showing that the report cannot, with due diligence, be
prepared within the time fixed.
12-1152 Notice of filing report and of hearing objections to report; waiver of right to object
Upon filing the report by the special master, the court, without delay, shall fix a
date for hearing objections filed thereto. Notice that the report has been filed, that
all objections thereto shall be filed with the court within ten days after the date of
mailing the notice, and that the court has fixed a certain date, which shall be stated
therein, for the hearing of such objections, shall be given by sending a copy of the
notice by registered mail to all persons who have appeared in the action, or their
attorneys of record, at their last known addresses. After ten days subsequent to mailing
the notice, all objections to the report shall be deemed waived by all persons who have
not filed written objections with the court.
12-1153 Final judgment; hearing objections to findings or report; proceedings upon rejection of report; vesting of property
A. If no objections are filed to the special master's report, the court, but only
on motion of plaintiff unless title to the property has vested in plaintiff, shall enter
a final judgment fixing the compensation to be paid for the property and the persons
entitled thereto. If objections are filed to the special master's report, the court on
the date specified in the notice provided for by section 12-1152, shall hear and
determine such questions of law and fact as are raised by the exceptions, and may
approve, disapprove or modify the special master's findings or may reject the special
master's report in its entirety.
B. If the special master's report is rejected in its entirety, the court shall at
once appoint another special master in the same manner the first special master was
appointed, and he shall have the same powers and duties as the special master first
appointed, except that notice of the time for filing claims and the hearing thereon may
be given by registered mail to all persons who have appeared in the proceedings, or their
attorneys of record, at their last known addresses, and no other notice shall be
necessary.
C. If the court approves the special master's report with or without modifications,
the court, but only on motion of plaintiff unless title to the property has previously
vested in plaintiff, shall enter a final judgment fixing the compensation to be paid for
the property and the persons entitled thereto.
D. If title to the property has not previously been vested in plaintiff, the title
and right to possession of the property shall vest in plaintiff immediately upon entry of
the final judgment and upon deposit in court by plaintiff of the amount of the judgment
fixed by the court as the compensation for such property. Upon entry of the judgment and
vesting of title, the court shall designate the day, not exceeding thirty days thereafter
except upon good cause shown, on which the parties in possession of the property shall be
required to surrender possession to plaintiff.
12-1154 Filing certified copy of judgment
A. Upon rendition of final judgment vesting title in plaintiff, the clerk of the
court shall make and certify, under the seal of the court a copy or copies of the
judgment, which shall be recorded in the office of the county recorder, and the recording
shall constitute notice to all persons of the contents thereof.
B. A copy of the judgment certified by the clerk of the court shall be admissible
in evidence in any judicial proceedings.
12-1155 Application by plaintiff to take possession; notice of hearing; money deposit; bond in lieu of deposit; judgment for deficiency
A. The plaintiff may at any time after determination of the issues as provided in
section 12-1146, if the court at such time found that the use for which the property is
sought to be condemned is a necessary use, make application to the court for an order
permitting plaintiff to take possession of and use the property sought to be condemned
for the purposes prayed for.
B. Upon filing the application a time for the hearing thereof shall be fixed and
notice thereof served upon the parties in interest by personal service within the state,
or by publication if they reside without the state, in such manner as the court may
direct.
C. On the day of the hearing, the court shall receive evidence as to the probable
damages to each owner, possessor or person having an interest in each parcel of real
property sought to be condemned, and may direct that upon a deposit of money equal to the
amount of such probable damage so found to each person in interest, plaintiff shall be
let into the possession and full use of the parcels of real property as described in the
order for the purposes therein specified.
D. Monies so paid shall be deposited with the clerk of the court, and held by him
to the use and benefit of each person having an interest in each parcel of real property
sought to be condemned, subject to final judgment upon trial of the action, and held also
as a fund to pay any further damages and costs recovered in the action as well as all
damages sustained by defendant if for any cause the property is not finally taken for
public use. The clerk of the court shall be liable to plaintiff for the deposit.
E. The parties may stipulate as to the amount of deposit, or for a bond from
plaintiff in lieu of the deposit. The stipulation or evidence of the deposit shall not
be introduced in evidence or used to the prejudice of any party in interest on the trial
of the action.
F. The ultimate amount of compensation shall be fixed in the manner specified in
this article. If the amount fixed exceeds the amount deposited by plaintiff, the court
shall enter judgment against plaintiff in the amount of the deficiency, together with
interest at the rate of six per cent per annum on the deficiency, from the date of the
order of the court permitting plaintiff to take possession as provided by this section,
but subject to abatement for use, income, rents or profits derived from the property by
the owner thereof subsequent to the date of the order. The court shall order plaintiff
to deposit the amount of the deficiency in court for the use and benefit of the person
entitled thereto.
12-1156 Right to dismiss
At any time prior to vesting title to the property in the plaintiff, the plaintiff
may withdraw or dismiss the plaintiff's complaint with respect to any or all the property
described in the complaint, except that if the plaintiff causes the complaint to be
dismissed without prejudice before payment of the compensation and damages awarded the
defendant by the court or jury, the plaintiff shall not initiate any eminent domain
proceeding with respect to the same property for the same or a related project for at
least two years after the date of the verdict or judgment.
12-1157 Effect of vesting of title
Upon vesting of title to any property in plaintiff, all the right, title and
interest of all persons having an interest therein or lien thereupon shall be divested
immediately, and such persons thereafter shall be entitled only to receive compensation
for the property.
12-1158 Effect of payment into court; security; disbursement
A. The payment into court by plaintiff of the amount of the judgment, or the
deposit in court of the amount fixed and determined as provided in section 12-1155, shall
be deemed a payment or deposit of money for the use of the persons entitled thereto. The
payment or deposit shall constitute a payment to the persons entitled thereto to the
extent of the monies so paid or deposited in the court.
B. Any such payment shall be as valid and effectual in all respects as if made by
plaintiff directly to the person entitled thereto, or in the case of a person under legal
disability, as if made to his guardian, whether or not:
1. Such person or his whereabouts is known or unknown.
2. Such person is under a legal disability.
3. There are adverse or conflicting claims to such awards.
C. The money paid into court shall be secured in the manner directed by the court,
and shall be paid to the persons found entitled thereto as provided by the final judgment
of the court.
12-1159 Action to recover award paid to wrong person
If an award is paid to a person not entitled thereto, the sole recourse of the
person entitled to the award is against the person to whom it has been paid. In such
event the person entitled to the award may bring an action to recover the award, with
interest and costs, as money had and received to his use by the person to whom the award
was paid.
12-1160 Appeal; stay of proceedings; bond
A. Any time within thirty days from filing an interlocutory or final order or
judgment by the court, any person or persons of record in the action who have filed
exceptions at any stage of the action within the time and in the manner specified, may
appeal therefrom, but only with respect to those questions or issues which were raised by
the exceptions.
B. The taking of an appeal shall not operate to stay the action, except when the
person or persons appealing have obtained a stay of execution of the judgment or order
appealed from. In such event the proceedings shall be stayed only with respect to the
person or persons appealing and as to their respective interests in the action. Upon
taking an appeal, the action shall be deemed severed as to the person or persons
appealing and their respective interests in the action.
C. An interlocutory or final order or judgment shall be final and conclusive upon
all persons affected thereby who have not appealed within the time prescribed by this
section.
D. Any plaintiff, other than a corporation authorized to transact business in this
state, may appeal without giving bond, but any other person or persons appealing shall
give bond with good and sufficient surety to be approved by the court, conditioned that
the party appealing will pay all costs taxed against such party on the appeal.
12-1161 Costs
If plaintiff, prior to making the award, has tendered to an interested person for
his real property, or deposited in court for the property, an amount which the interested
person refused to accept or agree to as just compensation, all costs shall be assessed
against such person if the amount tendered or deposited is equal to or in excess of the
award fixed or confirmed by the court with respect to such parcel of real property.
12-1162 Supplemental nature of article; procedure
A. The powers conferred by this article shall be additional and supplemental to and
not in substitution for the power conferred by any other law. No other law pertaining to
eminent domain is repealed by this article in whole or in part. Eminent domain may be
exercised under this article even though another law may provide for the exercise thereof
for like purposes, and shall be operative without regard to the requirements,
restrictions or procedural provisions of any other law.
B. Procedure not prescribed in this article shall be the procedure otherwise
prescribed by law of the state.
12-1171 Acts which constitute forcible entry or detainer
A person is guilty of forcible entry and detainer, or of forcible detainer, as the
case may be, if he:
1. Makes an entry into any lands, tenements or other real property, except in cases
where entry is given by law.
2. Makes such an entry by force.
3. Wilfully and without force holds over any lands, tenements or other real
property after termination of the time for which such lands, tenements or other real
property were let to him or to the person under whom he claims, after demand made in
writing for the possession thereof by the person entitled to such possession.
12-1172 Definition of forcible entry
A "forcible entry," or an entry where entry is not given by law within the meaning
of this article, is:
1. An entry without the consent of the person having the actual possession.
2. As to a landlord, an entry upon the possession of his tenant at will or by
sufferance, whether with or without the tenant's consent.
12-1173.01 Additional definition of forcible detainer
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.
12-1173 Definition of forcible detainer; substitution of parties
There is a forcible detainer if:
1. A tenant at will or by sufferance or a tenant from month to month or a lesser
period whose tenancy has been terminated retains possession after his tenancy has been
terminated or after he receives written demand of possession by the landlord.
2. The tenant of a person who has made a forcible entry refuses for five days after
written demand to give possession to the person upon whose possession the forcible entry
was made.
3. A person who has made a forcible entry upon the possession of one who acquired
such possession by forcible entry refuses for five days after written demand to give
possession to the person upon whose possession the first forcible entry was made.
4. A person who has made a forcible entry upon the possession of a tenant for a
term refuses to deliver possession to the landlord for five days after written demand,
after the term expires. If the term expires while a writ of forcible entry applied for
by the tenant is pending, the landlord may, at his own cost and for his own benefit,
prosecute it in the name of the tenant.
12-1174 Immateriality of time possession obtained by tenant
It is not material whether a tenant received possession from his landlord or became
his tenant after obtaining possession.
12-1175 Complaint and answer; service and return
A. When a party aggrieved files a complaint of forcible entry or forcible detainer,
in writing and under oath, with the clerk of the superior court or a justice of the
peace, summons shall issue no later than the next judicial day.
B. The complaint shall contain a description of the premises of which possession is
claimed in sufficient detail to identify them and shall also state the facts which
entitle the plaintiff to possession and authorize the action.
C. The summons shall be served at least two days before the return day, and return
made thereof on the day assigned for trial.
12-1176 Demand for jury; trial procedure
A. The clerk or justice of the peace shall at the time of issuing the summons, if
requested by the plaintiff, issue a venire to the sheriff or constable of the county
commanding him to summon a jury of eight persons, if the proceeding is in the superior
court, and six persons, if in the justice court, qualified jurors of the county, to
appear on the day set for trial to serve as jurors in the action. The venire shall be
served and returned on the day assigned for trial. The trial date shall be no more than
five judicial days after the aggrieved party files the complaint.
B. If the plaintiff does not request a jury, the defendant may do so when he
appears, and the jury shall be summoned in the manner set forth in subsection A.
C. If any jurors fail to attend, or are excused after being challenged, the jury
shall be completed by causing other qualified jurors to be summoned immediately.
D. The action shall be docketed and tried as other civil actions.
12-1177 Trial and issue; postponement of trial
A. On the trial of an action of forcible entry or forcible detainer, the only issue
shall be the right of actual possession and the merits of title shall not be inquired
into.
B. If a jury is demanded, it shall return a verdict of guilty or not guilty of the
charge as stated in the complaint. If a jury is not demanded the action shall be tried
by the court.
C. For good cause shown, supported by affidavit, the trial may be postponed for a
time not to exceed three calendar days in a justice court or ten calendar days in the
superior court.
12-1178 Judgment; writ of restitution; limitation on issuance
A. If the defendant is found guilty, the court shall give judgment for the
plaintiff for restitution of the premises, for all charges stated in the rental agreement
and for damages, attorney fees, court and other costs and, at the plaintiff's option, for
all rent found to be due and unpaid through the periodic rental period, as described in
section 33-1314, subsection C, as provided for in the rental agreement, and shall grant a
writ of restitution. If the defendant's social security number is contained on the
complaint at the time of judgment, the person designated by the judge to prepare the
judgment shall ensure that the defendant's social security number is contained on the
judgment.
B. If the defendant is found not guilty, judgment shall be given for the defendant
against the plaintiff for damages, attorney fees, court and other costs, and if it
appears that the plaintiff has acquired possession of the premises since commencement of
the action, a writ of restitution shall issue in favor of the defendant.
C. No writ of restitution shall issue until the expiration of five calendar days
after the rendition of judgment. The writ of restitution shall be enforced as promptly
and expeditiously as possible. The issuance or enforcement of a writ of restitution
shall not be suspended, delayed, or otherwise affected by the filing of a motion to set
aside or vacate the judgment or similar motion unless a judge finds good cause.
12-1179 Appeal to superior court; notice; bond
A. Either party may appeal from a justice court to the superior court in the county
in which the judgment is given by giving notice as in other civil actions within five
calendar days after rendition of the judgment pursuant to this section. The appeal shall
be filed in accordance with this section, and the time to appeal shall not be extended or
otherwise affected by the filing of a motion to set aside or vacate the judgment or
similar motion.
B. A party seeking to appeal a judgment shall file with the notice of appeal a bond
for costs on appeal. The justice of the peace shall set the bond in an amount sufficient
to cover the costs on appeal. The bond shall be payable to the clerk of the justice
court. If a party is unable to file a bond for costs on appeal, the party shall file
with the justice court a notice of appeal along with an affidavit stating that the party
is unable to give bond for costs on appeal and the reasons therefor. Within five court
days after the filing of the affidavit, any other party may file, in the justice court,
objections to the affidavit. The justice of the peace shall hold a hearing on the
affidavit and objections within five court days thereafter. If the justice court
sustains the objections, the appellant shall file, within five court days thereafter, a
bond for costs on appeal as provided for in this section or in such lesser amount as
ordered by the justice court.
C. A party seeking to appeal a judgment may stay the execution of either the
judgment for possession or any judgment for money damages by filing a supersedeas
bond. The justice court shall hold a hearing on the motion within five court days after
the parties advise the justice court of their failure to stipulate on the amount of the
bond. The stay is effective when the supersedeas bond or bonds are filed.
D. The party seeking to stay the execution of the judgment for possession shall
file a supersedeas bond in the amount of rent accruing from the date of the judgment
until the next periodic rental date, together with costs and attorney fees, if any. The
tenant shall pay to the clerk of the justice court, on or before each periodic rental due
date during the pendency of the appeal, the amount of rent due under the terms of the
lease or rental agreement. Such amounts shall be made payable by the justice court to
the owner, landlord or agent as they accrue to satisfy the amount of periodic rent due
under the lease or rental agreement. In all cases where the rent due under the terms of
the lease or rental agreement is paid through the justice court as set forth in this
subsection, the order of the court may include a one-time handling fee in the amount of
ten dollars to be paid by the party seeking to stay the execution of the judgment for
possession. In no event shall the amounts paid per month exceed the amount of monthly
rent charged by the owner for the premises. If the tenant raises habitability as
provided for in sections 33-1324 and 33-1364 as an affirmative defense to the nonpayment
of rent or the tenant has filed a counterclaim asserting a habitability issue, the
justice court shall retain all money paid under this subsection pending a final judgment.
E. If during the pendency of the appeal the party seeking to stay the execution of
the judgment for possession fails to pay the rent on the periodic rental due date, the
party in whose favor a judgment for possession was issued may move the justice court to
lift the stay of the execution of the judgment for possession. The justice court shall
hear the motion to lift the stay of the execution of the judgment for possession and
release accrued monies, if any, within five court days from the failure of the party to
pay the periodic rent due under the terms of the lease or rental agreement. If the
judgment appealed from involves a finding of a material and irreparable breach pursuant
to section 33-1368 or section 33-1476, subsection D, paragraph 3 the justice court shall
treat it as an emergency matter and conduct a hearing on a motion to lift the stay of
execution of the writ of restitution within three days. If the third day is a Saturday,
Sunday or other legal holiday, the hearing shall be held on the next day thereafter.
F. The party seeking to stay the execution of the judgment for money damages shall
file a supersedeas bond in the amount of the judgment, together with costs and attorney
fees, if any. The amount of the bond shall be fixed by the court and payable to the
clerk of the justice court.
12-1180 Stay of proceedings on judgment; record on appeal
When the appeal bond is filed and approved, the justice of the peace shall stay
further proceedings on the judgment and immediately prepare a list of all entries on the
justice's docket in the action and transmit it, together with all the original papers, to
the clerk of the superior court of the county in which the trial was had.
12-1181 Trial and judgment on appeal; writ of restitution
A. On trial of the action in the superior court, appellee, if out of possession and
the right of possession is adjudged to him, shall be entitled to damages for withholding
possession of the premises during pendency of the appeal and the court shall also render
judgment in favor of appellee and against appellant and the sureties on his bond for
damages proved and costs.
B. The writ of restitution or execution shall be issued by the clerk of the
superior court and shall be executed by the sheriff or constable as in other actions.
12-1182 Appeal to supreme court; stay and bond
A. In a forcible entry or forcible detainer action originally commenced in the
superior court, an appeal may be taken to the supreme court as in other civil actions.
B. The appeal, if taken by the party in possession of the premises, shall not stay
execution of the judgment unless the superior court so orders, and appellant shall file a
bond in an amount fixed and approved by the court, conditioned that appellant will
prosecute the appeal to effect and will pay the rental value of the premises pending the
appeal and all damages, costs, and rent adjudged against him by the superior court or the
supreme court.
12-1183 Proceedings no bar to certain actions
The proceedings under a forcible entry or forcible detainer shall not bar an action
for trespass, damages, waste, rent or mesne profits.
12-1191 Notice of pendency of action affecting title to real property; filing; constructive notice to purchaser or encumbrancer; release of notice of pendency of action; failure to issue release; liability
A. In an action affecting title to real property, the plaintiff at the time of
filing the complaint, or thereafter, and the defendant at the time of filing the
defendant's pleading when affirmative relief is claimed in such pleading, or thereafter,
may file in the office of the recorder of the county in which the property is situated a
notice of the pendency of the action or defense. In any action to foreclose a mechanics'
or materialmen's lien pursuant to title 33, chapter 7, article 6, the lien claimant shall
file a notice of pendency of action as prescribed by section 33-998 within five days of
filing the action or raising the defense. The notice shall contain the names of the
parties, the object of the action or affirmative defense, the relief demanded and a
description of the property affected.
B. The recorder shall file the notice and record and index it in the names of the
parties to the action, and thereafter a purchaser or encumbrancer of the property
affected shall be held to have constructive notice of the pendency of the action and the
claims therein made except as prescribed in subsection D of this section.
C. If a notice of pendency of action has been recorded pursuant to this section and
the action is dismissed without prejudice for lack of prosecution, the plaintiff or
plaintiffs of the action, within thirty days after such dismissal, shall issue to the
defendant of the action a release of the notice of pendency of action. Such release shall
be in the form of a recordable document. Failure to grant such release shall subject the
person filing the notice of action or defense to liability in the amount of one thousand
dollars and also to liability for actual damages.
D. After the withdrawal or release of a notice of pendency of action or recordation
of a certified copy of an order expunging a notice of pendency of action and before the
recordation of a certified copy of the judgment or decree in the action, the following
apply:
1. The notice of pendency of action and any of the information derived from the
notice does not constitute actual or constructive notice of any of the matters contained
in the notice or any matters related to the action.
2. The notice of pendency of action and any of the information derived from the
notice does not create a duty of inquiry in any person dealing thereafter with the
affected property.
3. Except for a person who is a nonfictitious party to the action at the time of
recording the notice of withdrawal, the release of the notice of pendency of action or
the order expunging the notice of pendency of action, a person shall not be deemed to
have actual knowledge of the action, any of the matters contained in the notice or any
matters related to the action, if both of the following apply:
(a) That person for valuable consideration becomes a purchaser, transferee,
mortgagee or other encumbrancer of any interest in the real property that is subject to
the action.
(b) That person acquires that interest by a conveyance that is recorded after the
notice of withdrawal or release or order of expungement and before the recording of a
certified copy of a judgment or decree issued in the action.
4. A person described in paragraph 3 shall not be deemed to have notice of the
action or notice of any matters related to the action even if the person has actual
knowledge of the action or matter and regardless of when or how that knowledge was
acquired. 12-1201 Private way of necessity defined
"Private way of necessity" as used in this article means right of way on, over,
across, or through the land of another for means of ingress and egress, and the
construction and maintenance thereon of roads, overhead transmission lines, pole lines,
power lines, canals, ditches, flumes, shafts, tunnels, pipe lines, drains, including, but
not limited to, embankments, diversion dams, dikes, ditches, canals, flumes and levees
for the purpose of removing water from land or preventing accumulation of water on land,
and tramways, including, but not limited to, aerial tramways and industrial railroads,
for mining, milling, lumbering, agricultural, domestic or sanitary purposes.
12-1202 Right to private way of necessity; limitation
A. An owner of or a person entitled to the beneficial use of land, mines or mining
claims and structures thereon, which is so situated with respect to the land of another
that it is necessary for its proper use and enjoyment to have and maintain a private way
of necessity over, across, through, and on the premises, may condemn and take lands of
another, sufficient in area for the construction and maintenance of the private way of
necessity.
B. If the condemnation is upon, over, or affects the range lands of another, the
area condemned shall be strictly defined, and livestock driven upon or over the private
way shall be accompanied by and under the control of sufficient drivers or herders to
confine the livestock to the condemned area, and the livestock shall be so confined to
that area and kept moving directly across the property condemned until they have been
completely removed from the condemned area.
12-1203 Violation; classification
A person violating the provisions of section 12-1202 is guilty of a petty offense
and shall be liable to the injured person for any damages incurred.
12-1211 Compelling partition; complaint
A. The owner or claimant of real property or any interest therein may compel a
partition of the property between him and other owners or claimants by filing a complaint
in the superior court of the county in which the property, or a portion thereof, is
situated.
B. The complaint shall state:
1. The names and residences, if known, of each of the owners or claimants.
2. The share or interest which plaintiff and the owners or claimants own or claim,
so far as known to plaintiff.
3. A description of the real property to identify it and its estimated value.
12-1212 Unknown owner; notice and service by publication; protection of rights in decree
A. If plaintiff makes affidavit that an undivided portion of the land described in
the complaint is owned by some person unknown to affiant, a summons shall be issued to
the unknown owner. The summons shall contain a brief statement of the nature of the
action and a description of the interest of the unknown owner, and shall command him to
appear and answer as in ordinary cases.
B. The summons shall be served by publication in some newspaper in the county where
the summons issues, if a newspaper is published in the county. If no newspaper is
published in the county, publication shall be made in the nearest county in which a
newspaper is published, for four successive weeks.
C. If no appearance is entered within the time set forth in the summons, the court
shall proceed as in other cases where service is made by publication.
D. The court shall in its decree protect the rights of the unknown owner.
12-1213 Hearing and issues
Upon the hearing the court shall determine the share or interest in the property
sought to be divided of each of the owners or claimants, and all questions affecting the
title thereto, or any part thereof.
12-1214 Abstract of title; inspection; cost
A. If it is necessary to have an abstract of title of the property to be
partitioned, plaintiff may procure one before commencing the action and may in his
complaint state that he has done so and that the abstract is subject to inspection and
use of all parties to the action, and designate a place where it will be kept for
inspection. Otherwise the court may, upon application of any one of the parties,
authorize such party to procure an abstract which when made shall be kept at some place
designated by the court for inspection and use of all parties, any of whom may make a
copy thereof.
B. The expense reasonably incurred in procuring an abstract shall be allowed to the
party incurring it, with interest.
12-1215 Entry and contents of judgment; appointment of commissioners; surveyor
A. The court shall enter a judgment directing that partition of the real property
be made in accordance with the shares or interests of the parties entitled thereto and
specifying the share or interest of each party.
B. The court shall appoint three or more disinterested persons commissioners to
make the partition in accordance with the judgment. The clerk of the court shall
forthwith notify the commissioners of their appointment, and shall deliver to one of them
a certified copy of the judgment of partition.
C. The court may also appoint a surveyor to assist the commissioners in making the
partition.
12-1216 Duties of commissioners
The commissioners or a majority of them shall partition the property in accordance
with the judgment. They may cause the property to be surveyed into several tracts. They
shall divide the property into as many shares as there are persons entitled thereto, each
share to contain one or more tracts as the commissioners deem proper, having due regard
in the division to the situation, quantity and advantages of each share so that the
shares are equal in value as nearly as possible, in proportion to the interests of the
parties. The commissioners shall then proceed by lot and set apart to each of the
parties entitled one of the shares as determined by the judgment of the court.
12-1217 Report of commissioners
A. When the partition is completed, the commissioners shall report in writing and
under oath to the court. The report shall set forth:
1. A description of the real property divided.
2. The several tracts or parcels into which the real property was divided by them,
describing particularly each of such tracts or parcels.
3. The number of shares, the land which constitutes each share, and the estimated
value of each share.
4. The allotment of each share.
B. The report shall be accompanied by such field notes and maps as are necessary to
make it intelligible.
12-1218 Report of commissioners when property incapable of fair division; sale; distribution of proceeds
A. If the commissioners are of the opinion that fair and equitable division of the
property or any part thereof cannot be made, they shall report such opinion to the court,
stating their reasons therefor, and if the court approves such report, it shall order a
sale of the property which is incapable of partition.
B. If on the trial of the action, it appears to the court that fair partition of
the property cannot be made without depreciating the value thereof, or that for any
reason a sale is more beneficial to the parties or any of them, it shall in the first
instance, enter a judgment directing that the real property be sold.
C. The court shall appoint a commissioner to make the sale provided by subsection B
and return the proceeds into court to be divided between the persons entitled thereto
according to their respective interests. Such commissioner shall sell the real property
in the time and manner, and after notice, as directed by the court.
D. The purchaser shall, on production of his deed, be entitled to a writ of
assistance to be issued by the clerk, commanding the sheriff or a constable of the county
to put him in possession.
12-1219 Objection to commissioner's report; hearing
Any party may file objections to any report of the commissioners in partition, and a
hearing of the objections shall be had as in other cases. If the report is found
erroneous in a material respect, or unequal and unjust, it shall be rejected and other
commissioners shall be appointed by the court and the same proceedings had as in the
first instance.
12-1220 Partition involving future estates; title of property after partition
A. When a partition is made between an owner who holds an estate for a term of
years or for life with others who hold equal or greater estates, the partition shall not
be prejudicial to those entitled to the reversion or remainder of such estates.
B. Each party to whom a share is allotted shall hold the share in severalty under
the same conditions and covenants that it was held before partition was made, and no
warranty, lease or right whatsoever shall be impaired or affected by the partition.
12-1221 Effect of judgment confirming report of commissioners
The judgment of the court which confirms the report of partition shall vest in each
party to whom a share is allotted the title to such share as against the other parties to
the partition, their heirs, executors, administrators or assigns, as fully and
effectually as the deed of the parties could vest the property and shall have the same
force and effect as a warranty deed of conveyance from such other parties and each of
them.
12-1222 Partition of personal property; parties
Part owners of personal property may be compelled to make partition between them by
an action for partition commenced in the court having jurisdiction of the value of such
property in the same manner as other civil actions are commenced. The several owners or
claimants of such property shall be summoned as in other actions of partition. The
separate value of each article of the personal property shall be ascertained and an
allotment in kind made to each owner as he is entitled.
12-1223 Writ of possession or sale of personal property
A. When a partition in kind of personal property is ordered, a writ shall be issued
in accordance with the judgment, commanding the sheriff or a constable of the county
where the property is located to put the parties forthwith in possession of the property
allotted.
B. When the property will not admit of an equitable partition, the court shall
ascertain the proportion to which each owner is entitled and shall order that the
property be sold. An execution shall be issued to the sheriff or constable of the county
where the property is located, describing the property and commanding the officer to sell
it as in cases of execution and pay over the proceeds of sale to the parties entitled
thereto in the proportion ascertained by judgment of the court.
12-1224 Proceedings not exclusive; rules of procedure
A. The provisions of this article shall not preclude partition in any other manner
authorized by law.
B. The rules of pleading and procedure which govern other civil actions shall
govern actions for partition when not in conflict with the proceedings provided by this
article.
12-1225 Compensation of commissioners and surveyor
A. The commissioners in partition and the surveyor shall be paid such sum per day
for each day they are engaged in making and returning the partition as the court deems
reasonable, considering the services rendered, and the compensation allowed shall be
taxed and collected as costs of the action.
B. The court shall adjudge the costs to be paid by each party to whom a share has
been allotted in proportion to the value of such share.
12-1241 Power of superior court to appoint receiver
The superior court or a judge thereof may appoint a receiver to protect and preserve
property or the rights of parties therein, even if the action includes no other claim for
relief.
12-1242 Application for appointment of receiver; verification; service; notice of hearing; restraining order pending hearing
An application for the appointment of a receiver shall be in writing, supported by
affidavit and served upon the adverse party, together with reasonable notice of the time
of hearing. The adverse party may file counteraffidavits, and the counteraffidavits,
with such testimony as the court admits, shall be considered on hearing the
application. The court may restrain the adverse party from removing, secreting or
otherwise disposing of the property to the injury of the applicant, pending hearing the
application for appointment of a receiver.
12-1251 Right of recovery; procedure
A. A person having a valid subsisting interest in real property and a right to
immediate possession thereof may recover the property by action against any person acting
as owner, landlord or tenant of the property claimed.
B. The action shall be commenced and prosecuted as other civil actions.
C. The heirs or devisees may themselves, or jointly with the personal
representative, maintain an action for possession of the real property, or to quiet title
thereto against any person except the personal representative.
D. An action involving title or right to possession of real property belonging to
the estate of decedent may be brought by or against the personal representative without
joining the heirs.
12-1252 Title of plaintiff; joint owners; proof
A. The plaintiff must recover on the strength of his own title.
B. In an action by a tenant in common or joint tenant against his cotenant,
plaintiff shall show, in addition to his evidence of right, that the defendant either
denied plaintiff's right or did some act amounting to such denial.
12-1253 Defendant as tenant; substitution of landlord; notice of action
A. If upon answer of defendant it appears that defendant claims only as a tenant,
the answer shall also state the name and residence of the landlord. In such case, the
landlord may be substituted by service of summons upon him and the judgment shall also be
conclusive against the tenant.
B. A person acquiring title to land or an interest therein after commencement of
the action shall take subject to notice of and without prejudice to the rights of the
parties providing notice of lis pendens is filed in the manner and at the time provided
for in section 12-1191.
12-1254 Survey; order; service of order
The court on motion and after notice to the opposite party may grant an order
allowing the party applying therefor to enter upon the land in controversy and make a
survey for purposes of the action. The order shall describe the property, and a copy of
the order shall be served upon the owner or person in occupancy.
12-1255 Verdict
A. The verdict may specify the extent and quantity of plaintiff's estate and the
premises to which he is entitled by metes and bounds or other sufficient description.
B. A general verdict in favor of plaintiff without specifications entitles
plaintiff to the quantity of interest or estate in the premises as set forth and
described in the complaint.
12-1256 Damages; limitation; set-off
A. If the interest of plaintiff expires before the time in which he may be put in
possession, he shall obtain judgment for damages only.
B. The plaintiff shall not recover for the use and occupation of the premises for
more than five years prior to commencement of the action.
C. When plaintiff is entitled to damages for withholding, using or injuring the
property, defendant may set off the value of permanent improvements made thereon to the
extent of the damages.
12-1257 Liability of tenant
A tenant in possession in good faith, under a lease or license from another, is not
liable beyond the rent in arrears at the time the action is brought, and that which
afterward accrues during continuance of his possession.
12-1258 Allegation of growing crops; stay of execution; bond and conditions
If defendant alleges that he has a crop sowed, planted or growing on the premises,
the judge or jury, finding for plaintiff, and also finding that fact, shall further find
the value of the premises from the date of the trial until February 1 next
succeeding. No execution for possession shall be issued until that time if the defendant
executes, with surety to be approved by the clerk of the court, a bond in double such
amount to plaintiff, conditioned to pay at such date the sum so assessed, and if not paid
at maturity the court shall enter judgment upon the bond.
12-1259 Judgment for plaintiff for rental value from time of judgment to delivery of possession
A. When plaintiff shows himself entitled to immediate possession of the premises,
judgment shall be entered accordingly.
B. The plaintiff may also, on motion and ten days notice in writing, have judgment
for the rent or rental value of the premises which accrues after judgment and before
delivery of possession, unless judgment is stayed on appeal and bond given to suspend the
judgment, in which event the motion may be made after affirmance of the judgment.
12-1271 Action to recover rent or to recover for use of real property
A person entitled thereto may bring an action for and recover rent, or a fair and
reasonable satisfaction for the use and occupation of real property in the following
cases:
1. When rent is due and in arrears on a lease.
2. When lands are held and occupied without a special agreement for rent, or when a
tenant remains in possession after termination of his right of possession.
3. When possession is obtained under a written or oral agreement for the purchase
of premises, and before deed is given, the right to possession is terminated by
forfeiture or in compliance with the agreement, and possession is wrongfully refused or
neglected to be given on demand made by the party entitled thereto.
4. When land is sold under a judgment of court and deed is issued, if the party to
such judgment or a person under him wrongfully refuses or neglects to surrender
possession of the land after demand by the person entitled to possession.
12-1281 Parties entitled to redeem property
Property sold subject to redemption, or any part sold separately, may be redeemed by
the following persons or their successors in interest:
1. The judgment debtor or his successor in interest in the whole or any part of the
property.
2. A creditor having a lien by judgment or mortgage on the property sold, or on
some share or part thereof, subsequent to that on which the property was sold.
12-1282 Time for redemption
A. The judgment debtor or his successors in interest may redeem at any time within
thirty days after the date of the sale if the court determined as part of the judgment
under which the sale was made that the property was both abandoned and not used primarily
for agricultural or grazing purposes.
B. The judgment debtor or his successor in interest may redeem at any time within
six months after the date of the sale except when the court has made the determinations
as provided in subsection A.
C. If the redemption as provided in subsection A or B is not made, the senior
creditor having a lien, legal or equitable, upon the premises sold, or any part thereof,
subsequent to the judgment under which the sale was made, may redeem within five days
after expiration of the applicable period provided in subsection A or B, and each
subsequent creditor having a lien in succession, according to priority of liens, within
five days after the time allowed the prior lienholder, respectively, may redeem by paying
the amount for which the property was sold and all liens prior to his own held by the
person from whom redemption is made, together with the eight per cent added to the amount
as provided in section 12-1285.
12-1283 Redemption upon foreclosure
A. In sales upon foreclosure of mortgages or other liens the same periods of
redemption as provided in section 12-1282 shall be allowed.
B. If no redemption is made by the mortgagor or his successor in interest,
creditors having liens upon the premises sold or any part thereof subsequent to the lien
so foreclosed may redeem within the times and in the order and manner specified in
section 12-1282.
12-1284 Notice of redemption by subsequent lienholder
To entitle a subsequent lienholder to redeem he shall, within the applicable period
of redemption as provided in section 12-1282, file with the county recorder of the county
in which the sale is made a notice in writing stating that he intends to redeem and
specifying his lien and the amount thereof and its order of priority, and shall deliver a
copy thereof to the sheriff of the county.
12-1285 Amounts payable upon redemption
A. In redeeming property the judgment debtor shall pay the amount of the purchase
price with eight per cent added thereto, together with the amount of any assessments or
taxes which the purchaser has lawfully paid thereon after purchase, and interest on such
amount.
B. Each subsequent redemptioner shall pay the aggregate of such amounts plus the
amount of the lien thereon of the ones who may have redeemed the property
theretofore. If the purchaser is also a creditor having a prior lien to that of the
redemptioner, other than the judgment lien, the redemptioner shall pay, in addition, the
amount of such creditor's lien with interest. The payments may be made to the officer
who made the sale.
12-1286 Execution and delivery of deed by sheriff
At the expiration of all the applicable periods of redemption as provided in section
12-1282, and not sooner, the sheriff shall execute and deliver a deed to the property
sold to the purchaser at the sale, or in case redemption is made by a redemptioner, then
to the last redemptioner redeeming the property.
12-1287 Delivery and service of papers by redeeming creditor
A. A redeeming creditor shall deliver to the officer or person from whom he seeks
to redeem and serve with his notice to the sheriff:
1. A copy of the docket of the judgment under which he claims the right to redeem,
certified by the clerk of the court where the judgment is docketed, or if he redeems a
mortgage or other lien, a copy of the record thereof, certified by the recorder.
2. A copy of any assignment necessary to establish his claim verified by the
affidavit of himself or a subscribing witness thereto.
3. An affidavit showing the amount actually due on the lien.
B. Service of the papers specified in subsection A shall be made upon the party
from whom the redemption is sought as service of summons is made in civil actions.
12-1288 Right to rents and profits; accounting and action
A. The purchaser, from the time of the sale until redemption, and a creditor from
the time of his redemption until another redemption, is entitled to receive from the
tenant in possession the rents of the property sold or the value of the use and
occupation thereof. When the rents or profits have been received by the purchaser or
prior redemptioner, preceding redemption, the amount thereof shall be a credit upon the
redemption money to be paid.
B. If the redemptioner or judgment debtor, before expiration of the time allowed
for redemption, demands, in writing, of the purchaser or prior redemptioner a written and
certified statement of the amounts of the rents and profits thus received, the period for
redemption is extended five days after the sworn statement is given.
C. If the purchaser or prior redemptioner, for a period of one month after demand
fails or refuses to give the statement as provided in subsection B, the redemptioner or
debtor may bring an action to compel an accounting and disclosure of the rents and
profits, and the right of redemption is extended until fifteen days from and after the
final determination of the action.
12-1289 Restraint of waste during redemption period; acts not constituting waste
A. Until expiration of the time allowed for redemption, the court may with or
without notice, on application of the purchaser or the judgment creditor, restrain the
commission of waste on the property.
B. It is not waste:
1. For the person in possession of the property at the time of sale or entitled to
possession afterward, during the period allowed for redemption to continue to use it in
the same manner in which it was previously used.
2. For the person in possession of the property, while he occupies the property to
make necessary repairs on the buildings thereon and to use wood and timber on the
property for such repairs or for fuel for domestic purposes.
12-1301 Affidavit to obtain possession
If a plaintiff claims in his complaint the possession of specific personal property,
he may at any time after complying with the provisions of chapter 14 of this title and
before rendition of judgment file an affidavit showing:
1. That he is the owner of the property claimed, sufficiently describing it, or is
lawfully entitled to its possession.
2. That the property is wrongfully detained by the defendant.
3. The actual value of the property and that it has not been seized under any
process, execution, or attachment against the property of the plaintiff, or, if so
seized, that it is by statute exempt from such seizure.
12-1302 Order for taking property
After the provisions of chapter 14 of this title are complied with and upon filing
of the affidavit prescribed in section 12-1301, the superior court judge or justice of
the peace shall make an order requiring the sheriff, or if in a justice court the
constable, to take the property specified in the affidavit from the defendant and deliver
it to the plaintiff.
12-1303 Bond; amount and conditions
The officer shall not take the property until plaintiff executes and delivers to him
a bond payable to the defendant, in an amount not less than double the value of the
property as stated in the affidavit, conditioned that plaintiff will prosecute the action
to effect and without delay, and for the return of the property to defendant if return
thereof is adjudged, and in default of such delivery that plaintiff will pay the assessed
value of the property and all damages for its taking and detention, and costs in the
action, including reasonable attorney's fees.
12-1304 Execution of order for delivery to claimant; redelivery bond
The officer, after delivery to him of the bond provided in section 12-1303, shall
take the property and deliver it to plaintiff unless the defendant, within two days after
the taking, executes and delivers to the officer a bond payable to plaintiff in an amount
not less than double the value of the property as stated in the affidavit of plaintiff,
conditioned that defendant will deliver such property to plaintiff if delivery is
adjudged, and in default of delivery will pay the assessed value of the property and all
damage for injuries to the property and for its taking or detention, and costs in the
action and reasonable attorney's fees.
12-1305 Filing of bonds
The bonds taken by the officer relating to the claim and delivery of personal
property shall be filed with the clerk within five days next after they are taken, and
with a justice of the peace in three days.
12-1306 Defect in bond; retaking of property
If it appears to the court at any time before trial that either of the bonds is not
good and sufficient, it shall order the party to give a new bond with good and sufficient
sureties within such time as the court directs. Upon failure of the party to comply with
the order, the court shall order that the officer retake the property and deliver it to
the other party, and the action shall then proceed as if such bond had not been filed.
12-1307 Verdicts in actions to recover specific personal property
In an action for the recovery of specific personal property, if the property has not
been delivered to the plaintiff, or if the defendant by his answer claims a return
thereof, the jury, if its verdict is in favor of the plaintiff, or if its verdict is in
favor of the defendant and it also finds that defendant is entitled to have the property
returned to him, it shall determine the value of the property and may at the same time
assess the damages, if any are claimed in the complaint or answer, which the prevailing
party has sustained by reason of the taking or detention of such property.
12-1308 Finding for defendant; judgment; election to take value or property
A. If the defendant alleges that he is the owner of the property, is entitled to
its possession and demands its return, and if on the trial it is found that he is its
owner and that he was at the time the action was brought entitled to its possession, then
on the trial the value of the property replevied shall be found, together with any damage
the defendant has suffered for the wrongful seizure of the property, and judgment shall
be against the plaintiff claimant and the sureties on the replevin bond for the value of
the property, the damages and costs of the action and reasonable attorney's fees. The
judgment shall also be for the return of the property to the adverse party at a time and
place specified.
B. The defendant shall elect whether he will take the property itself or the amount
found as the value of the property. The election shall be made in order to permit the
plaintiff a reasonable time before the time specified in the judgment for delivery of the
property. The election may be made in open court, or by an instrument in writing filed
in the action.
12-1309 Finding for defendant; property not in possession of plaintiff; judgment
If at the time of trial the plaintiff is not in possession of the property, or it is
not under his control, and the finding is for the defendant, then the alternative
judgment shall not be given but only judgment for the value of the property, the damages
suffered by its seizure, costs in the action and reasonable attorney's fees. The
judgment shall be against the plaintiff and the sureties on his bond.
12-1310 Finding for plaintiff; property in possession of defendant; election to take value or property
If judgment is against the defendant and at the time thereof he is in possession of
the property by reason of the redelivery bond, the judgment shall be against the
defendant and the sureties on his bond for the value of the property, the damages for its
detention and costs, and for the return of the property to the plaintiff at a time and
place therein named, and upon the same terms and conditions the plaintiff shall be given
the same election as is given heretofore in this article to a prevailing defendant.
12-1311 Failure to deliver property; election by prevailing party
If the party adjudged to return the property fails so to do at the time and place
adjudged, unless by the election he is allowed to retain it, then the party in default
shall be adjudged in contempt of the court and shall continue in contempt until he
delivers the property as adjudged if the property is in his possession or under his
control. The party entitled to the property may at his option abandon the property and
collect the assessed value thereof.
12-1312 Vesting of title to property
When the party elects to take the money judgment, the title, by reason of the
election, shall at once vest in the other party to the extent of the interest, claim and
title of the party electing to take the money judgment.
12-1313 Exoneration and liability of officer on bonds
A. After execution of any bond taken by virtue of this article, the parties to the
action shall be barred from any right of action against the officer for seizure and
delivery of the property.
B. If the officer fails to take or return a bond as required by law, or if the bond
taken is adjudged insufficient after it is taken and is not made sufficient, he and his
sureties shall be liable to the party injured for all damages sustained by the injured
party.
12-1314 Execution issuable for delivery of property; procedure
A. An execution may issue for the delivery of personal property to the sheriff or
any constable of the county where the property is located and shall require him to
deliver possession of the property, sufficiently describing it, to the party entitled
thereto.
B. The execution shall be governed by the rules governing execution in ordinary
cases so far as they are applicable.
12-1331 Claim of property levied upon; bond
A. When a sheriff or other officer levies a writ of execution, attachment, replevin
or similar writ upon personal property and such property or any part thereof is claimed
by a person who is not a party to the writ, such person may present a written claim
thereto, under oath, to the officer who made the levy, stating that the claim is made in
good faith.
B. A person presenting a written claim as provided in subsection A shall also
execute and deliver to the officer a bond to be approved by the officer, payable to the
plaintiff in the writ, for an amount equal to double the value of the property so
claimed, the value to be assessed by the officer.
12-1332 Conditions of bond
The bond shall be conditioned that if the person making the claim fails to establish
his right to the property, he will return it to the officer in as good condition as he
received it and will pay the reasonable value of the use, hire, increase and profits
thereof from the date of the bond, or, if he fails so to return the property and pay for
its use, he will pay the plaintiff in the writ the value of the property with legal
interest thereon from the date of the bond and will also pay all damages and costs that
are awarded against him.
12-1333 Delivery of property to claimant; return of claim and bond
A. The officer receiving the claim and bond shall deliver the property so claimed
to the person claiming it.
B. If the writ under which the levy is made is issued by a justice of the peace or
court of the county where the levy is made, the officer shall endorse on the writ that
the claim has been made and bond given, stating by whom, and shall endorse on the bond
the value of the property as assessed by him and forthwith return the claim and bond to
the justice or court having jurisdiction to try the claim.
C. If the writ is issued by a justice of the peace or court of a county other than
that in which the levy is made, the officer shall endorse on the bond the value of the
property as assessed by him, and forthwith return the claim and bond, with a copy of the
writ, to the justice or court of the county in which the levy is made having jurisdiction
according to the value of the property as assessed by the officer.
12-1334 Endorsement on writ and return
The officer taking the bond shall endorse on the original writ that the claim has
been made and bond given, stating by whom, the names of the sureties and to what justice
or court the bond has been returned, and he shall forthwith return the original writ to
the justice or court from which it issued.
12-1335 Jurisdiction of trial; docketing of action
A. When the assessed value of the property does not exceed two hundred dollars, the
writ shall be returned to a justice of the peace for trial. When the assessed value is
more than two hundred dollars the claim and bond shall be returned for trial to the
superior court having jurisdiction of the claim.
B. When the claim and bond are returned, the clerk of the court or justice of the
peace shall docket them in the name of the plaintiff in the writ as plaintiff, and the
claimant of the property as defendant.
12-1336 Direction of issue
Within twenty days after docketing the matter, the court shall direct that an issue
be made up in writing between the parties and tried as in other cases. The issue shall
consist of a brief statement of the authority and right by which plaintiff seeks to
subject the property levied on to his execution and of the nature of the claim of
defendant thereto.
12-1337 Judgment by default
A. If plaintiff appears and defendant fails to appear or neglects or refuses to
join issue within such time as the court prescribes, plaintiff shall be given judgment by
default.
B. If defendant appears and plaintiff fails to appear or neglects or refuses to
tender issues within such time as the court prescribes, defendant shall be given judgment
by default.
12-1338 Trial and burden of proof
A. The proceedings on the trial shall be as in other cases before such courts, as
nearly as practicable.
B. If the property was taken from possession of the claimant, the burden of proof
shall be on plaintiff. If it was taken from possession of defendant in the writ or any
other person than claimant the burden of proof shall be on claimant.
12-1339 Judgment; limitation on time for issuance of execution
A. If claimant fails to establish his right, judgment shall be given against him
and his sureties for the value of the property, with legal interest thereon from the date
of the bond and for ten per cent damages. When the value is greater than the amount
claimed under the writ by virtue of which the property was levied upon, the damages shall
be on the amount due under the writ.
B. On such judgment no execution shall issue for ten days.
12-1340 Satisfaction of judgment by claimant
If within ten days from the giving of judgment against claimant, he returns the
property in as good condition as he received it, and pays interest, damages and costs,
such delivery and payment shall operate as satisfaction of the judgment.
12-1341 Release of officer; other levies
A. A claim made to property under this article shall operate as a release of all
damages by claimant against the officer who levied upon the property.
B. Proceedings for the trial of the right of property shall not prevent plaintiff
in the writ from having a levy made upon other property of defendant in the writ.
12-1361 Definitions
In this article, unless the context otherwise requires:
1. "Association" means either of the following:
(a) The unit owners' association organized under section 33-1241.
(b) A nonprofit corporation or unincorporated association of owners created
pursuant to a declaration to own and operate portions of a planned community and which
has the power under the declaration to assess association members to pay the costs and
expenses incurred in the performance of the association's obligations under the
declaration.
2. "Community documents" means the declaration, bylaws, articles of incorporation,
if any, and rules, if any.
3. "Dwelling" means a single or multifamily unit designed for residential use and
common areas and improvements that are owned or maintained by an association or by
members of an association. A dwelling includes the systems, other components and
improvements that are part of a single or multifamily unit at the time of construction.
4. "Dwelling action" means any action brought by a purchaser against the seller of
a dwelling arising out of or related to the design, construction, condition or sale of
the dwelling.
5. "Multiunit dwelling action" means a dwelling action brought by an association or
by or on behalf of the owners of five or more individual dwelling units.
6. "Purchaser" means any person or entity who files a dwelling action.
7. "Seller" means any person, firm, partnership, corporation, association or other
organization that is engaged in the business of designing, constructing or selling
dwellings, including a person, firm, partnership, corporation, association or
organization licensed pursuant to title 32, chapter 20.
12-1362 Dwelling action; jurisdictional prerequisite; insurance A. Except with respect to claims for alleged defects involving an immediate threat to the life or safety of persons occupying or visiting the dwelling, a purchaser must first comply with this article before filing a dwelling action. B. If a seller presents a notice received pursuant to section 12-1363 to an insurer that has issued an insurance policy to the seller that covers the seller's liability arising out of the design, construction or sale of the property that is the subject of the notice, the insurer must treat the notice as a notice of a claim subject to the terms and conditions of the policy of insurance. An insurer is obliged to work cooperatively and in good faith with the insured seller within the timeframes specified in this article to effectuate the purpose of this article. Nothing in this subsection otherwise affects the coverage available under the policy of insurance or creates a cause of action against an insurer whose actions were reasonable under the circumstances, notwithstanding its inability to comply with the timeframes specified in section 12-1363. 12-1363 Notice and opportunity to repair
A. At least ninety days before filing a dwelling action, the purchaser shall give
written notice by certified mail, return receipt requested, to the seller specifying in
reasonable detail the basis of the dwelling action. The notice in a multiunit dwelling
action involving alleged defects that are substantially similar in multiple residential
units may comply with this section by providing a reasonably detailed description of the
alleged defects in a fair and representative sample of the affected residential units.
B. After receipt of the notice described in subsection A of this section, the
seller may inspect the dwelling to determine the nature and cause of the alleged defects
and the nature and extent of any repairs or replacements necessary to remedy the alleged
defects. The purchaser shall ensure that the dwelling is made available for inspection no
later than ten days after the purchaser receives the seller's request for an
inspection. The seller shall provide reasonable notice to the purchaser before
conducting the inspection. The inspection shall be conducted at a reasonable time. The
seller may use reasonable measures, including testing, to determine the nature and cause
of the alleged defects and the nature and extent of any repairs or replacements necessary
to remedy the alleged defects. If the seller conducts testing pursuant to this
subsection, the seller shall restore the dwelling to its condition before the testing.
C. Within sixty days after receipt of the notice described in subsection A of this
section, the seller shall send to the purchaser a good faith written response to the
purchaser's notice by certified mail, return receipt requested. The response may include
an offer to repair or replace any alleged defects, to have the alleged defects repaired
or replaced at the seller's expense or to provide monetary compensation to the purchaser.
The offer shall describe in reasonable detail all repairs or replacements that the seller
is offering to make or provide to the dwelling and a reasonable estimate of the date by
which the repairs or replacements will be made or monetary compensation will be provided.
D. If the seller does not provide a written response to the purchaser's notice
within sixty days, the purchaser may file a dwelling action without waiting for the
expiration of ninety days as required by subsection A of this section.
E. Within twenty days after receipt of the seller's offer made pursuant to
subsection C of this section, the purchaser shall provide a good faith written response.
A purchaser who accepts the seller's offer made pursuant to subsection C of this section
shall do so in writing by certified mail, return receipt requested. A purchaser who
rejects the seller's offer made pursuant to subsection C of this section shall respond to
the seller in writing by certified mail, return receipt requested. If the seller provides
a specific factual basis for the offer, the response shall include the specific factual
basis for the purchaser's rejection of the seller's offer and the purchaser's
counteroffer, if any. Within ten days after receipt of the purchaser's response, the
seller may make a best and final offer to the purchaser in writing by certified mail,
return receipt requested.
F. The following are not admissible in any dwelling action:
1. A purchaser's good faith notice given to the seller pursuant to subsection A of
this section.
2. A seller's good faith response or offer made pursuant to subsection C of this
section.
3. A purchaser's good faith response made to a seller's offer pursuant to
subsection E of this section.
4. A purchaser's good faith counteroffer to a seller's offer made pursuant to
subsection E of this section.
5. A seller's good faith best and final offer made pursuant to subsection E of this
section.
G. A purchaser may amend the notice provided pursuant to subsection A of this
section to include alleged defects identified in good faith after submission of the
original notice during the ninety day notice period. The seller shall have a reasonable
period of time to conduct an inspection, if requested, and thereafter the parties shall
comply with the requirements of subsections B, C and E of this section for the additional
alleged defects.
H. A purchaser's written notice made pursuant to subsection A of this section or an
amended notice made pursuant to subsection G of this section tolls the applicable statute
of limitations, including section 12-552, until ninety days after the seller receives the
notice or for a reasonable period agreed to in writing by the purchaser and seller.
I. Subject to ARIZONA rules of court, during the pendency of a dwelling action the
purchaser may supplement the list of alleged defects to include additional alleged
defects identified in good faith after filing of the original dwelling action. The court
shall provide the seller a reasonable amount of time to inspect the dwelling to determine
the nature and cause of the additional alleged defects and the nature and extent of any
repairs or replacements necessary to remedy the additional alleged defects. The parties
shall comply with the requirements of subsections B, C and E of this section for the
additional alleged defects.
J. The service of an amended notice of alleged defects during the pendency of a
dwelling action shall relate back to the original notice of alleged defects for the
purpose of tolling applicable statutes of limitations, including section 12-552.
K. By written agreement of the seller and purchaser, the time periods provided in
this section may be extended.
L. For the sale of a dwelling that occurs within the statutory period set forth in
section 12-552, the escrow agent, as defined in section 6-801, shall provide notice to
the purchaser of the provisions of this section and sections 12-1361 and
12-1362. Nothing in this subsection creates a fiduciary duty or provides any person or
entity with a private right or cause of action or administrative action.
12-1364 Dwelling action; attorney fees, costs and expert witness fees
In any contested dwelling action, the court shall award the successful party
reasonable attorney fees, reasonable expert witness fees and taxable costs. If the
seller's offer, including any best and final offer, is rejected and the judgment finally
obtained is less than or less favorable to the purchaser than the offer or best and final
offer, the seller is deemed to be the successful party from the date of the offer or best
and final offer. If the judgment finally obtained is more favorable to the purchaser than
the seller's offer or best and final offer, the purchaser is deemed to be the successful
party from the date of the offer or best and final offer. This section shall not be
construed as altering, prohibiting or restricting present or future contracts or statutes
that may provide for attorney fees.
12-1365 Notification; right to file a complaint with the registrar of contractors A. A written contract for the sale of a newly constructed dwelling between a buyer of a newly constructed dwelling and the seller responsible for the original construction of the dwelling shall contain, or provide separate notice of, the following provision: Under ARIZONA Revised Statutes section 32-1155, a buyer of a dwelling has the right to file a written complaint against the homebuilder with the ARIZONA registrar of contractors within two years of the commission of an act in violation of ARIZONA Revised Statutes section 32-1154, subsection A. B. The notice required in subsection A of this section shall be prominently displayed and appear in at least ten point bold type. C. The buyer of the dwelling is not deemed to have received the notice required pursuant to subsection A of this section, unless the buyer initials the notice provision. 12-1366 Applicability; claims and actions
A. This article does not apply:
1. If a contract for the sale of a dwelling or an association's community documents
contain commercially reasonable alternative dispute resolution procedures. If the
contract for the sale of a dwelling contains the procedures, the procedures shall
conspicuously appear in the contract in bold and capital letters. If the contract for
sale of a dwelling contains the procedures, a disclosure statement in at least twelve
point font, bold and capital letters shall appear on the face of the contract and shall
describe the location of the alternative dispute resolution procedures within the
contract.
2. To personal injury claims.
3. To death claims.
4. To claims for damage to property other than a dwelling.
5. To common law fraud claims.
6. To proceedings brought pursuant to title 32, chapter 10.
7. To claims solely seeking recovery of monies expended for repairs to alleged
defects that have been repaired by the purchaser.
B. A dwelling action brought by an association is also subject to title 33, chapter
18.
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