Title 33 — Property

Chapter 1 Landmarks and Surveys

Article 1 In General

§ 33-101 Petition to establish landmarks

A. A majority of freeholders owning land in any township, as farmers or ranchers, may petition the board of supervisors of the county where the lands are located, requesting a survey of the lands of the township to establish permanent landmarks at section and quarter section corners or lost corner monuments on lands previously surveyed by the United States government.

B. The board of supervisors shall, within thirty days after receiving the petition, notify the county engineer to provide for survey of the lands described in the petition and place monuments of durable material at each section and quarter section corner.

C. The board of supervisors may authorize private funding for the survey if the county cannot fund the survey.

§ 33-102 Minutes or field notes of survey; requirements; recording

A. The county's land surveyor shall make a certificate of full and correct minutes or field notes of the survey, disclosing the exact bearings and distances from each monument to the monument nearest it on any line in the township, and he shall also take bearings and distances from each monument set to those appropriate natural and artificial objects within a reasonable distance.

B. The certificate and minutes or field notes shall be filed with the county recorder of the county where the lands are located, who shall record them without charge.

§ 33-103 Monuments at section and quarter section corners; reestablishment of corners; monument requirements; destruction of monuments; classification

A. Landmarks or monuments established under the provisions of this article shall be set at the section corners and quarter section corners established by the United States survey. If there is a clerical error or omission in the government field notes or bearings, trees, mounds, fences or other locating evidences specified therein, or if they are destroyed or lost and there is no evidence by which the corners established by the United States survey can be identified, the land surveyor shall reestablish the corners under rules adopted by the United States for the survey of public lands.

B. Landmarks or monuments established pursuant to this section shall be presumptively at the section and quarter section corners as originally established by the United States survey.

C. The monument shall:

1. Be not less than two and one-half feet in length and constructed of durable material, preferably of metal rod or pipe.

2. Identify on the top of the monument the point of survey by punch mark or scribed cross.

3. Identify on the top of a monument set at section corners the proper numbering of the sections for which the monument forms a landmark.

4. Identify the quarter section for those monuments set at quarter section corners.

5. Bear the Arizona registration number of the land surveyor.

6. Be magnetically detectable.

7. Be placed firmly in the ground, leaving the top flush with the surface or recessed in a hand hole when placed on a public highway, or when not on a public highway set to the best judgment of the land surveyor to perpetuate the corner.

D. A person who knowingly or by gross negligence destroys, disfigures, removes or disturbs monuments described in subsection C or other permanent monuments set by the land surveyor which have the land surveyor's or public agency's cap or tag affixed to the monument is guilty of a class 2 misdemeanor.

E. A person acting independently or a person in responsible charge of another person who destroys, disfigures or disturbs monuments described in subsection C or other permanent monuments set by the land surveyor which have the land surveyor's or public agency's cap or tag affixed to the monument shall be civilly liable to the state, political subdivision or any other person for all costs associated with restoration or replacement of any monument destroyed, disfigured, removed or disturbed. The remedies under this subsection are in addition to any penalty which can be imposed under subsection D.

§ 33-104 Right of person making land survey to enter lands; damages for injury to lands

A. Any person who is registered as a land surveyor under title 32, chapter 1 or who is an employee of the United States government may enter upon lands within this state to perform necessary work relating to land surveys, and may establish permanent monuments and erect the necessary signals and temporary observatories without committing unnecessary injury. The person making a survey under this section shall make every reasonable effort to give oral or written notice of the survey to the owner of the land before entering the land.

B. If the parties interested cannot agree upon the amount of damages caused thereby, either may petition the superior court to assess the damages.

C. The person entering lands for a land survey as provided by this section may tender to the injured party damages therefor, and if the damages finally assessed do not exceed the amount tendered, he shall recover costs. Otherwise the injured party shall recover costs.

D. Notwithstanding this section, the owner or owner's agent may deny entry to normally restricted or hazardous areas.

§ 33-105 Recording of certain land surveys; contents

A. A land surveyor shall file a record of a land survey not later than ninety days after its completion with the county recorder of the county where the land is located if such survey establishes points or lines relating to land boundaries or property lines disclosing:

1. A material discrepancy based on the accuracy requirements of the current survey which, in whole or in part, does not appear on any map or record previously recorded or filed with the county recorder, county engineer, highway division of the department of transportation or the United States bureau of land management.

2. Evidence that, by reasonable analysis, might result in alternate positions of lines or points.

B. The record of survey shall be a reproducible map, legibly drawn, printed or reproduced by a process assuring a permanent record as required by section 11-481.

C. The record of survey map shall show:

1. All monuments found, set, removed, reset or replaced, the kind, size and location of such monuments and all other data relating to such monuments.

2. Bearing and basis of bearings and length of lines to the nearest one one-hundredth of a foot and ties to witness monuments. Other record data may be shown in chains, varas or other units of measurement as implemented by older surveys.

3. Dates of survey, scale of map and north arrow or other means of orientation.

4. Name or designation of tract or grant in which the survey is located, ties to adjoining tracts or grants and section or sections, township, range and political subdivision of this state.

5. Any other data necessary for the intelligent interpretation of the various items and locations of the points, lines and areas shown.

D. The record of survey shall be securely fastened by the county recorder into a separate book provided for that purpose. The county recorder shall keep proper indices of such record of survey by the name of grant, tract, subdivision or cadastral subdivisions by United States bureau of land management or general land office.

§ 33-106 Corner record survey; filing; contents

A. A land surveyor shall complete, sign and file or cause to be filed with the county recorder of the county in which the corner is situated, a written record of the establishment or restoration of public land corners as established by cadastral surveys of the United States general land office or United States bureau of land management, including those monuments designating boundaries of land grants, military reservations, government and Indian reservations, land patents and mining patents, including also those monuments established as mineral monuments by an authorized United States mineral surveyor. The survey information shall be filed within thirty days after the survey is completed, unless the corner and its accessories are substantially as described in an existing corner record previously filed.

B. The corner record shall include the following:

1. A report, by sketch or narration, or both, concerning ties to existing monuments presumed authentic.

2. Acceptable monuments found in a perishable or deteriorated condition, a description of what was found and actions taken for the rehabilitation or perpetuation of the monument by the surveyor making such report.

3. New monuments set in a position occupied by an old monument, a description of the new monument as to material, shape, marking, projection above the surface of the ground, distance buried below the ground surface, disposition of the old monument and related items.

4. The procedure followed, by sketch and narration, in reestablishing the corner reported if no acceptable evidence of the original monument or its location can be found.

5. A description of the monument set to perpetuate the corner as reestablished and reported, indicating any bearing trees or objects noted in the general vicinity of the new monument.

6. The location and nature of all reference monuments or objects which would be useful in the identification, recovery or reestablishment of any monument referred to in such report.

7. Acceptable monuments found with reference monuments, accessories and general surroundings materially differing from the information contained in previous corner records. The conditions observed in the survey which materially differ from the original recordation shall be clearly reported by sketch and narration.

C. The county recorder shall keep proper indices of such corner records by the name of grant, tract, subdivision or cadastral subdivisions by United States bureau of land management or general land office.

Article 3 Arizona Coordinate System, 1983

§ 33-131 Arizona coordinate system, 1983; zones; composition

A. The Arizona coordinate system, 1983, is the system of plane coordinates which has been established by the national geodetic survey for defining and stating the positions or locations of points on the surface of the earth in this state.

B. The Arizona coordinate system, 1983, contains three zones as follows:

1. The west zone, composed of La Paz, Mohave and Yuma counties.

2. The central zone, composed of Coconino, Maricopa, Pima, Pinal, Santa Cruz and Yavapai counties.

3. The east zone, composed of Apache, Cochise, Gila, Graham, Greenlee and Navajo counties.

C. In any land description in which the Arizona coordinate system, 1983, is utilized the system shall be designated "Arizona coordinate system, 1983, __________ zone", with the name of the appropriate zone inserted.

§ 33-132 Coordinates of system; zone definitions

A. The plane coordinates of a point on the earth's surface, to be used in the position or location of such point in the appropriate zone of the system, shall consist of two distances, expressed in feet and decimals of a foot (foot value 0.3048 meter exact). One of these distances, to be known as the "X-coordinate", shall give the position in an east-and-west direction, and the other, to be known as the "Y-coordinate", shall give the position in a north-and-south direction. These coordinates shall depend on and conform to the coordinates on the Arizona coordinate system, 1983, of the horizontal control stations of the national geodetic survey in this state, as these coordinates have been determined by the survey.

B. For the purpose of more precisely defining the Arizona coordinate system, the following definitions of the national geodetic survey are adopted:

1. The Arizona coordinate system, 1983, west zone, is a transverse mercator projection of the North American datum, 1983, having a central meridian 113 o 45' 00" west of Greenwich, on which meridian the scale is set one part in fifteen thousand too small. The origin of the coordinates is at the intersection of the meridian 113 o 45' 00" west of Greenwich and the parallel of 31 o 00' 00" north latitude. This origin is given the coordinates of "X" equals seven hundred thousand feet and "Y" equals zero feet.

2. The Arizona coordinate system, 1983, central zone, is a transverse mercator projection of the North American datum, 1983, having a central meridian 111 o 55' 00" west of Greenwich, on which meridian the scale is set at one part in ten thousand too small. The origin of the coordinates is at the intersection of the meridian 111 o 55' 00" west of Greenwich and the parallel of 31 o 00' 00" north latitude. This origin is given the coordinates of "X" equals seven hundred thousand feet and "Y" equals zero feet.

3. The Arizona coordinate system, 1983, east zone, is a transverse mercator projection of the North American datum, 1983, having a central meridian 110 o 10' 00" west of Greenwich, on which meridian the scale is set at one part in ten thousand too small. The origin of coordinates is at the intersection of the meridian 110 o 10' 00" west of Greenwich and the parallel of 31 o 00' 00" north latitude. The origin is given the coordinates of "X" equals seven hundred thousand feet and "Y" equals zero feet.

§ 33-133 Ground markings of system; accuracy specifications; horizontal control stations

A. The position of the Arizona coordinate system shall be marked on the ground by horizontal control stations which have been established in conformity with standards adopted by the federal geodetic control committee for first order, second order class I or second order class II surveys or equivalent standards adopted by successors, at the time the surveys were made and computed on the North American datum, 1983.

B. A horizontal control station normally consists of, if practicable, a group of bronze or brass discs imbedded in concrete posts nearly flush with the ground surface or cemented into holes drilled into rock outcrops or ledges in such a configuration that the station is referenced by a subsurface mark in a precise vertical register with the surface mark, two reference marks, similar to the surface mark accurately located by azimuth and horizontal distance in respect to the horizontal control station and not more than one hundred fifty feet distant and an azimuth mark which may be similar to the horizontal control station not less than one thousand feet distant, or optionally, an object not less than three thousand feet distant such as a church spire, water tank, radio or television transmitting antenna, by which azimuth mark subsequent surveys may be accurately oriented.

C. Horizontal control stations shall be established, if practicable, in proximity to road intersections, hill or mountain tops and similar locations as an aid in the field searches for the horizontal control stations.

§ 33-134 Tract located in more than one zone; description

If a tract of land to be defined by a single description extends from one into another of the coordinate zones established by this article, the position of all points on its boundaries may be referred to as either of the two zones, the zone which is used being specifically named in the description.

§ 33-135 Reliance of purchaser or mortgagee not required

Nothing contained in this article requires any purchaser or mortgagee to rely on any land description, any part of which depends exclusively on the Arizona coordinate system, 1983.

§ 33-136 Public lands survey descriptions; conflicts; control

If coordinates based on the Arizona coordinate system, 1983, are used to describe a tract of land which in the same document is also described by reference to a subdivision, line or corner of the United States public land surveys, the description by coordinates shall be construed as supplemental to the basic description of the subdivision, line or corner contained in the official field notes and plat filed of record, and in the event of a conflict the description by reference to the subdivision, line or corner of the United States public land surveys prevails over the description by coordinates.

§ 33-137 Recording, filing, publishing extensions and densifications of the ground marking system

A. Extensions and densifications of the ground marking system of the Arizona coordinate system, 1983, shall be executed in conformity with the standards and specifications of the federal geodetic control committee for first order, second order class I and second order class II surveys and computed on the North American datum, 1983.

B. The results of these surveys shall be published by a competent department of the federal government, such as the national geodetic survey, or a surveyor qualified to practice in this state, in which case the survey results shall bear a certification to the effect that the specifications of the federal geodetic control committee have been followed.

C. Extensions and densifications of the ground marking system by first order, second order class I or second order class II methods only shall be used. Such extensions and densifications shall be integrated with previously established horizontal control stations of equal or higher order to form a matrix or network no part of which shall have positional errors exceeding those specified for class II second order. The spacing intervals shall not exceed three miles.

D. The results of these surveys are public domain and shall be duly recorded in the office of the county recorder of the county where the horizontal control station is situated.

§ 33-138 Recording prerequisite

Coordinates based on the Arizona coordinate system, 1983, shall not be presented to be recorded in any public land records unless the recording document also contains the descriptions of not less than two horizontal control stations of first order, second order class I or second order class II positional accuracy which shall not exceed six miles from the nearest point or line of the land survey.

Chapter 2 Estates

Article 1 Definitions and Classifications

§ 33-201 Duration of interest; fee tail prohibited

A. Estates in lands, as respects the extent of the interest of the holder, are divided into:

1. Estates of inheritance. An estate of inheritance shall be termed a fee simple or fee, and when not defeasible or conditional shall be a fee simple absolute.

2. Estates for life.

3. Estates for years.

4. Estates at will.

5. Estates by sufferance.

B. No lands of this state shall be held as an estate in fee tail.

§ 33-202 Estates as property interest; freeholds; chattels real; chattel interests

A. Estates of inheritance and for life are freehold estates, except that an estate for the life of a third person, whether limited to heirs or otherwise, is a freehold only during the life of the grantee or devisee, and after his death is a chattel real.

B. Estates for years are chattels real.

C. Estates at will or by sufferance are chattel interests, but are not liable as such to sale on execution.

§ 33-203 Right to possession of lands; estates in possession; estates in expectancy

Estates in lands, as respects the time of enjoyment, are divided into:

1. Estates in possession. An estate in possession is one in which the owner thereof has an immediate right to possession of the land.

2. Estates in expectancy. An estate in expectancy is one in which the right of the owner thereof to possession of the land is not immediate, but is postponed to a future time or period.

§ 33-204 Estates in expectancy; reversions; future estates; remainders

A. Estates in expectancy are divided into:

1. Reversions. A reversion is the residue of an estate left in a grantor or his heirs, or in the heirs of a testator, commencing in possession upon the determination of a particular estate granted or devised.

2. Future estates. A future estate is an estate limited to commence in possession at a future time, either without the intervention of a precedent estate or upon the determination, by lapse of time or otherwise, of a precedent estate created at the same time. A future estate dependent upon a precedent estate is a remainder.

§ 33-205 Vested future estates; contingent future estates

A. A future estate is vested when there is a person in being who would have immediate right to the possession of the lands upon the termination of the intermediate or precedent estate.

B. A future estate is contingent while the person to whom, or the event upon which it is limited to take effect, remains uncertain.

Article 2 Future Interests

§ 33-221 Estates in expectancy; alienability

A. A freehold estate or a chattel real may be created to commence at a future time, subject to the provisions of this chapter.

B. Estates in expectancy are descendable, devisable and alienable as estates in possession.

C. An estate of freehold or inheritance may be made to commence in the future by deed or conveyance in like manner as by will.

D. All estates in expectancy except those enumerated and defined in this chapter are abolished.

§ 33-222 Alternative future estates

Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it and take effect.

§ 33-223 Time of creation of estates in expectancy

The time of creation of an estate in expectancy is the time of:

1. Delivery of the grant if the estate in expectancy is created by grant.

2. Death of the testator if the estate in expectancy is created by devise.

§ 33-224 Effect of conveyance purporting to create fee tail; effect of conveyance by tenant in tail

A. A devise, gift, grant or other conveyance which creates or transfers an estate which, at common law, would be an estate in fee tail, shall be deemed and have the effect of a conveyance in fee simple.

B. A devise, gift, grant or other conveyance made by a person holding an estate under a conveyance which at common law would have given such person an estate in fee tail shall have effect as though such person were holding a fee simple estate.

§ 33-225 Indefeasibility of expectant estates; exception

An estate in expectancy may not be defeated or barred by alienation or other act of the owner of the intermediate or precedent estate, nor by destruction of the precedent estate by disseizin, forfeiture, surrender, merger or otherwise, except in the manner provided or authorized in the creation of the expectant estate.

§ 33-226 Defeasibility of expectant estate by terms of grant or devise

A. An estate in expectancy may be defeated in any manner provided or authorized by the grant or devise by which the expectant estate was created.

B. An estate in expectancy thus defeasible is not, on that ground, void in its creation.

§ 33-227 Contingent remainder as conditional limitation

A. A remainder may be limited on a contingency which, if it should happen, will operate to abridge or determine the precedent estate. Such a remainder shall be construed a conditional limitation and shall have effect as such.

B. No future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency upon which it is limited to take effect.

§ 33-228 Indestructibility of contingent remainders

A. A remainder valid in its creation is not defeated by determination of the precedent estate before the contingency occurs upon which the remainder is limited to take effect. If the contingency occurs after determination of the precedent estate, the remainder shall take effect as if the precedent estate had continued to the time when the contingency occurs.

B. The alienation of a particular estate upon which a remainder depends, whether the alienation is by deed or will or by the union of such particular estate with the inheritance by purchase or by descent, shall not operate to defeat, impair or in any way affect such remainder.

§ 33-231 Rule in Shelley's case abolished

When a remainder is limited to the heirs or heirs of the body of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are the heirs or heirs of the body of the life tenant shall take as purchasers by virtue of the remainder so limited to them.

§ 33-233 Life estate in term of years

An estate for life may be created in an estate for a term of years and a remainder may be limited thereon.

§ 33-234 Time when remainder on life estate or term of years takes effect

When a remainder on an estate for life or on an estate for years is not limited upon a contingency defeating or avoiding the precedent estate, it shall take effect only on the death of the first taker or the expiration of the term of years.

§ 33-236 "Heir" and "issue" as words of limitation

When a remainder is limited to take effect upon the death of a person without heirs or heirs of his body, or without issue, the words "heirs" or "issue" shall mean heirs or issue living at the death of the person named as ancestor.

§ 33-237 Effect of posthumous children upon limitations

A. When a future estate is limited to heirs, issue or children, posthumous children shall take as if born before the death of the parent.

B. A future estate contingent upon the death of a person without heirs, issue or children is defeated by birth of a posthumous child of such person, capable of taking by descent.

§ 33-239 Use of accumulations for support and education of children

When rents and profits are directed to be accumulated for the benefit of an infant entitled to the estate in expectancy, and the infant is without other sufficient means of support and education, the superior court, upon application of the guardian of the infant, may direct that an appropriate amount of the rents and profits be applied to the maintenance and education of the infant.

§ 33-240 Ownership of rents and profits arising during suspension of power of alienation

When in consequence of a valid limitation of an estate in expectancy there is a suspension of the power of alienation, or ownership, during the continuance of which the rents and profits are undisposed of and no valid direction for their accumulation is given, the rents and profits belong to the person presumptively entitled to the next eventual estate.

Article 3 Perpetuities

§ 33-261 Rule against perpetuities

The common law rule known as the rule against perpetuities shall hereafter be applicable to all property of every kind and nature and estates and other interests therein, whether personal, real or mixed, legal or equitable by way of trust or otherwise.

Article 4 Conservation Easements

§ 33-271 Definitions

In this article, unless the context otherwise requires:

1. "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations for conservation purposes or to preserve the historical, architectural, archaeological or cultural aspects of real property.

2. "Conservation purposes" means any of the following activities which yield a significant public benefit:

(a) Preserving land areas for outdoor recreation by, or the education of, the general public.

(b) Protecting a relatively natural habitat of fish, wildlife or plants or similar ecosystem.

(c) Preserving open space, including farmland and forest land, if the preservation is either:

(i) For the scenic enjoyment of the general public.

(ii) Pursuant to a clearly delineated federal, state or local governmental conservation policy.

3. "Holder" means either:

(a) A governmental body empowered to hold an interest in real property under the laws of this state or the United States.

(b) A charitable corporation or trustee of a charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality or preserving the historical, architectural, archaeological or cultural aspects of real property.

4. "Third party right of enforcement" means a right granted in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation or charitable trust, which, although eligible to be a holder, is not a holder.

§ 33-272 Creation, conveyance, acceptance and duration; impairment; recording; county assessor; valuation

A. Except as otherwise provided in this article, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements. For the purposes of this article, conservation easements shall be voluntarily created and shall not be required by a political subdivision or governmental entity. This article neither limits nor enlarges the power or purposes of eminent domain, zoning, subdivision regulations or any right of condemnation under the laws of this state. Any assignment, release, modification, termination or other document altering or affecting a conservation easement need only be executed or approved in writing by the current owner of the real property that is burdened by the conservation easement, the holder of the conservation easement and any governmental body, charitable corporation or trustee of a charitable trust having a third-party right of enforcement.

B. No right or duty in favor of or against a holder and no right in favor of a governmental body, charitable corporation or trustee of a charitable trust having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.

C. Except as provided in section 33-273, subsection B, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.

D. An interest in real property in existence at the time the conservation easement is created is not impaired by a conservation easement unless the owner of the interest is a party to the conservation easement or consents in writing to the conservation easement by an instrument acknowledged and recorded in the office of the county recorder of the county in which the affected real property is located.

E. The holder of the conservation easement shall provide for the recording of the conservation easement and the recording of its acceptance. The holder of the conservation easement also shall prepare and provide the information prescribed by section 42-12058 to the county assessor for each county in which any portion of the real property that is burdened by the conservation easement is located.

F. For the purposes of determining the full cash value of a conservation easement created pursuant to this section, the department of revenue or a county assessor shall use and apply standard appraisal practices and techniques unless a statutory formula takes precedence.

§ 33-273 Judicial actions

A. An action affecting a conservation easement may be brought by:

1. An owner of an interest in the real property burdened by the easement.

2. A holder of the easement.

3. A governmental body, charitable corporation or trustee of a charitable trust having a third party right of enforcement.

4. A person authorized by other law.

5. A governmental body if the holder is no longer in existence and there is no third party right of enforcement.

B. This article does not affect the power of a court to modify or terminate a conservation easement under the principles of law and equity. In determining whether to modify or terminate a conservation easement a court shall consider the public interest to be served.

C. In an action under this section, the owner of the real property burdened by the conservation easement, the holder of the conservation easement and any governmental body, charitable corporation or trustee of a charitable trust having a third party right of enforcement shall be named as parties.

§ 33-274 Validity and assignment of conservation easements

A. A conservation easement, or any assignment, release, modification, termination or other document altering or affecting a conservation easement, is only valid if recorded with the county recorder of the county in which any portion of the real property burdened by the conservation easement is located.

B. Third party rights of enforcement granted through a conservation easement to a governmental body, charitable corporation or trustee of a charitable trust may not be assigned, except with the prior written consent of the holder of the conservation easement.

C. A conservation easement is valid even though:

1. It is not appurtenant to an interest in real property.

2. It can be or has been assigned to another holder.

3. It is not of a character that has been recognized traditionally at common law.

4. It imposes a negative burden.

5. It imposes affirmative obligations on the owner of an interest in the burdened property or on the holder.

6. The benefit does not touch or concern real property.

7. There is no privity of estate or of contract.

§ 33-275 Application of other laws

A conservation easement created under this article:

1. Has the same rights as any other recorded interest in real property.

2. Is subject to all laws of this state pertaining to recording of interests in real property and laws relating to adverse possession.

3. Is subject to the acquisition of real property interests under the laws of this state governing eminent domain, except that the existence of a conservation easement shall not be considered an additional interest in real property for which compensation or damages may be awarded under the laws pertaining to eminent domain.

§ 33-276 Applicability

A. This article applies to any interest created after its effective date which complies with this article, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement or otherwise.

B. This article does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement or otherwise, that is enforceable under any other law of this state.

Chapter 3 Landlord and Tenant

Article 1 Obligations and Liabilities of Landlord

§ 33-301 Posting of lien law and rates by innkeepers

Every keeper of a hotel, inn, boarding, lodging or apartment house, or auto camp, shall post in a conspicuous place in the office or public room, and in every bedroom of the establishment, a printed copy of sections 33-951 and 33-952, with a printed statement of charges by the day, week or month for meals, lodging or other items furnished.

§ 33-302 Maintenance of fireproof safe by innkeeper for deposit of valuables by guests; limitations on liability of innkeeper for loss of property of guests

A. An innkeeper who maintains a fireproof safe and gives notice by posting in a conspicuous place in the office or in the room of each guest that money, jewelry, documents and other articles of small size and unusual value may be deposited in the safe, is not liable for loss of or injury to any such article not deposited in the safe, which is not the result of his own act.

B. An innkeeper may refuse to receive for deposit from a guest articles exceeding a total value of five hundred dollars, and unless otherwise agreed to in writing shall not be liable in an amount in excess of five hundred dollars for loss of or damage to property deposited by a guest in such safe unless the loss or damage is the result of the fault or negligence of the innkeeper.

C. The innkeeper shall not be liable for loss of or damage to merchandise samples or merchandise for sale displayed by a guest unless the guest gives prior written notice to the innkeeper of having and displaying the merchandise or merchandise samples, and the innkeeper acknowledges receipt of such notice, but in no event shall liability for such loss or damage exceed five hundred dollars unless it results from the fault or negligence of the innkeeper.

D. The liability of an innkeeper to a guest shall be limited to one hundred dollars for property delivered to the innkeeper to be kept in a storeroom or baggage room and to seventy-five dollars for property deposited in a parcel or checkroom.

E. For the purpose of this section the term "inn" includes hotel, boarding house, lodging house, apartment house, motel and auto camp.

§ 33-303 Discrimination by landlord or lessor against tenant with children prohibited; classification; exceptions

A. A person who knowingly refuses to rent to any other person a place to be used for a dwelling for the reason that the other person has a child or children, or who advertises in connection with the rental a restriction against children, either by the display of a sign, placard, written or printed notice, or by publication thereof in a newspaper of general circulation, is guilty of a petty offense.

B. No person shall rent or lease his property to another in violation of a valid restrictive covenant against the sale of such property to persons who have a child or children living with them nor shall a person rent or lease his property to persons who have a child or children living with them when his property lies within a subdivision which subdivision is presently designed, advertised and used as an exclusive adult subdivision. A person who knowingly rents or leases his property in violation of the provisions of this subsection is guilty of a petty offense.

Article 2 Obligations and Liabilities of Tenant

§ 33-321 Maintenance of premises

A tenant shall exercise diligence to maintain the premises in as good condition as when he took possession, ordinary wear and tear excepted.

§ 33-322 Damage to premises; classification

Removal or intentional and material alteration or damage of any part of a building, the furnishings thereof, or any permanent fixture, by or at the instance of the tenant, without written permission of the landlord or his agent, is a class 2 misdemeanor.

§ 33-323 Liability of person in possession of land for rent due thereon

Every person in possession of land out of which rent is due is liable for the amount or proportion of rent due from the lands in his possession, although it is only a part of the land originally demised, without depriving the landlord of other legal remedies for recovery of rent.

§ 33-324 Denial of landlord's title by lessee in possession prohibited

When a person enters into possession of real property under a lease, he may not, while in possession, deny the title of his landlord in an action brought upon the lease by the landlord or a person claiming under him.

Article 3 Termination of Tenancies

§ 33-341 Termination of tenancies

A. A tenancy from year to year terminates at the end of each year unless written permission is given to remain for a longer period. The permission shall specify the time the tenant may remain, and upon termination of such time the tenancy expires.

B. A lease from month to month may be terminated by the landlord giving at least ten days notice thereof. In case of nonpayment of rent notice is not required.

C. A tenant from month to month shall give ten days notice, and a tenant on a semimonthly basis shall give five days notice, of his intention to terminate possession of the premises. Failure to give the notice renders the tenant liable for the rent for the ensuing ten days.

D. When a tenancy is for a certain period under verbal or written agreement, and the time expires, the tenant shall surrender possession. Notice to quit or demand of possession is not then necessary.

E. A tenant who holds possession of property against the will of the landlord, except as provided in this section, shall not be considered a tenant at sufferance or at will.

§ 33-342 Effect of lessee holding over

When a lessee holds over and retains possession after expiration of the term of the lease without express contract with the owner, the holding over shall not operate to renew the lease for the term of the former lease, but thereafter the tenancy is from month to month.

§ 33-343 Premises rendered untenantable without fault of lessee; nonliability of tenant for rent; right to quit premises

The lessee of a building which, without fault or neglect on the part of the lessee, is destroyed or so injured by the elements or any other cause as to be untenantable or unfit for occupancy, is not liable thereafter to pay rent to the lessor or owner unless expressly provided by written agreement, and the lessee may thereupon quit and surrender possession of the premises.

Article 4 Remedies of Landlord

§ 33-361 Violation of lease by tenant; right of landlord to reenter; summary action for recovery of premises; appeal; lien for unpaid rent; enforcement; notice and pleading requirements

A. When a tenant neglects or refuses to pay rent when due and in arrears for five days, or when a tenant violates any provision of the lease, the landlord or person to whom the rent is due, or the agent of the landlord or person to whom the rent is due, may reenter and take possession or, without formal demand or reentry, commence an action for recovery of possession of the premises.

B. The action shall be commenced, conducted and governed as provided for actions for forcible entry or detainer and shall be tried not less than five nor more than thirty days after its commencement. In addition to determining the right to actual possession, the court may assess damages, attorney fees and costs pursuant to section 12-1178.

C. If judgment is given for the plaintiff, the defendant, in order to perfect an appeal, shall file a bond with the court in an amount fixed and approved by the court and payable to the clerk of the superior court, conditioned that the appellant will prosecute the appeal to effect and will pay the rental value of the premises pending the appeal and all damages, attorney fees, costs and rent adjudged against the appellant.

D. If the tenant refuses or fails to pay rent owing and due, the landlord shall have a lien on and may seize as much personal property of the tenant located on the premises and not exempted by law as is necessary to secure payment of the rent. If the rent is not paid and satisfied within sixty days after seizure as provided for in this section, the landlord may sell the seized personal property in the manner provided by section 33-1023.

E. When premises are sublet or the lease is assigned, the landlord shall have a like lien against the sublessee or assignee as the landlord has against the tenant and may enforce it in the same manner.

F. Notwithstanding any other law, an agency of this state and an individual court may not adopt or enforce a rule or policy that requires a mandatory or technical form for providing notice or for pleadings in an action for forcible entry or forcible or special detainer. The form of any notice or pleading that meets statutory requirements for content and formatting of a notice or pleading is sufficient to provide notice and to pursue an action for forcible entry or forcible or special detainer.

§ 33-362 Landlord's lien for rent

A. The landlord shall have a lien on all property of his tenant not exempt by law, placed upon or used on the leased premises, until the rent is paid. The lien shall not secure the payment of rent accruing after the death or bankruptcy of the lessee, or after an assignment for the benefit of the lessee's creditors.

B. The landlord may seize for rent any personal property of his tenant found on the premises, but the property of any other person, although found on the premises, shall not be liable therefor. If the tenant fails to allow the landlord to take possession of such property, the landlord may reduce the property to possession by an action to recover possession, and may hold or sell the property for the payment of the rent.

C. The landlord shall have a lien for rent upon crops grown or growing upon the leased premises, whether the rent is payable in money, articles of property or products of the premises, and also for the faithful performance of the terms of the lease, and the lien shall continue for a period of six months after expiration of the term of the lease.

D. When premises are sublet, or when the lease is assigned, the landlord shall have the same lien against the sublessee or assignee as he has against the tenant and may enforce the lien in like manner.

Article 5 Applicability of Chapter

§ 33-381 Limitation

This chapter shall apply to all landlord-tenant relationships except for landlord-tenant relationships arising out of the rental of dwelling units which shall be governed by chapter 10 or 11 of this title.

Chapter 4 Conveyances and Deeds

Article 1 Formal Requirements and Model Forms

§ 33-401 Formal requirements of conveyance; writing; subscription; delivery; acknowledgment; defects

A. No estate of inheritance, freehold, or for a term of more than one year, in lands or tenements, shall be conveyed unless the conveyance is by an instrument in writing, subscribed and delivered by the party disposing of the estate, or by his agent thereunto authorized by writing.

B. Every deed or conveyance of real property must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments as prescribed in title 41, chapter 2, article 1.

C. In every deed or conveyance of real property in which the grantee is subject to regulation pursuant to title 6, 10 or 29, or would be subject to regulation pursuant to title 6, 10 or 29 if doing business in this state, the grantee's name and address and the state in which the grantee is incorporated, organized, licensed, chartered or registered shall be set forth fully, together with the name of the country under which the grantee is chartered or formed. The validity of any deed shall not be affected by any failure to comply with the requirements set forth in this subsection.

D. For the purposes of this section, a deed or conveyance that contains any defect, omission or informality in the certificate of acknowledgment, or for which there is any failure to perform a duty or meet a requirement in the taking of the acknowledgment, and that has been recorded in the office of the county recorder of the county in which the property is located shall be deemed to have been duly acknowledged on and after the date of its recording.

§ 33-402 Forms for conveyances; quit claim; conveyance; warranty; mortgage

The following or other equivalent forms varied to suit circumstances are sufficient:

1. To quit claim:

For the consideration of ______________, I hereby quit claim to A.B. all my interest in the following real property (describing it).

2. To convey:

For the consideration of ______________, I hereby convey to A.B. the following real property (describing it).

3. To convey and warrant:

The same as the preceding form, adding "and I warrant the title against all persons whomsoever" (or other words of warranty).

4. To mortgage:

The same as to convey, adding the following: "To be void upon condition that I pay, etc."

§ 33-403 Easement description; validity

Notwithstanding any other provision of law, the description of easements and rights-of-way for public service corporation, telecommunications corporation or cable television system purposes reserved or conveyed in a conveyance document or other instrument executed prior to September 15, 1982 is not void for lack of a sufficient description of the course or width of the easement if the servient estate which is subject to the easement or right-of-way is sufficiently described.

§ 33-404 Disclosure of beneficiary; recording; failure to disclose

A. Notwithstanding section 33-411, subsection D, every deed or conveyance of real property, or an interest in real property, located in this state which is executed after June 22, 1976 in which the grantee is described as a trustee or acts as a trustee shall disclose the names and addresses of the beneficiaries for whom the grantee holds title and shall identify the trust or other agreement under which the grantee is acting or refer by proper description to the document number or the docket and page of an instrument or other writing which is of public record in the county in which the property so conveyed is located in which such matters are disclosed.

B. Notwithstanding section 33-411, subsection D, every deed or conveyance of real property, or an interest in real property, located in this state which is executed after June 22, 1976 by a grantor who holds title to the property as a trustee, whether or not such capacity is identified on the document through which title was acquired, shall also disclose the names and addresses of the beneficiaries for whom the grantor held title to the property and shall identify the trust or other agreement under which the grantor is acting or refer by proper description to the document number or the docket and page of an instrument or other writing which is of public record in the county in which the property so conveyed is located in which such matters are disclosed.

C. Notwithstanding section 33-411, subsection D, a grantee who holds title as a trustee under a trust or other agreement which is subject to the disclosure requirements of this section and who receives actual knowledge after August 18, 1987 of a change in beneficiary, within thirty days after receiving such actual knowledge, shall record with the county recorder of the county in which the property is located a notice of the change. The recording and any subsequent recording of any change in any beneficiary shall identify the trust or other agreement under which the grantee holds title and shall include the legal description of the property and a list of the then current names and addresses of the beneficiaries.

D. Notwithstanding subsections A, B and C of this section, a trustee is not required to record a change of beneficiary if, upon the death of a beneficiary of a real property trust, the interests of the deceased beneficiary vest in the beneficiary's estate or in other beneficiaries identified in a previous recording. If the interest of the deceased beneficiary vests in a beneficiary not identified in a previous recording, the trustee shall comply with the recording requirements of this chapter within thirty days of receipt of both knowledge of the death and the name and address of the successor beneficiary or beneficiaries or within thirty days of the first distribution of income or principal to a successor beneficiary or beneficiaries, whichever occurs first.

E. Any conveyance of real property or an interest in real property which does not include the disclosures required by this section with respect to the property so conveyed is voidable by the other party to the conveyance. Any action to void the conveyance shall be commenced within two years after the date of recordation of the document effecting the conveyance.

F. If real property or any interest in real property, or any mortgage, deed of trust or other lien on real property, is acquired for value, the title, interest, mortgage, deed of trust or other lien is not impaired or in any way adversely affected by reason of the failure of any person to comply with the requirements of this section.

G. As used in this section, "trustee" does not include an agent for a disclosed principal, a conservator, a guardian, a personal representative, an attorney-in-fact, a lessor or lessee under a lease, a trustee in a bankruptcy or receivership proceeding, a trustee under a deed of trust, a trustee under a business trust or a trustee under an indenture for security holders.

§ 33-405 Beneficiary deeds; recording; definitions

A. A deed that conveys an interest in real property, including any debt secured by a lien on real property, to a grantee beneficiary designated by the owner and that expressly states that the deed is effective on the death of the owner transfers the interest to the designated grantee beneficiary effective on the death of the owner subject to all conveyances, assignments, contracts, mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner or to which the owner was subject during the owner's lifetime.

B. A beneficiary deed may designate multiple grantees who take title as joint tenants with right of survivorship, tenants in common, a husband and wife as community property or as community property with right of survivorship, or any other tenancy that is valid under the laws of this state. Unless the beneficiary deed provides otherwise, the interest in real property conveyed by a beneficiary deed is the separate property of the named grantee beneficiary and is not community property.

C. A beneficiary deed may designate a successor grantee beneficiary. If the beneficiary deed designates a successor grantee beneficiary, the deed shall state the condition on which the interest of the successor grantee beneficiary would vest. Unless the beneficiary deed provides otherwise, if there are no grantee beneficiaries named in the beneficiary deed who survive the owner, the beneficiary deed is void and section 14-2603 does not apply.

D. If real property is owned as joint tenants with the right of survivorship or as community property with the right of survivorship, a deed that conveys an interest in the real property to a grantee beneficiary designated by all of the then surviving owners and that expressly states that the deed is effective on the death of the last surviving owner transfers the interest to the designated grantee beneficiary effective on the death of the last surviving owner. If a beneficiary deed is executed by fewer than all of the owners of real property owned as joint tenants with right of survivorship or community property with right of survivorship, the beneficiary deed is valid if the last surviving owner is one of the persons who executes the beneficiary deed. If the last surviving owner did not execute the beneficiary deed, the transfer shall lapse and the deed is void. An estate in joint tenancy with right of survivorship or community property with right of survivorship is not affected by the execution of a beneficiary deed that is executed by fewer than all of the owners of the real property, and the rights of a surviving joint tenant with right of survivorship or a surviving spouse in community property with right of survivorship shall prevail over a grantee beneficiary named in a beneficiary deed.

E. A beneficiary deed is valid only if the deed is executed and recorded as provided by law in the office of the county recorder of the county in which the property is located before the death of the owner or the last surviving owner. A beneficiary deed may be used to transfer an interest in real property to the trustee of a trust even if the trust is revocable.

F. A beneficiary deed may be revoked at any time by the owner or, if there is more than one owner, by any of the owners who executed the beneficiary deed. To be effective, the revocation must be executed and recorded as provided by law in the office of the county recorder of the county in which the real property is located before the death of the owner who executes the revocation. If the real property is owned as joint tenants with right of survivorship or community property with right of survivorship and if the revocation is not executed by all the owners, the revocation is not effective unless executed by the last surviving owner.

G. If an owner executes and records more than one beneficiary deed concerning the same real property, the last beneficiary deed that is recorded before the owner's death is the effective beneficiary deed.

H. This section does not prohibit other methods of conveying property that are permitted by law and that have the effect of postponing enjoyment of an interest in real property until the death of the owner. This section does not invalidate any deed otherwise effective by law to convey title to the interests and estates provided in the deed that is not recorded until after the death of the owner.

I. The signature, consent or agreement of or notice to a grantee beneficiary of a beneficiary deed is not required for any purpose during the lifetime of the owner.

J. A beneficiary deed that is executed, acknowledged and recorded in accordance with this section is not revoked by the provisions of a will.

K. A beneficiary deed is sufficient if it complies with other applicable laws and if it is in substantially the following form:

Beneficiary Deed

I (we) _________________________ (owner) hereby convey to _______________ (grantee beneficiary) effective on my (our) death the following described real property:

(Legal description)

If a grantee beneficiary predeceases the owner, the conveyance to that grantee beneficiary shall either (choose one):

[] Become null and void.

[] Become part of the estate of the grantee beneficiary.

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(Signature of grantor(s))

(acknowledgment).

L. The instrument of revocation shall be sufficient if it complies with other applicable laws and is in substantially the following form:

Revocation of Beneficiary Deed

The undersigned hereby revokes the beneficiary deed recorded on ___________ (date), in docket or book __________ at page ________, or instrument number ____________, records of ________________ county, Arizona.

Dated: _______________________

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Signature

(acknowledgment).

M. For the purposes of this section:

1. "Beneficiary deed" means a deed authorized under this section.

2. "Owner" means any person who executes a beneficiary deed as provided in this section.

§ 33-406 Disclosure of transportation of water to property by motor vehicle or train; definition

A. Notwithstanding section 33-411, subsection D, a subdivider who sells a lot that was included in a plat approved by the legislative body of a city or town pursuant to an exemption authorized by section 9-463.01, subsection K or by the board of supervisors of a county pursuant to an exemption authorized by section 11-823, subsection B, paragraph 1 shall record with the plat a document that contains a legal description of the land that is subject to the subdivision plat and that contains a statement that the lots are served by a water supply that has been determined as inadequate and that the water must be hauled to the lot.

B. For the purposes of this section, "subdivider" has the same meaning as prescribed in section 32-2101.

Article 2 Recording

§ 33-411 Invalidity of unrecorded instrument as to bona fide purchaser; acknowledgment required for proper recording; recording of instruments acknowledged in another state; exception

A. No instrument affecting real property gives notice of its contents to subsequent purchasers or encumbrance holders for valuable consideration without notice, unless recorded as provided by law in the office of the county recorder of the county in which the property is located.

B. An instrument shall not be deemed lawfully recorded unless it has been previously acknowledged in the manner prescribed in this chapter or title 41, chapter 2, article 1 except in the case of master mortgages as provided in section 33-415.

C. For the purposes of this section, an instrument that affects real property containing any defect, omission or informality in the certificate of acknowledgment, or for which there is any failure to perform a duty or meet a requirement in the taking of the acknowledgment, and that has been recorded in the office of the county recorder of the county in which the property is located shall be deemed to have been lawfully recorded on and after the date of its recording.

D. An instrument affecting real property in this state executed and acknowledged in accordance with the laws of any other state shall be valid and entitled to record as if executed and acknowledged in accordance with the laws of this state.

E. Letters patent from the United States or any grant from the government, executed and authenticated pursuant to law, may be recorded without further acknowledgment.

§ 33-411.01 Recording real estate documents; indemnification by transferor

Any document evidencing the sale, or other transfer of real estate or any legal or equitable interest therein, excluding leases, shall be recorded by the transferor in the county in which the property is located and within sixty days of the transfer. In lieu thereof, the transferor shall indemnify the transferee in any action in which the transferee's interest in such property is at issue, including costs, attorney's fees and punitive damages.

§ 33-412 Invalidity of unrecorded instruments as to bona fide purchaser or creditor

A. All bargains, sales and other conveyances whatever of lands, tenements and hereditaments, whether made for passing an estate of freehold or inheritance or an estate for a term of years, and deeds of settlement upon marriage, whether of land, money or other personal property, and deeds of trust and mortgages of whatever kind, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless they are acknowledged and recorded in the office of the county recorder as required by law.

B. Unrecorded instruments, as between the parties and their heirs, and as to all subsequent purchasers with notice thereof, or without valuable consideration, shall be valid and binding.

§ 33-413 Invalidity of unrecorded marriage contract as to bona fide purchaser or creditor

No covenant or agreement made in consideration of marriage shall be valid against a purchaser for valuable consideration, or a creditor not having notice thereof, unless the covenant or agreement is duly acknowledged and recorded in the manner and form required for deeds and other conveyances.

§ 33-414 Recording of judgments affecting title to real property; inadmissibility of unrecorded judgment

A. Every judgment of a court by which title to real property is affected shall be recorded in the office of the county recorder of the county in which the property or part thereof is located, and until recorded, the judgment shall not be received in evidence in support of any right claimed by virtue thereof.

B. It shall not be necessary to record the judgment in full, but an abstract thereof by the clerk of the court under his hand and seal, stating the title of the court and of the action, the date of judgment, a description of the property and the name of the party to whom it is decreed, shall be a sufficient record of the judgment.

§ 33-415 Recording of master mortgages; including master mortgage provisions by reference in other mortgage

A. Any person may record in the office of the county recorder of any county master mortgages of real property. Master mortgages are not required to be acknowledged or proved or certified to be recorded or entitled to be recorded. Such mortgages shall have noted upon the face thereof that they are master mortgages.

B. The county recorder shall index and record master mortgages in the same manner as other mortgages are indexed and recorded and shall note on all indices and records thereof that they are master mortgages.

C. Thereafter any provisions of a recorded master mortgage may be included for any and all purposes in a mortgage by reference therein to any of such provisions without setting them forth in full, if the master mortgage is of record in the county in which the mortgage adopting or including by reference any provisions thereof is recorded.

D. The reference shall contain a statement:

1. As to each county in which the mortgage containing the reference is recorded.

2. The date such master mortgage was recorded.

3. The county recorder's office wherein the master mortgage is recorded.

4. The book, volume and page or pages or recording number of the records in the recorder's office where the master mortgage is recorded.

5. Paragraph numbers, or any other method, which will definitely identify the specific provisions of the master mortgage which are being adopted and included in the reference.

E. Recording a master mortgage which has included therein any provisions by reference as provided in this section shall operate as constructive notice of the whole thereof, including its terms, as a part of the written contents of any such mortgage, and of any provisions so included by reference as though they were written in full therein.

F. The parties bound, or to be bound, by provisions adopted and included by reference shall be bound thereby in the same manner and with like effect for all purposes as though such provisions were set forth in full in writing in such mortgage.

§ 33-416 Record of instrument duly recorded as notice

The record of a grant, deed or instrument in writing authorized or required to be recorded, which has been duly acknowledged and recorded in the proper county, shall be notice to all persons of the existence of such grant, deed or instrument, but a mortgage of real property may be recorded and constructive notice and the contents thereof given as provided in section 33-415.

§ 33-417 Law governing validity of instruments; recording of instruments valid when executed; validity of instruments recorded prior to October 1, 1913

A. The execution, acknowledgment, form or record of a conveyance or other instrument, shall depend for its validity and legality upon the laws in force when the act was performed.

B. Conveyances of real property made and acknowledged according to laws in force in this state at the time the conveyances were made and acknowledged shall have the same force as evidence, and may be recorded in the same manner and with like effect as conveyances executed and acknowledged pursuant to the provisions of this chapter.

C. Instruments affecting real estate, duly signed and recorded in the office of the proper county recorder prior to October 1, 1913, are legal and valid to the same extent as if acknowledged and recorded as required by the provisions of this chapter.

§ 33-418 Recording of conveyances recorded prior to 1865 or recorded in New Mexico or Republic of Mexico

A. Deeds or other conveyances recorded prior to January 1, 1865 in the office of any probate court in the state may be transcribed from the records of such court by the county recorder, and records of conveyance of lands within this state heretofore recorded in the state of New Mexico or the Republic of Mexico, upon being properly certified by the officer having charge of such records, may be recorded by the county recorder in the appropriate county of this state.

B. This section shall not affect or bind in any manner any person or party who has constructive notice of the existence of any deed or other instrument in writing as a recorded deed or instrument except after January 1, 1865.

§ 33-419 Effect of record as notice of instrument affecting land located in subsequently created county

Where an instrument has been recorded in the proper county, and any property conveyed or encumbered by the instrument is located within another county subsequently created, the prior record shall not be thereby invalidated or in any manner affected, but shall still continue to be notice of its contents to all persons.

§ 33-420 False documents; liability; special action; damages; violation; classification

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.

B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if he prevails.

C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he wilfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.

D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.

E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.

§ 33-420.01 Suspension of line of credit; payoff demand statement; definitions

A. A secured lender under a revolving line of credit against real property shall suspend the revolving line of credit for a minimum of forty-five days on receipt of a request for a payoff demand statement as defined in section 33-715 from an escrow agent who is licensed pursuant to title 6, chapter 7.

B. This section shall not be construed to validate, invalidate or otherwise affect the foreclosure of a mortgage, the exercise of a trustee's power of sale or the exercise of a seller's right to a forfeiture under an agreement for sale of real property.

C. For the purposes of this section:

1. "Revolving line of credit" means an open end revolving loan that is established pursuant to a written agreement between a borrower and a lender in which the lender agrees to lend the borrower money on a continuing basis for as long as the outstanding principal amount owed by the borrower does not exceed a specified amount.

2. "Secured lender" means any one of the following:

(a) A mortgagee on a mortgage.

(b) A beneficiary on a deed of trust.

(c) A person who holds or retains legal title to real property as security for financing the purchase of the real property under an agreement for sale of real property.

(d) A person who holds or retains a security interest in real property to secure the repayment of a loan.

(e) The authorized agent of those listed in this paragraph.

3. "Suspend" means to forbid the borrower from increasing or incurring any additional debt on the revolving line of credit.

§ 33-421 Recording of liens

A. A nonconsensual lien, other than a lien recorded by a governmental entity or political subdivision or agency, a validly licensed utility or water delivery company, a mechanics' lien claimant or an entity created under covenants, conditions, restrictions or declarations affecting real property, shall not be recorded unless the lien is accompanied by an order or judgment from a court of competent jurisdiction authorizing the filing of the lien.

B. If a nonconsensual lien is accepted for recording as described in subsection A, the recording officer shall accept for recording a notice of invalid lien that is signed and submitted by the attorney general or county attorney. The attorney general or county attorney shall mail a copy of the notice of invalid lien to the person who is designated as creditor and to the person who recorded the nonconsensual lien at the address of each as stated on the recorded document. The purported lien is conclusively presumed to be invalid when the invalid lien is recorded.

C. The county recorder shall not record any lien except as prescribed in subsection A or otherwise authorized by law unless the lien is accompanied by the notarized signature of the debtor on a document acknowledging the filing and recording of the lien.

D. A recording officer or a county is not liable for accepting for recording a lien pursuant to this section.

E. A nonconsensual lien that is recorded with the county recorder and that is not recorded by an authorized entity pursuant to subsection A or that is not ordered by the superior court does not affect the marketability of title to the real property described in the nonconsensual lien and shall not constitute actual or constructive notice of any of the matters contained in the lien.

§ 33-422 Land divisions; recording; disclosure affidavit

A. A seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county and any subsequent seller of such a parcel shall complete and furnish a written affidavit of disclosure to the buyer at least seven days before the transfer of the property and the buyer shall acknowledge receipt of the affidavit.

B. The affidavit must be written in twelve-point type.

C. A release or waiver of a seller's liability arising out of any omission or misrepresentation contained in an affidavit of disclosure is not valid or binding on the buyer.

D. The buyer has the right to rescind the sales transaction for a period of five days after the affidavit of disclosure is furnished to the buyer.

E. The seller shall record the executed affidavit of disclosure at the same time that the deed is recorded. The county recorder is not required to verify the accuracy of any statement in the affidavit of disclosure. A subsequently recorded affidavit supersedes any previous affidavit.

F. The affidavit of disclosure shall contain all of the following disclosures, be completed by the seller, meet the requirements of section 11-480 and follow substantially the following form:

When recorded mail to:

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Affidavit of Disclosure

Pursuant to A.R.S. § 33-422

I, ______________________________________________ (seller(s)) being duly sworn, hereby make this affidavit of disclosure relating to the real property situated in the unincorporated area of:

_______________________, County, State of Arizona, located at:

---

and legally described as:

(Legal description attached hereto as exhibit "A")

(property).

1. There ◻ is ◻ is not . . . . legal access to the property, as defined in A.R.S. § 11-831 . . . . ◻ unknown

Explain: ____________________________________________________

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---

2. There ◻ is ◻ is not . . . . physical access to the property. ◻ unknown

Explain: ____________________________________________________

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3. There ◻ is ◻ is not . . . . a statement from a licensed surveyor or engineer available stating whether the property has physical access that is traversable by a two-wheel drive passenger motor vehicle.

4. The legal and physical access to the property ◻ is ◻ is not . . . . the same....◻ unknown ◻ not applicable.

Explain: ____________________________________________________

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If access to the parcel is not traversable by emergency vehicles, the county and emergency service providers may not be held liable for any damages resulting from the inability to traverse the access to provide needed services.

5. The road(s) is/are ◻ publicly maintained ◻ privately maintained ◻ not maintained ◻ not applicable. If applicable, there ◻ is ◻ is not . . . . a recorded road maintenance agreement.

If the roads are not publicly maintained, it is the responsibility of the property owner(s) to maintain the roads and roads that are not improved to county standards and accepted for maintenance are not the county's responsibility.

6. A portion or all of the property ◻ is ◻ is not . . . . located in a FEMA designated regulatory floodplain. If the property is in a floodplain, it may be subject to floodplain regulation.

7. The property ◻ is ◻ is not subject to ◻ fissures or ◻ expansive soils. ◻ unknown

Explain: ____________________________________________________

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8. The following services are currently provided to the property: ◻ water ◻ sewer ◻ electric ◻ natural gas ◻ single party telephone ◻ cable television services.

9. The property ◻ is ◻ is not . . . . served by a water supply that requires the transportation of water to the property. If the property is served by a water supply that requires the transportation of water to the property, the seller shall disclose the name and contact information of the water hauler or water hauling company that is currently providing the transportation services to the property and the name and location of the water supply from which the water is currently being transported.

Water hauler name: ______________ Phone:__________

Water supply: __________________ Location:_________

10. The property is served by ◻ a private water company ◻ a municipal water provider ◻ a private well ◻ a shared well ◻ no well. If served by a shared well, the shared well ◻ is ◻ is not . . . . a public water system, as defined by the safe drinking water act (42 United States Code § 300f).

Notice to buyer: If the property is served by a well, a private water company or a municipal water provider the Arizona department of water resources may not have made a water supply determination. For more information about water supply, contact the water provider.

11. The property or the water used on the property ◻ is ◻ is not the subject of a statement of claimant for the use of water in a general adjudication of water rights. ◻ unknown.

This is a lawsuit to determine the use of and relative priority of water rights. A map of adjudicated areas is available at the website of the department of water resources.

12. The property ◻ does have ◻ does not have . . . . an on-site wastewater treatment facility (i.e., standard septic or alternative system to treat and dispose of wastewater). ◻ unknown. If applicable: a) The property ◻ will ◻ will not . . . . require installation of an on-site wastewater treatment facility; b) The on-site wastewater treatment facility ◻ has ◻ has not been inspected.

13. The property ◻ has been ◻ has not been . . . . subject to a percolation test. ◻ unknown.

14. The property ◻ does have ◻ does not have one or more solar energy devices that are ◻ leased ◻ owned.

If the solar energy devices are leased, the seller shall disclose the name and contact information of the leasing company.

Leasing company name: _______________ Phone: _______________

15. The property ◻ does have ◻ does not have one or more battery energy storage devices that are ◻ leased ◻ owned.

If the battery energy storage devices are leased, the seller shall disclose the name and contact information of the leasing company.

Leasing company name: _________________ Phone: ____________

16. The property ◻ does ◻ does not . . . . meet the minimum applicable county zoning requirements of the applicable zoning designation.

17. The sale of the property ◻ does ◻ does not . . . meet the requirements of A.R.S. § 11-831 and § 32-2181 regarding land divisions. If those requirements are not met, the property owner may not be able to obtain a building permit. It is unlawful pursuant to § 11-831, subsection F and § 32-2181, subsection D for a person or group of persons to attempt to avoid the subdivision laws of this state by acting in concert to divide a parcel of land into six or more lots or parcels. The county where the land division occurred or the state real estate department may investigate and enforce the prohibition against acting in concert to unlawfully divide a parcel of land into six or more lots or parcels. The seller or property owner shall disclose each of the deficiencies to the buyer.

Explain: ____________________________________________________

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18. The property ◻ is ◻ is not located in the clear zone of a military airport or ancillary military facility, as defined in A.R.S. § 28-8461. (Maps are available at the state real estate department's website.)

19. The property ◻ is ◻ is not located in the high noise or accident potential zone of a military airport or ancillary military facility, as defined in A.R.S. § 28-8461. (Maps are available at the state real estate department's website.)

20. Notice: If the property is located within the territory in the vicinity of a military airport or ancillary military facility, the property is required to comply with sound attenuation standards as prescribed by A.R.S. § 28-8482. (Maps are available at the state real estate department's website.)

21. The property ◻ is ◻ is not located under military restricted airspace. ◻ unknown. (Maps are available at the state real estate department's website.)

22. The property ◻ is ◻ is not located in a military electronics range as defined in A.R.S. § 9-500.28 and § 11-818. ◻ unknown. (Maps are available at the state real estate department's website.)

23. The property ◻ is ◻ is not located within the influence area of a military installation or range or Arizona national guard site as defined in sections 9-500.50 and 11-818.01 (Maps are available at the state real estate department website.)

24. Use of the property ◻ is ◻ is not limited in any way relating to an encumbrance of title due to a lis pendens, a court order or a state real estate department order or a pending legal action. If the use of the property is limited due to an encumbrance of title, the seller or property owner shall disclose the limitations to the buyer.

Explain: ____________________________________________________

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This affidavit of disclosure supersedes any previously recorded affidavit of disclosure.

I certify under penalty of perjury that the information contained in this affidavit is true, complete and correct according to my best belief and knowledge.

Dated this (date) __ day of (year) by:

Seller's name (print): ______________ Signature: _____________

Seller's name (print): ______________ Signature: _____________

State of Arizona )

) ss.

County of _________)

Subscribed and sworn before me this _ (date) __ day of (year) , by ________________________________________.

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Notary public

My commission expires:

(date)

Buyer(s) hereby acknowledges receipt of a copy of this affidavit of disclosure this (date) day of (year)

Buyer's name (print): _______________ Signature: _____________

Buyer's name (print): _______________ Signature: _____________

G. For the purposes of this section, seller and subsequent seller do not include a trustee of a deed of trust who is selling property by a trustee's sale pursuant to chapter 6.1 of this title or any officer who is selling property by execution sale pursuant to title 12, chapter 9 and chapter 6 of this title. If the seller is a trustee of a subdivision trust as defined in section 6-801, the disclosure affidavit required by this section shall be provided by the beneficiary of the subdivision trust.

§ 33-423 Disclosure; reports; indemnity; applicability; violation; classification

A. A disclosure report pursuant to this section may be provided to the buyer or seller of real property by a third party as authorized by the buyer or seller and shall be based on officially adopted and electronically posted or otherwise readily available governmental maps or information that discloses whether the real property is subject to one or more of the following:

1. Special flood hazard areas designated by the federal emergency management agency pursuant to 42 United States Code chapter 50.

2. Military airports and ancillary military facilities as defined in section 28-8461 or as disclosed pursuant to section 28-8484 or 32-2113.

3. Military training routes as shown in the map produced pursuant to section 37-102 and military restricted airspace as shown in the map produced pursuant to section 37-102.

4. Public and private airports that are approved by the federal aviation administration.

5. Expansive soils as shown on maps issued by the natural resource conservation service or on other officially adopted and readily available governmental maps.

6. Fissures as shown on earth fissure maps issued by the Arizona geological survey pursuant to section 27-106, subsection A, paragraph 3.

7. Special tax assessment areas or taxing authority and amount of special assessments in addition to ad valorem taxes as shown in the current tax records of the applicable county assessor.

8. Radon gas potential zones as shown on current maps issued by the United States environmental protection agency.

9. Environmental hazard superfund sites including the sites listed in the Arizona superfund program list and the water quality assurance revolving fund registry, or listed by the United States environmental protection agency including the national priorities list, the comprehensive environmental response compensation and liability information system database or on maps issued by the department of environmental quality or equivalent databases of those sites.

10. Any other condition that affects the real property that the buyer or seller authorizes and the third-party provider agrees to provide in a third-party provider disclosure report.

B. For any third-party provider of information as prescribed by this section, the following apply:

1. A seller or buyer shall not be required to provide the written disclosure provided by this section to an insurance company, a lender or a governmental agency.

2. The third-party provider shall carry errors and omissions insurance coverage with limits of at least one million dollars per occurrence and in an aggregate of at least ten million dollars. A person who violates this paragraph is guilty of a class 1 misdemeanor.

C. If an action is brought as a result of an error, inaccuracy or omission in the disclosure made only by a third-party provider who provides information pursuant to subsection A of this section, the third-party provider shall provide a defense against the action, shall indemnify the buyer or seller who authorized the disclosure report and persons licensed pursuant to title 32, chapter 20 who represent the buyer or seller for any judgment rendered and shall reimburse reasonable attorney fees and costs incurred in defending the action, unless the buyer, seller or agent for the buyer or seller had knowledge of the error, inaccuracy or omission or the buyer, seller or agent for the buyer or seller modified the disclosure and the modification resulted in the error, inaccuracy or omission. This section does not prohibit a third-party provider of information from agreeing by contract that the third-party provider shall indemnify a person to a greater extent than is required by this section.

D. If information that is disclosed pursuant to this section is subsequently rendered inaccurate as a result of any governmental action, map revision, changed information or other act or occurrence after the delivery of the disclosure, no person is liable for the information that was disclosed unless the person had knowledge of the error, inaccuracy or omission.

E. This section shall not be construed to create a cause of action for the use of maps or other information pursuant to this section. This section does not apply to the sale of real property by any person pursuant to section 32-2183 or section 32-2195.03, or any affiliate of that person.

F. This section does not obligate any person to provide or purchase a disclosure report that is the subject of this section.

G. The listing of a condition in subsection A of this section or in a third-party provider disclosure report does not by itself make that condition material or immaterial to a particular real estate transaction. The materiality of any disclosure is governed as otherwise provided by law.

§ 33-424 Representation of legal requirement; enforcement; private action; damages; violation; classification

A. It is unlawful for a third party provider offering a disclosure report pursuant to section 33-423 to represent in marketing materials, contracts or by any other means any of the following:

1. That such a disclosure report is required by any law to be purchased.

2. That a buyer, a seller or a person licensed pursuant to title 32, chapter 20 who represents a buyer or seller is required to comply with section 33-423 by purchasing a third party disclosure report.

3. That the third party provider offers protection from liability for or provides information about property conditions that are not the subject of the third party provider report or that are not within the current ability of the third party provider to provide.

B. An act or practice in violation of this section or section 33-423, subsection B, paragraph 2 is subject to enforcement through private action and prosecution by the attorney general or by the county attorney of the county in which the real property is located.

C. A person who receives marketing materials, contracts or other communication in violation of this section may bring an action pursuant to this section in any court of competent jurisdiction in the county in which the real property is located.

D. In addition to any other remedies provided by law, a third party provider who offers a disclosure report pursuant to section 33-423 and who is found to have violated this section is liable to the party receiving the marketing materials, contracts or other communication for damages of not more than two thousand dollars per occurrence. In any action brought pursuant to this section the prevailing party shall be awarded reasonable attorney fees and costs.

E. A person who violates subsection A of this section is guilty of a class 1 misdemeanor.

Article 3 Rules of Construction and Interpretation

§ 33-431 Grants and devises to two or more persons; estates in common; community property with right of survivorship; joint tenants with right of survivorship

A. Except as otherwise provided in this section, all grants and devises of real property made to two or more persons create estates in common and not in joint tenancy, except grants or devises in trust, or to executors, or to husband and wife.

B. A grant or devise to two or more persons may by express words vest the estate in the survivor on the death of a grantee or devisee when expressly declared in the grant, transfer or devise to be a joint tenancy with right of survivorship. An estate in joint tenancy with right of survivorship may also be created by grant or transfer from a sole owner to himself and others, or from two or more owners to themselves or to one or more of them and others.

C. A grant or devise to a husband and wife may by express words vest the estate in the surviving spouse on the death of one of the spouses when expressly declared in the grant, transfer or devise to be an estate in community property with right of survivorship. An estate in community property with right of survivorship may also be created by grant or transfer from a husband and wife, when holding title as community property or otherwise, to themselves or from either husband or wife to both husband and wife.

D. In the case of real property owned by a husband and wife as community property with right of survivorship, the right of survivorship is extinguished as provided in section 14-2804 or on the recordation in the office of the recorder of the county or counties where the real property is located an affidavit entitled "affidavit terminating right of survivorship" executed by either spouse under oath that sets forth a stated intent by the spouse to terminate the survivorship right, a description of the instrument by which the right of survivorship was created including the date the instrument was recorded and the county recorder's book and page or instrument reference number and the legal description of the real property affected by the affidavit. The recordation shall not extinguish the community interest of either spouse.

E. In the case of real property owned as joint tenants with right of survivorship, the right of survivorship is extinguished as provided in section 14-2804 or on the recordation in the office of the recorder of the county or counties where the real property is located an affidavit entitled "affidavit terminating right of survivorship" executed by any joint tenant under oath that sets forth a stated intent by that joint tenant to terminate the survivorship right, a description of the instrument by which the right of survivorship was created including the date the instrument was recorded and the county recorder's book and page or instrument reference number and the legal description of the real property affected by the affidavit. If there are more than two joint tenants, the recordation of the affidavit shall extinguish only the joint tenancy and survivorship right of the person who executes the affidavit, and the joint tenancy and survivorship right shall continue among all remaining joint tenants who have not executed an affidavit of termination.

F. With respect to a deceased joint tenant, the termination or extinguishment by death of that tenant's joint tenancy with right of survivorship may be evidenced by the recordation of both of the following items in the office of the recorder of the county or counties where the real property is located:

1. An affidavit executed by one or more of the surviving joint tenants that includes the name of the deceased joint tenant, the date of death of the deceased joint tenant, a description of the instrument by which the right of survivorship was created including the date the instrument was recorded and the county recorder's book and page or instrument reference number, the legal description of the real property affected by the affidavit, and the cause of death of the deceased joint tenant.

2. An attached death certificate of the deceased joint tenant.

§ 33-432 Presumption of intention to convey fee

A. Every estate in lands granted, conveyed or devised, although other words necessary at common law to transfer an estate in fee simple are not added, shall be deemed a fee simple if a lesser estate is not limited by express words or does not appear to have been granted, conveyed or devised by construction or operation of law.

B. In this chapter, unless the context otherwise requires, "land" means and includes mines and mining claims.

§ 33-433 Effect of alienation purporting to pass greater right than possessed by person making alienation

Alienations of real property, made by any person purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations of as much of the right and estate in the lands, tenements or hereditaments as the person might lawfully convey, but such alienations shall not pass or bar the residue of the right or estate purporting to be conveyed or assured.

§ 33-434 Covenants between purchaser and seller

No person shall be obliged to insert the covenant of warranty, or restrained from inserting any clause in a conveyance which is deemed proper and advisable by the purchaser and seller, and forms not contravening laws of the land shall not be invalidated.

§ 33-434.01 Seller's duty to disclose; soil remediation; definition

A. An owner of property that has been subject to soil remediation conducted pursuant to section 49-104, subsection B, paragraph 16 shall, prior to transferring ownership of the property, give written notice of the remediation to the purchaser, if the owner has actual knowledge that the property has been subject to soil remediation. Written notice is not required where soil remediation attains standards for residential uses in accordance with rules adopted pursuant to section 49-104, subsection B, paragraph 16.

B. Actions brought under this section for failure of the seller to provide such written notice to the purchaser shall proceed as other civil actions.

C. For the purposes of this section, the term "residential use" means those uses of remediated property upon which there are dwellings where residents may reasonably be expected to be in frequent, repeated contact with soil, or other uses where natural persons are reasonably expected to be in similar contact, such as child care centers and elementary schools.

§ 33-435 Covenants implied from word "grant" or "convey"

A. If the word "grant" or the word "convey" is used in a conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants and none other, on the part of the grantor for himself and his heirs, to the grantee and his heirs and assigns, are implied unless restrained by express terms contained in the conveyance:

1. That previous to the time of execution of the conveyance the grantor has not conveyed the same estate or any right, title or interest therein, to any person other than the grantee.

2. That the estate is at the time of execution of the conveyance free from encumbrances.

B. As used in this section, the term "encumbrances" includes taxes, assessments and all liens on real property.

C. The implied covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.

§ 33-436 Effect of insubstantial conditions in conveyance

When a condition annexed to a grant or conveyance of land is merely nominal and without actual and substantial benefit to the party to whom or in whose favor it is to be performed, it may be wholly disregarded, and a failure to perform the condition shall not forfeit the lands conveyed subject thereto.

§ 33-437 Defective conveyance as contract to convey

When an instrument in writing, intended as a conveyance of real property or some interest therein, fails wholly or in part to take effect as a conveyance by virtue of the provisions of this chapter, it is valid nevertheless and effectual as a contract upon which a conveyance may be enforced, as far as rules of law permit.

§ 33-438 Sale of property subject to certain liens and encumbrances

A. As used in this section, "lien or encumbrance" does not include taxes or assessments, reservations in patents, easements, rights-of-way, reservation of mineral rights, covenants, conditions or restrictions.

B. The sale of any lot or parcel of property which is subject to a lien or encumbrance or when the interest of the seller is held under option or contract of purchase or in trust, shall be voidable by the buyer, unless there is a provision in the instrument evidencing the lien, encumbrance, option, contract or trust agreement, or in a valid supplementary agreement, assuring that the buyer will receive title free of the lien, encumbrance, option, contract or trust agreement, upon completion of all payments and performances of all the terms and provisions required to be made or performed by the buyer.

C. The buyer's right to void such sale may not be exercised if he has in fact received title, free of such lien, encumbrance, option, contract or trust. Any action to void such sale shall be commenced either within two years after discovery or after completion of all payments and performance of all terms and provisions required to be made or performed by the buyer, whichever occurs first, and not thereafter.

D. The buyer's right to void such sale shall be in addition to and shall not affect any other legal or equitable remedy.

§ 33-439 Restrictions on installation or use of solar energy devices invalid; exception

A. Any covenant, restriction or condition contained in any deed, contract, security agreement or other instrument affecting the transfer or sale of, or any interest in, real property which effectively prohibits the installation or use of a solar energy device as defined in section 44-1761 is void and unenforceable.

B. A deed, contract, security agreement or other instrument affecting the transfer or sale of, or any interest in, real property entered into before April 17, 1980 shall not be subject to the provisions of this section.

§ 33-440 Enforceability of private covenants; amendment of declaration; definitions

A. An owner of real property may enter into a private covenant regarding that real property and the private covenant is valid and enforceable according to its terms if all of the following apply:

1. The private covenant is not prohibited by any other existing private covenant or declaration affecting the real property and does not violate any statute governing the subject matter of the private covenant that is in effect before September 26, 2008.

2. The owner of the real property affected by the private covenant and any person on whom the private covenant imposes any liability or obligation have consented to the private covenant.

3. Any consent requirements contained in the express provisions of any existing private covenant or declaration affecting the real property have been met.

B. A private covenant is deemed not to constitute an amendment to any existing private covenant or declaration unless the private covenant expressly violates an express provision of the existing private covenant or declaration.

C. Except during the period of declarant control, or if during the period of declarant control with the written consent of the declarant in each instance, the following apply to an amendment to a declaration:

1. The declaration may be amended by the association, if any, or, if there is no association or board, the owners of the property that is subject to the declaration, by an affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration.

2. An amendment to a declaration may apply to fewer than all of the lots or less than all of the property that is bound by the declaration and an amendment is deemed to conform to the general design and plan of the community, if both of the following apply:

(a) The amendment receives the affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration.

(b) The amendment receives the affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies.

3. Within thirty days after the adoption of any amendment pursuant to this subsection, the association or, if there is no association or board, a property owner that is authorized by the affirmative vote on or the written consent to the amendment shall prepare, execute and record a written instrument setting forth the amendment.

4. Notwithstanding any provision in the declaration that provides for periodic renewal of the declaration, an amendment to the declaration is effective immediately on recordation of the instrument in the county in which the property is located.

D. Subsection C of this section does not apply to a condominium as defined in section 33-1202 or a timeshare plan or association as defined in section 33-2202.

E. For the purposes of this section:

1. "Declaration" means any instrument, however denominated, that establishes restrictive covenants on the development or use of real property.

2. "Private covenant" means any uniform or nonuniform covenant, restriction or condition regarding real property that is contained in any deed, contract, agreement or other recorded instrument affecting real property.

§ 33-441 For sale signs; restrictions unenforceable

A. A covenant, restriction or condition contained in any deed, contract, security agreement or other instrument affecting the transfer or sale of any interest in real property shall not be applied to prohibit the indoor or outdoor display of a for sale sign and a sign rider by a property owner on that person's property, including a sign that indicates the person is offering the property for sale by owner. The size of a sign offering a property for sale shall be in conformance with the industry standard size sign, which shall not exceed eighteen by twenty-four inches, and the industry standard size sign rider, which shall not exceed six by twenty-four inches.

B. This section applies to any covenant, restriction or condition without regard to the date the covenant, restriction or condition was created, signed or recorded. This section does not apply to timeshare property and timeshare interest as defined in section 33-2202.

C. This section does not apply to a covenant, restriction or condition in a deed, contract, security agreement or other instrument affecting the transfer or sale of an interest in real property that does not prohibit or restrict the display of a for sale sign or a sign rider on the real property.

§ 33-442 Prohibition on transfer fees; exceptions; definitions

A. A provision in a declaration, a covenant or any other document relating to real property in this state is not binding or enforceable against the real property or against any subsequent owner, purchaser, lienholder or other claimant on the property if it purports to do both of the following:

1. Bind successors in title to the specified real property.

2. Obligate the transferee or transferor of all or part of the property to pay a fee or other charge to a declarant or a third person on transfer of an interest in the property or in consideration for permitting such a transfer. Regularly scheduled fees or charges shall not be considered payable on transfer of an interest if the fees or charges will be payable by the owner of the property regardless of whether or not the property is transferred, even if the obligation to pay does not commence until the trustee, declarant, builder or developer first conveys the property to a retail purchaser.

B. A transfer fee provision prescribed by subsection A of this section is unenforceable whether or not recorded and does not create a lien right and any lien purportedly arising out of an unenforceable provision prescribed by subsection A of this section is invalid and unenforceable.

C. This section does not apply to any of the following:

1. Any provision of a purchase contract, option, mortgage, security agreement, real property listing agreement or other agreement that obligates one party to the agreement to pay the other party as full or partial consideration for the agreement or for a waiver of rights under the agreement if the amount to be paid is:

(a) A loan assumption fee or similar fee charged by a lender that holds a lien on the property.

(b) A fee or commission paid to a licensed real estate broker for brokerage services rendered in connection with the transfer of the property for which the fee or commission is paid.

2. Any provision in a deed, memorandum or other document recorded for the purpose of providing record notice of an agreement prescribed in paragraph 1, subdivision (a) of this subsection.

3. Any provision of a document that requires payment of a fee or charge to an association to be used exclusively for the purpose authorized in the document if both of the following apply:

(a) The fee being charged touches and concerns the land.

(b) No portion of the charge or fee is required to be passed through to a third party or declarant designated or identifiable by description in the document or in another document that is referenced in the document unless the third party is authorized in the document to manage real property within the association or was part of an approved development plan.

4. Any rent, reimbursement, charge, fee or other amount payable by a lessee to a lessor under a lease, including any fee payable to the lessor for consenting to an assignment, sublease, encumbrance or transfer of the lease.

5. Any consideration payable to the holder of an option to purchase an interest in the real property or to the holder of a right of first refusal or first offer to purchase an interest in real property and paid for waiving, releasing or not exercising the option or right on transfer of the property to another person.

6. Any fee, charge, assessment, dues, contribution or other amount relating to the purchase or transfer of a club membership related to the real property owner by the transferor.

7. Any fee or charge that is imposed by a document and that is payable to a nonprofit corporation for the sole purpose of supporting recreational activities within the association.

8. Any fee, tax, assessment or other charge imposed by a governmental authority pursuant to applicable laws, ordinances or regulations.

9. Any consideration payable by the transferee to the transferor for the interest in real property being transferred including any subsequent additional consideration for the property payable by the transferee based on any subsequent appreciation, development or sale of the property.

D. Notwithstanding any provision in the document or purported lien, a transfer fee covenant or other document prescribed by subsection A of this section or a lien purporting to secure payment under a transfer fee covenant or document prescribed by subsection A of this section that is executed after July 29, 2010 is not binding or enforceable. This section shall not be construed to imply that a transfer fee covenant or other document prescribed by subsection A of this section that is executed before July 29, 2010 is enforceable or valid.

E. An association shall not charge a fee authorized under subsection C of this section for any conveyance between parties prescribed by section 11-1134, subsection B, paragraphs 3 or 7, except for service fees for the administration of association records authorized in a managing agent contract with the association.

F. For the purposes of this section:

1. "Association" means a nonprofit organization that is qualified under section 501(c)(3) or section 501(c)(4) of the United States internal revenue code or a nonprofit mandatory membership organization that is created pursuant to a declaration, covenant or other applicable law and that is composed of the owners of homes, condominiums, cooperatives or manufactured homes or any other interest in real property.

2. "Transfer" means the sale, gift, conveyance, assignment, inheritance or other transfer of an interest in real property located in this state.

§ 33-443 Prohibition against land ownership; foreign adversary nation or agent; enforcement; violation; classification; definitions

A. Notwithstanding any other law and except as provided in subsection F of this section, a foreign adversary nation or a foreign adversary agent may not, directly or indirectly, purchase, own, acquire by grant or devise or otherwise obtain a substantial interest in real property in this state.

B. The attorney general shall enforce this section. The enforcement of this section may not be based on a person's race or national origin. If the attorney general reasonably suspects a violation of this section occurred, the attorney general:

1. May commence an action in superior court in the county in which the real property is located.

2. Shall report the matter to the federal bureau of investigation for suspected espionage activity or to other local, state or federal law enforcement agencies with the statutory authority to investigate those cases.

3. Shall report the matter to the committee on foreign investments in the United States (50 United States Code section 4565).

C. If pursuant to an action filed under subsection B, paragraph 1 of this section the superior court finds that title or a substantial interest in real property was obtained in violation of subsection A of this section, the court shall enter an order:

1. Stating the court's findings.

2. Divesting the person's interest.

3. Directing the board of supervisors to sell the real property in a manner that is consistent with title 42, chapter 18, article 7, except that the board of supervisors shall distribute the remaining proceeds after paying taxes, interest, penalties, fees and costs in the following order of priority:

(a) To any valid lienholder for the value of the lienholder's outstanding lien that is attached to the real property.

(b) To the appropriate county treasurer and the attorney general to reimburse the appropriate board of supervisors and the attorney general for expenses incurred in the prosecution of a violation of this section.

(c) To the property owner in an amount equal to the remaining proceeds of the sale, if any.

D. A title insurer, title agent, escrow agent or real estate licensee may not be held liable for any violation of this section.

E. A violation of this section may not be the basis for a title insurance claim for any title insurance policy issued for property in this state.

F. A foreign adversary nation or foreign adversary agent may acquire real property or any interest in real property in this state by devise or descent, the enforcement of security interests or the collection of debt, if the foreign adversary nation or foreign adversary agent sells, transfers or otherwise divests from the real property within one hundred twenty days after acquiring the real property.

G. It is unlawful for a person to knowingly make to a law enforcement agency of this state or a political subdivision of this state a false, fraudulent or unfounded report or statement regarding an alleged violation of this section. A violation of this subsection is a class 1 misdemeanor.

H. For the purposes of this section:

1. "Foreign adversary agent" means any of the following:

(a) An agent of a foreign adversary nation involved in espionage.

(b) A state-owned enterprise of a foreign adversary nation.

(c) An entity that is directed or controlled by a foreign adversary nation or the proxies of that foreign adversary nation.

(d) A leader of a controlling political party or government or any administrative subdivision of a foreign adversary nation.

(e) Any business or other entity that is headquartered or domiciled in a foreign adversary nation and directly or indirectly held or controlled by a foreign adversary nation.

2. "Foreign adversary nation" means a country that is either of the following:

(a) Identified by the United States director of national intelligence as a country that poses a risk to the national security of the United States in each of the three most recent annual threat assessments of the United States intelligence community issued pursuant to section 108b of the national security act of 1947 (50 United States Code section 3043b).

(b) Determined by the United States department of commerce pursuant to 15 Code of Federal Regulations section 791.4.

3. "Substantial interest" means an interest of thirty percent or more.

Article 4 Power to Convey

§ 33-451 Conveyance of separate property

Married persons of the age of eighteen years or more may convey their separate property without being joined by the spouse in the conveyance.

§ 33-452 Conveyance of community property

A conveyance or incumbrance of community property is not valid unless executed and acknowledged by both husband and wife, except unpatented mining claims which may be conveyed or incumbered by the spouse having the title or right of possession without the other spouse joining in the conveyance or incumbrance.

§ 33-453 Conveyance of homestead

The homestead of a family shall not be conveyed or encumbered by a spouse without consent of the other spouse. The consent shall be evidenced by each spouse joining in the conveyance by signing their names thereto, and also by acknowledgment thereof. Consent of a nonowner spouse shall not be required where the homestead property is conveyed or encumbered by an owner spouse who holds title to the property as sole and separate property.

§ 33-454 Power of attorney from one spouse to the other to execute instruments relating to property

Either husband or wife may authorize the other by power of attorney, executed and acknowledged in the manner conveyances of real property are executed and acknowledged, to execute, acknowledge and deliver, in his or her name and behalf, any conveyance, mortgage or other instrument affecting the separate or community property or any interest therein of the spouse executing the power of attorney.

§ 33-455 Conveyance of absolute title by judicial sale; effect upon rights of persons not parties

Every conveyance of real property by a commissioner, sheriff or other officer legally authorized to sell such property by virtue of a decree or judgment of any court within this state, shall be effectual to pass absolute title to the property to the purchaser thereof, but the conveyance shall not affect the right, title or interest of any person other than the parties to the conveyance, decree or judgment, and those claiming under them.

§ 33-456 Passage of title to real or personal property by judgment

When a judgment directs the conveyance of real property or the delivery of personal property, the judgment shall pass title to such property without any act by the party against whom the judgment is given.

§ 33-457 Fraudulent representation by married person of ability to convey realty; classification

A married person who falsely and fraudulently represents himself or herself as competent to sell or mortgage real estate, when the validity of the sale or mortgage requires the assent or concurrence of the wife or husband, and, under such representations, knowingly conveys or mortgages the real estate, is guilty of a class 5 felony.

§ 33-458 Resale of realty with intent to defraud; classification

A person who, after selling, bartering or disposing of, or, after executing a bond or agreement for the sale of land, again knowingly and with intent to defraud previous or subsequent purchasers, sells, barters or disposes of, or executes a bond or agreement to sell, barter or dispose of the same land or any part thereof to any other person for a valuable consideration, is guilty of a class 4 felony.

Article 6 Acknowledgments

§ 33-511 Acknowledgment within the state

The acknowledgment of any instrument may be made in this state before:

1. A judge of a court of record.

2. A clerk or deputy clerk of a court having a seal.

3. A recorder of deeds.

4. A notary public.

5. A justice of the peace.

6. A county recorder.

§ 33-512 Acknowledgment by a married woman

An acknowledgment of a married woman may be made in the same form as though she were unmarried.

§ 33-513 Action to correct certificate of acknowledgment

When an acknowledgment is properly made, but defectively certified, any party interested may bring an action in the superior court to obtain a judgment correcting the certificate.

Article 7 Uniform Unlawful Restrictions in Land Records Act

§ 33-531 Short title

This article may be cited as the uniform unlawful restrictions in land records act.

§ 33-532 Definitions

In this article, unless the context otherwise requires:

1. "Amendment" means a document that removes an unlawful restriction.

2. "Document" means a record recorded or eligible to be recorded in land records.

3. "Governing instrument" means a declaration of a condominium as prescribed in chapter 9 of this title or of a planned community as prescribed in chapter 16 of this title or any document recorded in land records that does any of the following:

(a) Establishes a governing body of an association of owners that is identified in a document and that is responsible for managing common areas or facilities used by more than one owner of a property interest affected by the document.

(b) Requires contribution of assessments or dues from owners of property that is enforceable by a lien on a separate property interest for expenses incurred by a governing body of an association of owners in the performance of obligations established for the common benefit of the owners of the real property described in the document.

(c) Establishes prohibitions, restrictions, covenants or conditions on the transfer, use or occupancy of the real property described in the document that are to be enforced by a governing body of an association of owners identified in a document.

4. "Index" means a system that enables a search for a document in land records.

5. "Land records" means documents and indexes maintained by a recorder.

6. "Owner" means a person that has a fee interest in real property.

7. "Person" means an individual, estate, business or nonprofit entity, government or governmental subdivision, agency, instrumentality or other legal entity.

8. "Record", used as a noun, means information that is either of the following:

(a) Inscribed on a tangible medium.

(b) Stored in an electronic or other medium and retrievable in perceivable form.

9. "Recorder" means the county recorder.

10. "Remove" means eliminate any apparent or purportedly continuing effect on title to real property.

11. "Unlawful restriction" means a prohibition, restriction, covenant or condition in a document that interferes with or restricts the transfer, use or occupancy of real property on the basis of race, color, religion, national origin, sex, familial status or disability in violation of state or federal law.

§ 33-533 Amendment by owner

Except with respect to property to which section 33-534 applies, an owner of real property subject to an unlawful restriction may submit to the recorder for recordation in the land records of the county in which the property is located an amendment to remove the unlawful restriction, but only as to the owner's property.

§ 33-534 Amendment by association of owners

A. The governing body of an association of owners identified in a governing instrument, including the board of directors of a condominium as prescribed in chapter 9 of this title or a planned community as prescribed in chapter 16 of this title, without a vote of the members of the association, may amend the governing instrument to remove an unlawful restriction.

B. A member of an association of owners may request in a record that sufficiently identifies an unlawful restriction in the governing instrument that the governing body exercise its authority under subsection A of this section. Not later than ninety days after the governing body receives the request, the governing body shall determine, reasonably and in good faith, whether the governing instrument includes the unlawful restriction. If the governing body determines the governing instrument includes the unlawful restriction, the governing body not later than ninety days after the determination shall amend the governing instrument to remove the unlawful restriction.

C. Notwithstanding any provision of the governing instrument or any other law, the governing body may execute an amendment under this section.

D. An amendment under this section is effective, notwithstanding any provision of the governing instrument or any other law that requires a vote of the members of the association of owners to amend the governing instrument.

§ 33-535 Requirements and limitations of amendment

A. An amendment by an owner under section 33-533 must identify the owner, the real property affected and the document containing the unlawful restriction. An amendment by an association of owners under section 33-534 must identify only the document containing the unlawful restriction. The amendment must include a conspicuous statement in substantially the following form:

This amendment removes from this deed or other document affecting title to real property an unlawful restriction as defined in section 33-532, Arizona Revised Statutes. This amendment does not affect the validity or enforceability of a restriction that is not an unlawful restriction.

B. The amendment must be executed and acknowledged in the manner required for recordation of a document in the land records. The amendment must be recorded in the land records of each county in which the document containing the unlawful restriction is recorded.

C. The amendment does not affect the validity or enforceability of any restriction that is not an unlawful restriction.

D. The amendment or a future conveyance of the affected real property is not a republication of a restriction that otherwise would expire by passage of time under any other law.

§ 33-536 Optional form for amendment by owner

The following form may be used by an owner to make an amendment under section 33-533:

Amendment By Owner To Remove An Unlawful Restriction

This amendment is recorded under title 33, chapter 4, article 7, Arizona Revised Statutes, by an owner of an interest in real property subject to an unlawful restriction as defined in section 33-532, Arizona Revised Statutes.

1. Name of owner: ____________________________________

2. Owner's property that is subject to the unlawful restriction is described as follows:

Address: ______________________________________________

Legal description: ____________________________________

3. This amendment amends the following document:

Title of document being amended: ______________________

Recording date of document being amended: _____________

Recording information (book/page or instrument number): ___________________________________

This amendment removes from the document described in paragraph 3 all unlawful restrictions as defined in section 33-532, Arizona Revised Statutes. Removal of an unlawful restriction through this amendment does not affect the validity and enforceability of any other restriction that is not an unlawful restriction as defined under section 33-532, Arizona Revised Statutes, at the time of filing this amendment. This amendment is not effective if the property is subject to a governing instrument as defined in section 33-532, Arizona Revised Statutes.

---

Owner's signature Date

Notary Acknowledgment

§ 33-537 Duty and liability of recorder

A. The recorder shall record an amendment submitted under this article, add the amendment to the index and cross reference the amendment to the document containing the unlawful restriction.

B. The recorder and the county are not liable for recording an amendment under this article.

§ 33-538 Uniformity of application and construction

In applying and construing this article, a court shall consider the promotion of uniformity of the law among jurisdictions that enact it.

§ 33-539 Relation to electronic signatures in global and national commerce act

This article modifies, limits or supersedes the electronic signatures in global and national commerce act, 15 United States Code 7001 through 7031 but does not modify, limit or supersede 15 United States Code section 7001(c), or authorize electronic delivery of any of the notices described in 15 United States Code section 7003(b).

Chapter 5 Gifts

Article 1 Formal Requirements

§ 33-601 Gifts

A gift of any goods or chattels is not valid unless the gift is in writing, duly acknowledged and recorded, or by will, duly proved and recorded, or unless actual possession of the gift is passed to and remains with the donee or some one claiming under him.

Chapter 6 Mortgages

Article 1 Mortgages Generally

§ 33-701 Interests which may be mortgaged; formal requirements; recording

A. Any interest in real property capable of being transferred may be mortgaged.

B. A mortgage may be created, renewed or extended only by writing executed with the formalities required of a grant of real property, and may be acknowledged, certified and recorded in like manner and with like effect.

§ 33-702 Mortgage defined; admissibility of proof that transfer is a mortgage

A. Every transfer of an interest in real property, other than in trust, or a trust deed subject to the provisions of chapter 6.1 of this title, made only as a security for the performance of another act, is a mortgage. The fact that a transfer was made subject to defeasance on a condition may, for the purpose of showing that the transfer is a mortgage, be proved except against a subsequent purchaser or encumbrancer for value and without notice, notwithstanding that the fact does not appear by the terms of the instrument.

B. A mortgage or trust deed may provide for an assignment to the mortgagee or beneficiary of the interest of the mortgagor or trustor in leases, rents, issues, profits or income from the property covered thereby, whether effective before, upon or after a default under such mortgage or trust deed or any contract secured thereby, and such assignment may be enforced without regard to the adequacy of the security or the solvency of the mortgagor or trustor by any one or more of the following methods:

1. The appointment of a receiver.

2. The mortgagee or beneficiary taking possession of the property, or without the mortgagee or beneficiary taking possession of the property.

3. Collecting such monies directly from the parties obligated for payment.

4. Injunction.

§ 33-703 Effect of mortgage as lien; right to possession of mortgaged property; rights of mortgagee in property acquired by mortgagor after execution of mortgage

A. A mortgage is a lien upon everything that would pass by a grant of the property, but does not entitle the mortgagee to possession of the property unless authorized by the express terms of the mortgage. After execution of the mortgage, the mortgagor may agree to a change of possession without a new consideration.

B. Title acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as security as if acquired before the execution.

§ 33-704 Performance of assessment work or payment of maintenance fees on mining claim by mortgagee; expense as additional debt secured by mortgage

The mortgagee, if the mortgaged property or part thereof consists of unpatented mining claims, may perform the annual labor or improvement, or pay the maintenance fees required by law to prevent the forfeiture of the claim, and the amount expended for that purpose shall be an additional debt secured by the mortgage, and included in the judgment of foreclosure, or, if expended after judgment, but before sale, added to the amount of the execution.

§ 33-705 Purchase money mortgage or deed of trust; priority

A mortgage or deed of trust that is given as security for a loan made to purchase the real property that is encumbered by the mortgage or deed of trust has priority over all other liens and encumbrances that are incurred against the purchaser before acquiring title to the real property.

§ 33-706 Assignment of mortgage; recording as notice

An assignment of a mortgage may be recorded in like manner as a mortgage, and the record is notice to all persons subsequently deriving title to the mortgage from the assignor.

§ 33-707 Acknowledgment of satisfaction; recording

A. If a mortgagee, trustee or person entitled to payment receives full satisfaction of a mortgage or deed of trust, he shall acknowledge satisfaction of the mortgage or deed of trust by delivering to the person making satisfaction or by recording a sufficient release or satisfaction of mortgage or deed of release and reconveyance of the deed of trust, which release, satisfaction of mortgage or deed of release and reconveyance shall contain the docket and page number or recording number of the mortgage or deed of trust. If a mortgagee, trustee or person entitled to payment receives an amount less than full satisfaction of a mortgage or deed of trust, but has agreed in writing to release the mortgage or deed of trust, the mortgagee, trustee or person shall acknowledge release of the mortgage or deed of trust by delivering to the person making payment of the agreed amount that is less than full satisfaction or by recording a sufficient release of the mortgage or release and reconveyance of the deed of trust, which release or release and reconveyance shall contain the docket and page number or recording number of the mortgage or deed of trust. It shall not be necessary for the trustee to join in the acknowledgment or satisfaction, or in the release, satisfaction of mortgage or deed of release and reconveyance. The recorded release or satisfaction of mortgage or deed of release and reconveyance constitutes conclusive evidence of full or partial satisfaction and release of the mortgage or deed of trust in favor of purchasers and encumbrancers for value and without actual notice.

B. When a mortgage or deed of trust is satisfied by a release or satisfaction of mortgage or deed of release and reconveyance, except where the record of such deed of trust or mortgage has been destroyed or reduced to microfilm, the recorder shall record the release or satisfaction of the deed of trust or mortgage showing the book and page or recording number where the deed of trust or mortgage is recorded.

C. If the record of such mortgage or deed of trust has been destroyed and the record thereof reduced to microfilm, it shall be sufficient evidence of satisfaction of any such mortgage or deed of trust for the release or satisfaction of mortgage or deed of release and reconveyance to be recorded and indexed as such. The instrument shall sufficiently identify the mortgage or deed of trust by parties and by book and page or recording number of the official records. Such instrument shall be treated as a release or satisfaction of mortgage or deed of release and reconveyance and recorded.

D. If the note secured by a mortgage or deed of trust has been lost or destroyed, the assignee, mortgagee or beneficiary shall, before acknowledging satisfaction, make an affidavit that he is the lawful owner of the note and that it has been paid, but cannot be produced for the reason that it has been lost or destroyed, and the affidavit shall be recorded. If the record of such mortgage or deed of trust has been destroyed and the record thereof reduced to microfilm, such affidavit shall be recorded and indexed as releases, satisfactions of mortgage and deeds of release and reconveyance are recorded and indexed and shall have the same force and effect as a release or satisfaction of a mortgage or deed of release and reconveyance as provided in subsection A of this section.

E. If a full release or satisfaction of mortgage or deed of release and reconveyance of deed of trust that, according to its terms, recites that it secures an obligation having a stated indebtedness not greater than one million dollars exclusive of interest, or a partial release or satisfaction of mortgage or partial deed of release and reconveyance of deed of trust that, according to its terms, recites that the payment required for the partial satisfaction or release does not exceed one million dollars exclusive of interest, or a release of mortgage or deed of release and reconveyance of deed of trust by a mortgagee, trustee or person who has agreed in writing to release the mortgage or deed of trust in exchange for receipt of an amount less than full satisfaction of the mortgage or deed of trust and that, according to its terms, recites that it secures an obligation having a stated indebtedness not greater than one million dollars exclusive of interest, has not been executed and recorded pursuant to subsection A or C of this section within sixty days of full or partial satisfaction of the obligation secured by such mortgage or deed of trust, or within sixty days of the receipt by the mortgagee, trustee or other person of an amount less than full satisfaction if agreed in writing, a title insurer as defined in section 20-1562 may prepare, execute and record a full or partial release or satisfaction of mortgage or deed of full or partial release and reconveyance of deed of trust. No earlier than sixty days after full or partial satisfaction and at least thirty days prior to the issuance and recording of any such release or satisfaction of mortgage or deed of release and reconveyance pursuant to this subsection, the title insurer shall mail by certified mail with postage prepaid, return receipt requested, to the mortgagee of record or to the trustee and beneficiary of record and their respective successors in interest of record at their last known address shown of record and to any persons who according to the records of the title insurer received payment of the obligation at the address shown in such records, a notice of its intention to release the mortgage or deed of trust accompanied by a copy of the release or satisfaction of mortgage or deed of release and reconveyance to be recorded which shall set forth:

1. The name of the beneficiary or mortgagee or any successors in interest of record of such mortgagee or beneficiary and, if known, the name of any servicing agent.

2. The name of the original mortgagor or trustor.

3. The name of the current record owner of the property and if the release or satisfaction of mortgage or deed of release and reconveyance is a partial release, the name of the current record owner of the parcel described in the partial release or satisfaction of mortgage or deed of partial release and reconveyance of deed of trust.

4. The recording reference to the deed of trust or mortgage.

5. The date and amount of payment, if known.

6. A statement that the title insurer has actual knowledge that the obligation secured by the mortgage or deed of trust has been paid in full, or if the release or satisfaction of mortgage or deed of release and reconveyance of deed of trust is a partial release, a statement that the title insurer has actual knowledge that the partial payment required for the release of the parcel described in the partial release or satisfaction has been paid or, if the release of mortgage or deed or release and reconveyance of deed of trust results from a mortgagee's, trustee's of other person's written agreement to accept an amount less than full satisfaction of the obligation, a statement that the title insurer has actual knowledge that the agreed upon payment has been made in full.

F. The release or satisfaction of mortgage or release and reconveyance of deed of trust may be executed by a duly appointed attorney-in-fact of the title insurer, but such delegation shall not relieve the title insurer from any liability pursuant to this section.

G. A full or partial release or satisfaction of mortgage or deed of full or partial release and reconveyance of deed of trust issued pursuant to subsection E of this section shall be entitled to recordation and, when recorded, shall constitute a full or partial release or satisfaction of mortgage or deed of release and reconveyance of deed of trust issued pursuant to subsection A or C of this section.

H. Where an obligation secured by a deed of trust or mortgage was paid in full prior to September 21, 1991, and no release or satisfaction of mortgage or deed of release and reconveyance of deed of trust was issued and recorded by November 20, 1991, a release or satisfaction of mortgage or deed of release and reconveyance of deed of trust as provided for in subsection E of this section may be prepared and recorded without the notice prescribed by subsection E of this section.

I. A release or satisfaction of mortgage or a release and reconveyance of deed of trust by a title insurer under the provisions of subsection E of this section shall not constitute a defense nor release any person from compliance with subsections A through D of this section or from liability under section 33-712.

J. In addition to any other remedy provided by law, a title insurer preparing or recording the release and satisfaction of mortgage or the release and reconveyance of deed of trust pursuant to subsection E of this section shall be liable to any party for actual damage, including attorney fees, which any person may sustain by reason of the issuance and recording of the release and satisfaction of mortgage or release and reconveyance of deed of trust.

K. The title insurer shall not record a release and satisfaction of mortgage or release and reconveyance of deed of trust if, prior to the expiration of the thirty day period specified in subsection E of this section, the title insurer receives a notice from the mortgagee, trustee, beneficiary, holder or servicing agent which states that the mortgage or deed of trust continues to secure an obligation, or in the case of a partial release or satisfaction of mortgage or deed of partial release and reconveyance of deed of trust, a notice that states that the partial payment required to release the parcel described in the partial release or satisfaction has not been paid.

L. The title insurer may charge a reasonable fee to the owner of the land or other person requesting a release and satisfaction of mortgage or release and reconveyance of deed of trust for services, including but not limited to search of title, document preparation and mailing services rendered, and may in addition collect official fees.

§ 33-708 Release by attorney in fact

An attorney in fact to whom the money due on a mortgage or deed of trust is paid may execute the release provided for in this article. Such acknowledgment of satisfaction or deed of release, duly acknowledged and recorded, showing the docket and page or recording number, releases the mortgage or deed of trust and revests in the mortgagor or person who executed the deed of trust, or his legal representatives, all title to the property affected by the mortgage or deed of trust.

§ 33-709 Acknowledgment of satisfaction by personal representative of mortgagee to whom indebtedness was paid before death

The executor or administrator of a mortgagee or of the holder or owner of an indebtedness secured by a mortgage or deed of trust shall, if the indebtedness was paid to the decedent in his lifetime, acknowledge satisfaction thereof by delivering to such person a sufficient release, satisfaction of mortgage or deed of release of the mortgage or deed of trust or acknowledge satisfaction as provided in subsection C of section 33-707. If the executor or administrator, upon proof to him of the payment of the indebtedness to his decedent, does not, within thirty days, acknowledge satisfaction by delivering to the person owning the property a sufficient release, satisfaction of mortgage or deed of release, or acknowledge satisfaction as provided in subsection C of section 33-707, he shall personally forfeit to the party aggrieved one hundred dollars and be personally liable for the damages thereby sustained. The executor or administrator shall not be liable to the estate of which he is executor or administrator for any indebtedness by mortgage or deed of trust released by him in accordance with this section.

§ 33-710 Release by foreign personal representative, administrator, guardian or conservator

When a personal representative or administrator of the estate of a person not a resident of this state at the time of his death has been appointed in another state or foreign country, and no personal representative or administrator has been appointed in this state, or when a guardian or conservator of a minor has been appointed in another state or foreign country, such foreign personal representative, administrator, guardian or conservator, upon recording an authenticated copy of his appointment in the recorder's office of the county in which the mortgage held by the estate of the deceased person or minor is recorded, may execute satisfaction or deeds of release of mortgages upon property located in this state in the same manner as personal representatives, administrators, guardians or conservators appointed in this state.

§ 33-711 Release by heir or legatee

An heir or legatee of a deceased person, residing within or without the state, upon recording in the office of the county recorder sufficient proof of his ownership of a mortgage or deed of trust may, in the same manner as a personal representative of a deceased mortgagee or owner of the indebtedness secured by a mortgage or deed of trust, release such instruments by recording a release of mortgage or deed of trust.

§ 33-712 Liability for failure to acknowledge satisfaction

A. If any person receiving satisfaction of a mortgage or deed of trust shall, within thirty days, fail to record or cause to be recorded, with the recorder of the county in which the mortgage or deed of trust was recorded, a sufficient release, satisfaction of mortgage or deed of release or acknowledge satisfaction as provided in section 33-707, subsection C, he shall be liable to the mortgagor, trustor or current property owner for actual damages occasioned by the neglect or refusal.

B. If, after the expiration of the time provided in subsection A of this section, the person fails to record or cause to be recorded a sufficient release and continues to do so for more than thirty days after receiving a written request which identifies a certain mortgage or deed of trust by certified mail from the mortgagor, trustor, current property owner or his agent, he shall be liable to the mortgagor, trustor or current property owner for one thousand dollars, in addition to any actual damage occasioned by the neglect or refusal.

C. Any action to enforce the provisions of this section, including any action to recover amounts due under this section, shall be brought and maintained in the individual names of, and shall be prosecuted by, persons entitled to recover under the terms thereof, and not in a representative capacity or otherwise. This subsection shall apply to all actions under this section, whether brought before or after July 13, 1988.

§ 33-713 Discharge by order of court; proof required; effect

The superior court of the county in which a mortgage is legally recorded may make an order discharging the mortgage of record on proof that the mortgage has been fully paid and satisfied and that the mortgagee or his assignee is a nonresident of the county where the mortgage is recorded, or is deceased, and that there is no personal representative of the estate appointed under the authority of this state. Upon proof that the same circumstances exist with respect to a deed of trust, the superior court in the county in which a deed of trust is legally recorded may make an order releasing the deed of trust and directing reconveyance of the property. The county recorder shall record a certified copy of the order showing the docket and page or recording number of the recorded mortgage or deed of trust, and the record shall have the same effect as the record of discharge by the mortgagee or a release and reconveyance for the deed of trust.

§ 33-714 Expiration of mortgage and deed of trust; applicability

A. The lien of any mortgage or deed of trust on any real property that is not otherwise satisfied or discharged expires at the later of the following times:

1. If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is ascertainable from the county recorder's records, ten years after that date.

2. If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is not ascertainable from the county recorder's records or if there is no final maturity date or last date fixed for payment of the debt or performance of the obligation, fifty years after the date the mortgage or deed of trust was recorded.

3. If a notice of intent to preserve mortgage or deed of trust is recorded within the time prescribed in paragraph 1 or 2, ten years after the date the notice is recorded.

B. The notice of intent to preserve mortgage or deed of trust shall be executed by the owner of the obligation secured by the mortgage or deed of trust and shall contain the instrument number or recorder's number of the mortgage or deed of trust.

C. Expiration of the lien of a mortgage or deed of trust pursuant to this section is equivalent for all purposes to a satisfaction, reconveyance, release or other discharge of the lien.

D. This section applies to all mortgages or deeds of trust whether created before or after the effective date of this section.

§ 33-715 Payoff demands; definitions

A. On the written demand of an entitled person or that person's authorized agent, a secured lender shall prepare and deliver a payoff demand statement to the person who has requested it within fourteen days after receipt of the demand. Any written demand for a payoff demand statement prescribed in section 33-420.01 shall include a statement that the entitled person is acting as an agent of the borrower and that the line of credit is to be suspended.

B. The payoff demand statement shall provide the amounts required as of the date of preparation, include the information reasonably necessary to calculate the payoff amount on a per diem basis for a period of at least thirty days and include the following information:

1. The name and address of the person who or department that is to receive the payoff payment.

2. The name and address of the person who or department that is to receive the request to close the debt, line of credit or other obligation to pay.

3. The name and address of the person who or department that is to receive the request for release of lien.

C. The entitled person or that person's authorized agent may rely on a payoff demand statement for the purpose of establishing the amount necessary to pay the obligation in full and obtain a release of the mortgage or deed of trust that secures the obligation through and including the time set forth in the payoff demand statement. The entitled person must submit the payoff funds, instructions to close the revolving line of credit and request for release of lien to the secured lender as directed by the secured lender on the payoff demand statement prepared in conjunction with subsection B of this section.

D. The entitled person or that person's authorized agent may rely on an amended payoff demand statement if the secured lender delivers that amended payoff demand statement to the entitled person or that person's authorized agent before the earlier of:

1. The transfer of title to the mortgaged or trust property or any portion of the property.

2. The recordation of a mortgage or deed of trust describing the mortgaged or trust property or any portion of the property.

E. For notes created or renegotiated after August 22, 2002, any sums that were due the secured lender and that were not included in the payoff demand statement or in any amended statement constitute an unsecured obligation of the obligor pursuant to the terms of the note and are recoverable by the secured lender pursuant to the terms of the note and as otherwise provided by law.

F. A secured lender who willfully fails to prepare and deliver a payoff demand statement for fourteen or more days after receipt of a written demand is liable to the entitled person for all damages sustained for failure to deliver the statement. The secured lender is also liable to the entitled person for five hundred dollars whether or not actual damages are sustained. Each failure of the secured lender to prepare and deliver the payoff demand statement when required to do so pursuant to this section constitutes a separate cause of action. A judgment that awards an entitled person a forfeiture or damages, or both, for any failure to prepare and deliver a payoff demand statement bars recovery of any other damages or forfeiture for any other failure to prepare and deliver a statement with respect to the same obligation, if the other demand for the statement was made within six months before or after the demand was made that resulted in the award. For the purposes of this subsection, "willfully" means a failure to comply with this section without just cause or excuse.

G. If the secured lender has more than one branch, office or other place of business, the payoff statement demand shall be made to the branch or office address provided in the payment billing notice or payment book. Unless the payoff demand statement provides otherwise, the statement is deemed to apply only to the unpaid balance of the single obligation that is named in the demand and that is secured by the mortgage or deed of trust that is payable at the address that is provided in the payment billing notice or payment book.

H. The demand for and preparation and delivery of a payoff demand statement pursuant to this section does not change any date or time period that is prescribed in the note or that is otherwise provided by law.

I. The secured lender may assess a fee of no more than thirty dollars for furnishing each payoff demand statement. This is conclusively presumed to be reasonable.

J. For the purposes of this section, unless the context otherwise requires:

1. "Deliver" or "delivery" means depositing or causing to be deposited into the United States mail an envelope with postage prepaid that contains a copy of the documents to be delivered and that is addressed to the person whose name and address are provided in the payoff demand. Delivery includes transmitting those documents by telefacsimile machine to the person. Delivery includes transmitting those documents electronically pursuant to title 44, chapter 26 if the payoff demand specifically requests and authorizes that the documents be transmitted in electronic form.

2. "Entitled person" means the trustor or mortgagor of the mortgaged or trust property or any part of that property, any successor in interest to the trustor or mortgagor, any person with a lien or encumbrance of record on the mortgaged or trust property and an escrow agent that is licensed pursuant to title 6.

3. "Payoff demand" means a written demand for a payoff demand statement made by an entitled person or that person's authorized agent.

4. "Payoff demand statement" means a written statement that is prepared in response to a written demand made by an entitled person or that person's authorized agent that sets forth the amounts required by the secured lender to fully satisfy all of the obligations secured by the loan that is the subject of the demand.

5. "Secured lender" has the same meaning prescribed in section 33-420.01.

Article 2 Foreclosure

§ 33-721 Foreclosure of mortgage by court action

Mortgages of real property and deeds of trust of a type not included in the definition of deed of trust provided in section 33-801, notwithstanding any other provision in the mortgage or deed, shall be foreclosed by action in a court.

§ 33-722 Election between action on debt or to foreclose

If separate actions are brought on the debt and to foreclose the mortgage given to secure it, the plaintiff shall elect which to prosecute and the other shall be dismissed.

§ 33-723 Right of junior lien holder upon foreclosure action by senior lien holder

Any time after an action to foreclose a mortgage or deed of trust is brought, and prior to the sale, a person having a junior lien on the property shall be entitled to an assignment of all the interest of the holder of the mortgage or deed of trust by paying him the amount secured, with interest and costs, together with the amount of any other superior liens of the same holder. The assignee may then continue the action in his name.

§ 33-724 State as party to foreclosure actions

A. The state may be made a party to an action to foreclose a mortgage upon real property when the state claims any estate, interest in or lien upon such real property. The complaint shall set forth the nature of the estate, interest or lien allegedly claimed by the state.

B. When the state is made defendant, a copy of the summons and complaint shall be served upon the attorney general if the action is pending in Maricopa county, or upon the county attorney of the county where the action is pending if in a county other than Maricopa, and it shall be the duty of such county attorney forthwith to transmit the summons and complaint to the attorney general and to file pleadings in the action as directed by the attorney general.

C. If after appropriate investigation, it appears to the attorney general that the proceeds from the sale of the property would be insufficient to wholly or partly satisfy any inferior lien of the state, or that the claim of the state has been satisfied or by lapse of time or otherwise has become unenforceable, the attorney general may file a disclaimer of interest releasing the property from such lien.

§ 33-725 Judgment of foreclosure; contents; sale of property; resale

A. When a mortgage or deed of trust is foreclosed, the court shall give judgment for the entire amount determined due, and shall direct the mortgaged property, or as much thereof as is necessary to satisfy the judgment, to be sold.

B. Judgments for the foreclosure of mortgages and other liens shall provide that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff's lien on the property subject to the lien, and, except in judgments against executors, administrators and guardians, that a special execution issue to the sheriff or any constable of the county where the property is located, directing him to seize and sell the property as under execution, in satisfaction of the judgment. If the property cannot be found, or if the proceeds of the sale are insufficient to satisfy the judgment, then if so ordered by the court the sheriff shall take the money or any balance thereof remaining unpaid out of any other property of the defendant except as provided in sections 33-729 and 33-730. All execution upon judgments for foreclosure of a mortgage or deed of trust upon real property shall comply with section 12-1566. Any sale of real property to satisfy a judgment under this section or section 33-814 shall be a credit on the judgment in the amount of either the fair market value of the real property or the sale price of the real property at sheriff's sale, whichever is greater, in accordance with section 12-1566.

C. If the debt for which the lien is held is not all due, as soon as enough of the property is sold to pay the amount due, with costs, the sale shall cease, and afterward as often as more becomes due for principal and interest, the court may, on motion, order more property sold. If the property cannot be sold in portions without injury to the parties, the whole may be ordered sold in the first instance and the entire debt and costs paid, allowing a rebate of interest where proper.

§ 33-726 Redemption of property by payment to officer directed under foreclosure judgment to sell the property

If payment is made to the officer directed to sell mortgaged property under a foreclosure judgment, before the foreclosure sale takes place, the officer shall make a certificate of payment and acknowledge it, and the certificate shall be recorded in the office in which the mortgage or deed of trust is recorded.

§ 33-727 Sale under execution; deficiency; order of liens; writ of possession

A. Except as provided in sections 33-729 and 33-730, if the mortgaged property does not sell for an amount sufficient to satisfy the judgment, an execution may be issued for the balance against the mortgagor where there has been personal service, or the defendant has appeared in the action.

B. If there are other liens on the property sold, or other payments secured by the same mortgage, they shall be paid in their order, and if the money secured by any such lien is not yet due, a rebate of interest, to be ascertained by the court, shall be made by the holder, or his lien on such property will be postponed to those of a junior date, and if there are no other liens the balance shall be paid to the mortgagor. If redemption is not made and the mortgagor or his assigns refuse, after expiration of the time for redemption, to deliver possession of the foreclosed property, the court shall order a writ of possession issued placing the purchaser or his assigns in possession. All executions upon judgments for foreclosure of a mortgage or deed of trust upon real property shall comply with section 12-1566. Any sale of real property to satisfy a judgment under section 33-725 or 33-814 shall be a credit on the judgment in the amount of either the fair market value of the real property or the sale price of the real property at sheriff's sale, whichever is greater, in accordance with section 12-1566.

§ 33-728 Recording upon record that mortgage is foreclosed and judgment satisfied; effect

When a mortgage has been foreclosed by action in court, and the judgment has been paid and satisfaction thereof entered upon the docket, the county recorder, upon presentation to him of the certificate of the clerk of the court certifying such facts including the docket and page or recording number of the recorded mortgage or deed of trust, shall record the certificate. Such recording shall have the same effect as the record of discharge by the mortgagee.

§ 33-729 Purchase money mortgage; limitation on liability

A. Except as provided in subsections B and C of this section, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

C. For mortgages that are originated after December 31, 2014, subsection A of this section does not apply to real property as follows:

1. Real property owned by a person who is engaged in the business of constructing and selling dwellings that was acquired by the person in the course of that business and that is subject to a mortgage given to secure payment of a loan for construction of a dwelling on the property for sale to another person.

2. Real property that contains a dwelling that was never substantially completed.

3. Real property that contains a dwelling that is intended to be utilized as a dwelling but that is never actually utilized as a dwelling.

D. For the purposes of this section, a dwelling is substantially completed if either of the following occurs:

1. Final inspection is completed, if required by the governmental body that issued the building permit for the dwelling.

2. If a final inspection is not required by the governmental body that issued the building permit, the dwelling has been completed in all material respects as prescribed in the applicable ordinances and regulations of the governmental body that issued the building permit for the dwelling.

§ 33-730 Limitation on deficiency judgment on mortgage or deed of trust as collateral for consumer goods

A. If both a security agreement and a mortgage or deed of trust have been given to secure payment of the balance of the purchase price of real property and consumer goods or services or the balance of the combined purchase price of such real property and consumer goods or services, no deficiency shall lie thereunder if no deficiency would lie under the mortgage or deed of trust given under such transaction, notwithstanding any agreement to the contrary.

B. For the purposes of this section, consumer goods and services are goods and services used or acquired for use primarily for personal, family or household purposes.

Article 3 Forfeiture and Reinstatement of Purchaser's Interest Under Contract for Conveyance of Real Property

§ 33-741 Definitions

In this article, unless the context otherwise requires:

1. "Account servicing agent" means a joint agent of seller and purchaser, appointed under the contract or under a separate agreement executed by the seller and the purchaser, to hold documents and collect monies due under the contract, who does business under the laws of this state as a bank, trust company, escrow agent, savings and loan association, insurance company or real estate broker, or who is licensed, chartered or regulated by the federal deposit insurance corporation or the comptroller of the currency, or who is a member of the state bar of Arizona.

2. "Contract" means a contract for conveyance of real property, a contract for deed, a contract to convey, an agreement for sale or any similar contract through which a seller has conveyed to a purchaser equitable title in property and under which the seller is obligated to convey to the purchaser the remainder of the seller's title in the property, whether legal or equitable, on payment in full of all monies due under the contract. This article does not apply to purchase contracts and receipts, escrow instructions or similar executory contracts which are intended to control the rights and obligations of the parties to executory contracts pending the closing of a sale or purchase transaction.

3. "Monies due under the contract" means:

(a) Any principal and interest payments which are currently due and payable to the seller.

(b) Any principal and interest payments which are currently due and payable to other persons who hold existing liens and encumbrances on the property, the unpaid principal portion of which constitutes a portion of the purchase price, as stated in the contract, if the principal and interest payments were paid by the seller pursuant to the terms of the contract and to protect his interest in the property.

(c) Any delinquent taxes and assessments, including interest and penalty, due and payable to any governmental entity authorized to impose liens on the property which are the purchaser's obligations under the contract, if the taxes and assessments were paid by the seller pursuant to the terms of the contract and to protect his interest in the property.

(d) Any unpaid premiums for any policy or policies of insurance which are the obligation of the purchaser to maintain under the contract, if the premiums were paid by the seller pursuant to the terms of the contract and to protect his interest in the property.

4. "Payoff deed" means the deed that the seller is obligated to deliver to the purchaser on payment in full of all monies due under the contract to convey to the purchaser the remainder of the seller's title in the property, whether legal or equitable, as prescribed by the terms of the contract.

5. "Property" means the real property described in the contract and any personal property included under the contract.

6. "Purchaser" means the person or any successor in interest to the person who has contracted to purchase the seller's title to the property which is the subject of the contract.

7. "Seller" means the person or any successor in interest to the person who has contracted to convey his title to the property which is the subject of the contract.

§ 33-742 Forfeiture of interest of purchaser in default under contract

A. If a purchaser is in default by failing to pay monies due under the contract, a seller may, after expiration of the applicable period stated in subsection D of this section and after serving the notice of election to forfeit stated in section 33-743, complete the forfeiture of the purchaser's interest in the property in the manner provided by section 33-744 or 33-745. If the contract provides that the seller may elect to accelerate the principal balance due under the contract to the seller on the purchaser's failure to pay the monies due, the seller may accelerate the principal balance due to the seller at any time after the purchaser has failed to pay the monies due under the contract. The acceleration may occur before or after the expiration of the applicable period stated in subsection D of this section and without serving the notice of election to forfeit stated in section 33-743. If the seller elects to accelerate the principal balance due to the seller, the seller may only foreclose the contract as a mortgage in the manner provided by section 33-748. If a purchaser is in default under the contract for reasons other than failing to pay monies due under the contract, the seller may only foreclose the contract as a mortgage in the manner provided by section 33-748.

B. The interest of a purchaser in any personal property included in a contract is subject to forfeiture or foreclosure in the same manner as the real property, except that forfeiture or foreclosure does not affect or impair the rights of a holder of a security interest whose interest in the personal property is not subordinate to that of the seller.

C. If a contract provides that time is of the essence, a waiver of that provision occurs only if the seller has accepted monies due under the contract in an amount which is less than the total monies due under the contract at the time of the acceptance. Receipt of any monies due under the contract by an account servicing agency does not constitute acceptance by the seller. A seller's delay in exercising any remedy granted either by the contract or by law does not constitute a waiver of a time is of the essence provision. If the time of the essence provision has been waived, the seller may reinstate the provision by serving a written notice on the purchaser and the account servicing agent, if one has been appointed, requiring strict performance of the purchaser's obligations to pay monies due under the contract. The notice shall be served, either by delivery in person or deposit in the United States mail, first class, postage prepaid, at least twenty days prior to the date on which the seller will require the purchaser to pay the monies due under the contract. A copy of the notice need not be recorded in the county in which the real property is located or served on any person other than the purchaser and the account servicing agent, if one has been appointed.

D. Forfeiture of the interest of a purchaser in the property for failure to pay monies due under the contract may be enforced only after expiration of the following periods after the date such monies were due:

1. If there has been paid less than twenty per cent of the purchase price, thirty days.

2. If there has been paid twenty per cent, or more, but less than thirty per cent of the purchase price, sixty days.

3. If there has been paid thirty per cent, or more, but less than fifty per cent of the purchase price, one hundred and twenty days.

4. If there has been paid fifty per cent, or more, of the purchase price, nine months.

E. For the purpose of computing the percentage of the purchase price paid under subsection D of this section, the total of only the following constitutes payments on the purchase price:

1. Down payments paid to the seller.

2. Principal payments paid to the seller on the contract.

3. Principal payments paid to other persons who hold liens or encumbrances on the property, the principal portion of which constitutes a portion of the purchase price, as stated under the contract.

§ 33-743 Notice of election to forfeit and reinstatement of purchaser's interest

A. If the seller elects to forfeit the purchaser's interest in the property, the seller and the account servicing agent, if one has been appointed, shall record a notice of election to forfeit with the county recorder of the county in which the real property is located. A notice of election to forfeit is ineffective unless recorded after expiration of the applicable period prescribed in section 33-742, subsection D. A copy of the notice shall be served, either by delivery in person or by deposit in the United States mail, first class, postage prepaid, at least twenty days prior to the effective date of the forfeiture, on the purchaser and on persons who, at the time of recordation of the notice of election to forfeit, appear on the records of the county recorder of the county in which the real property is located as having an interest in or a lien or encumbrance on the property, the priority of which is subordinate to that of the seller, or who have requested a copy of such notice in the manner provided by section 33-746. If mailed, the notice shall be addressed to the last mailing address filed in writing with the seller or with the account servicing agent or as designated on the request for copy of notice of election to forfeit. If no address has been filed with the seller or the account servicing agent, a copy of the notice may be mailed in care of the person to whom any recorded document evidencing an interest in or a lien or encumbrance on the property was directed to be mailed at the time of its recording.

B. The notice of election to forfeit shall be substantially in the following form:

"Notice of Election to Forfeit

The undersigned hereby gives notice that the purchaser under that certain contract, by and between _______________, as seller, and _______________, as purchaser, dated ___________, 19, and recorded (if recorded) on ___________, 19, in docket __________, at page __________, records of _______________ county, Arizona, covering real property described as follows:

and including personal property described as follows:

has failed to pay monies due under the contract for a period of time in excess of that provided by Arizona Revised Statutes section 33-742, subsection D and is now subject to having his interest under the contract forfeited. The monies due under the contract which are required to be paid to reinstate such contract are as follows:

If the monies due under the contract are not received by five o'clock p.m. on the __________ day of ___________, 19, being at least twenty days after the serving of this notice, at _______________, Arizona, the interest of the purchaser and all persons who have an interest in or a lien or encumbrance on the property, the priority of which is subordinate to that of the seller, shall be forfeited.

Dated ___________, 19.

---

signature of seller, and

---

signature of account servicing agent

(if any)

(acknowledgments)"

C. A person need not be served with a copy of the notice of election to forfeit unless the person, at the time of recordation of the notice, appeared on the records of the county recorder of the county in which the real property is located as having an interest in or a lien or encumbrance on the property, the priority of which is subordinate to that of the seller, or requested a copy of the notice in the manner provided for in section 33-746.

D. Failure to serve a copy of the notice of election to forfeit on each person as stated in subsection A of this section does not invalidate the service of the notice of election to forfeit as to persons served but extends the effective date of the forfeiture until at least twenty days after the persons not previously served have been served with a copy of the notice.

E. A purchaser who has failed to pay monies due under the contract or any other person may, at any time prior to expiration of the period provided for in the notice of election to forfeit, avoid the forfeiture by complying with the terms of the notice.

F. If the purchaser or any other person timely complies with the terms of the notice of election to forfeit, the seller or the account servicing agent shall record a notice of reinstatement with the county recorder of the county in which the real property is located. The notice of reinstatement shall be substantially in the following form:

"Notice of Reinstatement

The undersigned hereby gives notice that the notice of election to forfeit, dated ___________, 19, pertaining to a contract which covers real property described as follows:

and including personal property described as follows:

which notice was recorded on ___________, 19, in docket __________, at page __________, records of _______________ county, Arizona, is cancelled.

dated ___________, 19.

---

signature of seller, or signature of

account servicing agent (if any)

(acknowledgment)"

§ 33-744 Completion of forfeiture by judicial process

At any time after expiration of the period provided for in the notice of election to forfeit, the seller may complete the forfeiture of the interest of the purchaser and persons having an interest in or a lien or encumbrance on the property, the priority of which is subordinate to that of the seller, by filing an action in the superior court in the county in which the real property is located to declare that the interest of the persons has been forfeited and to quiet title to the property in the seller. In the action, the seller shall name as defendants the purchaser and each person who, at the expiration of the period provided for in the notice of election to forfeit, had an interest in or a lien or encumbrance on the property, the priority of which was subordinate to that of the seller.

§ 33-745 Completion of forfeiture by notice

A. If an account servicing agent has been appointed to hold documents and collect monies due under the contract and the agent has recorded and served the notice of election to forfeit, as provided in section 33-743, the seller and account servicing agent may complete the forfeiture of the interest of the purchaser and persons having an interest in or a lien or encumbrance on the property, the priority of which is subordinate to that of the seller, by recordation of an affidavit of completion of forfeiture with the county recorder of the county in which the real property is located. The county recorder shall index the affidavit of completion of forfeiture under the classification in which conveyances of real property are indexed.

B. Recordation of an affidavit of completion of forfeiture terminates without right of redemption all right, title and interest of the purchaser and all persons having an interest in or a lien or encumbrance on the property, the priority of which is subordinate to that of the seller, including the interest of any persons acquiring an interest in or a lien or encumbrance on the property subsequent to recordation of the notice of election to forfeit. On recordation of the affidavit, the property reverts to the seller clear of all interests, liens and encumbrances, the priority of which was subordinate to that the seller. The recordation of the affidavit of completion of forfeiture also raises the presumption of compliance with all requirements of this article and constitutes conclusive evidence of the meeting of the requirements in favor of purchasers or encumbrancers for value and without actual notice.

C. The affidavit of completion of forfeiture shall be substantially in the following form:

"Affidavit of Completion of Forfeiture

The undersigned, being duly sworn, deposes and says that the purchaser under that certain contract, by and between _______________, as seller, and _______________, as purchaser, dated ___________, 19, and recorded (if recorded) on ___________, 19, in docket __________, at page __________, records of _______________ county, Arizona, covering real property described as follows:

and including personal property described as follows:

failed to pay amounts due under the contract; that on the date the monies were due, any provision of the contract which made time of the essence had not been waived or had been reinstated in the manner provided for in Arizona Revised Statutes section 33-742, subsection C; that the applicable period stated in Arizona Revised Statutes section 33-742, subsection D had expired after the date the monies were due; that a notice of election to forfeit was recorded with the county recorder of the county in which the real property is located; that a copy of the notice was served upon the purchaser and all persons who, at the time of recordation of the notice of election to forfeit, appeared on the records of the county recorder of the county in which the real property was located, as having an interest in or a lien or encumbrance on the property, the priority of which was subordinate to that of the seller, or who had requested a copy of the notice in the manner provided for in Arizona Revised Statutes section 33-746; that the terms of the notice of election to forfeit were not complied with prior to expiration of the period provided for in the notice; and that all right, title and interest of the purchaser and all persons having an interest in or a lien or encumbrance on the property, the priority of which was subordinate to that of the seller, are by this affidavit declared to be forfeited and to revert to the seller in accordance with the terms of the contract and the laws of the state of Arizona.

---

signature of seller,

---

signature of account servicing agent

(jurats)"

§ 33-746 Request for copy of notice of election to forfeit

A. Any person, including, without limitation, a person in possession of the property or having an interest in or a lien or encumbrance on the property, which is not disclosed by a document recorded with the county recorder of the county in which the real property is located, who desires a copy of a notice of election to forfeit under a contract shall, prior to recording of a notice of election to forfeit, record with the county recorder of the county in which the real property is located a request for a copy of any notice of election to forfeit.

B. A request for a copy of any notice of election to forfeit under a contract shall be substantially in the following form:

"Request for Notice of Election to Forfeit

Request is hereby made that a copy of any notice of election to forfeit under the contract, by and between _______________, as seller, and _______________, as purchaser, dated ___________, 19, and recorded (if recorded) on ___________, 19, in docket __________, at page __________, records of _______________ county, Arizona, covering real property described as follows:

and including personal property described as follows:

be mailed to: _________________________________________________________, at _____________________________________________________________________.

Dated this __________ day of ___________, 19.

---

signature

(acknowledgment)"

C. The existence and contents of a recorded request do not affect the title to the property or provide notice to any person that a person requesting a copy of the notice has an interest in or a lien or encumbrance on the property.

§ 33-747 Appointment of successor account servicing agent

A. If a person appointed as account servicing agent fails to qualify or is unwilling or unable to serve, the seller may appoint a successor account servicing agent, and the appointment constitutes a substitution of account servicing agent.

B. The seller may at any time remove an account servicing agent for any reason and appoint a successor account servicing agent, and the appointment constitutes a substitution of account servicing agent.

C. A substitution of an account servicing agent shall be made by written notice, personally delivered or mailed in the United States mail, first class, postage prepaid, to the purchaser, the account servicing agent and the successor account servicing agent and by recording a copy of the notice with the county recorder of the county in which the real property is located.

D. A notice of substitution of account servicing agent shall be substantially in the following form:

"Notice of Substitution of Account Servicing Agent

The undersigned seller hereby appoints:

_________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ successor account servicing agent under that certain contract, by and between _______________, as seller, and _______________, as purchaser, dated ___________, 19, and recorded (if recorded) on ___________, 19, in docket __________, at page __________, records of _______________ county, Arizona, covering real property described as follows:

and including personal property described as follows:

Dated this _______________ day of ___________, 19.

---

signature of seller

(acknowledgment)"

§ 33-748 Seller's right to foreclose

A. If a contract provides that the seller may elect to accelerate the unpaid principal balance due to seller on the purchaser's failure to pay the monies due under the contract, the seller may only enforce the acceleration by foreclosing the contract in the manner provided by law for foreclosure of mortgages upon real property. If a purchaser is in default under the contract for reasons other than failing to pay amounts due under the contract, the seller may only foreclose the contract as a mortgage in the manner provided by law for foreclosure of mortgages upon real property.

B. If an action to foreclose a contract has been filed, a forfeiture, by judicial process as provided by section 33-744 or by notice as provided by section 33-745, shall not thereafter be completed unless the foreclosure action is first dismissed and a notice of election to forfeit is served in the manner and on the persons provided for in section 33-743.

§ 33-749 Other remedies

A. The seller may maintain an action against any person, including the purchaser, for a claim for relief if damages or injury occurs, or may occur, to the property, including without limitation, an action for damages, or to prevent any of the following:

1. Physical abuse to or distribution of the property.

2. Waste.

3. Impairment of security provided by the contract.

B. An action for recovery of damages under subsection A of this section may be maintained:

1. At any time before the seller elects to forfeit or foreclose the purchaser's interest in the property.

2. Within ninety days after completion of a forfeiture of the purchaser's interest in the property as provided by section 33-745.

3. In conjunction with completion of a forfeiture of the purchaser's interest in the property as provided by section 33-744.

4. In conjunction with the seller foreclosing the contract as a mortgage as provided for in section 33-748.

C. The remedies provided by this article are in addition to and do not preclude any other remedy granted either by the contract or by law which is not inconsistent with this article.

§ 33-750 Conveyance by seller; payment in full; payoff deed

A. A seller who is entitled to payment and who receives full payment of all monies due under the contract shall deliver to the person who made full payment a payoff deed that conveys to the purchaser the real property described in the contract. The deed shall be entitled "payoff deed", shall state that it is being delivered to consummate a contract and shall include the docket and page number or recording number of the contract.

B. For a contract that provides for a purchase price obligation of one million dollars or less exclusive of interest, if a seller does not deliver a payoff deed pursuant to subsection A within sixty days of payment in full of all monies due under the contract, a title insurer as defined in section 20-1562 may prepare, execute and record a payoff deed. At least thirty days before issuing and recording a payoff deed pursuant to this subsection, the title insurer shall mail notice of its intention to record the payoff deed and a copy of the payoff deed by certified mail with postage prepaid and return receipt requested to all of the following:

1. The seller of record and the seller's respective successors in interest of record at their last known addresses shown of record.

2. The account servicing agent if known.

3. Any person who received payment in full of the monies due under the contract according to the records of the title insurer at the address shown in the title insurer's records.

C. The payoff deed prescribed by subsection B of this section shall set forth all of the following:

1. The name of the original seller and the seller's successors in interest of record.

2. The name of the original account servicing agent and the successors in interest of the account servicing agent if of record or if known to the title insurer.

3. The name of the original purchaser and any successors in interest of record of that purchaser.

4. The date of recording and docket and page number or recording number of the contract.

5. The date and amount of payment.

6. A statement that the title insurer has actual knowledge that the monies due under the contract have been paid in full.

D. The title insurer or a duly appointed attorney-in-fact of the title insurer shall execute the payoff deed. Any delegation pursuant to this subsection does not relieve the title insurer from any liability pursuant to this section.

E. A payoff deed issued pursuant to subsection B of this section is entitled to recordation and, when recorded, constitutes a payoff deed issued pursuant to subsection A of this section.

F. In addition to any other remedy provided by law, a title insurer preparing or recording the payoff deed pursuant to subsection B of this section is liable to any party for actual damage, including attorney fees, that any person may sustain by reason of the issuance and recording of the payoff deed.

G. The title insurer shall not record a payoff deed if the title insurer receives notice before the expiration of the thirty day period prescribed by subsection B of this section from the seller or account servicing agent that the monies due under the contract have not been paid in full.

H. The title insurer may charge a reasonable fee to the owner of the land or any other person who requests a payoff deed including a fee for performing a title search, document preparation and mailing services and in addition may collect recording or other official fees.

Chapter 6.1 Deeds of Trust

Article 1 General Provisions

§ 33-801 Definitions

In this chapter, unless the context otherwise requires:

1. "Beneficiary" means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or the person's successor in interest.

2. "Business day" means any day other than a Saturday or a legal holiday.

3. "Cash" means United States currency.

4. "Contract" means a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty, including but not limited to a note, a promissory note or provisions of any trust deed.

5. "Credit bid" means a bid made by the beneficiary in full or partial satisfaction of the contract or contracts which are secured by the trust deed. Such credit bid may only include an amount up to the full amount of the contract or contracts secured by the trust deed, less any amount owing on liens or encumbrances with interest which are superior in priority to the trust deed and which the beneficiary is obligated to pay under the contract or contracts or under the trust deed, together with the amount of other obligations provided in or secured by the trust deed and the costs and expenses of exercising the power of sale and the sale, including the trustee's fees and reasonable attorney fees actually incurred.

6. "Force majeure" means an act of God or of nature, a superior or overpowering force or an event or effect that cannot reasonably be anticipated or controlled and that prevents access to the sale location for conduct of a sale.

7. "Parent corporation" means a corporation which owns eighty per cent or more of every class of the issued and outstanding stock of another corporation or, in the case of a savings and loan association, eighty per cent or more of its issued and outstanding guaranty capital.

8. "Trust deed" or "deed of trust" means a deed executed in conformity with this chapter and conveying trust property to a trustee or trustees qualified under section 33-803 to secure the performance of a contract or contracts, other than a trust deed which encumbers in whole or in part trust property located in Arizona and in one or more other states.

9. "Trust property" means any legal, equitable, leasehold or other interest in real property which is capable of being transferred, whether or not it is subject to any prior mortgages, trust deeds, contracts for conveyance of real property or other liens or encumbrances.

10. "Trustee" means an individual, association or corporation qualified pursuant to section 33-803, or the successor in interest thereto, to whom trust property is conveyed by trust deed. The trustee's obligations to the trustor, beneficiary and other persons are as specified in this chapter, together with any other obligations specified in the trust deed.

11. "Trustor" means the person conveying trust property by a trust deed as security for the performance of a contract or contracts, or the successor in interest of such person.

§ 33-802 Description of trust property; mailing address of trustor and trustee

A. In deeds of trust the legal description of trust property shall be given by one of the following methods:

1. By the use of lot, block, tract or parcel as set forth within a recorded subdivision plat.

2. By the use of a metes and bounds or course and distance survey.

3. By the use of the governmental rectangular survey system with specific identification of the location within any section or sections, tract or tracts, of a township and range.

4. By the use of the name of an unpatented mining claim together with the recording data of the location notice thereof recorded in the county recorder's office in which the claim is located.

5. By the use of the name of a patented mining claim together with the mineral survey number and the recording data of the patent to such mining claim.

6. By the use of a homestead entry survey number.

B. The mailing address of each trustor, beneficiary and trustee shall be specified in each deed of trust.

§ 33-803 Trustee of trust deed; qualifications

A. Except as provided in subsection B, the trustee of a trust deed shall be:

1. An association or corporation doing business under the laws of this state as a bank, trust company, savings and loan association, credit union, insurance company, escrow agent or consumer lender.

2. A person who is a member of the state bar of Arizona.

3. A person who is a licensed real estate broker under the laws of this state.

4. A person who is a licensed insurance producer under the laws of this state.

5. An association or corporation that is licensed, chartered or regulated by the federal deposit insurance corporation, the comptroller of the currency, the federal home loan bank, the national credit union administration, the farm credit administration, the federal reserve board or any successors.

6. The parent corporation of any association or corporation referred to in this subsection or any corporation all the stock of which is owned by or held solely for the benefit of any such association or corporation referred to in this subsection.

B. An individual trustee of a trust deed who qualifies under subsection A shall not be the beneficiary of the trust, but such restriction shall not preclude a corporate or association trustee that qualifies under subsection A and while acting in good faith from being the beneficiary, or after appointment from acquiring the interest of the beneficiary by succession, conveyance, grant, descent or devise.

C. A trustee of a trust deed who qualifies under subsection A shall not lend or delegate the trustee's name or corporate capacity to any individual or entity that does not qualify as a trustee of a trust deed. An individual, company, association or corporation shall not circumvent the requirements of subsection A by acting in concert with a nonqualifying trustee.

§ 33-803.01 Trustee of trust deed; delegation of duties

A. A trustee shall not delegate the following duties:

1. The preparation and execution of any of the following:

(a) The notice of trustee sale.

(b) The cancellation of notice of sale.

(c) The trustee's deed upon sale.

2. The receipt and response to requests for reinstatement or payoff amounts.

B. This section does not prohibit the trustee from using clerical or office staff employed by the trustee and under the trustee's direct and immediate supervision to assist in the duties prescribed by subsection A.

§ 33-804 Appointment of successor trustee by beneficiary

A. If a person appointed as trustee fails to qualify, is unwilling or unable to serve or resigns as trustee or if a trustee was not designated in the deed of trust, the beneficiary may appoint a successor trustee, and such appointment shall constitute a substitution of trustee.

B. The beneficiary may at any time remove a trustee for any reason or cause and appoint a successor trustee, and such appointment shall constitute a substitution of trustee.

C. A notice of substitution of trustee shall be recorded in the office of the county recorder of each county in which the trust property or some part of the trust property is situated at the time of the substitution. The beneficiary shall give written notice through registered or certified mail, with postage prepaid, to the trustor.

D. A notice of substitution of trustee shall contain a description of the basis for the successor trustee's qualification pursuant to section 33-803, subsection A. A notice of substitution of trustee shall be sufficient if acknowledged by all beneficiaries under the trust deed or their agents as authorized in writing and if prepared in substantially the following form:

Notice of Substitution of Trustee

The undersigned beneficiary hereby appoints ___________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ successor trustee under the trust deed executed by ____________________ as trustor, in which _____________ is named beneficiary and _____________ as trustee, and recorded ________________, _____, in _________________ county in book or docket _________________, page ______________, and legally describing the trust property as:

(legal description of trust property)

The successor trustee appointed herein qualifies as a trustee of the trust deed in the trustee's capacity as a ______________________ as required by Arizona Revised Statutes section 33-803, subsection A.

Dated this _______________ day of ________________, ____.

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Signature

(Acknowledgement)

E. A notice of substitution of trustee is effective immediately on execution as prescribed by subsection D of this section.

F. A person appointed as a trustee under a deed of trust may resign as trustee at any time. Any such resignation shall be without liability, provided the person has not agreed in writing or by the person's conduct to act in such capacity. If the trustee has agreed in writing or by the person's conduct to act in such capacity, the person may only resign in accordance with the terms of the trust deed and this chapter. If a trustee fails to qualify or is unwilling or unable to serve or resigns, it does not affect the validity of the deed of trust, except that no action required to be performed by the trustee under this chapter or under the deed of trust may be taken until a successor trustee is appointed by the beneficiary or the beneficiary's agent as authorized in writing pursuant to this section. Resignation by a trustee is made by recordation of a notice of resignation in the office of the county recorder of each county in which the trust property or some part of the trust property is situated at the time of the resignation. Written notice shall be given through registered or certified mail, with postage prepaid, to the trustor and the beneficiary. A notice of resignation of trustee is sufficient if acknowledged by the trustee and prepared in substantially the following form:

Notice of Resignation of Trustee

The undersigned trustee hereby resigns as trustee under the deed of trust executed by ________________, as trustor, in which ________________ is named beneficiary, and recorded ________________, ____, in ________________ county, in book or docket __________, page __________, and legally describing the trust property as:

(legal description of trust property)

Dated this _______________ day of _______________, ____.

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Signature

(Acknowledgement)

§ 33-805 Deed of trust as security

Deeds of trust may be executed as security for the performance of a contract or contracts. Except with respect to chapter 6 of this title, statutes of this state which refer to mortgages as security instruments are deemed to also include deeds of trust, unless the context otherwise requires.

§ 33-806 Transfers in trust of real property; uses

A. Transfers of trust property may be made to secure the performance of a contract or contracts of the trustor or any other person. An interest in the trust property acquired by the trustor subsequent to the execution of the trust deed shall inure to the trustee as security for the contract or contracts for which the trust property is conveyed as if the interest or claim had been acquired before execution of the trust deed.

B. The trustee or beneficiary shall have a right to maintain an action against any person, including the trustor, for a claim for relief where damage or injury occurs or may occur to the trust property or interests therein, including but not limited to actions for damages or to prevent:

1. Physical abuse to or destruction of the trust property, or any portion thereof.

2. Waste.

3. Impairment of the security provided by the trust deed. In any such action the trustee or beneficiary, or both, shall also be entitled to recover costs and reasonable attorney's fees and shall be entitled to all remedies available. Recovery of damages under this section shall be limited to damages or injuries incurred during the time the trustor is in possession or control of the trust property. The provisions of section 33-814 shall in no manner restrict or limit the provisions of this section.

§ 33-806.01 Trustor's right to transfer; transfer fee limit; interest rate increase limit

A. Nothing in this article shall be construed to prevent or limit the right of a trustor to transfer his interest in the trust property, or authorize a beneficiary or trustee to arbitrarily withhold his consent to a transfer by the trustor of his interest in the trust property.

B. When a trustor transfers his interest in the trust property, no beneficiary or trustee shall charge a fee on the transfer of more than one hundred dollars or one per cent of the balance due on the obligation secured by the trust deed, whichever is greater.

C. When a trustor transfers his interest in the trust property, no beneficiary or trustee shall increase the interest rate on the obligation secured by such trust deed unless the transferring trustor is released from all liability thereon and in no event shall the amount of such increase exceed one-half of one percent per annum more than the interest rate paid by the transferring trustor.

D. This section shall be applicable only to trust property of two and one-half acres or less which is not used for commercial purposes and which is limited to and utilized for dwelling units, not to exceed four single-family units.

§ 33-807 Sale of trust property; power of trustee; foreclosure of trust deed

A. By virtue of his position, a power of sale is conferred upon the trustee of a trust deed under which the trust property may be sold, in the manner provided in this chapter, after a breach or default in performance of the contract or contracts, for which the trust property is conveyed as security, or a breach or default of the trust deed. At the option of the beneficiary, a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property in which event chapter 6 of this title governs the proceedings. The beneficiary or trustee shall constitute the proper and complete party plaintiff in any action to foreclose a deed of trust. The power of sale may be exercised by the trustee without express provision therefor in the trust deed.

B. The trustee or beneficiary may file and maintain an action to foreclose a deed of trust at any time before the trust property has been sold under the power of sale. A sale of trust property under the power of sale shall not be held after an action to foreclose the deed of trust has been filed unless the foreclosure action has been dismissed.

C. The trustee or beneficiary may file an action for the appointment of a receiver according to sections 12-1241 and 33-702. The right to appointment of a receiver shall be independent of and may precede the exercise of any other right or remedy.

D. The power of sale of trust property conferred upon the trustee shall not be exercised before the ninety-first day after the date of the recording of the notice of the sale. The sale shall not be set for a Saturday or legal holiday. The trustee may schedule more than one sale for the same date, time and place.

E. The trustee need only be joined as a party in legal actions pertaining to a breach of the trustee's obligation under this chapter or under the deed of trust. Any order of the court entered against the beneficiary is binding upon the trustee with respect to any actions that the trustee is authorized to take by the trust deed or by this chapter. If the trustee is joined as a party in any other action, the trustee is entitled to be immediately dismissed and to recover costs and reasonable attorney fees from the person joining the trustee.

§ 33-808 Notice of trustee's sale

A. The trustee shall give written notice of the time and place of sale legally describing the trust property to be sold by each of the following methods:

1. Recording a notice in the office of the recorder of each county where the trust property is situated.

2. Giving notice as provided in section 33-809 to the extent applicable.

3. Posting a copy of the notice of sale, at least twenty days before the date of sale in some conspicuous place on the trust property to be sold, if posting can be accomplished without a breach of the peace. If access to the trust property is denied because a common entrance to the property is restricted by a limited access gate or similar impediment, the property shall be posted by posting notice at that gate or impediment. Notice shall also be posted at one of the places provided for posting public notices at any building that serves as a location of the superior court in the county where the trust property is to be sold. Posting is deemed completed on the date the trust property is posted. The posting of notice at the superior court location is deemed a ministerial act.

4. Publication of the notice of sale in a newspaper of general circulation in each county in which the trust property to be sold is situated. The notice of sale shall be published at least once a week for four consecutive weeks. The last date of publication shall not be less than ten days prior to the date of sale. Publication is deemed completed on the date of the first of the four publications of the notice of sale pursuant to this paragraph.

B. The sale shall be held at the time and place designated in the notice of sale on a day other than a Saturday or legal holiday between 9:00 a.m. and 5:00 p.m. mountain standard time at a specified place on the trust property, at a specified place at any building that serves as a location of the superior court or at a specified place at a place of business of the trustee, in any county in which part of the trust property to be sold is situated.

C. The notice of sale shall contain:

1. The date, time and place of the sale. The date, time and place shall be set pursuant to section 33-807, subsection D. The date shall be no sooner than the ninety-first day after the date that the notice of sale was recorded.

2. The street address, if any, or identifiable location as well as the legal description of the trust property.

3. The county assessor's tax parcel number for the trust property or the tax parcel number of a larger parcel of which the trust property is a part.

4. The original principal balance as shown on the deed of trust. If the amount is not shown on the deed of trust, it shall be listed as "unspecified".

5. The names and addresses, as of the date the notice of sale is recorded, of the beneficiary and the trustee, the name and address of the original trustor as stated in the deed of trust, the signature of the trustee and the basis for the trustee's qualification pursuant to section 33-803, subsection A, including an express statement of the paragraph under section 33-803, subsection A on which the qualification is based. The address of the beneficiary shall not be in care of the trustee.

6. The telephone number of the trustee.

7. The name of the state or federal licensing or regulatory body or controlling agency of the trustee as prescribed by section 33-803, subsection A.

8. The following statement in the first paragraph of the notice, printed in bold-faced and capitalized type:

Notice! If you believe there is a defense to the trustee sale or if you have an objection to the trustee sale, you must file an action and obtain a court order pursuant to rule 65, Arizona rules of civil procedure, stopping the sale no later than 5:00 p.m. mountain standard time of the last business day before the scheduled date of the sale, or you may have waived any defenses or objections to the sale. Unless you obtain an order, the sale will be final.

D. The notice of sale shall be sufficient if made in substantially the following form:

Notice of Trustee's Sale

The following legally described trust property will be sold, pursuant to the power of sale under that certain trust deed recorded in docket or book _______________________ at page ____________ records of ________________ county, Arizona. Notice! if you believe there is a defense to the trustee sale or if you have an objection to the trustee sale, you must file an action and obtain a court order pursuant to rule 65, Arizona rules of civil procedure, stopping the sale no later than 5:00 p.m. mountain standard time of the last business day before the scheduled date of the sale, or you may have waived any defenses or objections to the sale. Unless you obtain an order, the sale will be final and will occur at public auction to the highest bidder at (specific place of sale as permitted by law) __________________, in ______________ county, in or near _______________, Arizona, on ________, ____, at ___________ o'clock ___m. of said day:

(street address, if any, or identifiable

location of trust property)

(legal description of trust property)

Tax parcel number _______________

Original principal balance $________________________

Name and address of beneficiary ______________________________

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Name and address of original trustor _________________________

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Name, address and telephone number of trustee ________________

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Signature of trustee _________________________________________

Manner of trustee qualification ______________________________

Name of trustee's regulator __________________________________

Dated this _____________ day of ______________, ____.

(Acknowledgement)

E. Any error or omission in the information required by subsection C or D of this section, other than an error in the legal description of the trust property or an error in the date, time or place of sale, shall not invalidate a trustee's sale. Any error in the legal description of the trust property shall not invalidate a trustee's sale if considered as a whole the information provided is sufficient to identify the trust property being sold. If there is an error or omission in the legal description so that the trust property cannot be identified, or if there is an error in the date, time or place of sale, the trustee shall record a cancellation of notice of sale. The trustee or any person furnishing information to the trustee shall not be subject to liability for any error or omission in the information required by subsection C of this section except for the wilful and intentional failure to provide such information. This subsection does not apply to claims made by an insured under any policy of title insurance.

F. The notice of trustee sale may not be rerecorded for any reason. This subsection does not prohibit the recording of a new or subsequent notice of sale regarding the same property.

§ 33-809 Request for copies of notice of sale; mailing by trustee; disclosure of information regarding trustee sale

A. A person desiring a copy of a notice of sale under a trust deed, at any time subsequent to the recording of the trust deed and prior to the recording of a notice of sale pursuant thereto, shall record in the office of the county recorder in any county in which part of the trust property is situated a duly acknowledged request for a copy of any such notice of sale. The request shall set forth the name and address of the person or persons requesting a copy of such notice and shall identify the trust deed by setting forth the county, docket or book and page of the recording data thereof and by stating the names of the original parties to such deed, the date the deed was recorded and the legal description of the entire trust property and shall be in substantially the following form:

Request for Notice

Request is hereby made that a copy of any notice of sale under the trust deed recorded in docket or book ___________ at page ________, records of ______________ county, Arizona, _____________________________, _______________________________,

(legal description of trust property)

Executed by ________________________ as trustor, in which ______________ is named as beneficiary and __________________ as trustee, be mailed to _________________ at ___________________.

Dated this _______________ day of _______________, _____.

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Signature

(Acknowledgement)

B. Not later than thirty days after recording the notice of sale, the trustee shall mail by certified or registered mail, with postage prepaid, a copy of the notice of sale that reflects the recording date together with any notice required to be given by subsection C of this section, addressed as follows:

1. To each person whose name and address are set forth in a request for notice, which has been recorded prior to the recording of the notice of sale, directed to the address designated in such request.

2. To each person who, at the time of recording of the notice of sale, appears on the records of the county recorder in the county in which any part of the trust property is situated to have an interest in any of the trust property. The copy of the notice sent pursuant to this paragraph shall be addressed to the person whose interest appears of record at the address set forth in the document. If no address for the person is set forth in the document, the copy of the notice may be addressed in care of the person to whom the recorded document evidencing such interest was directed to be mailed at the time of its recording or to any other address of the person known or ascertained by the trustee. If the interest that appears on the records of the county recorder is a deed of trust, a copy of the notice only needs to be mailed to the beneficiary under the deed of trust. If any person having an interest of record or the trustor, or any person who has recorded a request for notice, desires to change the address to which notice shall be mailed, the change shall be accomplished by a request as provided under this section.

3. For single family residential properties only, to the property address, except that the copy mailed pursuant to this paragraph may be mailed by first class mail.

C. The trustee, within five business days after the recordation of a notice of sale, shall mail by certified or registered mail, with postage prepaid, a copy of the notice of sale to each of the persons who were parties to the trust deed except the trustee. The copy of the notice mailed to the parties need not show the recording date of the notice. The notice sent pursuant to this subsection shall be addressed to the mailing address specified in the trust deed. In addition, notice to each party shall contain a statement that a breach or nonperformance of the trust deed or the contract or contracts secured by the trust deed, or both, has occurred, and setting forth the nature of such breach or nonperformance and of the beneficiary's election to sell or cause to be sold the trust property under the trust deed and the additional notice shall be signed by the beneficiary or the beneficiary's agent. A copy of the additional notice shall also be sent with the notice provided for in subsection B, paragraph 2 of this section to all persons whose interest in the trust property is subordinate in priority to that of the deed of trust along with a written statement that the interest may be subject to being terminated by the trustee's sale. The written statement may be contained in the statement of breach or nonperformance.

D. No request for a copy of a notice recorded pursuant to this section, nor any statement or allegation in any request, nor any record of request, shall affect the title to the trust property or be deemed notice to any person that a person requesting a copy of notice of sale has or claims any interest in, or claim upon, the trust property.

E. At any time that the trust deed is subject to reinstatement pursuant to section 33-813, but not sooner than thirty days after recordation of the notice of trustee's sale, the trustee shall upon receipt of a written request, provide, if actually known to the trustee, the following information relating to the trustee's sale and the trust property:

1. The unpaid principal balance of the note or other obligation which is secured by the deed of trust.

2. The name and address of record of the owner of the trust property as of the date of recordation of the notice of trustee's sale.

3. A list of the liens and encumbrances upon the trust property as of the date of recordation of the notice of trustee's sale, excluding those matters set forth in section 33-438, subsection A.

If the trustee elects to charge a fee for providing the information requested, the fee shall not exceed five per cent of the amount the trustee may charge pursuant to section 33-813, subsection B, paragraph 4, except that the trustee shall not charge a fee that is more than one hundred dollars or be required to accept a fee that is less than thirty dollars but may accept a lesser fee at the trustee's discretion. The trustee, or any other person furnishing information pursuant to this subsection to the trustee, shall not be subject to liability for any error or omission in providing the information requested, except for the wilful and intentional failure to provide information in the trustee's actual possession.

F. Beginning at 9:00 a.m. and continuing until 5:00 p.m. mountain standard time on the last business day preceding the day of sale and beginning at 9:00 a.m. mountain standard time and continuing until the time of sale on the day of the sale, the trustee shall make available the actual bid or a good faith estimate of the credit bid the beneficiary is entitled to make at the sale. If the actual bid or good faith estimate is not available during the prescribed time period, the trustee shall postpone the sale until the trustee is able to comply with this subsection.

G. In providing information pursuant to subsections E and F of this section, the trustee, without obligation or liability for the accuracy or completeness of the information, may respond to oral requests, respond orally or in writing or provide additional information not required by such subsections. With respect to property that is the subject of a trustee's sale, the beneficiary of such deed of trust or the holder of any prior lien may, but shall not be required to, provide information concerning such deed of trust or any prior lien that is not required by subsection E or F of this section and may charge a reasonable fee for providing the information. The providing of such information by any beneficiary or holder of a prior lien shall be without obligation or liability for the accuracy or completeness of the information.

§ 33-810 Sale by public auction; postponement of sale

A. On the date and at the time and place designated in the notice of sale, the trustee shall offer to sell the trust property at public auction for cash to the highest bidder. The trustee may schedule more than one sale for the same date, time and place. The attorney or agent for the trustee may conduct the sale and act at such sale as the auctioneer for the trustee. Any person, including the trustee or beneficiary, may bid at the sale. Only the beneficiary may make a credit bid in lieu of cash at sale. The trustee shall require every bidder except the beneficiary to provide a ten thousand dollar deposit in any form that is satisfactory to the trustee as a condition of entering a bid. The trustee or auctioneer may control the means and manner of the auction. Every bid shall be deemed an irrevocable offer until the sale is completed, except that a subsequent bid by the same bidder for a higher amount shall cancel that bidder's lower bid. To determine the highest price bid, the trustor or beneficiary present at the sale may recommend the manner in which the known lots, parcels or divisions of the trust property described in the notice of sale be sold. The trustee shall conditionally sell the trust property under each recommendation, and, in addition, shall conditionally sell the trust property as a whole. The trustee shall determine which conditional sale or sales result in the highest total price bid for all of the trust property. The trustee shall return deposits to all but the bidder or bidders whose bid or bids result in the highest bid price. The sale shall be completed on payment by the purchaser of the price bid in a form satisfactory to the trustee. The subsequent execution, delivery and recordation of the trustee's deed as prescribed by section 33-811 are ministerial acts. If the trustee's deed is recorded in the county in which the trust property is located within fifteen business days after the date of the sale, the trustee's sale is deemed perfected at the appointed date and time of the trustee's sale. If the highest price bid at a completed sale is less than the amount of that bidder's deposit, the amount of the deposit in excess of the bid price shall be refunded by the trustee at the time of delivery of the trustee's deed.

B. The person conducting the sale may postpone or continue the sale from time to time or change the place of the sale to any other location authorized pursuant to this chapter by giving notice of the new date, time and place by public declaration at the time and place last appointed for the sale. Any new sale date shall be a fixed date within ninety calendar days of the date of the declaration. After a sale has been postponed or continued, the trustee, on request, shall make available the date and time of the next scheduled sale and, if the location of the sale has been changed, the new location of the sale until the sale has been conducted or canceled and providing this information shall be without obligation or liability for the accuracy or completeness of the information. No other notice of the postponed, continued or relocated sale is required except as provided in subsection C of this section.

C. A sale shall not be complete if the sale as held is contrary to or in violation of any federal statute in effect because of an unknown or undisclosed bankruptcy. A sale so held shall be deemed to be continued to a date, time and place announced by the trustee at the sale and shall comply with subsection B of this section or, if not announced, shall be continued to the same place and at the same time twenty-eight days later, unless the twenty-eighth day falls on a Saturday or legal holiday, in which event it shall be continued to the first business day thereafter. In the event a sale is continued because of an unknown or undisclosed bankruptcy, the trustee shall notify by registered or certified mail, with postage prepaid, all bidders who provide their names, addresses and telephone numbers in writing to the party conducting the sale of the continuation of the sale.

D. A sale is postponed by operation of law to the next business day at the same scheduled time and place if an act of force majeure prevents access to the sale location for the conduct of the sale.

§ 33-811 Payment of bid; trustee's deed

A. The highest bidder at the sale, other than the beneficiary to the extent of the credit bid, shall pay the price bid by no later than 5:00 p.m. mountain standard time of the following day, other than a Saturday or legal holiday. If the highest bidder fails to pay the amount bid for the property struck off to the bidder at the sale, the trustee, in the trustee's sole discretion, shall either continue the sale to reopen bidding or immediately offer the trust property to the second highest bidder who may purchase the trust property at that bidder's bid price. The deposit of the highest bidder who fails to pay the amount bid shall be forfeited and shall be treated as additional sale proceeds to be applied in accordance with section 33-812, subsection A. If the second highest bidder does not pay that bidder's bid price by 5:00 p.m. mountain standard time of the next day excluding Saturdays and legal holidays after the property has been offered to that bidder by the trustee, the trustee shall either continue the sale to reopen bidding or offer the trust property to each of the prior bidders on successive days excluding Saturdays and legal holidays in order of their highest bid, until a bid price is paid, or if there is no other bidder, the sale shall be deemed to be continued to a time and place designated by the trustee, or if not designated, the sale shall be continued to the same place and at the same time twenty-eight days after the last scheduled sale date. If the twenty-eighth day is a Saturday or legal holiday, the sale shall be continued to the next business day. If the sale is continued, the trustee shall provide notice of the continuation of the sale by registered or certified mail, with postage prepaid, to all bidders who provide their names, addresses and telephone numbers in writing to the party conducting the sale. In addition to the forfeit of deposit, a highest bidder who fails to pay the amount bid by that bidder is liable to any person who suffers loss or expenses as a result, including attorney fees. In any subsequent sale of trust property, the trustee may refuse to accept any bid of that person. In any sale that is continued pursuant to this subsection, the trustee shall reject the bid from any previous bidder who elected not to pay that bidder's bid price.

B. The price bid shall be paid at the office of the trustee or the trustee's agent, or any other reasonable place designated by the trustee. The payment of the bid price may be made at a later time if agreed upon in writing by the trustee. Within seven business days after receipt of payment by the trustee or the trustee's agent, made in a form that is satisfactory to the trustee, the trustee shall execute and submit the trustee's deed to the county recorder for recording and, upon request, shall provide an unrecorded copy of the signed trustee's deed to the purchaser. The recording of the trustee's deed upon sale shall constitute delivery of the deed to the purchaser. The trustee is not liable for any damages resulting from the failure to record the trustee's deed upon sale after physical delivery of the deed to the purchaser. The trustee's deed shall raise the presumption of compliance with the requirements of the deed of trust and this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing and posting of notice of sale and the conduct of the sale. A trustee's deed shall constitute conclusive evidence of the meeting of those requirements in favor of purchasers or encumbrancers for value and without actual notice. Knowledge of the trustee shall not be imputed to the beneficiary.

C. The trustor, its successors or assigns, and all persons to whom the trustee mails a notice of a sale under a trust deed pursuant to section 33-809 shall waive all defenses and objections to the sale not raised in an action that results in the issuance of a court order granting relief pursuant to rule 65, Arizona rules of civil procedure, entered before 5:00 p.m. mountain standard time on the last business day before the scheduled date of the sale. A copy of the order, the application for the order and the complaint shall be delivered to the trustee within twenty-four hours after entering the order.

D. A sale is not complete if the sale violates subsection C of this section because of an undisclosed order entered by the court within the time provided for in subsection C of this section. A sale held in violation of subsection C of this section shall be continued to a date, time and place announced by the trustee at the sale and shall comply with section 33-810, subsection B. If not announced, the sale shall be continued to the same place and at the same time twenty-eight days later. If the twenty-eighth day falls on a Saturday or legal holiday, the sale shall be continued to the next business day. If the sale is continued because of an unknown or undisclosed order as provided in this subsection, the trustee shall notify by registered or certified mail, with postage prepaid, all bidders who provide names, addresses and telephone numbers in writing to the party conducting the sale of the continuation of the sale.

E. The trustee's deed shall operate to convey to the purchaser the title, interest and claim of the trustee, the trustor, the beneficiary, their respective successors in interest and all persons claiming the trust property sold by or through them, including all interest or claim in the trust property acquired subsequent to the recording of the deed of trust and prior to delivery of the trustee's deed. That conveyance shall be absolute without right of redemption and clear of all liens, claims or interests that have a priority subordinate to the deed of trust and shall be subject to all liens, claims or interests that have a priority senior to the deed of trust.

F. On completion of the sale and conveyance of the trustee's deed to the purchaser, the trustee shall notify the beneficiary of the beneficiary's obligations as prescribed by section 11-1133. The trustee shall provide notice to the beneficiary on or before the date of the trustee's sale.

§ 33-812 Disposition of proceeds of sale

A. The trustee shall apply the proceeds of the trustee's sale in the following order of priority:

1. To the costs and expenses of exercising the power of sale and the sale, including the payment of the trustee's fees and reasonable attorney fees actually incurred.

2. To the payment of the contract or contracts secured by the trust deed.

3. To the payment of all other obligations provided in or secured by the trust deed and actually paid by the beneficiary before the trustee's sale.

4. To any condominium association or planned community association as defined in chapter 9 or 16 of this title that had a subordinate lien as provided by law, even if the trustee intends to deposit the balance pursuant to subsection C of this section. The trustee may pay an association's lien on receipt of a written claim and shall be discharged from any liability for any payment made in good faith. The trustee may inquire as to the existence of a lien if there is a recorded declaration on the property without regard to whether a lien has been recorded. Any person who is an applicant or respondent pursuant to subsection H of this section may require the condominium association or planned community association to prove its entitlement to any funds received from the trustee. An association that demonstrates that the amount it received from the trustee was proper in all material respects is entitled to an award of its reasonable attorney fees and court costs against the applicant or respondent who contested the payment. If the applicant or respondent against whom the association's award is entered is entitled to excess proceeds of the sale, the award of attorney fees and costs shall be payable from those excess proceeds.

5. To the junior lienholders or encumbrancers in order of their priority as they existed at the time of the sale. After payment in full of all sums due to all junior lienholders and encumbrancers as of the date of the sale and excluding any postsale attorney fees, payment shall be made to the trustor, except that if the trustor has sold or transferred the property to another owner before the trustee's sale, payment shall be made to the person who is the owner of record at the time of the trustee's sale.

B. After application of the proceeds pursuant to subsection A, paragraphs 1, 2 and 3 of this section, if there are additional proceeds to be distributed, the trustee, within fifteen days of the completion of the trustee's sale, shall mail by first class mail and by certified or registered mail, postage prepaid, to all known addresses a notice of any excess proceeds to the trustor as of the date of the recording of the notice of sale. The trustee may deduct the costs of mailing the notice of excess proceeds from the additional proceeds.

C. In the trustee's discretion and instead of any one or more of the applications specified in subsection A of this section, the trustee may elect to deposit the balance of the proceeds with the county treasurer in the county in which the sale took place pending an order of the superior court in the county. On deposit of the balance of the monies and after complying with subsection D of this section, the trustee shall be discharged from all responsibility for acts performed in good faith according to this chapter. The county treasurer shall reject any deposit that does not comply with subsection D of this section.

D. If the trustee elects to deposit the balance of the sale proceeds as prescribed by subsection C of this section, the trustee as plaintiff shall commence a civil action in the superior court in the county in which the sale occurred. The action shall name the applicable county treasurer as the defendant, but the county treasurer has no obligation to respond to the complaint or appear in the action. The trustee shall mail by certified or registered mail, with postage prepaid, a conformed copy of the complaint that displays the filing stamp of the court clerk to the county treasurer and all persons, other than the beneficiary, who are entitled to notice pursuant to section 33-809 and to any other person known by the trustee to have an interest of record in the property at the time of the sale. The conformed copy shall be mailed to all known addresses for those persons who are required to receive notice pursuant to this subsection. The trustee shall incorporate in or attach to the complaint:

1. A copy of any one of the following:

(a) The trustee sale guarantee and all amendments or endorsements obtained by the trustee.

(b) The title search used by the trustee in connection with the trustee's sale of the subject property and all amendments or endorsements obtained by the trustee.

(c) A detailed description of the liens and encumbrances used by the trustee in connection with the trustee's sale of the property.

2. A copy of the list of the persons and each of the known addresses to which the complaint will be mailed.

3. A detailed description of any disbursements made by the trustee pursuant to this section.

4. A narrative description of the liens and encumbrances as shown in the trustee's sale guarantee, title report or detailed description, including an analysis of the apparent priority of potential claimants. The trustee shall not be liable for any error in the narrative description or analysis.

E. The trustee may withhold from the proceeds of the sale a reasonable trustee's fee and reasonable attorney fees actually incurred and the costs of filing the complaint, depositing the proceeds and mailing the notices.

F. Upon filing the complaint and filing the subsequent certificate of mailing for the complaint with the certified mailing receipts of the addressees, the trustee as plaintiff is discharged without prejudice from the proceedings.

G. Any person with a recorded or other legal interest in the property at the time of the sale may apply for the release of the proceeds by filing an application for distribution in the civil action that was filed by the trustee pursuant to subsection D of this section. The applicant shall mail postage prepaid by any form of mail that requires a signed and returned receipt a copy of the application to the county treasurer and all persons at each of the addresses named on the list of persons that is incorporated in or attached to the complaint and to any other address of the persons that is known to or ascertained by the applicant or the applicant's agent. The mailing of the application to each interested party shall occur within three business days after the filing of the original application with the court. On return of the signed receipt or the undelivered or unclaimed original envelope, the applicant shall file with the court an affidavit that states that the application was mailed to the person and that the application was either:

1. Received, as evidenced by the receipt. The applicant shall attach to the affidavit a copy of the receipt.

2. Not received, as evidenced by the returned envelope. The applicant shall attach to the affidavit a copy of the original unopened and undelivered or unclaimed returned envelope. If the returned envelope was marked with a new forwarding address, within ten business days after receipt of the original returned envelope the applicant shall:

(a) Send by certified mail a copy of the application to the new forwarding address.

(b) File a second affidavit of mailing with the court.

(c) Mail a copy of the second affidavit to all parties indicating that the application was mailed to the forwarding address.

(d) Continue service of the application pursuant to this paragraph until the original, unopened and undelivered envelope is returned without any forwarding address.

H. When mailing to all known addresses of a business or financial institution with an interest of record in the property, the trustee or applicant shall only be required to mail to the primary address of the business or financial institution as recorded with the corporation commission.

I. Any person who receives the application or who claims a right to the proceeds may file a response to the application within forty-five days of the latest mailing of the application. The person filing a response shall mail a copy of the response to each applicant. Within ten calendar days from the date the response is mailed, an applicant may file with the clerk and mail to each respondent a reply to the response. On expiration of the time for filing a reply, an applicant shall provide the court with postage prepaid business envelopes that are addressed to all persons who are entitled to receive copies of the complaint pursuant to subsection D of this section. If an association with a claim is not paid by the trustee pursuant to subsection A, paragraph 4 of this section and is required to file an application or response pursuant to this subsection in order to recover proceeds, the association may request from the excess proceeds of the sale an award of its reasonable attorney fees and costs incurred.

J. Except as provided in subsection L of this section, the court shall issue an order to the county treasurer to release the proceeds deposited with the county treasurer to the party entitled to receive them after applying the priorities prescribed by subsection A of this section. On notice to all persons who have received a copy of the complaint or who have filed a responsive pleading, the court may, and if there are competing claims to the proceeds, the court shall, hold a hearing to determine entitlement to the proceeds. Every applicant or respondent shall acknowledge the existence of any apparent lien, encumbrance or interest that could have priority over the applicant or respondent. If the court finds that a person other than an applicant or respondent has a superior right to receive the proceeds, the court shall not issue an order on the proceeds until one hundred eighty days from the date the complaint was filed. At any time before the expiration of the one hundred eighty day period, an applicant or respondent may move for a hearing to determine whether the claimed superior right is valid or enforceable and whether the claim is entitled to receive priority over the claim of the applicant or respondent. The motion shall set forth the specific facts and evidence that support the applicant's or respondent's position and shall be mailed to all persons who have received a copy of the complaint or filed a responsive pleading. If a response is not filed within the one hundred eighty day period by the person found by the court to have a superior right to receive the proceeds, the court shall enter an order in favor of any applicant or respondent entitled to the proceeds. On release of the proceeds, the county treasurer may assess and deduct from the proceeds a reasonable fee not to exceed one hundred dollars for the treasurer's costs associated with the civil action.

K. Within ninety days after completion of the sale, the trustee shall apply the proceeds of the sale pursuant to subsection A of this section or shall deposit the proceeds with the treasurer pursuant to subsection C of this section. If the trustee fails to comply with this subsection, the trustee forfeits any entitlement to the fees and costs prescribed in subsection E of this section and shall pay interest at the rate provided for judgments pursuant to section 44-1201 from the date of completion of the sale until the trustee complies with this subsection. Any person with a recorded or other legal interest in the property at the time of the sale may commence a civil action against the trustee for the trustee's failure to comply with this subsection. The court may award the prevailing party its reasonable attorney fees and costs incurred in that civil action.

L. Excess proceeds deposited with the county treasurer pursuant to subsection C of this section are presumed abandoned if the monies remain with the treasurer for at least two years from the date of deposit and there is no pending application for distribution.

M. Excess proceeds that are fifty dollars or less and that are presumed abandoned under this section shall be transferred to the county general fund. No further application for distribution by any applicant or claim by the department of revenue may be made on these monies.

N. For all excess proceeds that are greater than fifty dollars and that are presumed abandoned under this section, the county treasurer shall submit a report to the department of revenue pursuant to section 44-307. The county treasurer may assess and deduct from the proceeds a reasonable fee of not more than fifty dollars for the treasurer's costs associated with reporting each deposit.

O. The county treasurer shall be discharged from all claims and responsibility for acts performed in good faith pursuant to this chapter after remitting the presumed abandoned excess proceeds to the department of revenue pursuant to section 44-308.

P. A claimant may enter into an agreement with a third party to pay for the recovery of or for assistance in the recovery of excess proceeds on deposit with the county treasurer. The agreement shall be in writing, signed by the claimant, and the claimant's signature shall be acknowledged by a notary public or other person authorized to accept an acknowledgment pursuant to section 33-511. Any agreement entered into before the expiration of thirty days after the date the trustee's sale was held, but not including the date of the sale, is void and unenforceable. Any fee or payment provided for in an agreement shall be reasonable. The fee or payment shall be presumed to be unreasonable and the obligation to pay the fee or payment is unenforceable if the fee or payment agreed on exceeds two thousand five hundred dollars excluding attorney fees and the costs of filing the claim and providing the statutorily required notices. Any person seeking a fee or payment exceeding two thousand five hundred dollars may apply to the court for additional compensation but the person has the burden of establishing that the additional compensation is reasonable under the circumstances. This subsection does not preclude a claimant from contesting the reasonableness of any fee or payment that is provided for in an agreement for the recovery of or for assistance in the recovery of excess proceeds.

§ 33-813 Default in performance of contract secured; reinstatement; cancellation of recorded notice of sale

A. If, prior to the maturity date fixed by the contract or contracts, all or a portion of a principal sum or interest of the contract or contracts secured by a trust deed becomes due or is declared due by reason of a breach or default in the performance of the contract or contracts or of the trust deed, the trustor or the trustor's successor in interest, any person having a subordinate lien or encumbrance of record thereon or any beneficiary under a subordinate trust deed, before 5:00 p.m. mountain standard time on the last day other than a Saturday or legal holiday before the date of sale or the filing of an action to foreclose the trust deed, may reinstate by paying to the beneficiary, the trustee or the trustee's agent in a form acceptable to the beneficiary or the trustee the entire amount then due under the terms of the contract or contracts or trust deed, other than the portion of the principal as would not then be due had no default occurred, by curing all other defaults and by paying the amounts due under subsection B of this section.

B. The beneficiary shall notify the trustee in writing of the performance and the name of the person who performed the conditions. The proceedings shall be cancelled and the contract or contracts and trust deed shall be deemed reinstated and in force as if no breach or default had occurred upon performance of those of the following which may be applicable:

1. Payment of the entire amount then due.

2. Payment of costs and expenses incurred in enforcing the terms of such contract or trust deed. These costs and expenses may include the following:

(a) Reasonable costs for mailing and photocopying.

(b) Actual expenses incurred for recording, publication, posting of notice of sale, auctioneer's fee, postponement fees and title costs.

(c) Other reasonable costs and expenses.

3. Payment of the recording fee for a cancellation of notice of sale.

4. Payment of the trustee's fees, in an amount not to exceed six hundred dollars or one-half of one per cent of the entire unpaid principal sum secured, whichever is greater.

5. Payment of expenses and reasonable attorney fees that are not otherwise provided for in this section and that are incurred in protecting and preserving the beneficiary's interest in the trust property.

C. On request from the trustor or any person entitled to notice pursuant to section 33-809, subsection B, at any time that the trust deed is subject to reinstatement, the trustee shall provide a good faith estimate of the sums that appear necessary to reinstate the trust deed.

D. On written request from the trustor or any person entitled to notice pursuant to section 33-809, subsection B that is delivered to the trustee after the recording of the notice of trustee's sale, the trustee shall inform the person of the exact amount necessary to reinstate the trust deed, separately specifying costs, fees and any other amounts that are required to be paid as a condition to reinstatement of the trust deed. The trustee shall provide that information within five business days after receipt of the written request. If the written request is received by the trustee during the five business days before the day of the sale, the trustee shall provide the information to the person as soon as practicable. This subsection does not require the extension of the period for reinstatement of the trust deed prescribed in subsection A of this section.

E. If the trust deed is reinstated as provided in subsection B of this section, the trustee shall have a cancellation of the notice of sale recorded in the same county recorder's office where the notice of sale was recorded. A trustee who, for thirty days after reinstatement, fails to have proper notice of the cancellation of the notice of sale recorded is liable to the person who performed the conditions resulting in reinstatement for all actual damages resulting from such failure.

F. If the trust deed is paid in full or if the sale is not held or is not properly postponed pursuant to this chapter, the trustee shall record a cancellation of the notice of sale. The cancellation of the notice of sale shall be recorded in the office of the county recorder in which the notice of sale was recorded.

G. An acknowledged recorded cancellation of a recorded notice of sale under a trust deed shall be sufficient if it is in substantially the following form:

Cancellation of Notice of Sale

The undersigned hereby cancels the notice of sale recorded _______________, ____, on trust property legally described as:

(legal description of trust property)

which notice of sale refers to a trust deed executed by __________________ as trustor, in which ____________ is named as beneficiary and __________________ as trustee, and recorded _______________, _____, in docket or book ________, at page __________, records of ______________ county, Arizona.

Dated this _____________ day of __________, ____.

---

Signature of trustee

(Acknowledgement)

§ 33-814 Action to recover balance after sale or foreclosure on property under trust deed

A. Except as provided in subsections F, G and H of this section, within ninety days after the date of sale of trust property under a trust deed pursuant to section 33-807, an action may be maintained to recover a deficiency judgment against any person directly, indirectly or contingently liable on the contract for which the trust deed was given as security including any guarantor of or surety for the contract and any partner of a trustor or other obligor which is a partnership. In any such action against such a person, the deficiency judgment shall be for an amount equal to the sum of the total amount owed the beneficiary as of the date of the sale, as determined by the court less the fair market value of the trust property on the date of the sale as determined by the court or the sale price at the trustee's sale, whichever is higher. A written application for determination of the fair market value of the real property may be filed by a judgment debtor with the court in the action for a deficiency judgment or in any other action on the contract which has been maintained. Notice of the filing of an application and the hearing shall be given to all parties to the action. The fair market value shall be determined by the court at a priority hearing upon such evidence as the court may allow. The court shall issue an order crediting the amount due on the judgment with the greater of the sales price or the fair market value of the real property. For the purposes of this subsection, "fair market value" means the most probable price, as of the date of the execution sale, in cash, or in terms equivalent to cash, or in other precisely revealed terms, after deduction of prior liens and encumbrances with interest to the date of sale, for which the real property or interest therein would sell after reasonable exposure in the market under conditions requisite to fair sale, with the buyer and seller each acting prudently, knowledgeably and for self-interest, and assuming that neither is under duress. Any deficiency judgment recovered shall include interest on the amount of the deficiency from the date of the sale at the rate provided in the deed of trust or in any of the contracts evidencing the debt, together with any costs and disbursements of the action.

B. If a trustee's sale is a sale of less than all of the trust property or is a sale pursuant to one of two or more trust deeds securing the same obligation, the ninety day time limitations of subsection A of this section shall begin on either the date of the trustee's sale of the last of the trust property to be sold or the date of sale under the last trust deed securing the obligation, whichever occurs last.

C. The obligation of a person who is not a trustor to pay, satisfy or purchase all or a part of the balance due on a contract secured by a trust deed may be enforced, if the person has so agreed, in an action regardless of whether a trustee's sale is held. If, however, a trustee's sale is held, the liability of a person who is not a trustor for the deficiency is determined pursuant to subsection A of this section and any judgment for the deficiency against the person shall be reduced in accordance with subsection A of this section. If any such action is commenced after a trustee's sale has been held, it is subject, in addition, to the ninety day time limitations of subsections A and B of this section.

D. If no action is maintained for a deficiency judgment within the time period prescribed in subsections A and B of this section, the proceeds of the sale, regardless of amount, shall be deemed to be in full satisfaction of the obligation and no right to recover a deficiency in any action shall exist.

E. Except as provided in subsection F of this section, the provisions of this chapter do not preclude a beneficiary from foreclosing a deed of trust in the same manner as a real property mortgage. In an action for the foreclosure of a deed of trust as a real property mortgage the provisions of chapter 6, article 2 of this title are applicable.

F. A deed of trust may, by express language, validly prohibit the recovery of any balance due after trust property is sold pursuant to the trustee's power of sale, or the trust deed is foreclosed in the manner provided by law for the foreclosure of mortgages on real property.

G. If trust property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling is sold pursuant to the trustee's power of sale, no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses.

H. For deeds of trust that are originated after December 31, 2014, subsection G of this section does not apply to trust property as follows:

1. Trust property owned by a person who is engaged in the business of constructing and selling dwellings that was acquired by the person in the course of that business and that is subject to a deed of trust given to secure payment of a loan for construction of a dwelling on the property for sale to another person.

2. Trust property that contains a dwelling that was never substantially completed.

3. Trust property that contains a dwelling that is intended to be utilized as a dwelling but that is never actually utilized as a dwelling.

I. For the purposes of this section, a dwelling is substantially completed if either of the following occurs:

1. Final inspection is completed, if required by the governmental body that issued the building permit for the dwelling.

2. If a final inspection is not required by the governmental body that issued the building permit, the dwelling has been completed in all material respects as prescribed in the applicable ordinances and regulations of the governmental body that issued the building permit for the dwelling.

§ 33-815 Method of indexing

Every trust deed, substitution of trustee, notice of resignation of trustee, request for notice, assignment of beneficial interest under a trust deed, notice of sale, cancellation of notice of sale or deed of release entitled to recordation under the provisions of this chapter shall be indexed in the same manner as mortgages, with the trustor indexed as mortgagor, and if the name of the beneficiary appears on the instrument being recorded, his name or that of his successor shall be indexed as mortgagee. If the name of the beneficiary does not appear on the instrument being recorded the name of the trustee, or his successor, shall be indexed as mortgagee.

§ 33-816 Limitation on action or sale of trust property

The trustee's sale of trust property under a trust deed shall be made, or any action to foreclose a trust deed as provided by law for the foreclosure of mortgages on real property shall be commenced, within the period prescribed by law for the commencement of an action on the contract secured by the trust deed.

§ 33-817 Transfer of secured contract

The transfer of any contract or contracts secured by a trust deed shall operate as a transfer of the security for such contract or contracts.

§ 33-818 Notice from instruments recorded; assignment of a beneficial interest

Except as otherwise provided in this section, a trust deed, substitution of trustee, notice of resignation of trustee, assignment of a beneficial interest under a trust deed, notice of sale, cancellation of notice of sale, trustee's deed, deed of release, and any instrument by which a trust deed is subordinated or waived as to priority, if acknowledged as provided by law, shall from the time of being recorded impart notice of the content to all persons, including subsequent purchasers and encumbrancers for value. The recording of an assignment of the beneficial interest in a trust deed shall not be deemed notice of such assignment to the trustor, his heirs or personal representatives, so as to invalidate any payment made by them, or any of them, to the person previously holding the note, bond, or other instrument evidencing the contract or contracts secured by the trust deed.

§ 33-819 Exempt transactions

If a trust deed is executed for a principal purpose other than or in addition to securing the performance of a contract or contracts, the parties thereto may agree that the provisions of this chapter shall not be applicable. If such an agreement is in writing and is contained in such trust deed the provisions of this chapter shall not be applicable to such trust deed.

§ 33-820 Trustee's right to rely; attorney's right to act for trustee and beneficiary

A. In carrying out his duties under the provisions of this chapter or any deed of trust, a trustee, shall when acting in good faith, have the absolute right to rely upon any written direction or information furnished to him by the beneficiary.

B. An attorney for the beneficiary shall also be qualified to act as attorney for the trustee or to be the trustee.

§ 33-821 Exemption from definition

A deed of trust shall not be considered a deed or contract under the provisions of title 42, chapter 10, article 2 or a contract for conveyance of real property under the provisions of title 33, chapter 6, article 3.

Chapter 7 Liens

Article 1 Farm Services Lien

§ 33-901 Lien for furnishing labor or machinery upon agricultural land

A person who labors or furnishes labor or machinery or equipment in improving and preparing agricultural lands for planting crops, and to whom wages or monies are due and owing therefor, shall have a lien upon the crops produced on such lands for all unpaid amounts.

§ 33-902 Procedure to claim lien; foreclosure

A. A person claiming a lien under this article, within ten days after the labor is performed or the use of the machinery and equipment is terminated, shall record in the office of the county recorder of the county in which the land is located a claim substantially in the form and containing the information prescribed by section 33-993 so far as applicable, and verified as provided therein.

B. The lien may be foreclosed by civil action.

§ 33-903 Nonliability of vendee of crops upon lien for farm services; demand of statement from vendor; refusal to make or making of erroneous statement by vendor; classification

If farm products are removed from the premises upon which grown, and sold to a shipper, wholesale dealer or manufacturer upon the open market in the ordinary course of trade before the filing of a lien provided for in this article, the shipper, wholesale dealer or manufacturer shall not be liable for any such lien unless notice has been given him of persons claiming the lien. The shipper, wholesale dealer or manufacturer shall demand a written statement, under oath, from the vendor, giving the names of and amounts due to persons entitled to liens under this article. A vendor who knowingly fails to make the statement when demanded or who knowingly makes a false or misleading statement is guilty of a class 2 misdemeanor, and, in addition to the penalty prescribed in section 33-906, shall be liable to any person thus deprived of his lien for double the full amount thereof, and for reasonable attorney's fees if an action is instituted to recover the amount due.

§ 33-904 Duration of lien

A lien provided for in this article is not impressed upon a crop for a longer period than six calendar months after the claim is filed, unless a civil action is commenced within that time to foreclose the lien.

§ 33-905 Demand by lien holder for enforcement of lien against whole or part of property covered

A person who brings a civil action to enforce a lien provided for in this article, or any person having a lien who is made a party to such civil action, may demand that his lien be enforced against the whole or any part of the crop.

§ 33-906 Joinder of actions; costs

Any number of persons claiming liens against the same property under this article may join in the same action, and when separate actions are commenced, the court may consolidate them. The court shall, as part of the costs, allow the fees paid for filing and recording the claim and a reasonable attorney's fee for each claimant who is a party to the action.

§ 33-907 Enforcement of judgment

In a civil action filed pursuant to this article, the judgment shall be given in favor of each person having a lien for the amount due him. The court shall order any property subject to the lien sold, either before or at the time judgment is given, by the sheriff as personal property is sold on execution, and shall apportion the proceeds of the sale for payment of the pro rata share of each judgment.

§ 33-908 Additional remedies

This article shall not be construed to impair or affect the right of any person to whom a debt is due for work done or material furnished to maintain an independent action to recover the debt against the person liable therefor.

§ 33-909 Release of farm services lien

When any lien established by the provisions of this article has been satisfied, the lienholder shall, within thirty days after satisfaction, issue a release of the lien to the person against whom the lien was claimed. Such release shall be a document in a form as specified in section 11-480. Failure to grant such a release shall be subject to the penalties prescribed by section 33-712.

Article 3 Health Care Provider Liens

§ 33-931 Lien of health care provider on damages recovered by injured person receiving services; hospital priority; enforcement

A. Every individual, partnership, firm, association, corporation or institution or any governmental unit that maintains and operates a health care institution or provides health care services in this state and that has been duly licensed by this state, or any political subdivision or private entity with ambulances operated, licensed or registered pursuant to title 36, chapter 21.1, is entitled to a lien for the care and treatment or transportation of an injured person as prescribed by subsection E of this section. The lien shall be for the claimant's customary charges for care and treatment or transportation of an injured person. A lien pursuant to this section extends to all claims of liability or indemnity, except health insurance and medical payments coverage and underinsured motorist and uninsured motorist coverage as defined in section 20-259.01, for damages accruing to the person to whom the services are rendered, or to that person's legal representative, on account of the injuries that gave rise to the claims and that required the services.

B. If a county maintains, operates or provides health care services, the county is entitled to an assignment by operation of law for the care and treatment or transportation of an injured person as prescribed by subsection E of this section. The assignment shall be for the claimant's customary charges for care and treatment or transportation of an injured person. An assignment pursuant to this section extends to any claims of liability or indemnity, except health insurance and medical payments coverage and underinsured motorist and uninsured motorist coverage as defined in section 20-259.01, for damages accruing to the person to whom the services are rendered, or to that person's legal representative, on account of injuries that gave rise to the claims and that required the services.

C. The lien entitlements authorized by subsection A of this section and the assignment authorized by subsection B of this section are applicable to all customary charges by hospitals or ambulances of political subdivisions, but are restricted to customary charges in excess of $250 by all other providers and privately owned ambulance companies excluding interest and service charges.

D. Liens perfected pursuant to this article by a hospital have priority for payment over all other liens authorized by this article.

E. The liens and assignments authorized by this section are enforceable by a cause of action prescribed by section 33-934 and are subject to the following:

1. One-third of any third-party judgment, settlement or award is exempt from any lien or assignment authorized by this section.

2. If the injured person is covered as an insured or dependent under a health insurance or similar medical benefit plan and the health care provider has a valid and binding contract with that insurer or plan as an in-network provider, the contract must expressly allow the health care provider to assert a lien or assignment that is authorized by this section. In the absence of that contract provision, the lien or assignment is invalid and may not be enforced by a cause of action prescribed by section 33-934 except as allowed under paragraph 3 or 4 of this subsection.

3. Paragraphs 1 and 2 of this subsection do not apply if any of the following exceptions are met:

(a) The services provided are not covered by the injured person's health insurance or similar medical benefit plan.

(b) The health care provider does not have a valid and binding contract with the insurer or plan as an in-network provider.

(c) The injured person is not covered by any health insurance or any similar medical benefit plan.

(d) The injured person and the health care provider have a written and signed document stating that they elect not to use any coverage potentially available under a health insurance or similar medical benefit plan that covers the injured as an insured or dependent.

4. Notwithstanding paragraphs 1, 2, and 3 of this subsection, a health care provider may enforce a lien or assignment authorized by this section by a cause of action prescribed by section 33-934 for all amounts for which a patient is personally responsible, including outstanding coinsurance amounts, copayments and deductibles that are due under the injured person's or dependent's health insurance or similar medical benefit plan.

5. Any valid and enforceable lien or assignment authorized by this section shall be compromised pursuant to the criteria prescribed by section 33-937.

6. Any valid and enforceable lien or assignment authorized by this section shall be subordinate to any lien with higher priority.

F. This section does not affect the rights of a health care provider to enforce a consensual agreement, whether called a lien or contract, against the patient who has signed the agreement.

§ 33-932 Perfecting lien; statement of claim; recording; effect

A. In order to perfect a lien granted by section 33-931, the executive officer, licensed health care provider or agent of a health care provider shall record, before or within thirty days after the patient has received any services relating to the injuries, except a hospital which shall record within thirty days after the patient is discharged, in the office of the recorder in the county in which the health care provider is located a verified statement in writing setting forth all of the following:

1. The name and address of the patient as they appear on the records of the health care provider.

2. The name and location of the health care provider.

3. The name and address of the executive officer or agent of the health care provider, if any.

4. The dates or range of dates of services received by the patient from the health care provider.

5. The amount claimed due for health care.

6. For health care providers other than hospitals or ambulance services, to the best of the claimant's knowledge, the names and addresses of all persons, firms or corporations and their insurance carriers claimed by the injured person or the injured person's representative to be liable for damages arising from the injuries for which the person received health care.

B. The verified statement shall also include the amount claimed due as of the date of recording of the claim or lien and a statement regarding whether the patient's treatment has been terminated or will be continued. Amounts incurred during the continued period are also subject to the lien.

C. The claimant shall also mail, by first class mail within five days after recording the claim or lien, a copy of the claim or lien to the injured person. For health care providers other than hospitals or ambulance services the claimant shall also mail a copy to all persons, firms or corporations and their insurance carriers claimed by the injured person or the injured person's representative to be liable for damages arising from the injuries for which the person received health care. If a health care provider other than a hospital or ambulance service does not record the claim, lien or assignment as provided in this section, the claim, lien or assignment is invalid and may not be enforced by the cause of action provided in section 33-934. If a hospital records such a claim or lien, the recording shall be notice to all persons, firms or corporations liable for damages, whether or not they are named in the claim or lien.

D. A hospital or ambulance service lien that is not recorded within the time prescribed by this section is effective against any settlement or judgment for damages if the lien is recorded thirty days before the settlement is agreed to or the judgment is paid except if the lien is recorded in a county where liens are accessible on the internet, the lien is effective if the lien is accessible on the internet thirty days or more before the settlement is agreed to or the judgment is paid. If the lien is not recorded or is not accessible on the internet as provided in this section, the lien is invalid and may not be enforced by the cause of action provided in section 33-934.

§ 33-933 Recording and indexing lien claim

The recorder shall endorse upon a claim recorded as provided by section 33-932 the date and hour of reception, and such facts as are necessary to indicate that it has been recorded.

§ 33-934 Release of claim by injured person ineffective as to lienholder; action to enforce lien

A. A release of claims on which a lien or assignment is given by section 33-931 or of any judgment on that claim is not valid or effectual against the lien or assignment unless the lienholder or assignee joins in the release or executes a release of the lien or assignment. If any amount has been or is to be collected by the injured person or that person's legal representative from or on account of the person, firm or corporation liable for damages by reason of a judgment, settlement or compromise, the claimant or assignee of the lien or assignment may enforce the lien or assignment by action against the person, firm or corporation that is liable for damages, or against any insurer or other person, firm or corporation that is responsible for paying all or part of the damages.

B. An action pursuant to this section shall be commenced and tried in the county in which the lien or assignment is filed, unless ordered by the court to be removed to another county for cause. The court may allow reasonable attorney fees and disbursements to the prevailing party. The action shall be commenced within two years after the entry of the judgment or the making of the settlement or compromise. In an action to enforce a lien or assignment, the lienholder or assignee may not recover more than the amount of the lien or assignment nor may it recover more against a defendant in the lien action than that defendant is obligated to pay under judgment or settlement. The defendant in the lien or assignment action cannot raise as a defense in that action that it is not liable for the amount it is obligated to pay under the judgment or settlement except that it may dispute the amount of the lien on the grounds that the charges giving rise to the lien are erroneous or exceed the customary charges, or that the care, treatment or transportation giving rise to the charges was not medically necessary or causally related to the event giving rise to the claim to which the lien or assignment extends.

C. This section does not create any rights or causes of action on behalf of the lienholder other than are provided for in this section.

§ 33-935 Workers' compensation cases exempted

The provisions of this article are not applicable to accidents or injuries within the purview of the workers' compensation law of this state.

§ 33-936 Release of hospital lien; liability

If any lien or assignment established by this article has been satisfied, within thirty days after satisfaction the lienholder or assignee shall issue a release of the lien or assignment to the person against whom the lien or assignment was claimed. The release shall be a document in a form as specified in section 11-480. A lienholder or assignee that fails to grant a release is subject to liability in the amount of one hundred dollars and also to liability for actual damages.

§ 33-937 Limitation of lien or assignment; compromise; cause of action; attorney fees

A. All interested parties, including the health care provider, patient and patient's attorney, shall compromise any lien or assignment granted pursuant to section 33-931 and the amounts owed pursuant to any such lien or assignment to provide a settlement of the claim that is fair and equitable to all parties.

B. In determining the extent of the compromise required by subsection A of this section, the health care provider shall consider the following factors:

1. The nature and extent of the patient's injury or illness.

2. The sufficiency of liability insurance or other sources of indemnity available to the patient from the tortfeasor or the tortfeasor's insurer. The potential availability of health insurance or a similar medical benefit plan that covers the patient as an insured or dependent may not be considered as a factor in any compromise, if the patient and the health care provider have agreed not to use that health insurance or similar medical benefit plan coverage.

3. Whether the health care provider, the hospital or an assignee has received any payment reducing the patient's financial obligation to pay the lien balance.

4. The nature and complexity of the services rendered by the health care provider to the patient.

5. The health care provider's customary charges for the services rendered to the patient.

6. The total amount of the third-party judgment, settlement or award.

7. Other valid liens made pursuant to section 33-931 that are attached to any third-party judgment, settlement or award and the priority position of the liens.

8. The patient's attorney fees and costs.

9. Any reductions agreed to by any other claimants to the total amount of the third-party judgment, settlement or award.

10. Other valid claims against the third-party judgment, settlement or award, including health insurance reimbursement and subrogation claims.

11. Any other factor relevant to a fair and equitable settlement under the circumstances of that particular case.

C. On request of the health care provider, the patient shall provide a proposed distribution of the settlement monies that contains a complete listing of how the monies would be distributed among all parties along with a statement of the monies that the patient would receive if the liens are compromised.

D. If the interested parties cannot agree on a compromise of a lien or assignment as prescribed by this section, an action may be filed for a judicial determination of an appropriate compromise of the lien or assignment based on the factors prescribed by this section. The action may be filed by the injured person whose care, treatment or transportation is subject to a lien or assignment pursuant to section 33-931, the health care provider or assignee, or the person, firm or corporation liable for damages, or any insurer or other person, firm or corporation that is responsible for paying all or part of the damages. In any action brought pursuant to this section, the prevailing party may not recover attorney fees authorized by section 33-934.

Article 4 Innkeeper's Lien

§ 33-951 Lien on baggage and property of guests

Hotel, inn, boarding house, lodging house, apartment house and auto camp keepers shall have a lien upon the baggage and other property of their guests, boarders or lodgers, brought therein by their guests, boarders or lodgers, for charges due for accommodation, board, lodging or room rent and things furnished at the request of such guests, boarders or lodgers, with the right to possession of the baggage or other property until the charges are paid.

§ 33-952 Sale of property; notice

A. When baggage or other property comes into the possession of a person entitled to a lien as provided by section 33-951 and remains unclaimed, or the charges remain unpaid for a period of four months, the person may proceed to sell the baggage or property at public auction, and from the proceeds retain the charges, storage and expense of advertising the sale.

B. The sale shall not be made until the expiration of four weeks from the first publication of notice of the sale, published in a newspaper once a week for four consecutive weeks. The notice shall contain a description of each piece of property, the name of the owner, if known, the name of the person holding the property, and the time and place of sale. If the indebtedness does not exceed sixty dollars, the notice may be given by posting at not less than three public places located at the place where the hotel, inn, boarding house, lodging house, apartment house or auto camp is located.

C. Any balance from the sale not claimed by the rightful owner within one month from the day of the sale shall be paid into the treasury of the county in which the sale took place, and if not claimed by the owner within one year thereafter, the money shall be paid into the general fund of the county.

Article 5 Judgment Liens on Real Property

§ 33-961 Recording judgments for payment of money; certified copy; perfecting lien; information statement; exemption; retroactive applicability

A. A certified copy of the judgment of any court in this state may be filed and recorded in the office of the county recorder in each county where the judgment creditor desires the judgment to become a lien on the real property of the judgment debtor. On recording in substantial compliance with both the requirements of this section and the requirements of section 33-967 regarding an information statement, the judgment becomes a lien on the real property of the judgment debtor, including any part of the real property of the judgment debtor as otherwise provided by law. Failure to substantially comply with this section and section 33-967, results in the judgment not becoming a lien. The certified copy of the judgment shall set forth the:

1. Title of the court and the action and number of the action.

2. Date of entry of the judgment and the docket record for the judgment.

3. Names of the judgment debtor and judgment creditor.

4. Amount of the judgment.

5. Attorney of record for the judgment creditor.

B. The clerk shall furnish a certified copy of any judgment of that court on request and payment of the fee prescribed by law.

C. A judgment or decree or any renewal that requires payment of money shall also be accompanied by an information statement as prescribed by section 33-967.

D. Notwithstanding subsections A and C of this section, a civil judgment in favor of this state is exempt from the requirement to record an information statement as prescribed in section 33-967 and becomes a lien on the real property of the judgment debtor when it is recorded in the office of the county recorder. This subsection applies retroactively to all judgments in favor of this state without regard to when the judgment was recorded.

§ 33-962 Procedure for filing judgment of justice or municipal court; recording; lien

A. A judgment of a justice or municipal court may be prepared for recording using either of the following procedures:

1. The clerk of the superior court, on presentation of a certified transcript of a judgment for more than fifteen dollars, exclusive of costs, given by a justice or municipal court, shall forthwith file the judgment. From the time of filing the transcript of the judgment, that judgment shall be deemed the judgment of the superior court, shall be in the control of the superior court and shall be carried into execution in the same manner and with like effect as a judgment of the superior court.

2. The clerk of a justice court or municipal court shall issue a certified copy of any judgment of that court on request and payment of the fee prescribed by law. On issuance of the certified copy of the justice court or municipal court judgment, the certified copy of the judgment may be recorded and may be executed in the same manner and with like effect as a judgment of the superior court.

B. Any judgment must be recorded in the manner provided in section 33-961 before it becomes a lien on or in any manner affects or encumbers the real property of the judgment debtor or any part of the real property of the judgment debtor.

§ 33-963 Procedure for recording judgment of federal court; lien

An abstract of a judgment given by any court of record of the United States within this state shall be recorded in the manner provided in section 33-961 and in compliance with section 33-967, if applicable, before the judgment becomes a lien upon, or in any manner affects or encumbers, the real property of the judgment debtor, or any part thereof.

§ 33-964 Lien of judgment; duration; homestead; partial release of judgment lien; acknowledgment of satisfaction by judgment creditor; applicability; definition

A. Except as provided in sections 33-729 and 33-730, from and after the time of recording as provided in section 33-961, a judgment shall become a lien for a period of ten years after the date it is given on all real property of the judgment debtor in the county in which the judgment is recorded, whether the property is then owned by the judgment debtor or is later acquired. A civil judgment lien obtained by this state and a judgment lien for support, as defined in section 25-500, remain in effect until satisfied or lifted.

B. On the sale of homestead property that is subject to a judgment lien, the judgment creditor shall be paid from the proceeds of the sale after the homestead exemption amount is paid to the judgment debtor as prescribed in section 33-1101 and after payment of any liens on the property that have priority over the judgment lien. After deducting from the proceeds of the sale the amount of any consensual liens and the reasonable costs of sale, if the anticipated payment to the judgment debtor is less than eighty percent of the amount of the homestead exemption prescribed by section 33-1101, a title insurer or its duly appointed attorney in fact may record a notice of partial release of judgment without prior notice to judgment creditors. If the anticipated payment to the judgment debtor is eighty percent of the amount of the homestead exemption prescribed by section 33-1101, the judgment creditor's lien on the homestead property is extinguished on compliance with the following:

1. At least twenty days before the sale is final, a title insurer mails to the judgment creditor by certified mail, postage prepaid, return receipt requested, a notice that the judgment lien appears reasonably likely to be extinguished as prescribed by this subsection. The notice must contain all of the following:

(a) The judgment creditor's name.

(b) The name of the current record owner of the real property.

(c) The street address for the property.

(d) The recording reference for the judgment.

(e) The expected sale date on which title to the real property will transfer to the buyer.

(f) The title insurer's basis for determining that the homestead exemption prescribed by section 33-1101 applies to the property being sold.

(g) The information used in, the basis for and the date of calculating the amount of equity in the real property.

(h) The name of every lienholder to be paid at the sale of the real property.

(i) The amount paid to each lienholder at the sale of the real property.

(j) The title insurer's basis for determining that the prior lienholder should be paid before the judgment creditor.

2. The title insurer shall amend the notice prescribed by paragraph 1 of this subsection if the anticipated payment to the judgment debtor increases by more than $10,000.

3. If the judgment creditor has good cause to believe that the judgment lien should not be extinguished, the judgment creditor may object to the title insurer's notice within twenty days after the date the notice is mailed. If the title insurer receives an objection from the judgment creditor within the twenty-day period stating that the judgment lien should not be extinguished, the title insurer may not record the partial release of the judgment lien. If a court later determines that the judgment creditor's objection is without good cause, the prevailing party in that action is entitled to a court order extinguishing the judgment lien on the homestead property and an award of actual damages, court costs and attorney fees and any other remedy provided by law.

4. If the title insurer does not receive an objection from the judgment creditor before the twenty-day period expires, the title insurer may prepare, sign and record a notice of partial release of the judgment lien. The notice of partial release of the judgment lien must specify the real property that is no longer subject to the judgment lien and cite this subsection of statute. The person signing the notice of partial release of the judgment lien must be the title insurer's authorized agent.

5. The title insurer may charge a reasonable fee to the owner of the real property or any other person who requests a notice of partial release of the judgment lien under this subsection for services rendered, including title search, document preparation, official fees and mailing costs.

6. A recorded notice of partial release of the judgment lien is conclusive evidence that the judgment lien on the specified property is extinguished in favor of purchasers and encumbrancers for value. The notice of partial release of the judgment lien does not affect a judgment lien on any other real property.

7. Compliance with this subsection is not presumed, excused, released or altered by a recorded notice of partial release of a judgment lien.

8. In addition to any other remedy provided by law, a title insurer that prepares or records the notice of partial release of the judgment lien under this subsection is liable to any party for the actual damages, including attorney fees and court costs, that are caused by wrongfully recording the notice of partial release of the judgment lien.

9. A judgment creditor may waive the notice requirement prescribed in paragraph 1 of this subsection if the waiver is in writing and signed by the judgment creditor's authorized agent.

C. If the judgment debtor receives cash proceeds from refinancing the homestead property that is subject to a judgment lien, the judgment creditor must be paid in full from those proceeds before the judgment debtor or other person receives any proceeds, except that monies used to pay direct costs associated with the refinance or to satisfy liens with priority over a judgment lien on a homestead property do not constitute cash proceeds. In subsequent refinance transactions on the homestead property that is subject to a judgment lien, the judgment lien is subordinated by operation of law to the new lender's interest in the homestead property. A notice of subordination may be recorded by any person who is a party to that refinance.

D. Any person who records a notice, including a notice of release of a judgment lien as prescribed by this section, shall mail a copy of the recorded notice to the judgment creditor whose judgment lien is affected by that recorded document.

E. A judgment of the justice court, municipal court, superior court or United States court that has become a lien under this article, immediately on the payment or satisfaction of the judgment, shall be discharged of record by the judgment creditor or the judgment creditor's attorney by recording a satisfaction of judgment with the county recorder of the county in which the judgment is recorded. The judgment creditor or the judgment creditor’s attorney shall enter a notation of satisfaction on the docket of the clerk of the superior court of each county in which the judgment has been entered or docketed, and in a like manner enter a notation of satisfaction on the docket of the clerk of the United States district court.

F. In a title IV-D case, if the title IV-D agency or its agent is listed as the holder of the lien and the judgment has been satisfied but the obligee is unwilling to sign the release of the lien or, after reasonable efforts, cannot be located to sign the release of the lien, the title IV-D agency or its agent may sign the satisfaction of judgment and release of lien without the signature of the obligee. The title IV-D agency or its agent shall send a copy by first class mail to the last known address of the obligee.

G. For any sale, transfer or refinance of a judgment debtor's homestead property that is completed before January 1, 2022, a judgment lien does not attach to the homestead property. A judgment lien is not created on the judgment debtor's homestead property if either:

1. A court of competent jurisdiction, including the United States bankruptcy court, has discharged or enjoined enforcement of the judgment before January 1, 2022.

2. There is a bankruptcy petition that is pending before January 1, 2022 for which a discharge is ultimately granted.

H. For any sale, transfer or refinance that is completed on or after January 1, 2022, judgments that are recorded before January 1, 2022 and that are still valid attach to the homestead property, are enforceable and create judgment liens as prescribed by this section. At the time of the sale, transfer or refinance of a homestead property, the following apply to the priority of judgment liens created by this subsection for only the homestead property:

1. Judgment liens are junior to all valid and unpaid consensual liens that existed on the property on or before December 31, 2021.

2. Priority of judgment liens created by this subsection is determined by the date on which the judgment is recorded as prescribed by section 33-961 and, if applicable, is subject to subsection C of this section.

I. For the purposes of this section, "title insurer" has the same meaning prescribed in section 20-1562.

§ 33-965 Entry of reversal or remittitur upon judgment docket; affidavit

When a judgment which has been docketed or recorded is reversed on appeal, and the judgment of reversal is filed, or a remittitur is filed, the clerk shall forthwith make entry thereof on the docket. The entry of such reversal or remittitur shall be made by affidavit to be submitted by such judgment creditor or his counsel, which shall thereupon be recorded and indexed as releases of judgment are recorded and indexed.

§ 33-966 Superiority of lien for personal injury judgment against person operating railway

A. Judgment against a person operating a railway, or a street railway for injury to any person or property in the operation of the railway shall be a lien within the county where judgment is given, upon the property of such person prior and superior to the lien of any mortgage or trust deed.

§ 33-967 Money judgment; information statement; amendment to recorded judgment; exemption; retroactive applicability

A. In addition to the requirements prescribed by section 33-961, any judgment or decree or any renewal that requires the payment of money and that is recorded on or after January 1, 1997, shall not become a lien on real property until a separate information statement is attached to the judgment being recorded. The separate information statement shall contain all of the following information:

1. The correct name and last known address of each judgment debtor and the address at which each judgment debtor received the summons by personal service or by mail.

2. The name and address of the judgment creditor.

3. The amount of the judgment or decree as entered or as most recently renewed.

4. If the judgment debtor is a natural person, the judgment debtor's social security number, date of birth and driver license number.

5. Whether a stay of enforcement has been ordered by the court and the date the stay expires.

B. Except as provided in this subsection, the separate statement shall contain the information prescribed by subsection A of this section if the information is known to the judgment creditor or available to the judgment creditor from its records, its attorney's records or the court records in the action in which the judgment was entered. If any of the required information is not known, the judgment creditor shall so state. The judgment debtor's social security number shall be included in the separate statement only if it has been provided voluntarily to the judgment creditor by the judgment debtor.

C. A judgment or decree or any renewal that requires the payment of money, that is recorded on or after January 1, 1997 and that is not accompanied by the separate statement as prescribed by subsection A of this section does not become a lien on real property until the judgment creditor records a document entitled "amendment to recorded judgment" that contains a separate statement that is in compliance with subsection A of this section. The amendment to recorded judgment shall state the date of recording and the indexing or document number of the official records of the county recorder for the original recorded judgment or decree and any renewals.

D. Recording an amendment to recorded judgment does not affect the computation of time prescribed by section 33-964.

E. A civil judgment in favor of this state is exempt from this section. This subsection applies retroactively to all judgments in favor of this state without regard to when the judgment was recorded.

§ 33-968 Erroneously identified property owner; lien; release

A. If a recorded money judgment or a certified copy of a money judgment appears to create a judgment lien on the real property of a person who is not the judgment debtor because the name of the property owner is the same as or similar to that of the judgment debtor, the erroneously identified property owner may deliver to the judgment creditor a written demand for a recordable document that releases the lien. The demand shall be accompanied by reasonable proof that the property owner is not the judgment debtor and that the property is not subject to enforcement of the judgment against the judgment debtor.

B. Within fifteen days after receipt of the property owner's demand and compliance with subsection A, the judgment creditor shall deliver to the property owner a recordable document that releases the lien on the property of that owner. If the judgment creditor improperly fails to deliver a recordable document within that time, the judgment creditor is liable to the property owner for all damages incurred by reason of the failure and is presumed liable for at least five hundred dollars.

C. If the judgment creditor does not deliver a document as prescribed by subsection B, the property owner may apply to the court for an order releasing the judgment lien. The application shall be served on the judgment creditor. On presentation of evidence satisfactory to the court that the property is not subject to the judgment, the court shall order the judgment creditor to prepare and deliver a recordable document that releases the lien or by order of the court may release the judgment lien on the property. The order may be recorded in the office of the county recorder in the county where the property is located and shall release the judgment lien on the property.

D. The court shall award reasonable attorney fees to the prevailing party in any action pursuant to this section.

E. The damages and other remedies provided by this section are not in derogation of any other remedy that a person may be entitled to by law.

Article 6 Mechanics' and Materialmen's Liens

§ 33-981 Lien for labor; professional services or materials used in construction, alteration or repair of structures; preliminary twenty day notice; exceptions

A. Except as provided in sections 33-1002 and 33-1003, every person who labors or furnishes professional services, materials, machinery, fixtures or tools in the construction, alteration or repair of any building, or other structure or improvement, shall have a lien on such building, structure or improvement for the work or labor done or professional services, materials, machinery, fixtures or tools furnished, whether the work was done or the articles were furnished at the instance of the owner of the building, structure or improvement, or his agent.

B. Every contractor, subcontractor, architect, builder or other person having charge or control of the construction, alteration or repair, either wholly or in part, of any building, structure or improvement is the agent of the owner for the purposes of this article, and the owner shall be liable for the reasonable value of labor or materials furnished to his agent.

C. A person who is required to be licensed as a contractor but who does not hold a valid license as such contractor issued pursuant to title 32, chapter 10 shall not have the lien rights provided for in this section.

D. A person required to give preliminary twenty day notice pursuant to section 33-992.01 is entitled to enforce the lien rights provided for in this section only if he has given such notice and has made proof of service pursuant to section 33-992.02.

E. A person who furnishes professional services but who does not hold a valid certificate of registration issued pursuant to title 32, chapter 1 shall not have the lien rights provided for in this section.

F. A person who furnishes professional services is entitled to enforce the lien rights provided for in this section only if such person has an agreement with the owner of the property or with an architect, an engineer or a contractor who has an agreement with the owner of the property.

§ 33-982 Claim of lien by assignee of contract or account for material furnished or labor performed

An assignee of a contract or account for material furnished or labor performed may verify, file, record and enforce the contract as if he had been the original owner or holder thereof.

§ 33-983 Lien for improvements to city lots or other land

A. A person who furnishes professional services or material or labors upon a lot in an incorporated city or town, or any parcel of land not exceeding one hundred sixty acres in the aggregate, or fills in or otherwise improves the lot or such parcel of land, or a street, alley or proposed street or alley, within, in front of or adjoining the lot or parcel of land at the instance of the owner of the lot or parcel of land, shall have a lien on the lot or parcel of contiguous land not exceeding one hundred sixty acres in the aggregate, and the buildings, structures and improvements on the lot for professional services or material furnished and labor performed.

B. Every contractor, subcontractor, architect, builder, subdivider or other person having charge or control of the improvement or work on any such lot or parcel of land, either wholly or in part, is the agent of the owner for the purposes of this section, and the owner shall be liable for the reasonable value of professional services, labor or material furnished at the instance of such agent, upon a lot or parcel of land as prescribed in this section, or any street, alley or proposed street or alley, within, in front of or adjoining such lot or parcel of land.

§ 33-984 Lien for labor or materials furnished mill, factory or hoisting works

Foundrymen, boilermakers, and other persons who labor or furnish materials for the construction, alteration, repair or operation of a mill, factory or hoisting works at the request of the owner shall have a lien thereon for the amount due. If the hoist, factory or mill is located on property not belonging to the owner of the hoist, factory or mill, the purchaser at the sale on foreclosure of the lien may remove them within sixty days after the sale, whether the hoist, factory or mill is a fixture or not. If the hoist, factory or mill is located on a mine, mining claim or mill site which is the property of the owner, the lien shall embrace the surface ground, not exceeding five acres, upon which the hoist, factory or mill is located.

§ 33-985 Lien for labor or materials furnished domestic vessel

Persons who furnish supplies or material or do repairs or perform labor for or on account of a domestic vessel owned wholly or in part in this state, shall have a lien on the vessel, her tackle, apparel, furniture and freight money for the amount due.

§ 33-986 Lien for labor in cutting wood, logs or ties

Persons who cut or cord wood, cut, saw or skid logs, cut, saw, hew or pile ties at the request of the owner thereof, shall have a lien thereon for the amount due for the labor performed.

§ 33-987 Lien for labor or materials furnished on waterways, highways, excavations or land

A person who labors or furnishes labor or materials in the construction, alteration or repair of any canal, water ditch, flume, aqueduct or reservoir, bridge, fence, road, highway, cellar, excavation or other structure or improvement, or in the clearing, ditching, bordering or leveling of land, and to whom wages or monies are due or owing therefor, shall have a lien upon such property for all amounts due and unpaid. Materials includes the use of mules, horses, machinery or equipment used in or about such projects.

§ 33-988 Lien for labor or materials furnished railroad

A person who labors or furnishes labor, teams, materials, machinery, fixtures or tools in the construction, repair or operation of a railroad, locomotive, car or other equipment, and to whom money or wages are due or owing therefor, and any person who furnishes provisions or supplies of any kind in the construction or repair of a railroad or to a contractor or subcontractor engaged in such construction or repair, for the housing, maintenance or subsistence of humans or animals employed or used in such construction or repair, and to whom any amount is due or owing therefor, shall have a lien upon the railroad and its equipment for the amounts unpaid.

§ 33-989 Lien for labor or material furnished mines and mining claims; priority

A. A person who labors or furnishes materials or merchandise of any kind, designed for or used in or upon a mine or mining claim, and to whom any amount is due for labor, material or merchandise, shall have a lien upon the mine or mining claim for the unpaid amounts.

B. The lien provided for in subsection A shall attach when the labor was performed or the material or merchandise furnished:

1. Under a contract between the person performing the labor or furnishing the material or merchandise and the owner of the mining claim, or his contractor.

2. Under a contract between the person performing the labor or furnishing the material or merchandise and the lessee of the mine or mining claim, or his contractor, where the lease from the owner to the lessee permits the lessee to develop or work the mine or mining claim.

3. Under a contract between persons performing the labor or furnishing the material or merchandise, and any person having an option to buy or contract to purchase the mine or mining claim from the owner thereof, where the option or contract permits the person to go upon the mine or mining claim, and to work or develop it.

C. The lien shall attach to the mine or mining claim in or on which the labor was performed or material or merchandise furnished, in preference to any prior lien or encumbrance or mortgage upon the mine or mining claim.

§ 33-990 Posting of "no lien" notice by owner not operating mine; violation; classification

A. The provisions of section 33-989 shall not apply and the owner of a mine or mining claim shall not be responsible for any debts when the mine or claim is worked under lease, bond or option from the owner thereof, when the owner conspicuously posts at the collar of all working shafts, tunnels and entrances to the mine and boarding houses, on or before the day the lessee or those working the claim under bond, lease or option begin operations, and records in the office of the county recorder of the county within which the mine or mining claim is located within thirty days from the date of the lease, bond or option, a notice that:

1. The mine or claim is not being operated by the owner.

2. The owner will not be liable for labor performed or materials or merchandise furnished in the operation or development of the mine or mining claim.

3. The mine or claim will not be subject to a lien therefor, referring to the contract, and particularly describing the mine or claim.

B. The lessee or person operating the mine shall keep the notices posted, and upon failure to do so is guilty of a class 2 misdemeanor.

§ 33-991 Lands to which liens extend; rural lands; city lots; subdivision lots; mining claims

A. If the land upon which an improvement is made and labor or professional services have been performed lies outside of the limits of the recorded map or plat of a townsite, an incorporated city or town, or a subdivision, the lien shall extend to and include not to exceed ten acres of the land upon which the improvement is made and the labor has been performed.

B. If the land on which an improvement is made or labor or professional services have been performed lies within the limits of a recorded map or plat of a townsite, an incorporated city or town, or a subdivision, the lien shall extend to and include only the particular lot or lots upon which the improvement is made and the labor has been performed.

C. If the labor is performed or the improvements made upon a mining claim, the lien shall extend to the whole thereof and to the group of which the claim upon which the work was done is a part if the group is operated as one property.

§ 33-992 Preference of liens over subsequent encumbrances; professional services liens

A. The liens provided for in this article, except as provided in subsection B of this section or unless otherwise specifically provided, are preferred to all liens, mortgages or other encumbrances upon the property attaching subsequent to the time the labor was commenced or the materials were commenced to be furnished except any mortgage or deed of trust that is given as security for a loan made by a construction lender as defined in section 33-992.01, subsection A, paragraph 1, if the mortgage or deed of trust is recorded within ten days after labor was commenced or the materials were commenced to be furnished. The liens provided for in this article except as provided in subsection B of this section are also preferred to all liens, mortgages and other encumbrances of which the lienholder had no actual or constructive notice at the time the lienholder commenced labor or commenced to furnish materials except any mortgage or deed of trust that is given as security for a loan made by a construction lender as defined in section 33-992.01, subsection A, paragraph 1, if the mortgage or deed of trust is recorded within ten days after labor was commenced or the materials were commenced to be furnished.

B. A notice and claim of lien for professional services shall not attach to the property for priority purposes until labor has commenced on the property or until materials have commenced to be furnished to the property so that it is apparent to any person inspecting the property that construction, alteration or repair of any building or other structure or improvement has commenced.

C. If no labor commences on a property or no materials are furnished to the property, a registered professional may record and foreclose on a lien at any time after the registered professional's work has commenced if the registered professional's work has added value to the property. If labor or materials are furnished to the property, the priority of the registered professional's lien is governed by subsection B of this section.

D. Liens for professional services shall attach not before but at the same time, and shall have the same priority, as other liens provided for in this article.

E. If any improvement at the site is not provided for in any contract for the construction of any building or other structure, the improvement at the site is a separate work and the commencement of the improvement is not commencement of the construction of the building or other structure. The liens arising from work and labor done or professional services or materials furnished for each improvement at the site shall have a separate priority from liens arising from work and labor done or professional services or materials furnished for the construction of the building or other structure. A lien arising from work or labor done or materials furnished for each improvement at the site attaches to property for priority purposes at the time labor was commenced or materials were commenced to be furnished pursuant to the contract between the owner and original contractor for that improvement to the site. For purposes of this subsection, "improvement at the site" means any of the following on any lot or tract of land or the street, highway or sidewalk in front of or adjoining any lot or tract of land:

1. Demolition or removal of improvements, trees or other vegetation.

2. Drilling of test holes.

3. Grading, filling or otherwise improving.

4. Constructing or installing sewers or other public utilities.

5. Constructing or installing streets, highways or sidewalks.

§ 33-992.01 Preliminary twenty day notice; definitions; content; election; waiver; service; single service; contract

A. For the purposes of this section:

1. "Construction lender" means any mortgagee or beneficiary under a deed of trust lending funds all or a portion of which are used to defray the cost of the construction, alteration, repair or improvement, or any assignee or successor in interest of either.

2. "Original contractor" means any contractor who has a direct contractual relationship with the owner.

3. "Owner" means the person, or the person's successor in interest, that causes a building, structure or improvement to be constructed, altered or repaired, whether the interest or estate of the person is in fee, as vendee under a contract to purchase, as lessee, or other interest or estate less than fee. If an interest or estate is held by two or more persons as community property, joint tenants or tenants in common, any one or more of the persons may be deemed the owner.

4. "Preliminary twenty day notice" means one or more written notices from a claimant that are given before the recording of a mechanic's lien and that are required to be given pursuant to this section.

B. Except for a person performing actual labor for wages, every person who furnishes labor, professional services, materials, machinery, fixtures or tools for which a lien otherwise may be claimed under this article shall, as a necessary prerequisite to the validity of any claim of lien, serve the owner or reputed owner, the original contractor or reputed contractor, the construction lender, if any, or reputed construction lender, if any, and the person with whom the claimant has contracted for the purchase of those items with a written preliminary twenty day notice as prescribed by this section.

C. The preliminary twenty day notice referred to in subsection B of this section shall be given not later than twenty days after the claimant has first furnished labor, professional services, materials, machinery, fixtures or tools to the jobsite and shall contain the following information:

1. A general description of the labor, professional services, materials, machinery, fixtures or tools furnished or to be furnished and an estimate of the total price thereof.

2. The name and address of the person furnishing labor, professional services, materials, machinery, fixtures or tools.

3. The name of the person who contracted for the purchase of labor, professional services, materials, machinery, fixtures or tools.

4. A legal description, subdivision plat, street address, location with respect to commonly known roads or other landmarks in the area or any other description of the jobsite sufficient for identification.

5. The following statement in bold-faced type:

In accordance with Arizona Revised Statutes section 33-992.01, this is not a lien and this is not a reflection on the integrity of any contractor or subcontractor.

Notice to Property Owner

If bills are not paid in full for the labor, professional services, materials, machinery, fixtures or tools furnished or to be furnished, a mechanic's lien leading to the loss, through court foreclosure proceedings, of all or part of your property being improved may be placed against the property. You may wish to protect yourself against this consequence by either:

1. Requiring your contractor to furnish a conditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 1 and 3 signed by the person or firm giving you this notice before you make payment to your contractor.

2. Requiring your contractor to furnish an unconditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 2 and 4 signed by the person or firm giving you this notice after you make payment to your contractor.

3. Using any other method or device that is appropriate under the circumstances.

D. The preliminary notice given by any claimant shall follow substantially the following form:

Arizona Preliminary Twenty Day Lien Notice

In accordance with Arizona Revised Statutes section 33-992.01, this is not a lien. This is not a reflection on the integrity of any contractor or subcontractor.

The name and address of This preliminary lien notice has

the owner or reputed been completed by (name and

owner are: address of claimant):

Date: _________________________

By: ___________________________

Address: ______________________

The name and address You are hereby notified that the

of the original claimant has furnished or will

contractor are: furnish labor, professional

services, materials, machinery,

fixtures or tools of the

following general description:

The name and address of

any lender or reputed

lender and assigns are:

In the construction, alteration or

repair of the building, structure

or improvement located at:

The name and address

of the person with

whom the claimant

has contracted are: And situated on that certain

lot(s) or parcel(s) of land in

_____________ County, Arizona,

described as follows:

An estimate of the total price of

the labor, professional services,

materials, machinery, fixtures

or tools furnished or to be

furnished is: $_________________

(The following statement shall be in bold-faced type.)

Notice to Property Owner

If bills are not paid in full for the labor, professional services, materials, machinery, fixtures or tools furnished, or to be furnished, a mechanic's lien leading to the loss, through court foreclosure proceedings, of all or part of your property being improved may be placed against the property. You may wish to protect yourself against this consequence by either:

1. Requiring your contractor to furnish a conditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 1 and 3 signed by the person or firm giving you this notice before you make payment to your contractor.

2. Requiring your contractor to furnish an unconditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 2 and 4 signed by the person or firm giving you this notice after you make payment to your contractor.

3. Using any other method or device that is appropriate under the circumstances.

(The following language shall be in type at least as large as the largest type otherwise on the document.)

Within ten days after the receipt of this preliminary twenty day notice the owner or other interested party is required to furnish all information necessary to correct any inaccuracies in the notice pursuant to Arizona Revised Statutes section 33-992.01, subsection J or lose as a defense any inaccuracy of that information.

Within ten days after the receipt of this preliminary twenty day notice if any payment bond has been recorded in compliance with Arizona Revised Statutes section 33-1003, the owner must provide a copy of the payment bond, including the name and address of the surety company and bonding agent providing the payment bond to the person who has given the preliminary twenty day notice. In the event that the owner or other interested party fails to provide the bond information within that ten day period, the claimant shall retain lien rights to the extent precluded or prejudiced from asserting a claim against the bond as a result of not timely receiving the bond information.

Dated: ___________________ ___________________________

(Company name)

By: ______________________

(Signature)

---

(Title)

(Acknowledgement of receipt language from Arizona Revised Statutes section 33-992.02 shall be inserted here.)

E. If labor, professional services, materials, machinery, fixtures or tools are furnished to a jobsite by a person who elects not to give a preliminary twenty day notice as provided in subsection B of this section, that person is not precluded from giving a preliminary twenty day notice not later than twenty days after furnishing other labor, professional services, materials, machinery, fixtures or tools to the same jobsite. The person, however, is entitled to claim a lien only for such labor, professional services, materials, machinery, fixtures or tools furnished within twenty days before the service of the notice and at any time thereafter.

F. The notice or notices required by this section may be given by mailing the notice by first class mail sent with a certificate of mailing, registered or certified mail, postage prepaid in all cases, addressed to the person to whom notice is to be given at the person's residence or business address. Service is complete at the time of the deposit of notice in the mail.

G. A person required by this section to give notice to the owner, to an original contractor, to the construction lender, if any, and to the person with whom the claimant has contracted need give only one notice to the owner, to the original contractor, to the construction lender, if any, and to the person with whom the claimant has contracted with respect to all labor, professional services, materials, machinery, fixtures or tools furnished for the building, structure or improvement, unless the actual estimated total price for the labor, professional services, materials, machinery, fixtures or tools furnished or to be furnished exceeds by thirty percent or more the total price in any prior original or subsequent preliminary notice or unless the labor, professional services, materials, machinery, fixtures or tools are furnished under contracts with more than one subcontractor, in which case notice requirements shall be met for all additional labor, professional services, materials, machinery, fixtures or tools.

H. If a notice contains a general description required by subsection C of this section of the labor, professional services, materials, machinery, fixtures or tools furnished up to the date of notice, it is not defective because after the date the person giving notice furnishes labor, professional services, materials, machinery, fixtures or tools that are not within the scope of the general description, or exceed by less than thirty percent the estimated total price thereof.

I. A notice that is otherwise compliant with this section is not defective based on the failure to use bold-faced type as prescribed by this section or the failure to use type at least as large as the largest type otherwise on the document as prescribed by this section, or both.

J. Within ten days after receipt of a written request from any person or the person's agent intending to file a preliminary twenty day notice, which request shall identify the person, the person's address, the jobsite and the general nature of the person's labor, professional services, materials, machinery or tools to which the preliminary twenty day notice shall apply, or within ten days after the receipt of a preliminary twenty day notice, the owner or other interested party shall furnish the person a written statement containing the following information:

1. The legal description, subdivision plat, street address or location with respect to commonly known roads or other landmarks in the area, or any other description of the jobsite sufficient for identification.

2. The name and address of the owner or reputed owner.

3. The name and address of the original contractor or reputed contractor.

4. The name and address of the construction lender, if any, or reputed construction lender.

5. If any payment bond has been recorded pursuant to section 33-1003, a copy of the bond and the name and address of the surety company and bonding agent, if any, providing the payment bond.

K. Failure of the owner or other interested party to furnish the information required by this section does not excuse any claimant from timely giving a preliminary twenty day notice, but it does stop the owner from raising as a defense any inaccuracy of the information in a preliminary twenty day notice, provided the claimant's preliminary twenty day notice of lien otherwise complies with this chapter. If the information is received by the claimant after the claimant has given a preliminary twenty day notice and the information contained in the preliminary twenty day notice is inaccurate, the claimant shall, within thirty days after the receipt of this information, give an amended preliminary twenty day notice in the manner provided in this section. An amended preliminary twenty day notice is considered as having been given at the same time as the original preliminary twenty day notice, except that the amended preliminary twenty day notice is effective only as to work performed, materials supplied or professional services rendered twenty days before the date of the amended preliminary twenty day notice or the date the original preliminary twenty day notice was given to the owner, whichever occurs first. If a payment bond has been recorded in compliance with section 33-1003 and the owner or other interested party fails to furnish a copy of the bond and the other information as required by this section, the claimant shall retain lien rights to the extent precluded or prejudiced from asserting a claim against the bond as a direct result of not timely receiving a copy of the bond and the other information from the owner or other interested party.

§ 33-992.02 Proof of mailing of preliminary twenty day notice; receipt; affidavit

Proof that the preliminary twenty day notice required by section 33-992.01 was given in accordance with section 33-992.01, subsection F shall be made as follows:

1. If given by mail, by an acknowledgment of receipt of the notice in a form substantially as follows:

"____________________________

Signature of sender

Acknowledgment of receipt of preliminary twenty day notice

This acknowledges receipt on (insert date) of a copy of

the preliminary twenty day notice at (insert address) .

Date: _______________________________________

(Date this acknowledgment is executed)

---

Signature of person acknowledging

receipt, with title if acknowledgment

is made on behalf of another person"

2. If a person to whom the notice is served pursuant to section 33-992.01, subsection F fails to complete the acknowledgment or fails to complete and return the acknowledgment within thirty days from the date of mailing, proof of mailing may be made by affidavit of the person making the mailing, showing the time, place and manner of mailing and facts showing that such service was made in accordance with section 33-992.01. The affidavit shall show the name and address of the person to whom a copy of the preliminary twenty day notice was mailed, and, if appropriate, the title or capacity in which he was given the notice. If mailing was made by first class mail sent with a certificate of mailing, the certificate of mailing shall be attached to the affidavit. If the mailing was by certified or registered mail, the receipt of certification or registration shall be attached to the affidavit.

§ 33-993 Procedure to perfect lien; notice and claim of lien; service; recording; definitions

A. In order to impress and secure the lien provided for in this article, every person claiming the benefits of this article, within one hundred twenty days after completion of a building, structure or improvement, or any alteration or repair of such building, structure or improvement, or if a notice of completion has been recorded, within sixty days after recordation of such notice, shall make duplicate copies of a notice and claim of lien and record one copy with the county recorder of the county in which the property or some part of the property is located, and within a reasonable time thereafter serve the remaining copy upon the owner of the building, structure or improvement, if he can be found within the county. The notice and claim of lien shall be made under oath by the claimant or someone with knowledge of the facts and shall contain:

1. The legal description of the lands and improvements to be charged with a lien.

2. The name of the owner or reputed owner of the property concerned, if known, and the name of the person by whom the lienor was employed or to whom he furnished materials.

3. A statement of the terms, time given and conditions of the contract, if it is oral, or a copy of the contract, if it is written.

4. A statement of the lienor's demand, after deducting just credits and offsets.

5. A statement of the date of completion of the building, structure or improvement, or any alteration or repair of such building, structure or improvement.

6. A statement of the date the preliminary twenty day notice required by section 33-992.01 was given. A copy of such preliminary twenty day notice and the proof of mailing required by section 33-992.02 shall be attached.

B. For purposes of this section, if a work of improvement consists of the construction for residential occupancy of more than one separate building without regard to whether the buildings are constructed pursuant to separate contracts or a single contract, each building is a separate work and the time within which to perfect a lien by recording the notice of lien pursuant to subsection A of this section commences to run on the completion of each separate building. For purposes of this subsection, "separate building" means one structure of a work of improvement and any garages or other appurtenant buildings in a multibuilding residential project or residential subdivision.

C. For the purposes of subsection A of this section, "completion" means the earliest of the following events:

1. Thirty days after final inspection and written final acceptance by the governmental body which issued the building permit for the building, structure or improvement.

2. Cessation of labor for a period of sixty consecutive days, except when such cessation of labor is due to a strike, shortage of materials or act of God.

D. If no building permit is issued or if the governmental body that issued the building permit for the building, structure or improvement does not issue final inspections and written final acceptances, then "completion" for the purposes of subsection A of this section means the last date on which any labor, materials, fixtures or tools were furnished to the property.

E. For the purposes of this section, "notice of completion" means a written notice which the owner or its agent may elect to record at any time after completion of construction as defined in subsection C of this section for the purpose of shortening the lien period, as provided in subsection A of this section. A notice of completion shall be signed and verified by the owner or its agent and shall contain the following information:

1. The name and address of the owner.

2. The nature of the interest or estate of the owner.

3. The legal description of the jobsite and the street address. The validity of the notice is not affected by the fact that the street address recited is erroneous or that such street address is omitted.

4. The name of the original contractor, if any.

5. The names and addresses of any predecessors in interest if the property was transferred after the beginning of the work or improvement.

6. The nature of the improvements to the real property.

F. The notice of completion shall follow substantially the following form:

Notice of Completion

Notice is hereby given that:

1. The undersigned is owner of the interest or estate stated below in the property hereinafter described, or the undersigned is the owner's agent.

2. The full name of the undersigned is _______________.

3. The full address of the undersigned is _______________ ______________________________________________________.

4. The nature of the interest or estate of the owner is: in fee. _________________________________ (If other than fee, strike "In Fee" and insert, for example, "Purchaser Under Contract of Purchase" or "Lessee".)

5. The full names and full addresses of all persons, if any, who hold interest or estate with the undersigned such as joint tenants or tenants in common are:

Name Address

---

---

---

6. The full names and full addresses of the predecessors in interest of the undersigned, if the property was transferred after the beginning of the work or improvement:

Name Address

---

---

---

7. The nature of the improvements to the real property ______________________________________________________.

8. The work of improvement on the property hereinafter described was completed in accordance with the definition of completion in Arizona Revised Statutes section 33-993, subsection C. (Fill in the appropriate completion date as defined in Arizona Revised Statutes section 33-993, subsection C.)

(a) - Date _____________________________________________

(thirty days after written final acceptance

by governmental body)

(b) - Date _____________________________________________

(sixty days after cessation of labor)

9. The name of the original contractor, if any, for such work or improvement is _______________________________________.

(if no contractor, insert "none")

10. The street address of the property is ____________ _______________________________________________________________

(include both address and city with zip code)

11. The legal description of property described above _______________________________________________________________

(attach exhibit if necessary)

Verification

I, the undersigned, certify that I am the owner, the owner's agent for the property or another interested party in the property, described in the above notice, or I certify that I am the original contractor of the improvements to the real property described in the above notice. I have read the foregoing notice and know and understand the contents thereof, and the facts stated therein are true and correct. I declare under penalty of perjury that the foregoing is true and correct.

Executed on ______________ at _____________________, Arizona.

(date) (place where signed)

---

(print name)

---

(personal signature)

---

(title)

(Acknowledgement)

Each notice of completion shall contain the following language in type at least as large as the largest type that otherwise appears on the document:

In order to shorten the lien period pursuant to Arizona Revised Statutes section 33-993, subsection A, a copy of the notice of completion and a written statement of the date of recording and the county recorder's record location information shall be served by certified or registered mail, postage prepaid, to the owner, the original contractor and all persons from whom the person recording this notice has previously received a preliminary twenty day notice as prescribed by Arizona Revised Statutes section 33-993, subsection I.

Notice: Receipt of a notice of completion may alter the time you have to impress and secure a lien in accordance with Arizona Revised Statutes section 33-993, subsection A.

G. If there is more than one owner, any notice of completion signed by less than all such owners shall recite the name and address of all such owners. If the notice of completion is signed by a successor in interest, it shall recite the names and addresses of his transferor or transferors.

H. A notice of completion shall be recorded in the office of the county recorder of the county in which the property or some part of the property is located. The county recorder of the county in which the notice of completion is recorded shall index the notice of completion under the index classification in which mechanics' and materialmen's liens are recorded.

I. If a notice of completion has been recorded, the person recording the notice, within fifteen days of recording, shall mail by certified or registered mail postage prepaid a copy of the notice of completion and a written statement of the date of recording and the county recorder's record location information to the original contractor and all persons from whom the owner has previously received a preliminary twenty day notice. In the event the owner or its agent fails to mail a copy of the notice of completion and a written statement of the date of recording and the county recorder's record location information within fifteen days of recording to any person from whom the owner has received a preliminary twenty day notice, such person shall have one hundred twenty days from completion as defined in section 33-993 to impress and secure the lien provided for in this article.

§ 33-994 Right of owner of property against which lien is claimed to withhold payment to original contractor; procedure

Upon service of the notice and claim of lien, the owner may retain, out of the amount due or to become due the original contractor, the value of the labor or material furnished as shown by the notice and claim of lien. The owner shall furnish the original contractor with a true copy of the notice and claim of lien and if the contractor does not, within ten days after receipt of the copy, give the owner written notice that he intends to dispute the claim, he shall be considered as assenting to the demand, which shall be paid by the owner when it becomes due.

§ 33-995 Duty of contractor to defend action on claim of lien by person other than a contractor; rights of owner against contractor; other rights

A. When a lien is recorded or notice given by any person other than a contractor, the contractor shall defend any action brought thereon.

B. During pendency of such action the owner may withhold the amount sued for, and if judgment is given upon the lien, he may deduct from any amount due or to become due from him to the contractor the amount of the judgment and costs.

C. If the owner has settled with the contractor in full, or if such an amount is not owing to the contractor, the owner may recover back from the contractor the amount so paid by him, and for which the contractor was the party originally liable.

D. Any contractor, subcontractor or other person who is obligated by statute, contract or agreement to defend, remove, compromise or pay any claim of lien or action and who undertakes such activity has the rights of the owner and beneficial title holder against all persons concerning such activity, as specified in sections 33-420 and 33-994.

E. If any contractor or other person institutes an action to foreclose a lien pursuant to this article, the court may, at its discretion, award the prevailing party on the lien claim all reasonable expenses incurred in the action including attorney fees, other professional services and bond premiums under section 33-1004.

§ 33-996 Joinder of persons claiming liens; claimant as party defendant; intervention

Lienors not contesting the claims of each other may join as plaintiffs, and when separate actions are commenced the court may consolidate them, and make all persons having claims filed parties to the action. Persons claiming liens who fail or refuse to become parties plaintiff shall be made parties defendant, and those not made a party, may, at any time before final hearing, intervene.

§ 33-997 Sale of property to satisfy lien

No sale of property to satisfy a lien granted under the provisions of this article shall be made except upon judgment of foreclosure and order of sale.

§ 33-998 Limitation of action to foreclose lien; attorney fees

A. A lien granted under the provisions of this article shall not continue for a longer period than six months after it is recorded, unless action is brought within that period to enforce the lien and a notice of pendency of action is recorded pursuant to section 12-1191 in the office of the county recorder in the county where the property is located. If a lien claimant is made a party defendant to an action brought by another lien claimant, the filing within such period of six months of an answer or cross-claim asserting the lien shall be deemed the commencement of an action within the meaning of this section.

B. In any action to enforce a lien granted under this article, the court may award the successful party reasonable attorney fees.

§ 33-999 Right of lienholder to have land and improvements sold together or separately; right of purchaser to possession

A. The person enforcing a lien granted under the provisions of this article may have the lot or land and improvements sold together, or he may have the improvements alone sold when it can be done without material injury to the property beyond the value of the improvements.

B. When the improvements are sold separately, the purchaser shall be placed in possession by the officer conducting the sale and the purchaser shall have the right to remove the improvements within a reasonable time from the date of purchase.

§ 33-1000 Priority among mechanic's and materialman's liens; prorating proceeds of foreclosure sale

A. Except as otherwise provided in section 33-992, the liens for work and labor done or professional services or material furnished, as provided for in this article, are on an equal footing without reference to the date of recording the notice and claim of lien, and without reference to the time of performing the work and labor or furnishing the professional services or material.

B. When a sale is ordered and the property sold, the proceeds of the sale, if not sufficient to discharge all liens against the property without reference to the date of recording the notice and claim of lien, shall be prorated over the respective liens that have equal footing with the foreclosing lien.

§ 33-1001 Priority of claims for current wages owed by owner of property under levy

A. When a levy is made under execution, attachment or other similar writ, except when the writ is issued in an action under this article, a miner, mechanic, salesman, servant or laborer who has a claim against the defendant for labor performed may give notice of his claim, sworn to and stating the amount thereof, to the creditor, defendant debtor and the officer executing the writ, at any time within three days before sale of the property levied upon. The officer shall file the claim with the clerk of the court issuing the writ, and unless the claim is disputed by the debtor or creditor before sale, the officer shall pay the claimant from the proceeds of the sale the amount claimant is entitled to receive for such services rendered within sixty days next preceding the levy of the writ, not exceeding two hundred dollars to each claimant. Upon failure of the officer to do so, he shall be liable to the claimant therefor.

B. The claim may be disputed by the debtor or creditor, or any lienholder, in writing, specifying the reasons for disputing it, verified and delivered to the officer before the sale, and shall be filed in the court issuing the writ. The officer shall pay all claims not disputed from the first money received. If the total amount of all claims presented exceeds the amount derived from the sale, the officer shall pay to the holders of the undisputed claims their pro rata share of the money and shall pay the pro rata amount of the disputed claims, together with an amount for costs as the court orders, into court. The court shall cite all parties interested to appear, and in a summary manner determine the validity of the disputed claims and direct the manner in which the officer shall distribute the proceeds of the sale.

§ 33-1002 Definitions; inapplicability of certain liens to owner-occupied dwelling; waiver void

A. In this section:

1. "Dwelling" means real property upon which there has been constructed or is to be constructed any building, structure or improvement which is designed for either single one-family or single two-family residential purposes or activities related thereto, including an apartment in a horizontal property regime or other condominium.

2. "Owner-occupant" means a natural person who:

(a) Prior to commencement of the construction, alteration, repair or improvement holds legal or equitable title to the dwelling by a deed or contract for the conveyance of real property recorded with the county recorder of the county in which the dwelling is located, and

(b) Resides or intends to reside in the dwelling at least thirty days during the twelve-month period immediately following completion of the construction, alteration, repair or improvement and does not intend to sell or lease the dwelling to others. Residence in the dwelling or intent to reside in the dwelling may be evidenced by the following or other physical acts:

(i) The placing of his or her personal belongings and furniture in the dwelling, and

(ii) Occupancy either by the person or members of his or her family. A single act shall not establish a person as an owner-occupant if such person permits exclusive occupancy by other than members of his or her family for other than temporary purposes thereby negating his or her intent to reside in the dwelling primarily for use as his or her home.

B. No lien provided for in this article shall be allowed or recorded by the person claiming a lien against the dwelling of a person who became an owner-occupant prior to the construction, alteration, repair or improvement, except by a person having executed in writing a contract directly with the owner-occupant.

C. Any provision of an agreement made or entered into by an owner-occupant which waives the provisions of this section is void.

§ 33-1003 Payment bond in lieu of lien right; bond purposes and conditions; recording

A. Every owner of land, including any person who has a legal or equitable interest in the land, who enters a contract requiring any person to perform labor or professional services or to furnish materials, machinery, fixtures or tools in the construction, alteration or repair of any building or other structure or improvement on such land, may avoid the lien provisions of section 33-981 pertaining to agents by requiring the person with whom the owner contracts to furnish a payment bond. On recordation of the payment bond together with a copy of such contract in the office of the county recorder, in the county in which the land is located, no lien shall thereafter be allowed or recorded by the person claiming a lien against the land on which the labor or professional services are performed or the materials, machinery, fixtures or tools furnished, as provided in this article, except by the person who contracts, in writing, directly with the owner.

B. A payment bond furnished pursuant to subsection A of this section shall be in the amount and form prescribed by title 34, chapter 2, article 2. The contract recorded with the bond shall contain a legal description of the land on which the work is being or is to be performed.

C. The bond provided for in this section shall be executed solely by one or more surety companies holding a certificate of authority to transact surety business in this state issued by the director of the department of insurance and financial institutions pursuant to title 20, chapter 2, article 1 and shall be accompanied by a power of attorney disclosing the authority of the person executing the same on behalf of the surety. Notwithstanding any other statute, the bond shall not be executed by an individual surety or sureties, even if the requirements of section 7-101 are satisfied.

D. The county recorder of the county in which the bond and contract are recorded shall index the bond and contract under the index classification in which mechanics' and materialmen's liens are recorded.

§ 33-1004 Discharge of mechanic's liens; bond; limitations of actions; discharge of surety; judgment

A. After perfection of a lien pursuant to this article, an owner, including any person who has a legal or equitable interest in the land that is subject to the lien, a contractor, subcontractor, mortgagee or other lien creditor, either before or after the commencement of an action to foreclose such lien, may cause to be recorded in the office of the county recorder, in the county in which the land is located, a surety bond in the form described in subsection B of this section, together with a power of attorney disclosing the authority of the person executing the same on behalf of the surety. On the recordation of the bond, the property shall be discharged of such lien whether or not a copy of the bond is served on the claimant or the claimant perfects the claimant's rights against the bond.

B. A surety bond to discharge a lien perfected under this section shall be executed by the person seeking to discharge such lien, as principal, and by a surety company or companies holding a certificate of authority to transact surety business in this state, issued by the director of the department of insurance and financial institutions pursuant to title 20, chapter 2, article 1. The bond shall be for the sole protection of the claimant who perfected such lien. Notwithstanding any other statute, the surety bond shall not be executed by an individual surety or sureties, even if the requirements of section 7-101 are satisfied. The bond shall be in an amount equal to one hundred fifty percent of the demand set forth in and secured by the notice and claim of lien and shall be conditioned for the payment of the judgment that would have been rendered against the property for the enforcement of the lien. The legal description of the property and the docket and page of the lien sought to be discharged shall be set forth in the bond.

C. The principal on such bond, on recording the bond with the county recorder, shall cause a copy of the bond to be served within a reasonable time on the lien claimant, and if a suit is then pending to foreclose the lien, the claimant, within ninety days after receipt thereof, shall cause proceedings to be instituted to add the surety and the principal as parties to the lien foreclosure suit. In addition, on recording and service of the surety bond, any monies withheld in response to a stop notice or bonded stop notice that is served by the lien claimant pursuant to article 9 of this chapter with respect to the same labor and material described in the notice and claim of lien shall be released promptly.

D. The bond shall be discharged and the principal and sureties released on any of the following:

1. The failure of the lien claimant to commence a suit within the time allowed pursuant to section 33-998.

2. The failure of the lien claimant to name the principal and sureties as parties to the action seeking foreclosure of the lien if a copy of the bond has been served on the claimant. If the bond is served on the claimant within less than ninety days after the date the claimant would be required to commence the claimant's action pursuant to section 33-998, the claimant shall have ninety days after the date the claimant receives a copy of such bond to add the principal and the sureties as parties to the lien foreclosure suit.

3. The dismissal of the foreclosure suit with prejudice as to the claimant or the entry of judgment in such suit against claimant.

E. In an action to foreclose a lien under this article, where a bond has been filed and served as provided herein, a judgment for the claimant on the bond shall be against the principal and the principal's sureties for the reasonable value of the labor and material furnished and shall not be against the property. A judgment for the claimant on the bond, including any recovery for interest, expenses, costs and attorney fees awarded by the court, shall not exceed the penal sum of the bond. If the amount the claimant recovers exceeds the penal sum of the bond, the claimant shall also be entitled to judgment against the principal for the excess amount.

F. If a copy of the bond is not served on the claimant as provided in subsection C of this section, the claimant shall have six months after the discovery of the bond to commence an action thereon, except that no action may be commenced on the bond after two years from the date it was recorded as provided in this section.

G. The county recorder of the county in which the bond and contract are recorded shall index the bond and contract under the index classification in which mechanics' and materialmen's liens are recorded.

§ 33-1005 Payments made in trust

Monies paid by or for an owner-occupant as defined in section 33-1002 to a contractor, as defined in section 32-1101, as payment for labor, professional services, materials, machinery, fixtures or tools for which a lien is not provided in this article shall be deemed for all purposes to be paid in trust and shall be held by the contractor for the benefit of the person or persons furnishing such labor, professional services, materials, machinery, fixtures or tools. Such monies shall neither be diverted nor used for any purpose other than to satisfy the claims of those for whom the trust is created and shall be paid when due to the person or persons entitled thereto. The provisions of this section shall not affect other remedies available at law or in equity.

§ 33-1006 Release of mechanic's and materialman's liens; liability

A. When any lien established by the provisions of this article has been satisfied, the lienholder shall, within twenty days after satisfaction, issue a release of the lien.

B. When any lien prohibited to be filed against the dwelling of an owner-occupant as defined in section 33-1002 has been recorded, the person claiming the lien shall, within twenty days of the written request of the owner-occupant, issue a release of the lien.

C. The release issued pursuant to this section shall be in document form as specified in section 11-480. Failure to grant such a release shall subject the lienholder or person to liability in the amount of one thousand dollars and also to liability for actual damages.

§ 33-1007 Definition of professional services

In this article, unless the context otherwise requires, "professional services" means architectural practice, engineering practice or land surveying practice as defined in section 32-101.

§ 33-1008 Waiver of lien

A. An owner or contractor by any term of their contract, or otherwise, may not waive or impair the claims or liens of other persons whether with or without notice except by their written consent or as prescribed by section 33-1003. Any term of the contract to that effect shall be void. Any written consent given by any claimant pursuant to this section is unenforceable unless the claimant executes and delivers a waiver and release. This waiver and release is effective to release the property for the benefit of the owner, the construction lender, the contractor and the surety on a payment bond from claims and liens only if the waiver and release follows substantially one of the forms set forth in this section and is signed by the claimant or his authorized agent, and, in the case of a conditional release, if there is evidence of payment to the claimant. Evidence of payment may be by the claimant's endorsement on a single or joint payee check that has been paid by the bank on which it was drawn or by written acknowledgment of payment given by the claimant.

B. No oral or written statement purporting to waive, release or otherwise adversely affect a claim is enforceable or creates any estoppel or impairment of a claim unless it is pursuant to a waiver and release prescribed by this section or the claimant had actually received payment in full for the claim.

C. This section does not affect the enforceability of either an accord and satisfaction regarding a bona fide dispute or any agreement made in settlement of an action pending in any court provided the accord and satisfaction or agreement and settlement make specific reference to the mechanic's lien or bond claims.

D. The waiver and release given by any claimant is unenforceable unless it follows substantially the following forms in the following circumstances:

1. Where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the following form:

Conditional waiver and release on progress payment

Project: ______________________

Job No.: ______________________

On receipt by the undersigned of a check from _________________

(maker of check)

in the sum of $______________ payable to _______________________

(amount of check) (payee or payees of check)

and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position that the undersigned has on the job of ______________________________________________________________

(owner)

located at __________________________________ to the following

(job description)

extent. This release covers a progress payment for all labor, services, equipment or materials furnished to the jobsite or to ______________________________________________________________,

(person with whom undersigned contracted)

through _______________ only and does not cover any retention,

(date)

pending modifications and changes or items furnished after that date. Before any recipient of this document relies on it, that person should verify evidence of payment to the undersigned.

The undersigned warrants that he either has already paid or will use the monies he receives from this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

Date: ____________________ _________________________________

(Company name)

By: ____________________________

(Signature)

---

(Title)

2. Where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant asserts in the waiver that it has been paid the progress payment, the waiver and release shall follow substantially the following form:

Unconditional waiver and release on progress payment

Project: _________________

Job No.: _________________

The undersigned has been paid and has received a progress payment in the sum of $_____________ for all labor, services, equipment or material furnished to the jobsite or to ______________________________________________________________

(person with whom undersigned contracted)

on the job of ________________________________________________

(owner)

located at ___________________________________________________

(job description)

and does hereby release any mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position that the undersigned has on the above referenced project to the following extent. This release covers a progress payment for all labor, services, equipment or materials furnished to the jobsite or to _______________________________________________________________

(person with whom undersigned contracted)

through ________________ only and does not cover any retention,

(date)

pending modifications and changes or items furnished after that date.

The undersigned warrants that he either has already paid or will use the monies he receives from this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

Dated: ____________________ ________________________________

(Company name)

By: ____________________________

(Signature)

---

(Title)

(Each unconditional waiver shall contain the following language, in type at least as large as the largest type otherwise on the document:)

Notice: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.

3. Where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the following form:

Conditional waiver and release on final payment

Project: _______________

Job No.: _______________

On receipt by the undersigned of a check from ________________

(maker of check)

in the sum of $_________________ payable to ____________________

(amount of check) (payee or payees of check)

and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position, the undersigned has on the job of ___________________ located at ______________________________.

(owner) (job description)

This release covers the final payment to the undersigned for all labor, services, equipment or materials furnished to the jobsite or to _________________________________________________________,

(person with whom undersigned contracted)

except for disputed claims in the amount of $__________. Before any recipient of this document relies on it, the person should verify evidence of payment to the undersigned.

The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay in full all his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

Dated: ____________________ _________________________________

(Company name)

By: _____________________________

(Signature)

---

(Title)

4. Where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant asserts in the waiver that it has been paid the final payment, the waiver and release shall follow substantially the following form:

Unconditional waiver and release on final payment

Project: _______________

Job No.: _______________

The undersigned has been paid in full for all labor, services, equipment or material furnished to the jobsite or to _______________________________________________________________,

(person with whom undersigned contracted)

on the job of _____________ located at _______________________

(owner) (job description)

and does hereby waive and release any right to mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position, except for disputed claims for extra work in the amount of $ ___________.

The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project.

Dated: ____________________ _________________________________

(Company name)

By: ____________________________

(Signature)

---

(Title)

(Each unconditional waiver shall contain the following language in type at least as large as the largest type otherwise on the document:)

Notice:

This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.

Article 7 Personal Property Liens

§ 33-1021 Lien for labor or materials furnished on personal property; right to possess property

When an article, implement, utensil or vehicle, except motor vehicles, is repaired or cleaned, glazed or washed, with labor, with or without material, by a carpenter, mechanic, artisan or other workman, such person shall have a lien thereon for the labor or material and may retain possession thereof until the amount due is fully paid.

§ 33-1021.01 Dry cleaners' and launderers' lien; foreclosure

A. When any garment, wearing apparel or other article is cleaned, pressed or washed by any dry cleaner or launderer, the dry cleaner or launderer has a lien on the garment, apparel or article for the labor and may retain possession of the garment, apparel or article until the amount due is fully paid.

B. The lien for any article in the possession of a dry cleaner or launderer granted by subsection A may be foreclosed by private or public sale or by disposal in any manner determined by the dry cleaner or launderer if all of the following conditions exist:

1. The dry cleaner or launderer has posted on the premises, plainly visible to the owner or agent of the garment, wearing apparel or other article to be cleaned, pressed or washed, a poster, no less in size than eighteen inches by twenty-four inches, notifying that the garment, apparel or other article may be disposed of on or after ninety days if unclaimed. The notice shall also be imprinted on the receipt given to the owner or agent.

2. The article remains in the possession of the dry cleaner or launderer and the charges are unpaid for a period of ninety days from the date the article is received to be cleaned, pressed or washed.

§ 33-1022 Garages; aircraft

A. Proprietors of garages and repair and service stations shall have a lien upon motor vehicles of every kind and aircraft, and the parts and accessories placed thereon, for labor, materials, supplies and storage for the amount of the charges, when the amount of the charges is agreed to by the proprietor and the owner.

B. The lien shall not impair any other lien or conditional sale of record at the time the labor, materials, supplies and storage were commenced to be furnished, unless furnished with the knowledge and consent of the record lienor or vendor.

C. If a proprietor has a lien on an aircraft pursuant to subsection A of this section, the proprietor who provides labor, materials, supplies and storage for aircraft may relinquish possession of the aircraft and retain the lien by recording the lien with the county recorder of the county in which the labor, materials, supplies or storage were provided. The lien shall be filed with the county recorder within thirty days after possession is relinquished. In addition, the proprietor may record the lien with the federal aviation administration aircraft registry. A lien filed with the federal aviation administration aircraft registry shall comply with all requirements of federal law and shall accurately describe the aircraft, list the amount of the claim, list the date on which the labor, materials, supplies or storage were last furnished, be signed by the claimant showing the title of the signer, if appropriate, and be accompanied by the recording fee.

D. A lien which is filed with a county recorder pursuant to subsection C of this section does not bind a purchaser of the aircraft without actual notice of the lien unless the lien has also been recorded with the federal aviation administration aircraft registry. A lien authorized under subsection C of this section may be foreclosed only by an action in court.

E. When an aircraft lien which has been recorded under this section has been satisfied, the lienholder within thirty days after satisfaction shall issue a release of the lien to the person against whom the lien was claimed and shall record the release of that lien in the county in which the lien was recorded and with the federal aviation administration aircraft registry, if the lien was recorded there. Failure to record a release upon satisfaction of the lien shall subject the lienholder to the penalties prescribed in section 33-712.

§ 33-1022.01 Fabrication work; lien

Persons who fabricate products from patterns, molds, tools, dies and all other equipment and material furnished them by a customer shall have a lien upon all such patterns, molds, tools, dies and all other equipment and material in their possession for the balance due them by the customer for fabrication work which has been accepted by the customer.

§ 33-1023 Sale of property; disposal of proceeds

A. Except as provided in section 33-1021.01, when possession of any property described in this article or any other personal property held under lien without provision at law for foreclosure of the lien has continued for twenty days after the charges accrue and remain unpaid, the person holding the property may notify the owner, if in the county where the property is located, to pay the charges. Upon failure of the owner within ten days thereafter to pay the charges, the holder of the property may sell it at public auction and apply the proceeds to payment of the charges. The balance of the proceeds shall be paid to the person entitled thereto. If the owner's residence is not in the county where the property is located, the holder is not required to give the ten days' notice before proceeding to sell.

B. Five days' notice of sale shall be given to the owner if he can be found, and if not, then by two publications in a newspaper published in the county.

C. If the person legally entitled to receive the balance is not known or has removed from the county, the holder shall pay the balance to the department of revenue. If the party, at any time within two years from the date of payment to the department of revenue, establishes his right to the money to the satisfaction of the director of the department of administration, it shall be paid to him. After two years, all unclaimed monies shall be deposited in the permanent state school fund.

Article 8 Uniform Federal Lien Registration Act

§ 33-1031 Applicability

This article applies only to federal tax liens and to other federal liens, notices of which under any act of Congress or any regulation adopted pursuant to an act of Congress are required or permitted to be filed or recorded in the same manner as notices of federal tax liens.

§ 33-1032 Place of filing or recording

A. Notices of liens, certificates and other notices affecting federal tax liens or other federal liens shall be filed or recorded in accordance with this article.

B. Notices of liens on real property for obligations payable to the United States and certificates and notices affecting the liens shall be filed or recorded in the office of the county recorder in the county in which the real property subject to the liens is situated.

C. Notices of federal liens on personal property, whether tangible or intangible, for obligations payable to the United States and certificates and notices affecting the liens shall be filed or recorded as follows:

1. If the person against whose interest the lien applies is a corporation or a partnership whose principal executive office is in this state, as these entities are defined in the internal revenue laws of the United States, in the office of the secretary of state.

2. If the person against whose interest the lien applies is a trust that is not covered by paragraph 1, in the office of the secretary of state.

3. If the person against whose interest the lien applies is the estate of a decedent, in the office of the secretary of state.

4. In all other cases, in the office of the county recorder in the county where the person against whose interest the lien applies resides at the time of filing or recording of the notice of lien.

§ 33-1033 Execution of notices and certificates

Certification of notices of liens, certificates or other notices affecting federal liens by the secretary of the treasury of the United States or his delegate, or by any official or entity of the United States responsible for filing or certifying notice of any other lien, entitles them to be filed or recorded and no other attestation, certification or acknowledgement is necessary.

§ 33-1034 Filing or recording officer; duties

A. If a notice of federal lien, a refiling of a notice of federal lien or a notice of revocation of any certificate described in subsection B of this section is presented to a filing or recording officer who is:

1. The secretary of state, he shall cause the notice to be marked, held and indexed in accordance with title 47, chapter 9, article 5 as if the notice were a financing statement within the meaning of title 47.

2. The county recorder, he shall endorse on the notice or refiling his identification and the date and time of receipt and promptly file or record it and index it pursuant to section 11-462.

B. If a certificate of release, nonattachment, discharge or subordination of any lien is presented to the secretary of state for filing or recording he shall both:

1. Cause a certificate of release or nonattachment to be marked, held and indexed as if the certificate were a termination statement within the meaning of title 47, but the notice of lien to which the certificate relates may not be removed from the files.

2. Cause a certificate of discharge or subordination to be marked, held and indexed as if the certificate were a release of collateral within the meaning of title 47.

C. If a refiled notice of federal lien referred to in subsection A of this section or any of the certificates or notices referred to in subsection B of this section is presented for filing or recording to a county recorder, such certificates or notices must contain the information required by section 11-480 and shall be indexed pursuant to section 11-462.

D. On request of any person, the filing or recording officer shall issue his certificate showing whether there is on file or record, on the date and hour stated in the certificate, any notice of lien or certificate or notice affecting any lien filed or recorded under this article, naming a particular person, and if a notice or certificate is on file or record, giving the date and hour of filing or recording of each notice or certificate. On request, the filing or recording officer shall furnish a copy of any notice of federal lien, or notice or certificate affecting a federal lien.

§ 33-1035 Fees

The filing officer shall receive fees as provided by law and shall bill the district directors of internal revenue or other appropriate federal officials on a monthly basis for fees for documents filed or recorded by them.

Article 9 Stop Notices

§ 33-1051 Definitions

In this article, unless the context otherwise requires:

1. "Bonded stop notice" means a stop notice that is given to any construction lender and that is accompanied by a bond executed solely by one or more surety companies authorized to transact surety business in this state pursuant to title 20, chapter 2, article 1 in an amount equal to one hundred fifty per cent of the amount of the claim on the condition that if the owner, original contractor or construction lender recovers judgment in an action brought on a verified claim or on the lien filed by the claimant, the claimant would have sufficient monies to pay all costs and damages that the owner, original contractor or construction lender may sustain by reason of the stop notice claim or the lien, not exceeding the amount specified in the bond.

2. "Construction lender" means any mortgagee or beneficiary under a deed of trust lending funds all or a portion of which defray the cost of the construction, alteration, repair or improvement or any assignee or successor in interest of either, or any escrow holder or other party holding any monies furnished or to be furnished by the owner or any other person as a source from which to pay construction costs.

3. "Original contractor" means any contractor who has a direct contractual relationship with the owner.

4. "Stop notice" means a written notice that is signed and verified by the claimant or its agent and that states in general terms all of the following:

(a) A description of the labor, professional services, materials, machinery, fixtures or tools furnished or agreed to be furnished by the claimant.

(b) The name of the person to or for whom the labor, professional services, materials, machinery, fixtures or tools were furnished or agreed to be furnished.

(c) The amount in value of the labor, professional services, materials, machinery, fixtures or tools already furnished and the total amount agreed to be furnished.

(d) The amount, if any, of payment received by the claimant for the labor, professional services, materials, machinery, fixtures or tools furnished or agreed to be furnished.

(e) The name and address of the claimant.

§ 33-1052 Stop notice; defect in form

A stop notice is not invalid by reason of any defect in form if it is sufficient to substantially inform the owner of the information required by this article.

§ 33-1053 Applicability

This section and sections 33-1054 through 33-1067 apply only to private work. Private work does not include dwellings of owner-occupants as defined in section 33-1002.

§ 33-1054 Persons authorized; notice to owner; failure to serve notice after demand

Any person entitled to record a claim of lien under article 6 of this chapter, other than the original contractor, may give to the owner a stop notice. Any person entitled to give a stop notice who fails to serve a stop notice within thirty days after a written demand from the owner forfeits the right to any stop notice on the work described in the demand. A written demand from the owner shall be sent by registered or certified mail, postage prepaid, shall be addressed to that person at any place where that person maintains an office or conducts business and shall include the following language in bold-faced type that is at least as large as the largest type that otherwise appears on the document: "demand for service of stop notice pursuant to A.R.S. section 33-1054".

§ 33-1055 Persons authorized; election by construction lender to withhold monies; copy of bond; recovery limits

A. Any person entitled to record a claim of lien under article 6 of this chapter may give to a construction lender a stop notice or a bonded stop notice before the expiration of the time within which that person's lien shall be recorded under section 33-993. Any person entitled to give a stop notice who fails to serve a stop notice within thirty days after a written demand from the construction lender forfeits the right to any stop notice on the work described in the demand. A written demand from the owner shall be sent by registered or certified mail, postage prepaid, shall be addressed to that person at any place where that person maintains an office or conducts business and shall include the following language in bold-faced type that is at least as large as the largest type that otherwise appears on the document: "demand for service of stop notice pursuant to A.R.S. section 33-1055".

B. In the case of a stop notice or bonded stop notice filed by the original contractor or by a subcontractor, the original contractor or subcontractor is only entitled to recover on its own stop notice or bonded stop notice the net amount due the original contractor or subcontractor after deducting both of the following:

1. The stop notice claims of all subcontractors or material suppliers who have filed bonded stop notices for work done on behalf of the original contractor or subcontractor.

2. The amount of any payment already received as described in the stop notice or bonded stop notice.

C. A bonded stop notice shall not require the construction lender to withhold more than the net amount due for labor, services, materials, machinery, fixtures or tools. Notwithstanding any other law, a construction lender is not liable for the failure to withhold more than this net amount due on receipt of a bonded stop notice.

§ 33-1056 Effective notice

A. The stop notice shall be delivered to the owner personally or left at the owner's residence with a person of suitable age and discretion or the owner's place of business. If the notice is served on a construction lender who holds construction monies and who maintains branch offices, it is not effective against the construction lender unless it is given to or served on the manager or other responsible officer or person at the office or branch that administers or holds the construction monies. Any stop notice may be served by certified mail with the same effect as by personal service.

B. Service of a stop notice or bonded stop notice is effective only if the claimant complies with all of the following:

1. Gives any preliminary twenty day notice in accordance with sections 33-992.01 and 33-992.02 only as required by those sections.

2. Serves the stop notice or bonded stop notice before the expiration of the time within which to record a claim of lien under section 33-993.

§ 33-1057 Withholding of money by owner; payment bond

A. On receipt of a stop notice pursuant to section 33-1054, the owner shall withhold from the original contractor or from any person acting under the original contractor's authority and to whom labor, professional services, materials, machinery, fixtures or tools have been furnished or agreed to be furnished sufficient monies due or to become due to that contractor to answer that claim and any claim of lien that may be recorded for that claim unless a payment bond has been recorded pursuant to section 33-1003. If a payment bond is recorded, the owner may withhold the monies.

B. If the owner elects not to withhold pursuant to a stop notice by reason of a payment bond having been recorded in accordance with section 33-1003, the owner within thirty days after receipt of the stop notice shall give a written notice to the claimant at the address shown in the stop notice that the bond has been recorded and shall furnish to the claimant a copy of that bond.

§ 33-1058 Withholding monies by construction lenders; payment bond

A. On receipt of a stop notice pursuant to section 33-1055, the construction lender may and on receipt of a bonded stop notice shall withhold from the borrower or other person to whom it or the owner may be obligated to make payments or advances out of the construction fund sufficient monies to answer the claim and any claim of lien that may be recorded. If a payment bond has previously been recorded in accordance with section 33-1003, the construction lender shall withhold monies pursuant to a bonded stop notice filed by the original contractor and, at its option, may withhold monies pursuant to a stop notice or bonded stop notice given by anyone other than the original contractor.

B. The construction lender may elect not to withhold pursuant to a bonded stop notice if a payment bond has been recorded in accordance with section 33-1003. When giving the construction lender the stop notice or bonded stop notice, if the claimant makes a written request for notice of the election, accompanied by a preaddressed, stamped envelope, the construction lender shall furnish to the claimant a copy of the bond within thirty days after making the election. A lender is not liable for a failure to furnish a copy of the bond if the failure was not intentional and resulted from a bona fide error, if the lender maintains reasonable procedures to avoid such an error and if the error was corrected no more than twenty days after the date on which the error was discovered.

§ 33-1059 Assignment of monies; effect

A. Whether made before or after a stop notice or bonded stop notice is given to a construction lender, no assignment by the owner or contractor of construction monies takes priority over the stop notice or bonded stop notice, and the assignment has no effect as to the rights of claimants who give the stop notice or bonded stop notice.

B. Any allocation or disbursement of any sum from construction monies by a construction lender for the payment of loan fees, interest or other charges to the construction lender is not an assignment under subsection A and is not subject to any stop notice or bonded stop notice given to the construction lender.

§ 33-1060 Pro rata distribution of monies

If monies withheld or required to be withheld pursuant to any stop notice or bonded stop notice are insufficient to pay in full the valid claims of all persons who made claims, the monies withheld or required to be withheld shall be distributed among those persons in the same ratio that their respective claims bear to the aggregate of all such valid claims. This pro rata distribution shall be made among the persons entitled to a share without regard to the order of time in which their respective notices were given or their respective actions, if any, were filed.

§ 33-1061 False notice

Any person who wilfully gives a false stop notice or bonded stop notice or wilfully includes in the notice any labor, professional services, materials, machinery, fixtures or tools not furnished for the property described in that notice forfeits all right to participate in the pro rata distribution of monies, forfeits all right to any lien under article 6 of this chapter and is subject to penalties under section 33-420.

§ 33-1062 Release of stop notice or bonded stop notice; surety bond

A. An owner, a construction lender or any original contractor or subcontractor who disputes any stop notice or bonded stop notice may file with the person on whom notice was served a release bond. The release bond shall be executed in an amount equal to one hundred fifty percent of the amount claimed in the notice, conditioned for the payment of any amount that does not exceed the penal obligation of the bond and that the claimant may recover on the claim. A copy of the release bond shall be served on the stop notice claimant in the same manner required for the delivery of a stop notice. On the filing and service of the release bond, the monies withheld in response to the stop notice or bonded stop notice shall be released promptly. A bond to release a stop notice or bonded stop notice under this section shall be executed by a surety company or companies holding a certificate of authority to transact surety business in this state, issued by the director of the department of insurance and financial institutions pursuant to title 20, chapter 2, article 1. The bond shall be for the sole protection of the claimant who perfected such notice.

B. If an owner, a construction lender or any original contractor or subcontractor causes to be recorded a surety bond to discharge a lien perfected by the stop notice claimant pursuant to section 33-1004 with respect to the same labor and material described in the stop notice or bonded stop notice, the surety bond shall also serve as a release bond pursuant to this section, and the monies withheld in response to the stop notice or bonded stop notice shall be released promptly on the recording and service of the surety bond on the stop notice claimant as prescribed in section 33-1004.

C. In an action to enforce payment of a claim stated in a stop notice or bonded stop notice, if a bond has been filed and served as provided in this section, a judgment for the claimant on the bond shall be against the person seeking to release the stop notice or bonded stop notice as principal and the surety for the amount the claimant recovers on the stop notice or bonded stop notice claim, including any recovery for interest, expenses, costs and attorney fees awarded by the court, that does not exceed the penal sum of the bond. If the amount the claimant recovers on the stop notice or bonded stop notice claim exceeds the penal sum of the bond, the claimant shall also be entitled to judgment against the principal for the excess amount.

§ 33-1063 Commencement of actions; limitations

A. An action against the owner or construction lender to enforce payment of the claim stated in the stop notice or bonded stop notice may be commenced at any time after ten days from the date of the service of the stop notice on either the owner or construction lender and shall be commenced not later than three months after the expiration of the period within which claims of lien shall be recorded pursuant to section 33-993, unless all the parties required to be parties to the claim stipulate in writing to an extension of the time to bring an action of not more than an additional three months.

B. Monies shall not be withheld by reason of any stop notice for longer than the three month period prescribed in subsection A of this section unless an action is commenced. If an action is not commenced, the notice ceases to be effective and the monies shall be paid or released to the contractor or other person to whom they are due. Notice of commencement of any action shall be given within five days after commencement to the same persons and in the same manner as provided for service of a stop notice or bonded stop notice.

§ 33-1064 Dismissal or judgment

On dismissal of an action to enforce a stop notice or bonded stop notice, unless expressly stated to be without prejudice, or on a judgment rendered against the claimant, the stop notice or bonded stop notice ceases to be effective and the monies withheld shall be paid or released to the person to whom they are due.

§ 33-1065 Consolidation of actions

Any person who has given stop notices or bonded stop notices may join in the same action, and when separate actions are commenced, the court may consolidate them. On motion of the owner or construction lender, the court shall require all claimants to the monies withheld pursuant to stop notices and bonded stop notices to be joined in one action and the respective rights of all parties shall be adjudicated in that action.

§ 33-1066 Attorney fees

In any action against an owner or construction lender to enforce payment of a claim stated in a bonded stop notice, the prevailing party shall be awarded reasonable attorney fees from the party held liable by the court for payment of the claim.

§ 33-1067 Interest

If the plaintiff is the prevailing party in any action against an owner or construction lender to enforce payment of a claim stated in a bonded stop notice, any amount awarded on the claim shall include interest at the legal rate computed from the date the bonded stop notice is served on the owner or construction lender.

Article 10 Commercial Real Estate Broker Liens

§ 33-1071 Commercial real estate broker lien; definition

A. Except as prescribed by subsection C, an employing real estate broker pursuant to title 32, chapter 20 has a lien against real property for the amount of compensation that is agreed to be paid to the broker by the owner of the real property for the broker's services in the lease or rental of the real property. The lien is created only if all of the following apply:

1. There is a written agreement between the broker and the owner of the real property that provides for the payment of a commission or other compensation to that broker for the broker's services in a real estate transaction and that agreement discloses in the same size type as the majority of the remainder of the agreement above the portion of the agreement calling for the signature of the owner of the real property that the failure to pay the agreed upon commission or compensation may give rise to lien rights as provided by this article.

2. The broker produces a person or entity that is ready, willing and able to lease or rent the real property on the terms provided in the written agreement between the broker and the owner of the real property or on terms that are otherwise acceptable to the owner as evidenced by a written instrument that is signed by the owner.

3. The broker fully complies with sections 33-1072 and 33-1073.

4. All of the conditions for the payment of the commission or other compensation described in the written agreement have been satisfied.

B. Mechanics' and materialmen's lien rights established pursuant to title 33, chapter 7, article 6 have priority over the lien rights created by this article.

C. Consensual liens, mortgages and deeds of trust that are recorded before the recordation of the broker's preliminary notice of intent to lien have priority over the lien rights created by this article and over the notice of commercial real estate broker lien recorded pursuant to this article.

D. Real property is not subject to a commercial real estate broker lien pursuant to this article if either of the following apply:

1. The real property is conveyed to a bona fide purchaser for value before the recordation of a broker's preliminary notice of intent to lien.

2. It is encumbered by a bona fide lender for value before the recordation of a broker's preliminary notice of intent to lien.

E. Except as provided in subsection D of this section, the lien rights provided by this article apply to all commercial real property and do not apply to any transaction involving either of the following:

1. Residential real property with fewer than five residential units.

2. Real property on which single family mobile home lots, manufactured housing lots, residences or condominiums are sold unit by unit.

F. For purposes of this article, "real property" or "subject real property" means the real property interest that is owned by the person who is the party to the agreement with the broker as prescribed by this section.

§ 33-1072 Lien attachment; notice of commercial real estate broker lien; notice to owner

A. A lien pursuant to this article attaches to the subject real property when all of the following occur:

1. The broker produces a person or entity that is ready, willing and able to lease or rent the real property on the terms provided in the written agreement between the broker and the owner of the real property or on terms that are otherwise acceptable to the owner as evidenced by a written instrument that is signed by the owner.

2. The broker fully complies with subsection B of this section.

3. The broker records a document entitled "notice of commercial real estate broker lien" in the office of the county recorder in the county or counties in which the subject real property is located. The notice of commercial real estate broker lien shall be recorded as follows:

(a) Except as provided in subdivision (b), if the notice of commercial real estate broker lien is based on a lease or rental of the real property, the notice of commercial real estate broker lien shall be recorded within ninety days after the tenant takes possession of the leased premises.

(b) If the notice of commercial real estate broker lien is based on compensation that is to be paid in installments and any of those installments are due after the lease or rental of the real property, the notice of commercial real estate broker lien shall be recorded within ninety days after the tenant takes possession of the real property and is valid only to the extent that monies remain unpaid by the owner of the real property to the broker.

B. On recording the notice of commercial real estate broker lien, the broker's lien is perfected.

C. Not later than fifteen days before the date that the tenant takes possession of the leased premises, the broker shall record a document entitled "broker's preliminary notice of intent to lien" in the office of the county recorder in the county in which the real property is located and shall deliver personally or by first class mail a copy of the broker's preliminary notice of intent to lien to the owner of the real property interest. The broker's preliminary notice of intent to lien shall state that the broker is entitled to compensation under the terms set forth in the written agreement between the broker and the owner and that the broker intends to claim a lien on the real property. The broker's preliminary notice of intent to lien shall include all of the information prescribed by section 33-1073, subsection A and shall be entitled "broker's preliminary notice of intent to lien". The broker's failure to record the broker's preliminary notice of intent to lien within the time prescribed by this subsection extinguishes the broker's lien rights.

§ 33-1073 Contents of notice of lien; verification

A. The notice of commercial real estate broker lien shall include all of the following:

1. The name and the address of the principal place of business of the broker who claims the lien and the broker's real estate license number.

2. The name and the mailing address of the owner of the real property.

3. The real property interest that is owned by the owner.

4. The amount of the lien.

5. The legal description of the real property that is the subject of the lien.

6. The street address of the real property, if any.

7. The statement that the broker who claims the lien is entitled to compensation from the owner of the real property.

8. The notarized signature of the real estate broker that avows that based on information and belief the contents of the notice of commercial real estate broker lien are true and accurate.

B. The words "unknown" or "not available" and similar terms may not be used in lieu of the information prescribed by subsection A, and any use of those terms in the notice of commercial real estate broker lien or broker's preliminary notice of intent to lien invalidates the commercial real estate broker lien.

§ 33-1074 Foreclosure; limitation of action; attorney fees

A. A commercial real estate broker lien recorded pursuant to this article is enforceable by foreclosure action in superior court as if the lien were a mortgage.

B. A lien pursuant to this article is only valid for two years after the date that it is recorded unless an action is brought within that two years to enforce the lien and a notice of pendency of the action is recorded pursuant to section 12-1191 in the office of the county recorder in the county in which the property is located within five days after filing the action.

C. In any action to foreclose a commercial real estate broker lien, the prevailing party shall be awarded costs and reasonable attorney fees.

§ 33-1075 Satisfaction of lien; damages

A. On satisfaction of any lien established pursuant to this article, the lienholder shall record a satisfaction of the lien within thirty days. The satisfaction shall be in the form prescribed by section 11-480. A lienholder who fails to record a satisfaction of lien pursuant to this section is subject to the penalties prescribed by section 33-712.

B. A broker shall record a waiver and release of claim of lien that extinguishes the broker's lien rights on either of the following:

1. Within thirty days after satisfaction of a broker's claim of lien arising pursuant to this article if satisfaction occurs before recording a notice of commercial real estate broker lien.

2. Within ten days after receipt of a written request from the owner and if the broker fails to record a notice of commercial real estate broker lien within the time period prescribed by section 33-1072, subsection A, paragraph 3, subdivision (a) or (b).

C. A broker who is required to record a waiver and release of claim of lien by subsection B of this section and who fails to record a waiver is subject to the penalties prescribed by section 33-712.

D. A waiver and release of claim of lien is sufficient if it complies with other applicable laws and if it is in substantially the following form:

Waiver and Release of Claim of Lien

I (we) hereby unconditionally waive and release any claim of lien evidenced by the recording of a "broker's preliminary notice of intent to lien" or "notice of commercial real estate broker lien", or both, recorded on (date) in docket or book __________ at page _______, or instrument number _______, records of ____________ county, Arizona.

Dated:

Signature

(Acknowledgment)

§ 33-1076 Discharge of commercial real estate broker's liens; bond; limitations of actions; discharge of surety; judgment

A. After perfection of a lien pursuant to this article, an owner, including any person who has a legal or equitable interest in the land that is subject to the lien, a mortgagee or any other lien creditor, either before or after the commencement of an action to foreclose the lien, may cause to be recorded in the office of the county recorder in the county in which the land is located a surety bond in the form described in subsection B of this section, together with a power of attorney disclosing the authority of the person executing the bond on behalf of the surety. On the recordation of the bond, the property shall be discharged of the lien whether or not a copy of the bond is served on the claimant or the claimant perfects the claimant's rights against the bond.

B. A surety bond to discharge a lien perfected under this article shall be executed by the person seeking to discharge the lien, as principal, and by a surety company or companies holding a certificate of authority to transact surety business in this state that is issued by the director of the department of insurance and financial institutions pursuant to title 20, chapter 2, article 1. The bond is for the sole protection of the claimant who perfected the lien. Notwithstanding any other statute, the surety bond shall not be executed by individual surety or sureties, even if the requirements of section 7-101 are satisfied. The bond shall be in an amount equal to one and one-half times the claim secured by the lien and shall be conditioned for the payment of the judgment that would have been rendered against the property for the enforcement of the lien. The legal description of the property and the docket and page of the lien sought to be discharged shall be set forth in the bond.

C. On recordation of the bond with the county recorder, the principal on the bond shall cause a copy of the bond to be served within a reasonable time on the lien claimant, and if a suit is then pending to foreclose the lien, the claimant, within ninety days after receipt of the bond, shall cause proceedings to be instituted to add the surety and the principal as parties to the lien foreclosure suit.

D. The bond shall be discharged and the principal and sureties shall be released on any of the following:

1. The failure of the lien claimant to commence a suit within the time allowed pursuant to section 33-1074.

2. The failure of the lien claimant to name the principal and sureties as parties to the action seeking foreclosure of the lien if a copy of the bond has been served on the claimant. If the bond is served on the claimant fewer than ninety days after the date the claimant would be required to commence an action pursuant to section 33-1074, the claimant has ninety days after the date of receiving a copy of the bond to add the principal and the sureties as parties to the lien foreclosure suit.

3. The dismissal of the foreclosure suit with prejudice as to the claimant or the entry of judgment in a suit against the claimant.

E. In an action to foreclose a lien under this article, if a bond has been filed and served as prescribed by this section a judgment for the claimant on the bond shall be against the principal and the principal's sureties and shall not be against the property.

F. If a copy of the bond is not served on the claimant as provided in subsection C of this section, the claimant has six months after the discovery of the bond to commence an action on the bond, except that no action may be commenced on the bond after two years from the date it was recorded as provided in this section.

G. The county recorder of the county in which the bond and contract are recorded shall index the bond and contract under the index classification in which commercial real estate broker liens are recorded.

Chapter 8 Homestead and Personal Property Exemption

Article 1 Homesteads and Homestead Exemption

§ 33-1101 Homestead exemptions; persons entitled to hold homesteads; annual adjustment

(Caution: 1998 Prop. 105 applies)

A. Any person who is at least eighteen years of age, married or single, and who resides within this state may hold as a homestead exempt from attachment, execution and forced sale, not exceeding $400,000 in value, any one of the following:

1. The person's interest in real property in one compact body on which exists a dwelling house in which the person resides.

2. The person's interest in one condominium or cooperative in which the person resides.

3. A mobile home, park model trailer, motor home, travel trailer, fifth wheel trailer, houseboat, manufactured home or other form of shelter in which the person resides plus the land on which that shelter is located.

B. Only one homestead exemption may be held by a married couple or a single person under this section. The value as specified in this section refers to the equity of a single person or married couple. If a married couple lived together in a dwelling house, a condominium or cooperative or a form of shelter prescribed by subsection A, paragraph 3 of this section plus the land on which it is located and are then divorced, the total exemption that is allowed for that residence to either or both persons shall not exceed $400,000 in value.

C. The homestead exemption, not exceeding the value provided for in subsection A of this section, as adjusted by subsection D of this section, automatically attaches to the person's interest in identifiable cash proceeds from the voluntary or involuntary sale of the property. The homestead exemption in identifiable cash proceeds continues for eighteen months after the date of the sale of the property or until the person establishes a new homestead with the proceeds, whichever period is shorter. The homestead exemption does not attach to the person's interest in identifiable cash proceeds from refinancing the homestead property. Only one homestead exemption at a time may be held by a person under this section.

D. The homestead exemption provided by this section shall be adjusted annually beginning on January 1, 2024 and thereafter on January 1 of each successive year by the increase in the cost of living. The increase in the cost of living shall be measured by the percentage increase as of August of the immediately preceding year over the level as of August of the previous year of the consumer price index (all urban consumers, United States city average for all items) or its successor index as published by the United States department of labor, bureau of labor statistics, or its successor agency, with the amount of the exemption rounded up to the nearest $100.

E. For the purposes of determining the amount of equity in a homestead property that is sold or for determining whether the property owner is receiving cash back from refinancing the homestead property, the parties may rely on the valuation of the property in the final closing document disclosure that is used for that transaction.

F. For any case filed under title 11, United States Code, the amount of the debtor's homestead exemption initially shall be determined as of the date the bankruptcy petition is filed. If the value in the homestead is less than or equal to the amount prescribed in subsection A of this section at the time of filing, including any increase prescribed by subsection D of this section, the homestead property is one hundred percent exempt and any increase in the value of the homestead during the pendency of the bankruptcy case is one hundred percent exempt without regard to whether the debtor's interest increases above the amount prescribed by subsection A of this section, including any increase prescribed by subsection D of this section.

§ 33-1102 Exemption by operation of law; designation of multiple properties on creditor's request; recording

A. A person who is entitled to a homestead exemption as prescribed by section 33-1101 holds that exemption by operation of law and no written claim or recording is required. If a person has more than one property interest to which a homestead exemption may reasonably apply, a creditor may require the person to designate which property, if any, is protected by the homestead exemption. The creditor shall demand the designation by sending a letter by certified mail, return receipt requested, to each address of the person which may reasonably be protected by the homestead exemption. The person shall designate the property by recording a homestead exemption in the office of the county recorder where the property is located or by sending the creditor a certified letter, return receipt requested, within thirty days of receiving the creditor's demand letter. If the person receives the creditor's letter and fails to respond as provided by this subsection, the person may only assert the homestead exemption by recording a claim in the office of the county recorder where the property is located.

B. If the person is married, the homestead may be selected from the community property, the joint property or the separate property of the person.

§ 33-1103 Homestead exemption; extent of exemption; exceptions

A. Real property that is subject to the homestead exemption provided for in section 33-1101, subsection A is exempt from involuntary sale under a judgment or lien, except in connection with:

1. A consensual lien, including a mortgage or deed of trust, or contract of conveyance.

2. A lien for labor or materials claimed pursuant to section 33-981.

3. A lien for child support arrearages or spousal maintenance arrearages. An award of court ordered support is not a lien for the purposes of this paragraph unless one of the following applies:

(a) An arrearage has been reduced to judgment.

(b) A lien exists pursuant to section 25-516.

(c) The court orders a specific security interest of the property for support.

4. A recorded civil judgment or other nonconsensual lien that is not otherwise prescribed in this subsection if the debtor's equity in the real property exceeds the homestead exemption under section 33-1101.

B. A sale as described in subsection A of this section and not excepted by subsection A, paragraph 1, 2, 3 or 4 of this section is invalid and does not convey an interest in the homestead property, whether made under a judgment existing before or after the homestead is established.

C. In a contempt proceeding brought to enforce payment of any form of child support or spousal maintenance, the court may consider the portion of property claimed as exempt pursuant to section 33-1101, subsection A, as a resource from which an obligor has the ability to pay.

§ 33-1104 Abandonment of homestead; encumbrance of homestead

A. A homestead may be abandoned by any of the following:

1. A declaration of abandonment or waiver.

2. A transfer of the homestead property by deed of conveyance or contract for conveyance.

3. A permanent removal of the claimant from the residence or the state. A claimant may remove from the homestead for up to two years without an abandonment or a waiver of the exemption.

B. A declaration of abandonment or waiver shall be executed by the claimant and acknowledged. A declaration of abandonment or waiver is effective only from the time of its recording in the office of the county recorder in the county in which the homestead property is located.

C. This article shall not be construed to repeal the provisions of section 25-214, subsection C, pertaining to the acquisition, conveyance or encumbrance of community property.

D. Any recorded consensual lien, including a mortgage or deed of trust, encumbering homestead property shall not be subject to or affected by the homestead claim or exemption.

E. Notwithstanding the provisions of subsection A, paragraph 2 of this section, a transfer of the homestead property by deed of conveyance or contract for conveyance under a trust, as defined in section 14-1201, in which the claimant retains the power to administer and revoke the trust shall not constitute an abandonment of the homestead.

§ 33-1105 Sale by judgment creditor of property subject to homestead exemption

A judgment creditor other than a mortgagee or beneficiary under a trust deed may elect to sell by judicial sale as specified in title 12 the property in which the judgment debtor has a homestead under section 33-1101, subsection A, provided that the judgment debtor's interest in the property shall exceed the sum of the judgment debtor's homestead plus the amount of any consensual liens on the property having priority to the judgment. A bid shall not be accepted by the officer in charge of a sale under this section which does not exceed the amount of the judgment debtor's homestead plus the amount of any consensual liens on the property having a priority to the judgment plus the costs of the sale allowable under title 12. After receipt of a sufficient bid, the officer shall sell the property. From the proceeds, the officer shall first pay the amount of the homestead to the judgment debtor plus the amount of any consensual liens on the property having a priority to the judgment and then pay the costs of the sale. The remaining proceeds shall be applied in accordance with the provisions of section 12-1562, subsection A. If the sale does not occur, either because of voluntary abandonment by the judgment creditor or because no sufficient bid is made, the judgment creditor may not charge any costs or attorney fees incurred in connection with the sale against the judgment debtor by addition to the judgment or otherwise.

Article 2 Personal Property Exemption

§ 33-1121 Definitions

In this article, unless the context otherwise requires:

1. "Debtor" means an individual whether married or single utilizing property described in this article for personal, family or household use.

2. "Process" means execution, attachment, garnishment, replevin, sale or any final process issued from any court or any other judicial remedy provided for collection of debts.

§ 33-1121.01 Availability of exemptions

In the case of married persons, each spouse is entitled to the exemptions provided in this article, which may be combined with the other spouse's exemption in the same property or taken in different exempt property.

§ 33-1122 Debtor's property not exempt from process

The property declared exempt by this article is not exempt from process utilized to enforce a security interest in or pledge of such property, or to obtain possession of leased property.

§ 33-1123 Household furniture, furnishings and appliances; annual adjustment

(Caution: 1998 Prop. 105 applies)

A. Household furniture and furnishings, household goods, including consumer electronic devices, and household appliances personally used by the debtor or a dependent of the debtor and not otherwise specifically prescribed in this chapter are exempt from process provided their aggregate fair market value does not exceed $15,000.

B. The exemption provided by this section shall be adjusted annually beginning on January 1, 2024 and thereafter on January 1 of each successive year by the increase in the cost of living. The increase in the cost of living shall be measured by the percentage increase as of August of the immediately preceding year over the level as of August of the previous year of the consumer price index (all urban consumers, United States city average for all items) or its successor index as published by the United States department of labor, bureau of labor statistics, or its successor agency, with the amount of the exemption rounded up to the nearest $100.

§ 33-1124 Food, fuel and provisions

All food, fuel and provisions actually provided for the debtor's individual or family use for six months are exempt from process.

§ 33-1125 Personal items

(Caution: 1998 Prop. 105 applies)

The following property of a debtor used primarily for personal, family or household purposes is exempt from process:

1. All wearing apparel of not more than a fair market value of five hundred dollars.

2. All musical instruments provided for the debtor's individual or family use of not more than an aggregate fair market value of four hundred dollars.

3. Horses, milk cows and poultry of not more than an aggregate fair market value of one thousand dollars.

4. All engagement and wedding rings of not more than an aggregate fair market value of two thousand dollars.

5. The library of a debtor, including books, manuals, published materials and personal documents of not more than an aggregate fair market value of two hundred fifty dollars.

6. One watch of not more than a fair market value of two hundred fifty dollars.

7. One typewriter, one computer, one bicycle, one sewing machine, a family bible or a lot in any burial ground of not more than an aggregate fair market value of two thousand dollars.

8. Equity in one motor vehicle of not more than $15,000. If the debtor or debtor's dependent has a physical disability, the equity in the motor vehicle shall not exceed $25,000. The exemption prescribed in this paragraph shall be adjusted annually beginning on January 1, 2024 and thereafter on January 1 of each successive year by the increase in the cost of living. The increase in the cost of living shall be measured by the percentage increase as of August of the immediately preceding year over the level as of August of the previous year of the consumer price index (all urban consumers, United States city average for all items) or its successor index as published by the United States department of labor, bureau of labor statistics, or its successor agency, with the amount of the exemption rounded up to the nearest $100.

9. Professionally prescribed prostheses for the debtor or a dependent of the debtor, including a wheelchair or motorized mobility device.

10. All firearms of not more than an aggregate fair market value of two thousand dollars.

11. All domestic animals or household pets.

§ 33-1126 Money benefits or proceeds; exception

(Caution: 1998 Prop. 105 applies)

A. The following property of a debtor is exempt from execution, attachment or sale on any process issued from any court:

1. All money received by or payable to a surviving spouse or child on the life of a deceased spouse, parent or legal guardian, of not more than $20,000.

2. The earnings of the minor child of a debtor or the proceeds of these earnings by reason of any liability of the debtor not contracted for the special benefit of the minor child.

3. All monies received by or payable to a person entitled to receive child support or spousal maintenance pursuant to a court order.

4. All money, proceeds or benefits of any kind to be paid in a lump sum or to be rendered on a periodic or installment basis to the insured or any beneficiary under any policy of health, accident or disability insurance or any similar plan or program of benefits in use by any employer, except for premiums payable on the policy or debt of the insured secured by a pledge, and except for collection of any debt or obligation for which the insured or beneficiary has been paid under the plan or policy and except for payment of amounts ordered for support of a person from proceeds and benefits furnished in lieu of earnings that would have been subject to that order and subject to any exemption applicable to earnings so replaced.

5. All money arising from any claim for the destruction of, or damage to, exempt property and all proceeds or benefits of any kind arising from fire or other insurance on any property exempt under this article.

6. The cash surrender value of life insurance policies where for a continuous unexpired period of two years the policies have been owned by a debtor. The policy shall have named as beneficiary the debtor's surviving spouse, child, parent, brother or sister. The policy may have named as beneficiary any other family member who is a dependent, in the proportion that the policy names any such beneficiary, except that, subject to the statute of limitations, the amount of any premium that is recoverable or avoidable by a creditor pursuant to title 44, chapter 8, article 1, with interest on that amount, is not exempt. The exemption provided by this paragraph does not apply to a claim for the payment of a debt of the insured or beneficiary that is secured by a pledge or assignment of the cash value of the insurance policy or the proceeds of the policy. For the purposes of this paragraph, "dependent" means a family member who is dependent on the insured debtor for not less than half support.

7. An annuity contract where for a continuous unexpired period of two years that contract has been owned by a debtor and has named as beneficiary the debtor, the debtor's surviving spouse, child, parent, brother or sister, or any other dependent family member, except that, subject to the statute of limitations, the amount of any premium, payment or deposit with respect to that contract is recoverable or avoidable by a creditor pursuant to title 44, chapter 8, article 1 is not exempt. The exemption provided by this paragraph does not apply to a claim for a payment of a debt of the annuitant or beneficiary that is secured by a pledge or assignment of the contract or its proceeds. For the purposes of this paragraph, "dependent" means a family member who is dependent on the debtor for not less than half support.

8. Any claim for damages recoverable by any person by reason of any levy on or sale under execution of that person's exempt personal property or by reason of the wrongful taking or detention of that property by any person, and the judgment recovered for damages.

9. A total of $5,000 held in a single account in any one financial institution as defined by section 6-101. The property declared exempt by this paragraph is not exempt from normal service charges assessed against the account by the financial institution at which the account is carried. The exemption prescribed in this paragraph shall be adjusted annually beginning on January 1, 2024 and thereafter on January 1 of each successive year by the increase in the cost of living. The increase in the cost of living shall be measured by the percentage increase as of August of the immediately preceding year over the level as of August of the previous year of the consumer price index (all urban consumers, United States city average for all items) or its successor index as published by the United States department of labor, bureau of labor statistics, or its successor agency, with the amount of the exemption rounded up to the nearest $100.

10. An interest in a college savings plan under section 529 of the internal revenue code of 1986, either as the owner or as the beneficiary. This does not include money contributed to the plan within two years before a debtor files for bankruptcy.

11. All federal or state personal income tax credits from any federal or state earned income tax credits or federal or state child tax credits. The amount of the exemption shall be the lesser of the total combined amount of federal and state tax refunds or the total combined amount of any federal or state earned income tax credits and any federal or state child tax credits claimed on the return.

B. Any money or other assets payable to a participant in or beneficiary of, or any interest of any participant or beneficiary in, a retirement plan under section 401(a), 403(a), 403(b), 408, 408A or 409 or a deferred compensation plan under section 457 of the United States internal revenue code of 1986, as amended, whether the beneficiary's interest arises by inheritance, designation, appointment or otherwise, is exempt from all claims of creditors of the beneficiary or participant. This subsection does not apply to any of the following:

1. An alternate payee under a qualified domestic relations order, as defined in section 414(p) of the United States internal revenue code of 1986, as amended. The interest of any and all alternate payees is exempt from any and all claims of any creditor of the alternate payee.

2. Amounts contributed within one hundred twenty days before a debtor files for bankruptcy.

3. The assets of bankruptcy proceedings filed before July 1, 1987.

C. Any person who is at least eighteen years of age, married or single, who resides within this state and who does not exercise the homestead exemption under article 1 of this chapter may claim as a personal property homestead exempt from all process prepaid rent, including security deposits as provided in section 33-1321, subsection A, for the claimant's residence, of not more than $2,000.

D. This section does not exempt property from orders that are the result of a judgment for arrearages of child support or for a child support debt.

§ 33-1127 School equipment

The library and philosophical and chemical or other apparatus belonging to a debtor and used for the instruction of youth in any university, college, seminary of learning, or school shall be exempt from execution, attachment or sale on any process issued from any court.

§ 33-1128 Fire fighting equipment

All fire engines, hooks and ladders, with the carts, trucks, carriages, hose, buckets, implements and apparatus appertaining thereto, and all furniture and uniforms of any fire company or department organized under any law of this state shall be exempt from execution, attachment or sale on any process issued from any court.

§ 33-1129 Public property or property of a public character

All court houses, jails, public offices, buildings, lots, grounds and personal property, the fixtures, furniture, books and papers and appurtenances belonging and pertaining to the jail and public offices belonging to any county or any city of this state and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and military organizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or city or dedicated by such town or city to health, ornament or public use, or for the use of any fire or military company organized under the laws of this state shall be exempt from execution, attachment or sale on any process issued from any court.

§ 33-1130 Tools and equipment used in a commercial activity, trade, business or profession

The following tools and equipment of a debtor used in a commercial activity, trade, business or profession shall be exempt from process:

1. The tools, equipment, instruments and books, including telephone numbers, client or customer contact information, or marketing tools, such as websites, domain names or any other intangible work product, in the possession of a debtor or the spouse of a debtor primarily used in, and necessary to carry on or develop, the commercial activity, trade, business or profession of the debtor or the debtor's spouse, not in excess of an aggregate fair market value of five thousand dollars. For the purpose of this paragraph, tools do not include a motor vehicle primarily used by a debtor for personal, family or household purposes such as transportation to and from the debtor's place of employment.

2. Farm machinery, utensils, implements of husbandry, feed, seed, grain and animals not in excess of an aggregate value of two thousand five hundred dollars belonging to a debtor whose primary income is derived from farming.

3. All arms, uniforms and accoutrements required by law to be kept by a debtor.

§ 33-1131 Definition; wages; salary; compensation

(Caution: 1998 Prop. 105 applies)

A. For the purposes of this section, "disposable earnings" means that remaining portion of a debtor's wages, salary or compensation for his personal services, including bonuses and commissions, or otherwise, and includes payments pursuant to a pension or retirement program or deferred compensation plan, after deducting from such earnings those amounts required by law to be withheld.

B. Except as provided in subsection C, the maximum part of the disposable earnings of a debtor for any workweek that is subject to process may not exceed ten percent of disposable earnings for that week or the amount by which disposable earnings for that week exceed sixty times the applicable minimum hourly wage in effect at the time the earnings are payable, whichever is less. The applicable minimum hourly wage is the minimum wage required by federal, state or local law, whichever is highest.

C. The exemptions provided in subsection B do not apply in the case of any order for the support of any person. In such case, one-half of the disposable earnings of a debtor for any pay period is exempt from process.

D. The exemptions provided in this section do not apply in the case of any order of any court of bankruptcy under chapter XIII of the federal bankruptcy act or any debt due for any state or federal tax.

§ 33-1132 Waiver of exemption rights void

Notwithstanding any agreement to the contrary, a waiver of the exemption rights provided by this article shall be void and unenforceable, except as specifically provided in section 33-1122 and when done with notice.

§ 33-1133 Other exemption laws

A. Nothing in this article shall be construed to displace other provisions of law which afford additional or greater protection to a debtor's property.

B. Notwithstanding subsection A, in accordance with 11 U.S.C. 522 (b), residents of this state are not entitled to the federal exemptions provided in 11 U.S.C. 522 (d). Nothing in this section affects the exemptions provided to residents of this state by the constitution or statutes of this state.

Article 3 Exemption From Execution of Foreign Judgment

§ 33-1151 Exemption from execution

A. In addition to any other exemption provided by law, all real, personal, tangible or intangible property of a judgment debtor in this state is exempt from execution of a judgment in favor of another state for failure to pay that state's income tax on benefits received from a pension or other retirement plan to the extent those benefits were received while the judgment debtor was a resident of this state. The exempt property may include community, joint or separate property of the judgment debtor.

B. If the judgment debtor dies or absconds and leaves a spouse or dependent any property that is exempt under this section, the property remains exempt to the spouse or dependent.

C. A claim or judgment in favor of another state for failure to pay that state's income tax on benefits received from a pension or other retirement plan to the extent those benefits were received while the judgment debtor was a resident of this state is not a lien on any property in this state that is owned by a resident of this state.

§ 33-1152 Recording; effect

A. A person must claim the exemption under this article under oath and in writing that establishes that the person is a resident of this state and particularly designates the real and personal property for which the exemption is claimed. The claim shall be recorded in the office of the county recorder in the county where the property is located.

B. From and after the date of recording the claim the property is exempt from process and from sale under a judgment described in section 33-1151 existing before or after recording the claim, and any such sale is void.

§ 33-1153 Abandonment of exemption; maintenance of residency

A. A claim of exemption under this article may be abandoned by a declaration or grant of abandonment or waiver or by permanent removal of the claimant from this state. A claimant may remove from this state for up to two years without an abandonment or waiver of the exemption.

B. A declaration of abandonment, waiver or grant must be executed and acknowledged by the claimant and is effective from and after the date it is recorded in the office of the county recorder in which the claim of exemption was recorded.

Chapter 9 Condominiums

Article 1 General Provisions

§ 33-1201 Applicability

This chapter applies to all condominiums created within this state without regard to the date the condominium was created.

§ 33-1202 Definitions

In the condominium documents, unless specifically provided otherwise or the context otherwise requires, and in this chapter:

1. "Affiliate of a declarant" means any person who controls, is controlled by or is under common control with a declarant.

2. "Allocated interests" means the undivided interests in the common elements, the common expense liability and votes in the association allocated to each unit.

3. "Articles of incorporation" means the instrument by which an incorporated association or unit owners' association is formed and organized under this state's corporate statutes.

4. "Assessment" means the share of monies that is required for the payment of common expenses and that the association assesses periodically against each unit.

5. "Association" or "unit owners' association" means the unit owners' association organized under section 33-1241.

6. "Board of directors" means the body, regardless of its name, designated in the declaration and given general management powers to act on behalf of the association.

7. "Bylaws" means the bylaws required by section 33-1246.

8. "Common elements" means all portions of a condominium other than the units.

9. "Common expense liability" means the liability for common expenses allocated to each unit pursuant to section 33-1217 or 33-1255.

10. "Common expense lien" means the lien for assessments, charges for late payment of assessments if authorized in the declaration, reasonable collection fees and costs incurred or applied by the association and reasonable attorney fees and costs that are incurred with respect to those assessments, if the attorney fees and costs are awarded by a court.

11. "Common expenses" means expenditures made by or financial liabilities of the association, together with any allocations to reserves.

12. "Condominium" means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of the separate portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

13. "Condominium documents" means the declaration, bylaws, articles of incorporation, if any, and rules, if any.

14. "Declarant" means any person or group of persons who reserves, is granted or succeeds to any special declarant right.

15. "Declaration" means any instruments, however denominated, that create a condominium and any amendments to those instruments.

16. "Development rights" means any right or combination of rights reserved by or granted to a declarant in the declaration to do any of the following:

(a) Add real estate to a condominium.

(b) Create easements, units, common elements or limited common elements within a condominium.

(c) Subdivide units, convert units into common elements or convert common elements into units.

(d) Withdraw real estate from a condominium.

(e) Make the condominium part of a larger condominium or planned community.

(f) Amend the declaration during any period of declarant control, pursuant to section 33-1243, subsection E, to comply with applicable law or to correct any error or inconsistency in the declaration, if the amendment does not adversely affect the rights of any unit owner.

(g) Amend the declaration during any period of declarant control, pursuant to section 33-1243, subsection E, to comply with the rules or guidelines, in effect from time to time, of any governmental or quasi-governmental entity or federal corporation guaranteeing or insuring mortgage loans or governing transactions involving mortgage instruments.

17. "Identifying number" means a symbol or address that identifies one unit in a condominium.

18. "Leasehold condominium" means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size.

19. "Limited common element" means a portion of the common elements specifically designated as a limited common element in the declaration and allocated by the declaration or by operation of section 33-1212, paragraph 2 or 4 for the exclusive use of one or more but fewer than all of the units.

20. "Person" means:

(a) A natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.

(b) In the case of a subdivision trust, as defined in section 6-801, the beneficiary of the trust who holds the right to subdivide, develop or sell the real estate rather than the trust or trustee.

21. "Real estate":

(a) Means any legal, equitable, leasehold or other estate or interest in, over or under land, including structures, fixtures and other improvements and interests which by custom, usage or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance.

(b) Includes parcels with or without upper or lower boundaries and spaces that may be filled with air or water.

22. "Rules" means the provisions, if any, adopted pursuant to the declaration or bylaws governing maintenance and use of the units and common elements.

23. "Special declarant rights" means any right or combination of rights reserved by or granted to a declarant in the declaration to do any of the following:

(a) Construct improvements provided for in the declaration.

(b) Exercise any development right.

(c) Maintain sales offices, management offices, signs advertising the condominium, and models.

(d) Use easements through the common elements for the purpose of making improvements within the condominium or within real estate that may be added to the condominium.

(e) Appoint or remove any officer of the association or any board member during any period of declarant control.

24. "Unit" means a portion of the condominium designated for separate ownership or occupancy.

25. "Unit owner" means:

(a) A declarant or other person who owns a unit or, unless otherwise provided in the lease, a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the condominium but does not include a person having an interest in a unit solely as security for an obligation.

(b) In the case of a contract for conveyance, as defined in section 33-741, of real property, the purchaser of the unit.

26. "Unit owner expenses":

(a) Means fees, charges, late charges and monetary penalties or interest that is imposed pursuant to section 33-1242, subsection A, paragraphs 10, 11 and 12.

(b) Does not include any amount that is included in a common expense lien.

§ 33-1203 Variation

Except as expressly provided in this chapter, the provisions of this chapter shall not be varied by agreement and rights conferred by this chapter shall not be waived. A person shall not use any device to evade the limitations or prohibitions of this chapter.

§ 33-1204 Separate titles and taxation

A. If there is a unit owner other than a declarant, each unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate.

B. Except as provided in subsection C, if there is a unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements.

C. Any portion of the common elements which the declarant reserves the right to withdraw from the condominium shall be separately taxed and assessed against the declarant and the declarant alone is liable for payment of those taxes, as long as the declarant retains this right to withdraw.

D. If there is no unit owner other than a declarant, the real estate comprising the condominium shall be taxed and assessed as a single parcel.

§ 33-1205 Applicability of local ordinances, rules and building codes

A. A zoning, subdivision or building code or other real estate use law, ordinance or rule shall not prohibit a condominium form of ownership or impose any requirement on a condominium which it would not impose on a physically identical development under a different form of ownership.

B. Except as provided in subsection A, this chapter does not invalidate or modify any provision of any zoning, subdivision or building code or other real estate use law, ordinance or rule.

§ 33-1206 Eminent domain

A. If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award must compensate the unit owner for his unit and its interest in the common elements, regardless of whether any common elements are acquired. On acquisition, unless the decree otherwise provides, that unit's allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection becomes a common element.

B. Except as provided in subsection A of this section, if part of a unit is acquired by eminent domain the award must compensate the unit owner for the reduction in value of the unit and its interest in the common elements, regardless of whether any common elements are acquired. On acquisition, unless the decree otherwise provides, all of the following apply:

1. The unit's allocated interests are reduced in proportion to the reduction in the size of the unit or on any other basis specified in the declaration.

2. The portion of the allocated interests divested from the partially acquired unit is automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.

C. If part of the common elements is acquired by eminent domain, the portion of the award attributable to the common elements taken shall be paid to the association for the benefit of the unit owners. Unless the declaration provides otherwise, any portion of the award attributable to the acquisition of a limited common element shall be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition.

D. The court decree shall be recorded in every county in which any portion of the condominium is located.

E. If all of the units of the condominium are acquired by eminent domain, the condominium is terminated and the provisions of section 33-1228 apply.

F. This section does not restrict the rights of lessees, mortgagees, declarants or any other person holding an interest in a unit or its common elements from receiving separate compensation or a portion of the compensation payable, or both, pursuant to this section.

§ 33-1207 Severability

If any provision of this chapter or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or application, and to this end the provisions of this chapter are severable.

Article 2 Creation, Alteration and Termination of Condominiums

§ 33-1211 Creation of condominium

A condominium may only be created pursuant to this chapter by recording a declaration in the same manner as a deed in each county in which any portion of the condominium is located. The declaration shall be indexed in the name of the condominium, the name of the association and otherwise as required by law.

§ 33-1212 Unit boundaries

Except as provided by the declaration:

1. If walls, floors or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces are a part of the unit, and all other portions of the walls, floors or ceilings are a part of the common elements.

2. If any chute, flue, duct, wire, conduit, bearing wall, bearing column or other fixture lies partially within and partially outside the designated boundaries of a unit, any portion serving only that unit is a limited common element allocated solely to that unit and any portion serving more than one unit or any portion of the common elements is a part of the common elements.

3. Subject to the provisions of paragraph 2, all spaces, interior partitions and other fixtures and improvements within the boundaries of a unit are a part of the unit.

4. Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, entryways or patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

§ 33-1213 Construction and validity of declaration and bylaws

A. All provisions of the condominium documents are severable.

B. The rule against perpetuities shall not be applied to defeat any provision of the condominium documents.

C. Except to the extent inconsistent with this chapter:

1. If a conflict exists between the provisions of the declaration and the other condominium documents, the declaration prevails.

2. If a conflict exists between the provisions of the articles of incorporation and the bylaws or rules, the articles of incorporation prevail.

3. If a conflict exists between the provisions of the bylaws and the rules, the bylaws prevail.

D. Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of any condominium documents to comply with this chapter.

§ 33-1214 Description of units

A description of a unit which sets forth the name of the condominium, the recording data for the declaration, the county or counties in which the condominium is located and the identifying number of the unit is a sufficient legal description of that unit and all common elements, rights, obligations and interests appurtenant to that unit.

§ 33-1215 Contents of declaration

A. The declaration shall contain:

1. The name of the condominium, which shall include the word "condominium" or be followed by the words "a condominium", and the name of the association.

2. The name of every county in which any portion of the condominium is located.

3. A legal description of the real estate included in the condominium.

4. A description of the boundaries of each unit created by the declaration, including each unit's identifying number.

5. A description of any limited common elements, other than those specified in section 33-1212, paragraphs 2 and 4, but the declaration shall contain a description of any porches, balconies, patios and entryways, if any, as provided in section 33-1219, subsection B, paragraph 11.

6. A description of any development rights and other special declarant rights, together with a legal description of the real estate to which each of those rights applies, any time limit within which each of those rights must be exercised and any other conditions or limitations under which the rights described in this paragraph may be exercised or will lapse.

7. An allocation to each unit of the allocated interests in the manner described in section 33-1217.

8. Any restrictions on use, occupancy and alienation of the units.

9. All matters required by sections 33-1216, 33-1217, 33-1218, 33-1219 and 33-1226 and section 33-1243, subsection E.

10. A statement that the assessment obligation of the unit owner under section 33-1255 is secured by a lien on the owner's unit in favor of the association pursuant to section 33-1256.

11. If the condominium is a conversion from multifamily rental to condominiums, a statement containing all of the following:

(a) A statement that the property is a conversion from multifamily rental to condominiums.

(b) The date original construction was completed.

(c) The name and address of the original owner, builder, developer and general contractor as shown on the applicable city, town or county building permit.

(d) The name and address of each subsequent owner as determined by a search of the county recorder's records in the county in which the property is located.

(e) The subdivider's agreement to provide the following information on request:

(i) The name and address of any builder, developer, general contractor, subcontractor, architect and engineer who designed or made improvements to the property immediately before the first condominium was sold.

(ii) A specific description of all improvements made.

B. If a city, town or county is unable to produce a building permit as required in subsection A, paragraph 11, subdivision (c) of this section, the subdivider shall submit a letter from the applicable city, town or county stating that the information required by subsection A, paragraph 11, subdivision (c) of this section is not available.

C. The declaration may contain any other matters the declarant deems appropriate.

§ 33-1216 Leasehold condominiums

A. Any lease, the expiration or termination of which may terminate the condominium or reduce its size, shall be recorded. Unless the lease otherwise specifically provides for the creation of a leasehold condominium and the rights and benefits set forth in this section, each lessor of those leases shall sign or otherwise consent to the provisions of the declaration. The declaration shall state all of the following:

1. The recording data for the lease.

2. The date on which the lease is scheduled to expire.

3. A legal description of the real estate subject to the lease.

4. Any right of the unit owners to acquire title to their units free of the lease or a statement that they do not have this right.

5. Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease or that they do not have this right.

6. Any rights of the unit owners to renew the lease and the conditions of any renewal or that they do not have those rights.

B. After the declaration for a leasehold condominium is recorded, neither the lessor nor his successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of his share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the lease. A unit owner's leasehold interest is not affected by failure of any other person to pay rent or fulfill any other covenant.

C. Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.

D. If the expiration or termination of a lease decreases the number of units in a condominium, the allocated interests shall be reallocated in accordance with section 33-1206, subsection A as though those units had been taken by eminent domain.

§ 33-1217 Allocation of common element interests, votes and common expense liabilities

A. Except as required by section 33-1255, the declaration shall allocate a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes in the association, to each unit and state the formulas used to establish those allocations. Except as otherwise provided in this chapter, the allocations shall not discriminate in favor of units owned by the declarant.

B. If units may be added to or withdrawn from the condominium, the declaration must state the formulas to be used to reallocate the allocated interests among all units included in the condominium after the addition or withdrawal.

C. The declaration may provide:

1. That different allocations of votes shall be made to the units on particular matters specified in the declaration.

2. For cumulative voting only for the purpose of electing members of the board of directors.

3. For class voting on specified issues affecting the class if necessary to protect valid interests of the class.

D. Except for minor variations due to rounding, the sum of the undivided interests in the common elements and common expense liabilities allocated at any time to all the units must each equal one if stated as fractions or one hundred per cent if stated as percentages. If a discrepancy exists between an allocated interest and the result derived from application of the pertinent formula, the allocated interest prevails.

E. Except as otherwise permitted by the provisions of this chapter, the common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated is void.

§ 33-1218 Limited common elements

A. Except for the limited common elements described in section 33-1212, paragraphs 2 and 4, other than porches, balconies, patios and entryways, the declaration shall specify to which unit or units each limited common element is allocated. The allocation shall not be altered without the consent of the unit owners whose units are affected.

B. Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration. The amendment shall be executed by the unit owners between or among whose units the reallocation is made, shall state the manner in which the limited common elements are to be reallocated and, before recording the amendment, shall be submitted to the board of directors. Unless the board of directors determines within thirty days that the proposed amendment is unreasonable, which determination shall be in writing and specifically state the reasons for disapproval, the association shall execute its approval and record the amendment.

C. A common element not previously allocated as a limited common element shall not be so allocated except pursuant to provisions in the declaration. The allocations shall be made by amendments to the declaration.

§ 33-1219 Plat

A. The plat is a part of the declaration. The plat must be clear and legible.

B. The plat shall show:

1. The name of the condominium.

2. The boundaries of the condominium and a legal description of the real estate included in the condominium.

3. The extent of any encroachments on any portion of the condominium.

4. To the extent feasible, the location and dimensions of all easements serving or burdening any portion of the condominium.

5. The location and dimensions of the vertical boundaries of each unit, and each unit's identifying number.

6. Any horizontal unit boundaries, with reference to an established datum, and each unit's identifying number.

7. Any units with respect to which the declarant has reserved the right to create additional units or common elements, identified appropriately.

8. The location and dimensions of all real estate subject to the development right of withdrawal identified as such.

9. The location and dimensions of all real estate in which the unit owner will only own an estate for years labeled as a "leasehold condominium".

10. The distance between noncontiguous parcels of real estate comprising the condominium.

11. The location and dimensions of limited common elements, including porches, balconies, patios and entryways, other than the limited common elements described in section 33-1212, paragraphs 2 and 4.

12. Any other matters the declarant deems appropriate.

C. Unless the declaration provides otherwise, the horizontal boundaries of a part of a unit located outside of a building have the same elevation as the horizontal boundaries of the inside part and need not be depicted on the plat.

D. On exercising any development right, the declarant shall record a new plat conforming to the requirements of subsections A and B of this section. No new plat need be recorded if the development right exercised was clearly depicted on the original plat and a document is recorded which references the declaration and original plat and declares that the development right has been exercised.

§ 33-1220 Exercise of development rights

A. To exercise a development right the declarant shall prepare, execute and record an amendment to the declaration which shall include a new plat conforming to the requirements of section 33-1219, subsections A and B, if the previously recorded plat does not show the boundaries of the parcel or parcels as to which the development right is exercised. The amendment to the declaration shall assign an identifying number to each new unit created and, except in the case of subdivision or conversion of units described in subsection C of this section, reallocate the allocated interests among all units. The amendment shall describe any common elements and any limited common elements created and, in the case of limited common elements, designate the unit to which each is allocated as required by section 33-1218.

B. Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by section 33-1215 or 33-1216, whichever is applicable, and the plat includes all matters required by section 33-1219. This subsection does not extend any time limit on the exercise of development rights imposed by the declaration pursuant to section 33-1215, subsection A, paragraph 6.

C. Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units or common elements, or both:

1. If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit had been taken by eminent domain.

2. If the declarant subdivides the unit into two or more units, whether any part of the unit is converted into common elements, the amendment to the declaration shall reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.

D. If the declaration provides that all or a portion of the real estate is subject to the development right of withdrawal:

1. If all the real estate is subject to withdrawal and the declaration does not describe separate portions of the real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser without the written consent of all unit owners in the condominium and any mortgagees or beneficiaries of deeds of trust or sellers under a contract, as defined in section 33-741, for conveyance of real property encumbering the units.

2. If a portion or portions are subject to withdrawal, a portion shall not be withdrawn after a unit in that portion has been conveyed to a purchaser without the written consent of all unit owners in the condominium and any mortgagees or beneficiaries of deeds of trust or sellers under contract, as defined in section 33-741, for conveyance of real property encumbering the units.

E. No development right shall be exercised in any manner which would eliminate or materially reduce in size any tennis court, swimming pool, clubhouse or other recreational facility which is part of the common elements and which was specified in the public report issued on the condominium by the commissioner of the state real estate department, unless the exercise of the development right is approved by an affirmative vote of the unit owners to which at least eighty per cent of the votes in the association are allocated.

§ 33-1221 Alterations of units

A. Subject to the provisions of the declaration and other provisions of law, a unit owner:

1. May make any improvements or alterations to the unit owner's unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

2. Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

3. After acquiring an adjoining unit or, if the declaration expressly allows, an adjoining part of an adjoining unit, may remove or alter any intervening partition or create apertures in intervening partitions, even if the partition in whole or in part is a common element, if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium. Removal of partitions or creation of apertures under this paragraph is not an alteration of boundaries.

B. In addition to allowed modifications as prescribed by subsection A of this section and notwithstanding the condominium documents, the association shall not prohibit a unit owner from improving or altering the interior of the unit in a manner that may disturb adjacent unit occupants if the unit owner purchases and installs at the unit owner's own expense any reasonably necessary improved materials, accessories or other adjustments that eliminate or minimize the potential disturbance. The association shall not prohibit a unit owner from using any manner of decoration on the interior of the unit.

§ 33-1222 Relocation of boundaries between adjoining units

If the declaration expressly permits, the boundaries between or among adjoining units may be relocated by an amendment to the declaration. The owners of the units shall prepare an amendment to the declaration, including the plat, that identifies the units involved, specifies the altered boundaries of the units and their dimensions and includes the units' identifying numbers. If the owners of the adjoining units have specified a reallocation between their units of the allocated interests, the amendment shall state the proposed reallocation in a reasonable manner. The amendment shall be executed by the owners of those units, shall contain words of conveyance between or among them and, before recording the amendment, shall be submitted to the board of directors. Unless the board of directors determines within thirty days that the proposed amendment is unreasonable, which determination shall be in writing and specifically state the reasons for disapproval, the association shall execute its approval and record the amendment.

§ 33-1223 Subdivision of units

If the declaration expressly permits, a unit may be subdivided into two or more units. A unit owner shall prepare an amendment to the declaration, including the plat, which identifies the unit involved, specifies the boundaries of each unit created and its dimensions, assigns an identifying number to each unit created and allocates the allocated interests formerly allocated to the subdivided unit to the new units in a reasonable manner. The amendment shall be executed by the owner of the unit to be subdivided and, before recording, submitted to the board of directors. Unless the board of directors determines within thirty days that the proposed amendment is unreasonable, which determination shall be in writing and specifically state the reasons for disapproval, the association shall execute its approval and record the amendment.

§ 33-1224 Easement for encroachments

To the extent that any unit or common element encroaches on any other unit or common element as a result of original construction, shifting or settling, or alteration or restoration authorized by the declaration, a valid easement for the encroachment exists.

§ 33-1225 Use for sale purposes

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless:

1. The declaration provides otherwise.

2. Such use is prohibited by another provision of law or local ordinances.

§ 33-1226 Easement to facilitate exercise of special declarant rights

Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging a declarant's obligations or exercising special declarant rights, whether arising under this chapter or reserved in the declaration.

§ 33-1227 Amendment of declaration

A. Except in cases of amendments that may be executed by a declarant under section 33-1220, by the association under section 33-1206 or section 33-1216, subsection D, or by certain unit owners under section 33-1218, subsection B, section 33-1222, section 33-1223 or section 33-1228, subsection D, and except to the extent allowed or required by other provisions of this chapter, the declaration, including the plat, may be amended only by a vote of the unit owners to which at least sixty-seven percent of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use. The declaration may also provide that the consent of the declarant is required to an amendment during any period of declarant control pursuant to section 33-1243. Within thirty days after the adoption of any amendment pursuant to this subsection, the association shall prepare, execute and record a written instrument setting forth the amendment.

B. An action to challenge the validity of an amendment adopted by the association pursuant to this section shall not be brought more than one year after the amendment is recorded.

C. An amendment to the declaration shall be recorded in each county in which any portion of the condominium is located and is effective only on recordation in the same manner as required for the declaration under section 33-1211.

D. Except to the extent expressly allowed or required by other provisions of this chapter, an amendment shall not create or increase special declarant rights, increase the number of units or change the boundaries of any unit, the allocated interests of a unit or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.

E. An amendment shall not terminate or decrease any unexpired development right, special declarant right or period of declarant control unless the declarant approves.

F. Amendments to the declaration required by this chapter to be executed by the association shall be executed on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

§ 33-1228 Termination of condominium

A. Except as provided in subsection B of this section, a condominium may be terminated only by agreement of unit owners of units to which at least eighty percent of the votes in the association are allocated, or any larger percentage the declaration specifies, except:

1. In the case of a taking of all the units by eminent domain.

2. If the declaration specifies a smaller percentage, but only if all of the units in the condominium are restricted exclusively to nonresidential uses.

B. A condominium created on or after September 24, 2022 may be terminated only by agreement of unit owners of units to which ninety-five percent of the votes in the association are allocated, or any larger percentage the declaration specifies, except as provided in subsection A, paragraph 1 or 2 of this section.

C. At least thirty days before recording a termination agreement, the board of directors of the association shall convene a regular or special meeting of the board of directors at which a person or entity that purports to have the agreement of at least the percentage of the votes in the association specified in subsection A or B of this section, as applicable, or any larger percentage if required, shall produce and make available to the unit owners copies of a signed notarized statement that the owner of a unit has executed a termination agreement. The person or entity shall produce copies of a statement for each unit owner who has agreed to the termination, or may produce the signed termination agreement that includes a sufficient number of unit owners. Any meeting called pursuant to this subsection shall be noticed as otherwise provided by law, except that the board may not take action by written consent or any other method that does not provide for an actual meeting that is open to all the unit owners. Any termination agreement that is recorded without full compliance with this subsection is invalid.

D. An agreement to terminate shall be evidenced by the execution or ratifications of a termination agreement, in the same manner as a deed, by the requisite number of unit owners. The termination agreement shall specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications of a termination agreement shall be recorded in each county in which a portion of the condominium is situated and is effective only on recordation.

E. A termination agreement may provide that all the common elements and units of the condominium shall be sold following termination. If, pursuant to the agreement, any real estate in the condominium is to be sold following termination, the termination agreement shall set forth the minimum terms of the sale.

F. The association, on behalf of the unit owners, may contract for the sale of real estate in the condominium, but the contract is not binding on the unit owners until approved pursuant to subsections A, B, C and D of this section. If any real estate in the condominium is to be sold following termination, title to that real estate on termination vests in the association as trustee for the holders of all interest in the units. Thereafter, the association has all powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds of the sale distributed, the association continues in existence with all powers it had before termination. Proceeds of the sale shall be distributed to unit owners and lienholders as their interests may appear, in proportion to the respective interests of unit owners as provided in subsection I of this section. Unless otherwise specified in the termination agreement, as long as the association holds title to the real estate, each unit owner and the unit owner's successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the unit owner's unit. During the period of that occupancy, each unit owner and the successors in interest remain liable for all assessments and other obligations imposed on unit owners by this chapter or the declaration.

G. If the real estate constituting the condominium is not to be sold following termination, title to all the real estate in the condominium vests in the unit owners on termination as tenants in common in proportion to their respective interests as provided in subsection I of this section, and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and the unit owner's successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted the unit owner's unit.

H. Following termination of the condominium, the proceeds of any sale of real estate, together with the assets of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests may appear. Following termination, creditors of the association holding liens on the units that were recorded before termination may enforce those liens in the same manner as any lienholder.

I. The respective interests of unit owners referred to in subsections F, G and H of this section are as follows:

1. Except as provided in paragraph 2 of this subsection, the respective interests of unit owners are the fair market values of their units, limited common elements and common element interests immediately before the termination, their pro rata share of any monies in the association's reserve fund and the operating account and an additional five percent of that total amount for relocation costs. An independent appraiser selected by the association shall determine the total fair market values. The determination of the independent appraiser shall be distributed to the unit owners and becomes final unless disapproved within sixty days after distribution to the unit owner. Any unit owner may obtain a second independent appraisal at the unit owner's expense and, if the unit owner's independent appraisal amount differs from the association's independent appraisal amount by five percent or less, the higher appraisal is final. If the total amount of compensation owed as determined by the second appraiser is more than five percent higher than the amount determined by the association's appraiser, the unit owner shall submit to arbitration by an arbitrator affiliated with a national arbitration association and under the rules of that association at the association's expense and the arbitration amount is the final sale amount. As part of the arbitration process, the appraisers shall fully disclose their appraisal methodologies and shall disclose any other transaction occurring between the buyer and the sellers. An additional five percent of the final sale amount shall be added for relocation costs.

2. If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value of the unit or element before destruction cannot be made, the interests of all unit owners are their respective common element interests immediately before the termination.

J. Except as provided in subsection K of this section, foreclosure or enforcement of a lien or encumbrance against the entire condominium does not of itself terminate the condominium, and foreclosure or enforcement of a lien or encumbrance against a portion of the condominium does not withdraw that portion from the condominium. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate does not of itself withdraw that real estate from the condominium, but the person taking title may require from the association, on request, an amendment excluding the real estate from the condominium.

K. If a lien or encumbrance against a portion of the real estate comprising the condominium has priority over the declaration, and the lien or encumbrance has not been partially released, the parties foreclosing the lien or encumbrance, on foreclosure, may record an instrument excluding the real estate subject to that lien or encumbrance from the condominium.

L. The provisions of subsections E, F, G, H, J and K of this section do not apply if the original declaration, an amendment to the original declaration recorded before the conveyance of any unit to an owner other than the declarant or an agreement by all of the unit owners contains provisions inconsistent with these subsections.

M. Beginning on August 3, 2018, any provisions in the declaration that conflict with subsection I, paragraph 1 of this section are void as a matter of public policy.

§ 33-1229 Rights of secured lenders

The declaration may require that all or a specified number or percentage of the mortgagees, beneficiaries of deeds of trust or sellers under contracts, as defined in section 33-741, for conveyance of real property encumbering the units approve specified actions of the unit owners or the association as a condition to the effectiveness of those actions, but requirement for approval shall not operate to either:

1. Deny or delegate control over the general administrative affairs of the association by the unit owners or the board of directors.

2. Prevent the association or the board of directors from commencing, intervening in or settling any litigation or proceeding, or receiving and distributing any insurance proceeds pursuant to section 33-1253.

§ 33-1230 Merger or consolidation of condominiums

A. Any two or more condominiums, by agreement of the unit owners as provided in subsection B, may be merged or consolidated into a single condominium. In the event of a merger or consolidation, unless the agreement otherwise provides, the resultant condominium is, for all purposes, the legal successor of all of the preexisting condominiums and the operations and activities of all associations of the preexisting condominiums shall be merged or consolidated into a single association which shall hold all powers, rights, obligations, assets and liabilities of all preexisting associations.

B. An agreement of two or more condominiums to merge or consolidate pursuant to subsection A shall be evidenced by an agreement prepared, executed, recorded and certified by the president of the association of each of the preexisting condominiums following approval by owners of units to which are allocated the percentage of votes in each condominium required to terminate that condominium. Any such agreement shall be recorded in each county in which a portion of the condominium is located and is not effective until recorded. A merger or consolidation of two or more condominiums shall be considered an amendment to the declaration of each of the condominiums merged or consolidated.

C. Every merger or consolidation agreement shall provide for the reallocation of the allocated interests in the new association among the units of the resultant condominium either by stating:

1. The reallocations or the formulas on which they are based.

2. The percentage of overall allocated interests of the new condominium which are allocated to all of the units comprising each of the preexisting condominiums, and providing that the portion of the percentages allocated to each unit formerly comprising a part of the preexisting condominium must be equal to the percentages of allocated interests allocated to that unit by the declaration of the preexisting condominiums.

Article 3 Management of the Condominium

§ 33-1241 Organization of unit owners' association

A unit owners' association shall be organized no later than the date the first unit in the condominium is conveyed. The membership of the association at all times shall consist exclusively of all the unit owners or, following termination of the condominium, of all former unit owners entitled to distributions of proceeds under section 33-1228, or their heirs, successors or assigns. The association shall be organized as a profit or nonprofit corporation or as an unincorporated association.

§ 33-1242 Powers of unit owners' association; notice to unit owner of violation

A. Subject to the provisions of the declaration, the association may:

1. Adopt and amend bylaws and rules.

2. Adopt and amend budgets for revenues, expenditures and reserves and collect assessments for common expenses from unit owners.

3. Hire and discharge managing agents and other employees, agents and independent contractors.

4. Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the condominium.

5. Make contracts and incur liabilities.

6. Regulate the use, maintenance, repair, replacement and modification of common elements.

7. Cause additional improvements to be made as a part of the common elements.

8. Acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property, except that common elements may be conveyed or subjected to a security interest only pursuant to section 33-1252.

9. Grant easements, leases, licenses and concessions through or over the common elements.

10. Impose and receive any payments, fees or charges for the use, rental or operation of the common elements other than limited common elements described in section 33-1212, paragraphs 2 and 4 and for services provided to unit owners.

11. Impose charges for late payment of assessments after the association has provided notice that the assessment is overdue or provided notice that the assessment is considered overdue after a certain date and, after notice and an opportunity to be heard, impose reasonable monetary penalties on unit owners for violations of the declaration, bylaws and rules of the association.

12. Impose reasonable charges for the preparation and recordation of amendments to the declaration or statements of unpaid assessments.

13. Provide for the indemnification of its officers and executive board of directors and maintain directors' and officers' liability insurance.

14. Assign its right to future income, including the right to receive common expense assessments, but only to the extent the declaration expressly provides.

15. Be a member of a master association or other entity owning, maintaining or governing in any respect any portion of the common elements or other property benefitting or related to the condominium or the unit owners in any respect.

16. Exercise any other powers conferred by the declaration or bylaws.

17. Exercise all other powers that may be exercised in this state by legal entities of the same type as the association.

18. Exercise any other powers necessary and proper for the governance and operation of the association.

B. A unit owner who receives a written notice that the condition of the property owned by the unit owner is in violation of a requirement of the condominium documents without regard to whether a monetary penalty is imposed by the notice may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice. The response shall be sent to the address identified in the notice.

C. Within ten business days after receipt of the certified mail containing the response from the unit owner, the association shall respond to the unit owner with a written explanation regarding the notice that shall provide at least the following information unless previously provided in the notice of violation:

1. The provision of the condominium documents that has allegedly been violated.

2. The date of the violation or the date the violation was observed.

3. The first and last name of the person or persons who observed the violation.

4. The process the unit owner must follow to contest the notice.

D. Unless the information required in subsection C, paragraph 4 of this section is provided in the notice of violation, the association shall not proceed with any action to enforce the condominium documents, including the collection of attorney fees, before or during the time prescribed by subsection C of this section regarding the exchange of information between the association and the unit owner and shall give the unit owner written notice of the unit owner's option to petition for an administrative hearing on the matter in the state real estate department pursuant to section 32-2199.01. At any time before or after completion of the exchange of information pursuant to this section, the unit owner may petition for a hearing pursuant to section 32-2199.01 if the dispute is within the jurisdiction of the state real estate department as prescribed in section 32-2199.01.

§ 33-1243 Board of directors and officers; conflict; powers; limitations; removal; annual audit; applicability

A. Except as provided in the declaration, the bylaws, subsection B of this section or other provisions of this chapter, the board of directors may act in all instances on behalf of the association.

B. The board of directors shall not act on behalf of the association to amend the declaration, terminate the condominium, elect members of the board of directors or determine the qualifications, powers and duties or terms of office of board of directors members. Except as provided in subsection H of this section, the board of directors may fill vacancies in its membership for the unexpired portion of any term.

C. If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors or any person who is a parent, grandparent, spouse, child or sibling of a member of the board of directors or a parent or spouse of any of those persons, that member of the board of directors shall declare a conflict of interest for that issue. The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue. Any contract entered into in violation of this subsection is void and unenforceable.

D. Except as provided in the declaration, within thirty days after adoption of any proposed budget for the condominium, the board of directors shall provide a summary of the budget to all the unit owners. Unless the board of directors is expressly authorized in the declaration to adopt and amend budgets from time to time, any budget or amendment shall be ratified by the unit owners in accordance with the procedures set forth in this subsection. If ratification is required, the board of directors shall set a date for a meeting of the unit owners to consider ratification of the budget not fewer than fourteen or more than thirty days after mailing of the summary. Unless at that meeting a majority of all the unit owners or any larger vote specified in the declaration rejects the budget, the budget is ratified, whether or not a quorum is present. If the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the board of directors.

E. The declaration may provide for a period of declarant control of the association, during which period a declarant or persons designated by the declarant may appoint and remove the officers and members of the board of directors. Regardless of the period provided in the declaration, a period of declarant control terminates not later than the earlier of:

1. Ninety days after conveyance of seventy-five percent of the units that may be created to unit owners other than a declarant.

2. Four years after all declarants have ceased to offer units for sale in the ordinary course of business.

F. A declarant may voluntarily surrender the right to appoint and remove officers and members of the board of directors before termination of the period prescribed in subsection E of this section, but in that event the declarant may require, for the duration of the period of declarant control, that specified actions of the association or board of directors, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective.

G. Not later than the termination of any period of declarant control the unit owners shall elect a board of directors of at least three members, at least a majority of whom must be unit owners. The board of directors shall elect the officers. The board members and officers shall take office on election.

H. Notwithstanding any provision of the declaration or bylaws to the contrary, all of the following apply to a meeting at which a member of the board of directors, other than a member appointed by the declarant, is proposed to be removed from the board of directors:

1. The unit owners who are eligible to vote at the time of the meeting may remove any member of the board of directors, other than a member appointed by the declarant, by a majority vote of those voting on the matter at a meeting of the unit owners.

2. The meeting of the unit owners shall be called pursuant to this section and action may be taken only if a quorum is present.

3. The unit owners may remove any member of the board of directors with or without cause, other than a member appointed by the declarant.

4. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply:

(a) In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least twenty-five percent of the votes in the association or by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33-1248, subsection B.

(b) Notwithstanding section 33-1248, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least ten percent of the votes in the association or by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1248, subsection B.

(c) The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

(d) If all of the requirements of this subsection for calling a special meeting are met and the board of directors fails to call, notice and hold a special meeting within thirty days after receipt of the petition, the members of the board of directors are deemed removed from office effective at midnight of the thirty-first day.

(e) For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise allowed by law.

(f) If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs.

(g) The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors and any election or other action taken for that director's replacement for at least one year after the date of the special meeting and shall allow members to inspect those documents and records pursuant to section 33-1258.

(h) A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

5. On removal of at least one but fewer than a majority of the members of the board of directors at a special meeting of the membership called pursuant to this subsection, the vacancies shall be filled as provided in the condominium documents.

6. On removal of a majority of the members of the board of directors at a special meeting of the membership called pursuant to this subsection, or if the condominium documents do not provide a method for filling board vacancies, the association shall hold an election for the replacement of the removed directors at a separate meeting of the members of the association that is held not later than thirty days after the meeting at which the members of the board of directors were removed.

7. A member of the board of directors who is removed pursuant to this subsection is not eligible to serve on the board of directors again until after the expiration of the removed board member's term of office, unless the condominium documents specifically provide for a longer period of ineligibility.

I. For an association in which board members are elected from separately designated voting districts, a member of the board of directors, other than a member appointed by the declarant, may be removed only by a vote of the members from that voting district, and only the members from that voting district are eligible to vote on the matter or be counted for purposes of determining a quorum.

J. Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association. The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.

K. This section does not apply to timeshare plans or associations, or the period of declarant control under timeshare instruments, that are subject to chapter 20 of this title.

§ 33-1244 Transfer of special declarant rights

A. A special declarant right created or reserved under this chapter shall not be transferred except by an instrument evidencing the transfer recorded in every county in which any portion of the condominium is located. The instrument is not effective unless executed by the transferee.

B. On transfer of any special declarant right, the liability of a transferor declarant is as follows:

1. A transferor is not relieved of any obligation or liability arising before the transfer.

2. If a transferor retains any special declarant right, the transferor is liable for any obligations or liabilities imposed on a declarant by this chapter or by the declaration relating to the retained special declarant rights and arising after the transfer.

3. A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special declarant right by a successor declarant.

C. Unless otherwise provided in a mortgage or deed of trust, in case of foreclosure of a mortgage, tax sale, judicial sale, sale by a trustee under a deed of trust, forfeiture of interest of a purchaser under a contract for conveyance of real property or sale under bankruptcy code or receivership proceedings, of any units owned by a declarant or real estate in a condominum subject to development rights, a person acquiring title to all the real estate being foreclosed or sold succeeds to all special declarant rights related to that real estate held by that declarant whether or not the judgment or instrument conveying title provides for transfer of the special declarant rights.

D. The liabilities and obligations of a person who succeeds to special declarant rights are as follows:

1. A successor to any special declarant right, other than a successor described in paragraph 2 of this subsection, is subject to all liabilities and obligations imposed by this chapter or the declaration:

(a) On a declarant which relate to his exercise or nonexercise of special declarant rights.

(b) On his transferor, other than:

(i) Misrepresentations by any previous declarant.

(ii) Warranty obligations on improvements made by any previous declarant or made before the condominium was created.

(iii) Breach of any fiduciary obligation by any previous declarant or his appointees to the board of directors.

(iv) Any liability or obligation imposed on the transferor as a result of the transferor's acts or omissions after the transfer.

2. A successor to special declarant rights under subsection C is subject to liability only for his own acts in the exercise of those special declarant rights.

§ 33-1245 Termination of contracts and leases of declarant; applicability

A. A contract for any of the following, if entered into before the board of directors elected by the unit owners pursuant to section 33-1243, subsection G takes office, shall contain a provision in the contract that the contract may be terminated without penalty by the association at any time after the board of directors elected by the unit owners takes office:

1. Any management contract or employment contract.

2. Any other contract or lease between the association and a declarant or an affiliate of a declarant.

3. Any contract or lease that is not bona fide or was unconscionable to the unit owners at the time entered into under the circumstances then prevailing.

B. The board of directors shall notify the appropriate contractual party of the termination at least thirty days before termination.

C. This section does not apply to any lease if the termination of the lease would terminate the condominium or reduce its size.

D. If a contract covered by this section fails to contain the provisions required by subsection A of this section, the contract is voidable at the option of the association.

E. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

§ 33-1246 Bylaws

A. At the time the unit owners' association is organized, the association shall adopt bylaws which provide for each of the following:

1. The number of members of the board of directors and the titles of the officers of the association.

2. Election by the board of directors of a president, treasurer, secretary and any other officers of the association which the bylaws specify.

3. The qualifications, powers and duties, terms of office and manner of electing and removing board members and officers and filling vacancies.

4. Which, if any, of its powers the board of directors or officers may delegate to other persons or to a managing agent.

5. Which of its officers may execute, certify and record amendments to the declaration on behalf of the association.

6. The method of amending the bylaws.

B. Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.

§ 33-1247 Upkeep of the condominium

A. Except to the extent provided by the declaration, subsection C of this section or section 33-1253, subsection B, the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit. On reasonable notice, each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through the unit reasonably necessary for those purposes. If damage is inflicted on the common elements or any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair of the damage.

B. For any residential rental units that have been declared a slum property by the city or town pursuant to section 33-1905 and that are in the condominium complex, the association is responsible for enforcing any requirement for a licensed property management firm that is imposed by a city or town pursuant to section 33-1906.

C. In addition to the liability borne by the declarant as a unit owner under this chapter, the declarant alone is liable for the maintenance, repair and replacement of any portion of the common elements which the declarant reserves the right to withdraw from the condominium, as long as the unit owner maintains that right.

§ 33-1248 Open meetings; exceptions; notice; agenda; policy statement

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the unit owners' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be allowed to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall allow a member or a member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping or videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on their use as evidence in any dispute resolution process. If a board records a meeting that is open to the members, the board shall keep a copy of the recording for at least six months and make the unedited recording available to any member on request in compliance with section 33-1258, subsection A. Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following:

1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

2. Pending or contemplated litigation.

3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

5. Discussion of a unit owner's appeal of any violation cited or penalty imposed by the association except on request of the affected unit owner that the meeting be held in an open session.

B. Notwithstanding any provision in the condominium documents, all meetings of the unit owners' association and the board shall be held in this state. A meeting of the unit owners' association shall be held at least once each year. Special meetings of the unit owners' association may be called by the president, by a majority of the board of directors or by unit owners having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten or more than fifty days in advance of any meeting of the unit owners, the secretary shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting of the unit owners shall state the date, time and place of the meeting. The notice of any annual, regular or special meeting of the unit owners shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, any changes in assessments that require approval of the unit owners and any proposal to remove a director or officer. The secretary shall also provide an agenda for any meeting of the unit owners' association by hand delivery, mail, website posting, email or other electronic means or posting at a community center or other similar location. The failure of any unit owner to receive actual notice of a meeting of the unit owners or the meeting agenda does not affect the validity of any action taken at that meeting.

C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting.

D. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to unit owners of meetings of the board of directors and meeting agendas shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the association is prima facie evidence that notice was given as prescribed by this section. Notice to unit owners of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the date, time and place of the meeting. The failure of any unit owner to receive actual notice of a meeting of the board of directors or a meeting agenda does not affect the validity of any action taken at that meeting.

E. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:

1. The agenda shall be available in advance for all unit owners attending.

2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.

3. A quorum of the board of directors may meet by means of a telephone conference if a speakerphone is available in the meeting room that allows board members and unit owners to hear all parties who are speaking during the meeting.

4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.

F. It is the policy of this state as reflected in this section that all meetings of a condominium, whether meetings of the unit owners' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided in advance for those meetings that contain the information that is reasonably necessary to inform the unit owners of the matters to be discussed or decided and to ensure that unit owners have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

G. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

§ 33-1249 Quorums; applicability

A. Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast at least twenty-five per cent of the votes in the association are present in person or by proxy at the beginning of the meeting.

B. Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the board of directors if persons entitled to cast at least fifty per cent of the votes on that board are present at the beginning of the meeting.

C. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

§ 33-1250 Voting; proxies; absentee ballots; applicability; definition

A. If only one of the multiple owners of a unit is present at a meeting of the association, the owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.

B. During the period of declarant control, votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. The proxy is revoked on presentation of a later dated proxy executed by the same unit owner. A proxy terminates one year after its date, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.

C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10-3708 or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:

1. The ballot shall set forth each proposed action.

2. The ballot shall provide an opportunity to vote for or against each proposed action.

3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.

4. The ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.

5. The ballot does not authorize another person to cast votes on behalf of the member.

6. The completed ballot shall contain the name, the address and either the actual or electronic signature of the person voting, except that if the condominium documents permit secret ballots, only the envelope shall contain the name, the address and either the actual or electronic signature of the voter.

7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for unit owner inspection for at least one year after completion of the election.

D. Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.

E. Notwithstanding subsection C of this section, an association for a timeshare plan as defined in section 32-2197 may permit votes by a proxy that is duly executed by a unit owner.

F. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units all of the following apply:

1. The provisions of subsections A and B of this section apply to lessees as if they were unit owners.

2. Unit owners who have leased their units to other persons shall not cast votes on those specified matters.

3. Lessees are entitled to notice of meetings, access to records and other rights respecting those matters as if they were unit owners. Unit owners shall also be given notice, in the manner prescribed in section 33-1248, of all meetings at which lessees may be entitled to vote.

G. Unless the declaration provides otherwise, votes allocated to a unit owned by the association shall not be cast.

H. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

I. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the condominium documents or by virtue of superior voting power.

§ 33-1251 Tort and contract liability

A. An action alleging a wrong done by the association shall be brought against the association and not against any unit owner.

B. A statute of limitation affecting any right of action of the association against the declarant is tolled until the period of declarant control terminates.

C. A unit owner is not precluded from bringing an action against the association because he is a unit owner or a member or officer of the association.

D. Liens resulting from judgments against the association are governed by section 33-1256.

§ 33-1252 Conveyance or encumbrance of common elements

A. Portions of the common elements may be conveyed or subjected to a mortgage, deed of trust or security interest by the association if persons entitled to cast at least eighty per cent of the votes in the association, or any larger percentage the declaration specifies, agree to that action in the manner prescribed in subsection B, except that all the owners of units to which any limited common element is allocated must agree in order to convey that limited common element or subject it to a mortgage, deed of trust or security interest. The declaration may specify a smaller percentage only if all of the units in the condominium are restricted exclusively to nonresidential uses. Proceeds of the sale or encumbrance of the common elements are an asset of the association.

B. An agreement to convey common elements or subject them to a mortgage, deed of trust or security interest shall be evidenced by the execution of an agreement, or ratifications of the agreement, in the same manner as a deed, by the requisite number of unit owners. The agreement shall specify a date after which the agreement will be void unless previously recorded. The agreement and all ratifications of the agreement shall be recorded in each county in which a portion of the condominium is situated and are effective only on recordation.

C. The association, on behalf of the unit owners, may contract to convey common elements or subject them to a mortgage, deed of trust or security interest, but the contract is not enforceable against the association until approved pursuant to subsections A and B. Thereafter, the association has all powers necessary and appropriate to effect the conveyance or encumbrance, including the power to execute deeds or other instruments.

D. Except as permitted in this chapter, any purported conveyance, encumbrance, judicial sale or other voluntary transfer of common elements is void.

E. A conveyance or encumbrance of common elements pursuant to this section does not deprive any unit of its rights of access and support.

F. A conveyance or encumbrance of common elements pursuant to this section does not affect the priority or validity of preexisting encumbrances.

§ 33-1252.01 Conveyance of certain real property

A. Real property that is held as an asset of the association and that is not held as a common element of the condominium may be conveyed by the association if persons entitled to cast at least eighty per cent of the votes in the association, or any larger percentage the declaration specifies, agree to the conveyance in the manner prescribed in subsection B.

B. An agreement to convey real property that is held as an asset of the association and that is not held as a common element of the condominium shall be evidenced by the execution of an agreement, or ratifications of the agreement, in the same manner as a deed and by the requisite number of unit owners. The agreement shall specify a date after which the agreement will be void unless previously recorded. The agreement and all ratifications of the agreement shall be recorded in each county in which a portion of the condominium is situated and are effective only on recordation.

C. The association, on behalf of the unit owners, may contract to convey the real property but the contract is not enforceable against the association until approved pursuant to subsections A and B. Thereafter, the association has all powers necessary and appropriate to effect the conveyance, including the power to execute deeds or other instruments.

D. Except as permitted in this chapter, any purported conveyance or other voluntary transfer of real property is void.

E. A conveyance of real property pursuant to this section does not affect the priority or validity of preexisting encumbrances.

F. Property an association acquires in an assessment lien foreclosure action shall not be considered real property held as an asset of the association for the purpose of this section.

§ 33-1253 Insurance

A. Commencing not later than the time of the first conveyance of a unit to a person other than a declarant, the association shall maintain, to the extent reasonably available, both:

1. Property insurance on the common elements and, if required by the condominium documents, the units, insuring against all risks of direct physical loss commonly insured against. The total amount of insurance after application of any deductibles shall be not less than eighty percent of the actual cash value of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations and other items normally excluded from property policies.

2. Liability insurance in an amount determined by the board of directors or the association but not less than any amount specified in the declaration, covering all occurrences commonly insured against for death, bodily injury and property damage arising out of or in connection with the use, ownership or maintenance of the common elements.

B. To the extent available, the insurance maintained under subsection A, paragraph 1 of this section includes the units or any portion of those units but need not include improvements and betterments installed by unit owners or the personal property of unit owners.

C. If the insurance described in subsection A of this section is not reasonably available, the association promptly shall cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all unit owners. The declaration may require the association to carry any other insurance, and the association in any event may carry any other insurance it deems appropriate to protect the association or the unit owners.

D. Insurance policies carried pursuant to subsection A of this section shall provide the following:

1. Each unit owner is an insured person under the policy with respect to liability or property damage arising out of the unit owner's interest in the common elements, the unit, if required by the condominium documents, or membership in the association.

2. The insurer waives its right to subrogation under the policy against any unit owner or members of the unit owner's household.

3. No act or omission by any unit owner, unless acting within the scope of the unit owner's authority on behalf of the association, will void the policy or be a condition to recovery under the policy.

4. If, at the time of a loss under the policy, there is other insurance in the name of a unit owner covering the same property covered by the policy, the association's policy provides primary insurance.

5. As an insured person under the association's policy with respect to the unit owner's interest in the common elements, the unit owner's individual unit or membership in the association, each unit owner has the right to report a loss under the association's property insurance policy. Each unit owner shall additionally report the loss to the association.

E. Prior to reporting a loss under the association's master property insurance policy, a unit owner shall report the loss to the association and give the association ten business days to provide the unit owner with a written decision whether the association will be reporting a claim to the master policy. If the association decides not to report a claim under the master policy, the association shall provide the reason for the decision in the written decision.

F. Notwithstanding subsection D, paragraph 5 of this section, any loss covered by the property policy under subsection A, paragraph 1 and subsection B of this section shall be adjusted with the association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any mortgagee or beneficiary under a deed of trust. The insurance trustee or the association shall hold any insurance proceeds in trust for unit owners and lienholders as their interests may appear. Subject to subsection H of this section, the proceeds shall be disbursed first for the repair or restoration of the damaged property, and unit owners and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored, or the condominium is terminated.

G. An insurance policy issued to the association does not prevent a unit owner from obtaining insurance for the unit owner's own benefit.

H. An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the association and, on written request, to any unit owner, mortgagee or beneficiary under a deed of trust. The insurer issuing the policy shall not cancel or refuse to renew it until thirty days after notice of the proposed cancellation or nonrenewal has been mailed to the association, each unit owner and each mortgagee or beneficiary under a deed of trust to whom a certificate or memorandum of insurance has been issued at their respective last known addresses.

I. Any portion of the condominium for which insurance is required under this section and that is damaged or destroyed shall be repaired or replaced promptly by the association unless any of the following apply:

1. The condominium is terminated.

2. Repair or replacement would be illegal under any state or local health or safety statute or ordinance.

3. Eighty percent of the unit owners, including every owner of a unit or allocated limited common element that will not be rebuilt, vote not to rebuild.

J. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If the entire condominium is not repaired or replaced:

1. The insurance proceeds attributable to the damaged common elements in proportion to their common element interests or as otherwise provided in the declaration shall be used to restore the damaged area to a condition compatible with the remainder of the condominium.

2. The insurance proceeds attributable to units and allocated limited common elements that are not rebuilt shall be distributed in proportion to their common element interests or as otherwise provided in the declaration to the owners of those units and the owners of the units to which those limited common elements were allocated, or to lienholders as their interests may appear.

3. The remainder of the proceeds shall be distributed to all the unit owners or lienholders as their interests may appear in proportion to the common element interests of all the units.

K. The association shall inform each unit owner annually in writing of both:

1. The unit owner's responsibility for the association's insurance deductibles for all property and liability coverage.

2. The amount of each deductible.

L. If the unit owners vote not to rebuild any unit, that unit's allocated interests are automatically reallocated on the vote as if the unit had been condemned under section 33-1206, subsection A, and the association promptly shall prepare, execute and record an amendment to the declaration reflecting the reallocations.

M. Notwithstanding subsections H, I and L of this section, section 33-1228 governs the distribution of insurance proceeds if the condominium is terminated.

N. If all units are restricted to nonresidential use, the provisions of a subsection or paragraph of this section do not apply if the declaration, articles of incorporation or amended bylaws contain provisions inconsistent with such subsection or paragraph.

O. This section does not prohibit the declaration from requiring additional or greater amounts of insurance coverage or does not prohibit the board of directors from acquiring additional or greater amounts of coverage as it reasonably deems appropriate.

§ 33-1254 Surplus monies

Unless otherwise provided in the declaration, any surplus monies of the association remaining after payment of or provision for common expenses and any prepayment of reserves shall be paid to the unit owners in proportion to their common expense liabilities or credited to them to reduce their future common expense assessments.

§ 33-1255 Assessments for common expenses; commercial structures; applicability; definitions

A. Until the association makes a common expense assessment, the declarant shall pay all common expenses. After any assessment has been made by the association, assessments shall be made at least annually, based on a budget adopted at least annually by the association.

B. Except for assessments under subsections C, D, E, F and H of this section, all common expenses shall be assessed against all the units in accordance with the allocations set forth in the declaration pursuant to section 33-1217, subsection A. Any past due common expense assessment or installment bears interest at the rate established by the board subject to the condominium documents.

C. Unless otherwise provided for in the declaration, all of the following apply:

1. Any common expense associated with the maintenance, repair or replacement of a limited common element shall be equally assessed against the units to which the limited common element is assigned.

2. Any common expense or portion of a common expense benefitting fewer than all of the units shall be assessed exclusively against the units benefitted.

D. Assessments to pay a judgment against the association may be made only against the units in the condominium at the time the judgment was entered, in proportion to their common expense liabilities.

E. If any common expense is caused by the misconduct of any unit owner, the association may assess that expense exclusively against that unit.

F. If the declaration so provides, the common expense assessment for any unit on which construction has not been substantially completed may be an amount that is at least twenty-five percent of the common expense assessment for units that have been substantially completed. However, this reduced common expense assessment shall not be allowed unless the declarant is obligated under the declaration to pay to the association any deficiency in monies due to the declarant having paid a reduced common assessment and necessary for the association to be able to timely pay all common expenses.

G. If common expense liabilities are reallocated, common expense assessments and any installment on the assessments not yet due shall be recalculated in accordance with the reallocated common expense liabilities.

H. Notwithstanding any provision in the condominium documents, if a condominium includes one or more commercial structures that are separate from one or more residential structures, all of the following apply:

1. Any common expense or portion of a common expense that exclusively benefits the commercial structures shall be assessed exclusively against the units in the commercial structures, whether assessed in a general assessment or special assessment or otherwise.

2. Any common expense or portion of a common expense that exclusively benefits the residential structures shall be assessed exclusively against the units in the residential structures, whether assessed in a general assessment or special assessment or otherwise.

3. Any common expense or portion of a common expense that benefits both the commercial structures and the residential structures shall be assessed in proportion to the category of the structures benefitted, whether assessed in a general assessment or special assessment or otherwise. The proportional share of the common expenses that benefit the commercial structures shall thereafter be assessed against the units in the commercial structures on a pro rata basis, and the proportional share of the common expenses that benefit the residential structures shall thereafter be assessed against the units in the residential structures on a pro rata basis.

4. In any dispute over the allocation of a common expense or portion of a common expense, the association shall make available as prescribed by section 33-1258 all records relating to the association's allocation of a common expense or portion of a common expense. The association may not withhold a record based on the pendency of litigation relating to the allocation of a common expense or portion of a common expense if the record would otherwise be available to a unit owner under section 33-1258.

5. After any period of declarant control ends, the unit owners may approve only by a unanimous vote a different allocation of a common expense or portion of a common expense than is prescribed by this subsection.

I. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

J. For the purposes of this section:

1. "Commercial structure" means a structure in which a majority of the units are designated for commercial or work purposes and is separate from a residential structure if no residential units are located on top of or below the commercial structure.

2. "Common expenses" has the same meaning prescribed in section 33-1202.

3. "Residential structure" means a structure in which a majority of the units are designated for residential purposes.

§ 33-1256 Common expense liens; priority; mechanics' and materialmen's liens; notice; applicability

A. The association has a common expense lien on a unit for any assessment levied against that unit from the time the assessment becomes due. The association's common expense lien may be foreclosed in the same manner as a mortgage on real estate but may be foreclosed only if the unit owner has been and remains delinquent in the payment of assessments, for a period of one year or in the amount of $1,200 or more, whichever occurs first, as determined on the date the action is filed. The association board of directors shall exercise reasonable efforts to communicate with the unit owner and offer a reasonable payment plan before filing a foreclosure action. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment of the assessment becomes due.

B. Notwithstanding any provision in the condominium documents, unit owner expenses are not enforceable as common expense liens under this section. The association has a lien for unit owner expenses after the entry of a judgment in a civil suit for those unit owner expenses from a court of competent jurisdiction and the recording of that judgment in the office of the county recorder as otherwise provided by law. The association's judgment lien for unit owner expenses may not be foreclosed and is effective only on conveyance of any interest in the real property.

C. A common expense lien under this section is prior to all other liens, interests and encumbrances on a unit except:

1. Liens and encumbrances recorded before the recordation of the declaration.

2. A recorded first mortgage on the unit, a seller's interest in a first contract for sale pursuant to chapter 6, article 3 of this title on the unit recorded before the lien arising pursuant to subsection A of this section or a recorded first deed of trust on the unit.

3. Liens for real estate taxes and other governmental assessments or charges against the unit.

D. Subsection C of this section does not affect the priority of mechanics' or materialmen's liens. The common expense lien under this section is not subject to chapter 8 of this title.

E. Unless the declaration otherwise provides, if two or more associations have common expense liens created at any time on the same real estate, those liens have equal priority.

F. Recording the declaration constitutes record notice and perfection of the common expense lien. Further recordation of any claim of common expense lien under this section is not required.

G. A common expense lien is extinguished unless proceedings to enforce the lien are instituted within six years after the full amount of the assessments becomes due.

H. This section does not prohibit:

1. Actions to recover sums for which subsection A or B of this section creates a lien.

2. An association from taking a deed in lieu of foreclosure.

I. A judgment or decree in any action brought under this section may include costs and reasonable attorney fees for the prevailing party.

J. The association on written request shall furnish to a lienholder, escrow agent, unit owner or person designated by a unit owner a statement setting forth the amount of any unpaid liens prescribed by subsection A or B of this section against the unit. The statement shall be furnished within ten days after receipt of the request. The statement is binding on the association if the statement is requested by an escrow agency that is licensed pursuant to title 6, chapter 7. Failure to provide the statement to the escrow agent within the time provided for in this subsection extinguishes any lien for any unpaid assessment then due.

K. Notwithstanding any provision in the condominium documents or in any contract between the association and a management company or any other agent of the association, including any agreement or contract with any attorney, unless the unit owner directs otherwise, all payments received on a unit owner's account shall be applied first to any unpaid assessments, due but not delinquent assessments, unpaid charges for late payment of those assessments if authorized in the declaration, unpaid reasonable collection fees and costs incurred or applied by the association and unpaid attorney fees and costs incurred with respect to those assessments if awarded by a court, in that order, with any remaining amounts applied next to other unpaid fees, charges and monetary penalties or interest and late charges on any of those amounts.

L. For a delinquent account for unpaid common expense liens, the association shall provide the following written notice to the unit owner at the unit owner's address as provided to the association at least thirty days before authorizing an attorney, or a collection agency that is not acting as the association's managing agent, to begin collection activity on behalf of the association:

Your account is delinquent. If you do not bring your account current or make arrangements that are approved by the association to bring your account current within thirty days after the date of this notice, your account will be turned over for further collection proceedings. Such collection proceedings could include bringing a foreclosure action against your property.

The notice shall be in boldfaced type or all capital letters and shall include the contact information for the person that the unit owner may contact to discuss payment. The notice shall be sent by certified mail, return receipt requested, and may be included within other correspondence sent to the unit owner regarding the unit owner's delinquent account.

M. Except for condominiums that have fewer than fifty units and that do not contract with a third party to perform management services on behalf of the association, the association shall provide a statement of account in lieu of a periodic payment book to the unit owner with the same frequency that assessments are provided for in the declaration. The statement of account shall include the current account balance due and the immediately preceding ledger history. If the association offers the statement of account by electronic means, a unit owner may opt to receive the statement electronically. The association may stop providing any further statements of account to a unit owner if collection activity begins by an attorney, or a collection agency that is not acting as the association's managing agent, regarding that unit owner's unpaid account. After collection activity begins, a unit owner may request statements of account by written request to the attorney or collection agency. Any request by a unit owner for a statement of account after collection activity begins by an attorney or a collection agency that is not acting as the association's managing agent must be fulfilled by the attorney or the collection agency responsible for the collection. The statement of account provided by the attorney or collection agency responsible for the collection shall include all amounts claimed to be owing to resolve the delinquency through the date set forth in the statement, including attorney fees and costs, regardless of whether such amounts have been reduced to judgment.

N. An agent for the association may collect on behalf of the association directly from a unit owner the assessments and other amounts owed by cash or check, by mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, by credit, charge or debit card or by other electronic means. For any form of payment other than for cash or for mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, the agent may charge a convenience fee to the unit owner that is approximately the amount charged to the agent by a third-party service provider. The association may not transfer ownership or control of debt for common expense liens or unit owner expenses.

O. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

§ 33-1257 Other liens affecting the condominium

A. Except as provided in subsection B of this section, a legally recorded judgment for money against the association is not a lien on the common elements but is a lien in favor of the judgment lienholder against all of the units in the condominium at the time the judgment was entered. Other property of a unit owner is not subject to the claims of creditors of the association.

B. If the association has granted a mortgage, deed of trust or security interest in the common elements to a creditor of the association pursuant to section 33-1252, the holder of that security interest must exercise its right against the common elements before its judgment lien on any unit may be enforced.

C. Whether perfected before or after the creation of the condominium, if a lien other than a deed of trust or mortgage becomes effective against two or more units, the unit owner of an affected unit may pay to the lienholder the amount of the lien attributable to his unit, and the lienholder, on receipt of payment, shall promptly deliver a release of the lien covering that unit. The amount of the payment shall be proportionate to the ratio which that unit owner's common expense liability bears to the common expense liabilities of all unit owners whose units are subject to the lien. After payment, the association shall not assess or have a lien against that unit owner's unit for any portion of the common expenses incurred in connection with that lien.

D. A judgment against the association shall be indexed in the name of the condominium and the association and shall include the legal description of the unit subject to the lien. When so indexed, the judgment is notice of the lien against the units.

§ 33-1258 Association financial and other records; applicability

A. Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.

B. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:

1. Privileged communication between an attorney for the association and the association.

2. Pending litigation.

3. Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to section 33-1248.

4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

C. The association shall not be required to disclose financial and other records of the association if disclosure would violate any state or federal law.

D. This section does not apply to an association for a timeshare plan that is subject to chapter 20 of this title.

§ 33-1259 Association as trustee

With respect to a third person dealing with the association in the association's capacity as a trustee, the existence of trust powers and their proper exercise by the association may be assumed without inquiry. A third person is not bound to inquire whether the association has power to act as trustee or is properly exercising trust powers. A third person, without actual knowledge that the association is exceeding or improperly exercising its powers, is fully protected in dealing with the association as if it possessed and properly exercised the powers it purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the association in its capacity as trustee.

§ 33-1260 Resale of units; information required; fees; civil penalty; applicability; definition

A. For condominiums with fewer than fifty units, a unit owner shall mail or deliver to a purchaser or a purchaser's authorized agent within ten days after receipt of a written notice of a pending sale of the unit, and for condominiums with fifty or more units, the association shall mail or deliver to a purchaser or a purchaser's authorized agent within ten days after receipt of a written notice of a pending sale that contains the name and address of the purchaser all of the following in either paper or electronic format:

1. A copy of the bylaws and the rules of the association.

2. A copy of the declaration.

3. A dated statement containing:

(a) The telephone number and address of a principal contact for the association, which may be an association manager, an association management company, an officer of the association or any other person designated by the board of directors.

(b) The amount of the common expense assessment for the unit and any unpaid common expense assessment, special assessment or other assessment, fee or charge currently due and payable from the selling unit owner. If the request is made by a lienholder, escrow agent, unit owner or person designated by a unit owner pursuant to section 33-1256, failure to provide the information pursuant to this subdivision within the time provided for in this subsection shall extinguish any lien for any unpaid assessment then due against that unit.

(c) A statement as to whether a portion of the unit is covered by insurance maintained by the association.

(d) The total amount of money held by the association as reserves.

(e) If the statement is being furnished by the association, a statement as to whether the records of the association reflect any alterations or improvements to the unit that violate the declaration. The association is not obligated to provide information regarding alterations or improvements that occurred more than six years before the proposed sale. Nothing in this subdivision relieves the seller of a unit from the obligation to disclose alterations or improvements to the unit that violate the declaration, nor precludes the association from taking action against the purchaser of a unit for violations that are apparent at the time of purchase and that are not reflected in the association's records.

(f) If the statement is being furnished by the unit owner, a statement as to whether the unit owner has any knowledge of any alterations or improvements to the unit that violate the declaration.

(g) A statement of case names and case numbers for pending litigation with respect to the unit filed by the association against the unit owner or filed by the unit owner against the association. The unit owner or the association shall not be required to disclose information concerning the pending litigation that would violate any applicable rule of attorney-client privilege under Arizona law.

(h) A statement that provides "I hereby acknowledge that the declaration, bylaws and rules of the association constitute a contract between the association and me (the purchaser). By signing this statement, I acknowledge that I have read and understand the association's contract with me (the purchaser). I also understand that as a matter of Arizona law, if I fail to pay my association assessments, the association may foreclose on my property." The statement shall also include a signature line for the purchaser and shall be returned to the association within fourteen calendar days.

4. A copy of the current operating budget of the association.

5. A copy of the most recent annual financial report of the association. If the report is more than ten pages, the association may provide a summary of the report in lieu of the entire report.

6. A copy of the most recent reserve study of the association, if any.

7. A statement summarizing any pending lawsuits, except those relating to the collection of assessments owed by unit owners other than the selling unit owner, in which the association is a named party, including the amount of any money claimed.

B. A purchaser or seller who is damaged by the failure of the unit owner or the association to disclose the information required by subsection A of this section may pursue all remedies at law or in equity against the unit owner or the association, whichever failed to comply with subsection A of this section, including the recovery of reasonable attorney fees.

C. The association may charge the unit owner a fee of not more than an aggregate of four hundred dollars to compensate the association for the costs incurred in the preparation and delivery of a statement or other documents furnished by the association pursuant to this section for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of the property. In addition, the association may charge a rush fee of not more than one hundred dollars if the rush services are required to be performed within seventy-two hours after the request for rush services, and may charge a statement or other documents update fee of not more than fifty dollars if thirty days or more have passed since the date of the original disclosure statement or the date the documents were delivered. The association shall make available to any interested party the amount of any fee established from time to time by the association. If the aggregate fee for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of a property is less than four hundred dollars on January 1, 2010, the fee may increase at a rate of not more than twenty percent per year based on the immediately preceding fiscal year's amount not to exceed the four hundred dollar aggregate fee. The association may charge the same fee without regard to whether the association is furnishing the statement or other documents in paper or electronic format.

D. The fees prescribed by this section shall be collected no earlier than at the close of escrow and may only be charged once to a unit owner for that transaction between the parties specified in the notice required pursuant to subsection A of this section. An association shall not charge or collect a fee relating to services for resale disclosure, lien estoppel and any other services related to the transfer or use of a property except as specifically authorized in this section. An association that charges or collects a fee in violation of this section is subject to a civil penalty of not more than one thousand two hundred dollars.

E. This section applies to a managing agent for an association that is acting on behalf of the association.

F. The following are exempt from this section:

1. A sale in which a public report is issued pursuant to section 32-2183 or 32-2197.02.

2. A sale pursuant to section 32-2181.02.

3. A conveyance by recorded deed that bears an exemption listed in section 11-1134, subsection B, paragraph 3 or 7. On recordation of the deed and for no additional charge, the unit owner shall provide the association with the changes in ownership including the unit owner's name, billing address and phone number. Failure to provide the information shall not prevent the unit owner from qualifying for the exemption pursuant to this section.

G. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

H. For the purposes of this section, unless the context otherwise requires, "unit owner" means the seller of the condominium unit title and excludes any real estate salesperson or real estate broker who is licensed under title 32, chapter 20 and who is acting as a salesperson or broker, any escrow agent who is licensed under title 6, chapter 7 and who is acting as an escrow agent and also excludes a trustee of a deed of trust who is selling the property in a trustee's sale pursuant to chapter 6.1 of this title.

§ 33-1260.01 Rental property; unit owner and agent information; fee; disclosure

A. A unit owner may use the unit owner's unit as a rental property unless prohibited in the declaration and shall use it in accordance with the declaration's rental time period restrictions.

B. A unit owner may designate in writing a third party to act as the unit owner's agent with respect to all association matters relating to the rental unit, except for voting in association elections and serving on the board of directors. The unit owner shall sign the written designation and shall provide a copy of the written designation to the association. On delivery of the written designation, the association is authorized to conduct all association business relating to the unit owner's rental unit through the designated agent. Any notice given by the association to a unit owner's designated agent on any matter relating to the unit owner's rental unit constitutes notice to the unit owner.

C. Notwithstanding any provision in the condominium documents, on rental of a unit an association shall not require a unit owner or a unit owner's agent to disclose any information regarding a tenant other than the name and contact information for any adults occupying the unit, the time period of the lease, including the beginning and ending dates of the tenancy, and a description and the license plate numbers of the tenants' vehicles. If the condominium is an age restricted condominium, the unit owner, the unit owner's agent or the tenant shall show a government issued identification that bears a photograph and that confirms that the tenant meets the condominium's age restrictions or requirements.

D. On request of an association or its managing agent for the disclosures prescribed in subsection C of this section, the managing agent or, if there is no managing agent, the association may charge a fee of not more than twenty-five dollars, which shall be paid within fifteen days after the postmarked request. The fee may be charged for each new tenancy for that unit but may not be charged for a renewal of a lease. Except for the fee permitted by this subsection and fees related to the use of recreational facilities, the association or its managing agent shall not assess, levy or charge a fee or fine or otherwise impose a requirement on a unit owner's rental unit any differently than on an owner-occupied unit in the association.

E. Notwithstanding any provision in the condominium documents, the association is prohibited from doing any of the following:

1. Requiring a unit owner to provide the association with a copy of the tenant's rental application, credit report, lease agreement or rental contract or other personal information except as prescribed by this section. This paragraph does not prohibit the association from acquiring a credit report on a person in an attempt to collect a debt.

2. Requiring the tenant to sign a waiver or other document limiting the tenant's due process rights as a condition of the tenant's occupancy of the rental unit.

3. Prohibiting or otherwise restricting a unit owner from serving on the board of directors based on the owner's not being an occupant of the unit.

4. Imposing on a unit owner or managing agent any fee, assessment, penalty or other charge in an amount greater than fifteen dollars for incomplete or late information regarding the information requested pursuant to subsection C of this section

F. Any attempt by an association to exceed the fee, assessment, penalty or other charge authorized by subsection D or E of this section voids the fee, assessment, penalty or other charge authorized by subsection D or E of this section. This section does not prevent an association from complying with the housing for older persons act of 1995 (P.L. 104–76; 109 Stat. 787).

G. An owner may use a crime free addendum as part of a lease agreement. This section does not prohibit the owner's use of a crime free addendum.

H. This section does not prohibit and an association may lawfully enforce a provision in the condominium documents that restricts the residency of persons who are required to be registered pursuant to section 13-3821 and who are classified as level two or level three offenders.

I. An owner of rental property shall abate criminal activity as authorized in section 12-991.

§ 33-1261 Flag display; for sale, rent or lease signs; political signs; political and community activities; applicability; definitions

A. Notwithstanding any provision in the condominium documents, an association shall not prohibit the outdoor display of any of the following:

1. The American flag or an official or replica of a flag of the uniformed services of the United States by a unit owner on that unit owner's property if the American flag or a uniformed services flag is displayed in a manner consistent with the federal flag code (P.L. 94-344; 90 Stat. 810; 4 United States Code sections 4 through 10).

2. The POW/MIA flag.

3. The Arizona state flag.

4. An Arizona Indian nations flag.

5. The Gadsden flag.

6. A first responder flag. A first responder flag may incorporate the design of one or two other first responder flags to form a combined flag.

7. A blue star service flag or a gold star service flag.

8. Any historic version of the American flag, including the Betsy Ross flag, without regard to how the stars and stripes are arranged on the flag.

B. The association shall adopt reasonable rules and regulations regarding the placement and manner of display of the flags prescribed by subsection A of this section. The association rules may regulate the location and size of flagpoles but shall not prohibit installing a flagpole.

C. Notwithstanding any provision in the condominium documents, an association shall not prohibit or charge a fee for the use of, the placement of or the indoor or outdoor display of a for sale, for rent or for lease sign and a sign rider by a unit owner on that owner's property in any combination, including a sign that indicates the unit owner is offering the property for sale by owner. The size of a sign offering a property for sale, for rent or for lease shall be in conformance with the industry standard size sign, which shall not exceed eighteen by twenty-four inches, and the industry standard size sign rider, which shall not exceed six by twenty-four inches. This subsection applies only to a commercially produced sign and an association may prohibit using signs that are not commercially produced. With respect to real estate for sale, for rent or for lease in the condominium, an association shall not prohibit in any way other than as is specifically authorized by this section or otherwise regulate any of the following:

1. Temporary open house signs or a unit owner's for sale sign. The association shall not require the use of particular signs indicating an open house or real property for sale and may not further regulate the use of temporary open house or for sale signs that are industry standard size and that are owned or used by the seller or the seller's agent.

2. Open house hours. The association may not limit the hours for an open house for real estate that is for sale in the condominium, except that the association may prohibit an open house being held before 8:00 a.m. or after 6:00 p.m. and may prohibit open house signs on the common elements of the condominium.

3. An owner's or an owner's agent's for rent or for lease sign unless an association's documents prohibit or restrict leasing of a unit or units. An association shall not further regulate a for rent or for lease sign or require the use of a particular for rent or for lease sign other than the for rent or for lease sign shall not be any larger than the industry standard size sign of eighteen by twenty-four inches and on or in the unit owner's property. If rental or leasing of a unit is allowed, the association may prohibit an open house for rental or leasing being held before 8:00 a.m. or after 6:00 p.m.

D. Notwithstanding any provision in the condominium documents, an association shall not prohibit door-to-door political activity, including solicitations of support or opposition regarding candidates or ballot issues, and shall not prohibit circulating political petitions, including candidate nomination petitions or petitions in support of or opposition to an initiative, referendum or recall or other political issue on property normally open to visitors within the association, except that an association may do the following:

1. Restrict or prohibit door-to-door political activity regarding candidates or ballot issues from sunset to sunrise.

2. Require the prominent display of an identification tag for each person engaged in the activity, along with the prominent identification of the candidate or ballot issue that is the subject of the support or opposition.

3. Prohibit a person who is not accompanied by a unit owner or resident of the condominium from entering the condominium premises if the condominium restricts vehicular or pedestrian access.

E. Notwithstanding any provision in the condominium documents, an association shall not prohibit the indoor or outdoor display of a political sign by a unit owner by placement of a sign on that unit owner's property, including any limited common elements for that unit that are doors, walls or patios or other limited common elements that touch the unit, other than the roof. An association may prohibit the display of political signs as follows:

1. Earlier than seventy-one days before the day of a primary election.

2. Later than fifteen days after the day of the general election.

3. For a sign for a candidate in a primary election who does not advance to the general election, later than fifteen days after the primary election.

F. An association may regulate the size and number of political signs that may be placed in the common element ground, on a unit owner's property or on a limited common element for that unit if the association's regulation is not more restrictive than any applicable city, town or county ordinance that regulates the size and number of political signs on residential property. If the city, town or county in which the property is located does not regulate the size and number of political signs on residential property, the association shall not limit the number of political signs, except that the maximum aggregate total dimensions of all political signs on a unit owner's property shall not exceed nine square feet. An association shall not make any regulations regarding the number of candidates supported, the number of public officers supported or opposed in a recall or the number of propositions supported or opposed on a political sign.

G. An association shall not require political signs to be commercially produced or professionally manufactured or prohibit the utilization of both sides of a political sign.

H. Notwithstanding any provision in the condominium documents, an association may not prohibit or unreasonably restrict the indoor or outdoor display of an association-specific political sign by a unit owner by placement of a sign on that unit owner's property, including any limited common elements for that unit that are doors, walls or patios or other limited common elements that touch the unit, other than the roof. An association may adopt reasonable rules regarding the placement, location and manner of display of association-specific political signs, except an association shall not do any of the following:

1. Prohibit the display of association-specific political signs between the date that the association provides written or absentee ballots to unit owners and three days after the condominium election.

2. Limit the number of association-specific political signs, except that the association may limit the aggregate total dimensions of all association-specific political signs on a unit owner's property to not more than nine square feet.

3. Require association-specific political signs to be commercially produced or professionally manufactured or prohibit using both sides of the sign.

4. Regulate the number of candidates supported or opposed, the number of board members supported or opposed in a recall or the number of ballot measures supported or opposed on an association-specific political sign.

5. Make any other regulations regarding the content of an association-specific political sign, except that the association may prohibit using profanity and discriminatory text, images or content based on race, color, religion, sex, familial status or national origin as prescribed by federal or state fair housing laws.

I. Notwithstanding any provision in the condominium documents, an association may not prohibit or unreasonably restrict a unit owner's ability to peacefully assemble and use common elements of the condominium if done in compliance with reasonable restrictions for the use of that property adopted by the board of directors. An individual unit owner or group of unit owners may assemble to discuss matters related to the condominium, including board of director elections or recalls, potential or actual ballot issues or revisions to the condominium documents, property maintenance or safety issues or any other condominium matters. A unit owner may invite one political candidate or one non-unit owner guest to speak to an assembly of unit owners about matters related to the condominium. The association shall not prohibit a unit owner from posting notices regarding those assemblies of unit owners on bulletin boards located on the common elements or within common element facilities. An assembly of unit owners prescribed by this subsection does not constitute an official unit owners' meeting unless the meeting is noticed and convened as prescribed in the condominium documents and this chapter.

J. An association or managing agent that violates subsection C of this section forfeits and extinguishes the lien rights authorized under section 33-1256 against that unit for a period of six consecutive months after the date of the violation.

K. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.

L. An association or managing agent that violates subsection C of this section forfeits and extinguishes the lien rights authorized under section 33-1256 against that unit for a period of six consecutive months after the date of the violation.

M. For the purposes of this section:

1. "Association-specific political sign" means a sign that supports or opposes a candidate for the board of directors, the recall of a board member or a condominium ballot measure that requires a vote of the association unit owners.

2. "Betsy Ross flag" means a historic flag of the United States that consists of thirteen stripes alternating between red and white stripes and thirteen five-pointed white stars arranged in a circle against a blue background.

3. "First responder flag" means a flag that recognizes and honors the services of any of the following:

(a) Law enforcement and that is limited to the colors blue, black and white, the words "law enforcement", "police", "officers", "first responder", "honor our", "support our" and "department" and the symbol of a generic police shield in a crest or star shape.

(b) Fire departments and that is limited to the colors red, gold, black and white, the words "fire", "fighters", "F", "D", "FD", "first responder", "department", "honor our" and "support our" and the symbol of a generic Maltese Cross.

(c) Paramedics or emergency medical technicians and that is limited to the colors blue, black and white, the words "first responder", "paramedic", "emergency medical", "service", "technician", "honor our" and "support our" and the symbol of a generic star of life.

4. "Political sign" means a sign or flag that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

Article 4 Administration of the Condominium Act

§ 33-1270 Department of real estate; enforcement

A. Nothing in this chapter shall be construed to increase or decrease or otherwise affect any rights or powers granted to the commissioner of the department of real estate under title 32, chapter 20 with respect to the issuance of public reports.

B. The commissioner of the department of real estate shall require compliance with section 33-1215 and section 33-1219 in connection with the administration of the subdivision laws of this state under title 32, chapter 20, article 4. The commissioner shall not be required to administer or enforce any other provisions of this chapter.

Chapter 10 Arizona Residential Landlord and Tenant Act

Article 1 General Provisions

§ 33-1301 Short title

This chapter shall be known and may be cited as the Arizona residential landlord and tenant act.

§ 33-1302 Purposes

Underlying purposes and policies of this chapter are:

1. To simplify, clarify, modernize and revise the law governing the rental of dwelling units and the rights and obligations of landlord and tenant.

2. To encourage landlord and tenant to maintain and improve the quality of housing.

§ 33-1303 Supplementary principles of law applicable

Unless displaced by the provisions of this chapter, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating cause supplement its provisions.

§ 33-1304 Applicability of chapter

This chapter shall apply to the rental of dwelling units. Any conflict between the provisions of chapter 3 and chapter 7 of this title with the provisions of this chapter shall be governed by the provisions of this chapter.

§ 33-1305 Administration of remedies; enforcement; notice and pleading requirements

A. The remedies provided by this chapter shall be so administered that the aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages.

B. Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.

C. Notwithstanding any other law, an agency of this state and an individual court may not adopt or enforce a rule or policy that requires a mandatory or technical form for providing notice or for pleadings in an action for forcible entry or forcible or special detainer. The form of any notice or pleading that meets statutory requirements for content and formatting of a notice or pleading is sufficient to provide notice and to pursue an action for forcible entry or forcible or special detainer.

§ 33-1306 Settlement of disputed claim or right

A claim or right arising under this chapter or on a rental agreement, if disputed in good faith, may be settled by agreement.

§ 33-1307 Territorial application

This chapter applies to, regulates, and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.

§ 33-1308 Exclusions from application of chapter

Unless created to avoid the application of this chapter, the following arrangements are not covered by this chapter:

1. Residence at an institution, public or private, if incidental to detention, the provision of medical, educational, counseling or religious services or the provision of a social service program that is provided by a social service provider. For the purposes of this paragraph, "social service provider" means a private entity that directly assists an individual or family in obtaining housing and that offers to provide the individual or family with assistance in obtaining employment, child care, health care, education, skills training, transportation, counseling or any other related service.

2. Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his interest.

3. Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.

4. Transient occupancy in a hotel, motel or recreational lodging.

5. Occupancy by an employee of a landlord as a manager or custodian whose right to occupancy is conditional upon employment in and about the premises.

6. Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.

7. Occupancy in or operation of public housing as authorized, provided or conducted under or pursuant to title 36, chapter 12, or under or pursuant to any federal law or regulation.

§ 33-1310 General definitions

Subject to additional definitions contained in subsequent articles of this chapter that apply to specific articles of this chapter, and unless the context otherwise requires, in this chapter:

1. "Action" includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including an action for possession.

2. "Building and housing codes" includes any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises or dwelling unit.

3. "Delivery of possession" means returning dwelling unit keys to the landlord and vacating the premises.

4. "Dwelling unit" means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. Dwelling unit does not include real property used to accommodate a mobile home, unless the mobile home is rented or leased by the landlord.

5. "Good faith" means honesty in fact in the conduct or transaction concerned.

6. "Housing assistance payment" means any payment made to the landlord by a government agency, a public housing authority or any third party on behalf of a government agency, a public housing authority or any for-profit entity pursuant to a separate written rental assistance or subsidy contract between the landlord and the government agency, public housing authority or third party on behalf of a government agency, public housing authority or for-profit entity. Housing assistance payment does not include any payment made by a faith-based organization, a community action agency program or a nonprofit entity.

7. "Landlord" means the owner, lessor or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by section 33-1322.

8. "Organization" includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest and any other legal or commercial entity that is a landlord, owner, manager or constructive agent pursuant to section 33-1322.

9. "Owner" means one or more persons, jointly or severally, in whom is vested all or part of the legal title to property or all or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagee in possession.

10. "Person" means an individual or organization.

11. "Premises" means a dwelling unit and the structure of which it is a part and existing facilities and appurtenances therein, including furniture and utilities where applicable, and grounds, areas and existing facilities held out for the use of tenants generally or whose use is promised to the tenant.

12. "Rent" means payments to be made to the landlord in full consideration for the rented premises.

13. "Rental agreement" means all agreements, written, oral or implied by law, and valid rules and regulations adopted under section 33-1342 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.

14. "Roomer" means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the dwelling unit and other dwelling units. Major facility in the case of a bathroom means toilet, or either a bath or shower, and in the case of a kitchen means refrigerator, stove or sink.

15. "Security" means money or property given to assure payment or performance under a rental agreement. Security does not include a reasonable charge for redecorating or cleaning.

16. "Single family residence" means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and does not share heating facilities, hot water equipment or any other essential facility or service with any other dwelling unit.

17. "Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

18. "Term of lease" means the initial term or any renewal or extension of the written rental agreement currently in effect not including any wrongful holdover period.

§ 33-1311 Obligation of good faith

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.

§ 33-1312 Unconscionability

A. If the court, as a matter of law, finds either of the following:

1. A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

2. A settlement in which a party waives or agrees to forego a claim or right under this chapter or under a rental agreement was unconscionable at the time it was made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid any unconscionable result.

B. If unconscionability is put into issue by a party or by the court upon its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination.

§ 33-1313 Notice

A. A person has notice of a fact if he has actual knowledge of it, has received a notice or notification of it or from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person "knows" or "has knowledge" of a fact if he has actual knowledge of it.

B. A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person "receives" a notice or notification when it comes to his attention, or in the case of the landlord, it is delivered in hand or mailed by registered or certified mail to the place of business of the landlord through which the rental agreement was made or at any place held out by him as the place for receipt of the communication or delivered to any individual who is designated as an agent by section 33-1322 or, in the case of the tenant, it is delivered in hand to the tenant or mailed by registered or certified mail to him at the place held out by him as the place for receipt of the communication or, in the absence of such designation, to his last known place of residence. If notice is mailed by registered or certified mail, the tenant or landlord is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.

C. "Notice," knowledge or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting the transaction and in any event from the time it would have been brought to his attention if the organization had exercised reasonable diligence.

§ 33-1314 Terms and conditions of rental agreement; contact information; property; pets

A. The landlord and tenant may include in a rental agreement terms and conditions not prohibited by this chapter or any other law, including rent, term of the agreement and other provisions governing the rights and obligations of the parties.

B. In the absence of a rental agreement, the tenant shall pay as rent the fair rental value for using and occupying the dwelling unit.

C. Rent shall be payable without demand or notice at the time and place agreed on by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent shall be uniformly apportionable from day-to-day.

D. Unless the rental agreement fixes a definite term, the tenancy shall be week-to-week in case of a roomer who pays weekly rent, and in all other cases month-to-month.

E. Notwithstanding section 14-3911, the landlord may request and the tenant may provide and routinely update the name and contact information of a person who is authorized by the tenant to enter the tenant's dwelling unit to retrieve and store the tenant's property, including the tenant's animal, if the tenant dies or is otherwise incapacitated. If the landlord is unable to contact the authorized person at the address and telephone number provided to the landlord by the tenant or the authorized person fails to respond to the landlord's request within one day for the animal or ten days for all other property after initial written contact, the landlord may dispose of the property as prescribed in section 33-1370 or may deem the animal abandoned, and if deemed abandoned, shall remove and release the animal to an animal shelter or boarding facility as prescribed in section 33-1370, subsection E. The landlord may release the animal to a relative of the deceased or incapacitated tenant if any of the following applies:

1. The landlord was not provided the contact information of a person who is authorized by the tenant to retrieve the tenant's animal.

2. The contact information is no longer valid.

3. The landlord is unable to contact the authorized person after one calendar day.

F. Before removing any of the tenant's personal property or the tenant's animal, the authorized person shall present to the landlord a valid government issued identification that confirms the identity of the authorized person. The authorized person shall have twenty days after the date of initial written contact by the landlord or the last date for which rent is paid, whichever is longer, to remove items from the rental property and return keys to the landlord during regular business hours. If the landlord allows an authorized person to enter the property to remove the tenant's personal possessions as prescribed by this subsection, the landlord has no further liability to the tenant, the tenant's estate or the tenant's heirs for lost, damaged or stolen items. If the tenant's personal property is not entirely removed from the rental unit by an authorized person, the landlord may dispose of the property as prescribed in section 33-1370.

G. Subsections E and F of this section apply only as follows:

1. To the tenant's personal property if the periodic rent is unpaid and outstanding for at least five days.

2. To the tenant's animal if the tenant is deceased or is otherwise incapacitated.

§ 33-1314.01 Utility charges; submetering; ratio utility billing; allocation; water system exemption

A. A landlord may charge separately for gas, water, wastewater, solid waste removal or electricity by installing a submetering system or by allocating the charges separately through a ratio utility billing system.

B. If a landlord charges separately for a utility pursuant to subsection A, the landlord may recover the charges imposed on the landlord by the utility provider plus an administrative fee for the landlord for actual administrative costs only. The landlord shall not impose any additional charges. The rental agreement shall contain a disclosure that lists the utility services that are charged separately and shall specify the amount of any administrative fee that is associated with submetering or the use of a ratio utility billing system.

C. If provided in the rental agreement, the landlord may impose a submetering system or ratio utility billing system during the term of a rental agreement if the landlord provides notice as prescribed by subsection G.

D. If a landlord is not in compliance with subsection B, the tenant shall first object in writing to the landlord regarding the utility billing. If the dispute is not resolved, the tenant may file a civil complaint in justice court to enforce this section.

E. If a landlord uses an allocation or submetering system, the bill format for each billing period shall:

1. Separately state the cost of the charges for the period together with the opening and the closing meter readings and the dates of the meter readings.

2. Show the amount of any administrative fee charged.

F. If a landlord does not use a submetering system and allocates charges separately for gas, water, wastewater, solid waste removal or electricity, the landlord may allocate the costs to each tenant by using one or more of the following ratio utility billing system methods:

1. Per tenant.

2. Proportionately by livable square footage.

3. Per type of unit.

4. Per number of water fixtures.

5. For water and wastewater, by use of an individually submetered hot water usage measure for the tenant's dwelling unit.

6. Any other method that fairly allocates the charges and that is described in the tenant's rental agreement.

G. If a landlord uses a ratio utility billing system method pursuant to subsection F, the rental agreement shall contain a specific description of the ratio utility billing method used to allocate utility costs. For any existing tenancies, the landlord shall provide at least ninety days' notice to the tenant before the landlord begins using a submetering system or allocating costs through a ratio utility billing system.

H. For purposes of regulating apartment communities as public or consecutive water systems, the department of environmental quality shall not adopt rules pursuant to title 49, chapter 2, article 9 that are more stringent than those authorized by federal law. Without other evidence of activities that are subject to regulation under title 49, chapter 2, article 9, the department of environmental quality shall not use an apartment community's use of a submetering system or a ratio utility billing system as the sole basis for regulating an apartment community as a public or consecutive water system.

§ 33-1315 Prohibited provisions in rental agreements

A. A rental agreement shall not provide that the tenant does any of the following:

1. Agrees to waive or to forego rights or remedies under this chapter.

2. Agrees to pay the landlord's attorney fees, except an agreement in writing may provide that attorney fees may be awarded to the prevailing party in the event of court action and except that a prevailing party in a contested forcible detainer action is eligible to be awarded attorney fees pursuant to section 12-341.01 regardless of whether the rental agreement provides for such an award.

3. Agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.

4. Agrees to waive or limit the tenant's right to summon or any other person's right to summon a peace officer or other emergency assistance in response to an emergency.

5. Agrees to payment of monetary penalties or otherwise penalizes the tenant for the tenant summoning or for any other person summoning a peace officer or other emergency assistance in response to an emergency.

B. A provision that is prohibited by subsection A of this section and that is included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited, the tenant may recover actual damages sustained by the tenant and not more than two months' periodic rent.

C. This section does not limit the landlord's right to evict a tenant pursuant to section 33-1368.

§ 33-1316 Separation of rents and obligations to maintain property forbidden

A rental agreement, assignment, conveyance, trust deed or security instrument may not permit the receipt of rent free of the obligation to comply with section 33-1324, subsection A.

§ 33-1317 Discrimination by landlord or lessor against tenant with children prohibited; classification; exceptions; civil remedy; applicability

A. A person who knowingly refuses to rent to any other person a place to be used for a dwelling for the reason that the other person has a child or children, or who advertises in connection with the rental a restriction against children, either by the display of a sign, placard or written or printed notice, or by publication thereof in a newspaper of general circulation, is guilty of a petty offense.

B. No person shall rent or lease his property to another in violation of a valid restrictive covenant against the sale of such property to persons who have a child or children living with them.

C. No person shall rent or lease his property to persons who have a child or children living with them when his property meets the definition of housing for older persons in section 41-1491.04.

D. A person who knowingly rents or leases his property in violation of the provisions of subsection B or C of this section is guilty of a petty offense.

E. A person whose rights under this section have been violated may bring a civil action against a person who violates this section for all of the following:

1. Injunctive or declaratory relief to correct the violation.

2. Actual damages sustained by the tenant or prospective tenant.

3. A civil penalty of three times the monthly rent of the housing accommodation involved in the violation if the violation is determined to be intentional.

4. Court costs and reasonable attorney fees.

F. Nothing in this section shall prohibit a person from refusing to rent a dwelling by reason of reasonable occupancy standards established by the owner or the owner's agent which apply to persons of all ages, and which have been adopted and published before the event in issue. An occupancy limitation of two persons per bedroom residing in a dwelling unit shall be presumed reasonable for this state and all political subdivisions of this state.

G. Subsection B of this section applies only to dwellings occupied or intended to be occupied by no more than four families living independently of each other and in which the owner maintains and occupies one of the living quarters as the owner's residence.

§ 33-1318 Early termination by tenant; domestic violence; sexual assault; requirements; lock replacement; access refusal; treble damages; immunity

A. A tenant may terminate a rental agreement pursuant to this section if the tenant provides to the landlord written notice pursuant to this section that the tenant is the victim of domestic violence as defined in section 13-3601 or was the victim, in the tenant's dwelling, of sexual assault pursuant to section 13-1406. The tenant's rights and obligations under the rental agreement are terminated and the tenant shall vacate the dwelling and avoid liability for future rent and shall not incur early termination penalties or fees if the tenant provides to the landlord a written notice requesting release from the rental agreement with a mutually agreed on release date within the next thirty days, accompanied by any one of the following:

1. A copy of any protective order issued pursuant to section 13-3602 to a tenant who is a victim of domestic violence or sexual assault. A landlord may also request a receipt or signed statement that the order of protection has been submitted to an authorized officer of a court for service.

2. A copy of a written departmental report from a law enforcement agency that states that the tenant notified the law enforcement agency that the tenant was a victim of domestic violence or sexual assault.

B. A landlord may request from the victim the name and address of the person named in an order of protection or a departmental report pursuant to subsection A of this section, in writing, if known by the victim.

C. The tenant may terminate the rental agreement pursuant to this section only if the actions, events or circumstances that resulted in the tenant being a victim of domestic violence as defined in section 13-3601 or sexual assault pursuant to section 13-1406 occurred within the thirty-day period immediately preceding the written notice of termination to the landlord, unless waived by the landlord.

D. If the tenant terminates the rental agreement as prescribed by this section and if the tenant is solely or jointly liable on the rental agreement, the tenant is liable only for rent owed or paid through the date of the lease termination plus any previous obligations outstanding on that date. The amount due from the tenant shall be paid to the landlord on or before the date the tenant vacates the dwelling. If the tenant has prepaid rent that would apply for the month in which the lease is terminated, the landlord may retain the prepaid rent and no refund is due to the tenant. If the tenant has paid a security deposit pursuant to section 33-1321, the landlord shall not withhold the security deposit for the early termination of the lease if the tenant meets the requirements prescribed by subsection A of this section, but may withhold the security deposit for payment of damages that the landlord suffered by reason of the tenant's noncompliance with section 33-1341.

E. A tenant who is a victim of domestic violence or sexual assault may require the landlord to install a new lock to the tenant's dwelling if the tenant pays for the cost of installing the new lock. A landlord may comply with this requirement by doing either of the following:

1. Rekeying the lock if the lock is in good working condition.

2. Replacing the entire locking mechanism with a locking mechanism of equal or better quality than the lock being replaced.

F. A landlord who installs a new lock at the tenant's request may retain a copy of the key that opens the new lock. Notwithstanding any provision in the rental agreement, the landlord may refuse to provide a key that opens the new lock to the person named in an order of protection or a departmental report pursuant to subsection A of this section.

G. A landlord shall refuse to provide access to the dwelling to reclaim property to any tenant if the tenant is the person named in an order of protection or a departmental report pursuant to subsection A of this section who has been served with an order of protection naming that tenant as the defendant and the landlord has received a copy of the order of protection, unless a law enforcement officer escorts the tenant into and out of the dwelling.

H. A tenant who terminates a lease pursuant to this section and who is convicted of falsely filing a departmental report or order of protection for domestic violence or sexual assault is liable to the landlord for treble damages for premature termination of the lease.

I. A person named in an order of protection or a departmental report pursuant to subsection A of this section who provokes an early lease termination under this section is deemed to have interfered with the residential rental agreement between the landlord and tenant regardless of whether the person named in an order of protection or a departmental report pursuant to subsection A of this section is a party to the rental agreement, and the person named in an order of protection or a departmental report pursuant to subsection A of this section may be civilly liable for all economic losses incurred by a landlord for the domestic violence or sexual assault early lease termination. This civil liability includes unpaid rent, early lease termination fees, costs to repair damage to the premises and any reductions or waivers of rent previously granted to the tenant who was the victim of domestic violence or sexual assault.

J. If there are multiple tenants who are parties to a rental agreement that has been terminated under this section, the tenancy for those tenants also terminates. The tenants who are not the victims of domestic violence or sexual assault, excluding the person named in an order of protection or a departmental report pursuant to subsection A of this section that caused the termination of the lease pursuant to this section, may be released from any financial obligations due under the previously existing rental agreement and the remaining tenants may be allowed to enter into a new lease with the landlord if the tenants meet all current application requirements.

K. An emergency order of protection or a protective order that is issued to a resident of a rental property automatically applies to the entire residential rental property in which the tenant has a rental agreement.

L. This section does not limit a landlord's right to terminate a lease pursuant to section 33-1368 against the victim for actions unrelated to the act of domestic violence or sexual assault.

M. A landlord is not liable for any actions taken in good faith pursuant to this section.

§ 33-1318.01 Early release termination for law enforcement officers; definition

A. A law enforcement officer may terminate a rental agreement in the same manner established in section 33-1318 if the law enforcement officer provides to the landlord a written notice that the law enforcement officer is protected under an injunction against harassment issued pursuant to section 12-1809 and the injunction against harassment was issued within the thirty-day period immediately preceding lawful notice to the landlord, unless waived by the landlord.

B. If the law enforcement officer received any lease concession or benefit, the concession or benefit actually received or used shall be repaid to the landlord before vacating the dwelling.

C. All other rights, remedies and obligations provided in section 33-1318 apply to the landlord and the law enforcement officer.

D. For the purposes of this section, "law enforcement officer" has the same meaning prescribed in section 38-1101.

§ 33-1319 Bedbug control; landlord and tenant obligations; definitions

A. A landlord has the following obligations with respect to a bedbug infestation:

1. The landlord shall provide bedbug educational materials to existing and new tenants. Educational materials may include:

(a) A description of measures that may be taken to prevent and control bedbugs.

(b) Information about bedbugs, including a description of their appearance.

(c) A description of behaviors that are risk factors for attracting bedbugs such as purchasing renovated mattresses, using discarded mattresses and furniture, using used or leased furniture, purchasing pre-owned clothing and traveling without proper precautions.

(d) Information provided by the United States centers for disease control and prevention and other federal, state or local health agencies.

(e) Information provided by federal, state or local housing agencies.

(f) Information provided by nonprofit housing organizations.

(g) Information developed by the landlord.

2. The landlord shall not enter into any lease agreement with a tenant for a dwelling unit that the landlord knows to have a current bedbug infestation.

B. A tenant has the following obligations with respect to a bedbug infestation:

1. The tenant shall not knowingly move materials into a dwelling unit that are infested with bedbugs.

2. A tenant who knows of the presence of bedbugs shall provide the landlord written or electronic notification of the presence of bedbugs.

C. This section does not limit any other rights, remedies and obligations under this chapter.

D. The landlord and tenant of a single family residence are excluded from the provisions of this section.

E. Except as specifically provided in this section, this section does not create a cause of action against:

1. A landlord or a landlord's employees, officers, agents and directors by a tenant or a tenant's guests for any damages caused by bedbugs.

2. A tenant by a landlord for any damages caused by bedbugs.

F. For the purposes of this section:

1. "Bedbugs" means any insect in the genus cimex and its eggs.

2. "Infestation" or "infested" means that the presence of bedbugs is sufficient to materially affect the health and safety of tenants and their guests.

Article 2 Landlord Obligations

§ 33-1321 Security deposits

A. A landlord shall not demand or receive security, however denominated, including prepaid rent in an amount or value of more than one and one-half month's rent. This subsection does not prohibit a tenant from voluntarily paying more than one and one-half month's rent in advance.

B. The purpose of all nonrefundable fees or deposits shall be stated in writing by the landlord. Any fee or deposit not designated as nonrefundable is refundable.

C. On move in, a landlord shall furnish the tenant with a signed copy of the lease, a move-in form for specifying any existing damages to the dwelling unit and written notification to the tenant that the tenant may be present at the move-out inspection. On request by the tenant, the landlord shall notify the tenant when the landlord's move-out inspection will occur. If the tenant is being evicted for a material and irreparable breach and the landlord has reasonable cause to fear violence or intimidation on the part of the tenant, the landlord has no obligation to conduct a joint move-out inspection with the tenant.

D. On termination of the tenancy, property or money held by the landlord as prepaid rent and security may be applied to the payment of all rent, and subject to a landlord's duty to mitigate, all charges as specified in the signed lease agreement, or as provided in this chapter, including the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with section 33-1341. Within fourteen days, excluding Saturdays, Sundays or other legal holidays, after termination of the tenancy and delivery of possession and demand by the tenant the landlord shall provide the tenant an itemized list of all deductions together with the amount due and payable to the tenant, if any. Unless other arrangements are made in writing by the tenant, the landlord shall mail the itemized list and any amount due, by first class mail, to the tenant's last known place of residence. If the tenant does not dispute the deductions or the amount due and payable to the tenant within sixty days after the itemized list and amount due are mailed as prescribed by this subsection, the amount due to the tenant as set forth in the itemized list with any amount due is deemed valid and final and any further claims of the tenant are waived.

E. If the landlord fails to comply with subsection D of this section, the tenant may recover the property and money due the tenant together with damages in an amount equal to twice the amount wrongfully withheld.

F. This section does not preclude the landlord or tenant from recovering other damages to which the landlord or tenant may be entitled under this chapter.

G. During the term of tenancy the landlord may use refundable security deposits or other refundable deposits in accordance with any applicable provisions of the property management agreement. At the end of tenancy, all refundable deposits shall be refunded to the tenant pursuant to this section.

H. The holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this section.

§ 33-1322 Disclosure and tender of written rental agreement

A. The landlord or any person authorized to enter into a rental agreement on his behalf shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of each of the following:

1. The person authorized to manage the premises.

2. An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for notices and demands.

B. At or before the commencement of the tenancy, the landlord shall inform the tenant in writing that the Arizona residential landlord and tenant act is available on the Arizona department of housing's website.

C. The information required to be furnished by this section shall be kept current and refurnished to a tenant upon the tenant's request. This section extends to and is enforceable against any successor landlord, owner or manager.

D. A person who fails to comply with subsections A, B and C becomes an agent of each person who is a landlord for the following purposes:

1. Service of process and receiving and receipting for notices and demands.

2. Performing the obligations of the landlord under this chapter and under the rental agreement and expending or making available for the purpose all rent collected from the premises.

E. If there is a written rental agreement, the landlord must tender and deliver a signed copy of the rental agreement to the tenant and the tenant must sign and deliver to the landlord one fully executed copy of such rental agreement within a reasonable time after the agreement is executed. A written rental agreement shall have all blank spaces completed. Noncompliance with this subsection shall be deemed a material noncompliance by the landlord or the tenant, as the case may be, of the rental agreement.

§ 33-1323 Landlord to supply possession of dwelling unit

At the commencement of the term the landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and section 33-1324. The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in section 33-1375, subsection C.

§ 33-1324 Landlord to maintain fit premises

A. The landlord shall:

1. Comply with the requirements of applicable building codes materially affecting health and safety as prescribed in section 9-1303.

2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.

3. Keep all common areas of the premises in a clean and safe condition.

4. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him.

5. Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal.

6. Supply running water and reasonable amounts of hot water at all times, reasonable heat and reasonable air-conditioning or cooling where such units are installed and offered, when required by seasonal weather conditions, except where the building that includes the dwelling unit is not required by law to be equipped for that purpose or the dwelling unit is so constructed that heat, air-conditioning, cooling or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection.

B. If the duty imposed by subsection A, paragraph 1 of this section is greater than any duty imposed by any other paragraph of this section, the landlord's duty shall be determined by reference to that paragraph.

C. The landlord and tenant of a single family residence may agree in writing, supported by adequate consideration, that the tenant perform the landlord's duties specified in subsection A, paragraphs 5 and 6 of this section, and also specified repairs, maintenance tasks, alterations and remodeling, but only if the transaction is entered into in good faith, not for the purpose of evading the obligations of the landlord and the work is not necessary to cure noncompliance with subsection A, paragraphs 1 and 2 of this section.

D. The landlord and tenant of any dwelling unit other than a single family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling only if:

1. The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord and is set forth in a separate writing signed by the parties and supported by adequate consideration.

2. The work is not necessary to cure noncompliance with subsection A, paragraphs 1 and 2 of this section.

3. The agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.

§ 33-1325 Limitation of liability

A. Unless otherwise agreed, a landlord, who conveys premises that include a dwelling unit subject to a rental agreement in a good faith sale to a bona fide purchaser, is relieved of liability under the rental agreement and this chapter as to events occurring subsequent to written notice to the tenant of the conveyance. He remains liable to the tenant for any property and money to which the tenant is entitled under section 33-1321.

B. Unless otherwise agreed, a manager of premises that include a dwelling unit is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the termination of his management.

§ 33-1329 Regulation of rents; authority

A. Notwithstanding any other provisions of law to the contrary the state legislature determines that the imposition of rent control on private residential housing units by cities, including charter cities, and towns is of statewide concern. Therefore, the power to control rents on private residential property is preempted by the state. Cities, including charter cities, or towns shall not have the power to control rents.

B. The provisions of subsection A shall not apply to residential property which is owned, financed, insured or subsidized by any state agency, or by any city, including charter city, or town.

§ 33-1330 Transfer of records on sale

On the sale or other transfer of an apartment community as defined in section 40-360.21, the landlord shall deliver to the buyer or other transferee all available plans, drawings and records pertaining to the location of all underground facilities in the property, all plans, drawings, surveys and plats of the property, all records pertaining to tenant security deposits and complete files for each tenant of the property at closing containing rental agreements and all other documents and disclosures required by this chapter that are in the possession of the landlord. A landlord who fails to deliver reasonably accurate and maintained installation records of active, inactive and abandoned underground facilities installed after December 31, 2006 is liable for all damages proximately caused by the failure, including all expenses incurred by successor landlords to create such installation records.

§ 33-1331 Notice of foreclosure; effect on lease; damages

A. If a rental agreement is entered into after the foreclosure action was initiated, the owner shall include written notice of possible foreclosure with the rental agreement with the tenant. The notice shall include a statement that is substantially in the following form:

This property is undergoing foreclosure. For more information on this action, you should contact ________________ (name, address and phone number of the court where the action is filed or trustee, attorney or other responsible party).

A sale at auction may or may not occur as a result of this foreclosure. Currently, the sale of this property has been set for _________ (time, date and place) or no date for sale of this property has been established.

B. If the owner receives a notice of trustee's sale or other notice of foreclosure on the property after a tenant has entered into a rental agreement on the property, the owner shall provide the tenant with written notice as prescribed in subsection A of this section within five business days after receipt of the notice of trustee's sale. This subsection applies only to the first notice of trustee's sale or the first notice of foreclosure received by the owner after the tenant has entered into the rental agreement.

C. If the owner fails to provide notice as prescribed in this section the tenant may deliver a written notice pursuant to section 33-1361 and recover damages and obtain injunctive relief. The security deposit shall be returned to the tenant as prescribed in section 33-1321.

D. This section shall not apply to multifamily residential rental units consisting of four or more connected units.

§ 33-1332 Rent reduction; burden of proof

(Rpld. 1/1/27)

A. On or before January 1, 2025, the landlord of real property that is rented or leased for residential purposes and that is located in a city, town or other taxing jurisdiction that levies a transaction privilege tax on the business of renting or leasing real property for residential purposes shall no longer charge the tenant the amount of the repealed transaction privilege tax on the business of renting or leasing real property for residential purposes.

B. In any civil action challenging the lawfulness of a charge, assessment or other amount pursuant to this section, the landlord has the burden of proving by a preponderance of the evidence that the challenged charge, assessment or other amount is not attributable to and does not represent all or any portion of a city's, town's or other taxing jurisdiction's transaction privilege tax on the business of renting or leasing real property for residential purposes.

Article 3 Tenant Obligations

§ 33-1341 Tenant to maintain dwelling unit

The tenant shall:

1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building codes materially affecting health and safety.

2. Keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit.

3. Dispose from his dwelling unit all ashes, rubbish, garbage and other waste in a clean and safe manner.

4. Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits.

5. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances including elevators in the premises.

6. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so.

7. Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises.

8. Promptly notify the landlord in writing of any situation or occurrence that requires the landlord to provide maintenance or make repairs or otherwise requires the landlord to take action as prescribed in section 33-1324.

§ 33-1342 Rules and regulations

A. A landlord, from time to time, may adopt rules or regulations, however described, concerning the tenant's use and occupancy of the premises. Such rules or regulations are enforceable against the tenant only if:

1. Their purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for the tenants generally.

2. They are reasonably related to the purpose for which adopted.

3. They apply to all tenants in the premises in a fair manner.

4. They are sufficiently explicit in prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what the tenant must or must not do to comply.

5. They are not for the purpose of evading the obligations of the landlord.

6. The tenant has notice of them at the time the tenant enters into the rental agreement.

B. A rule or regulation adopted after the tenant enters into the rental agreement is enforceable against the tenant if a thirty day notice of its adoption is given to the tenant and it does not constitute a substantial modification of the tenant's rental agreement.

C. If state, county, municipal or other governmental bodies adopt new ordinances, rules or other legal provisions affecting existing rental agreements, the landlord may make immediate amendments to lease agreements to bring them into compliance with the law. The landlord shall give a tenant written notice that the tenant's lease agreement has been amended, and the notice shall provide a brief description of the amendment and the effective date.

§ 33-1343 Access

A. The tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.

B. If the tenant notifies the landlord of a service request or a request for maintenance as prescribed in section 33-1341, paragraph 8, the notice from the tenant constitutes permission from the tenant for the landlord to enter the dwelling unit pursuant to subsection D of this section for the sole purpose of acting on the service or maintenance request and the tenant waives receipt of any separate or additional access notice that may be required pursuant to subsection D of this section.

C. The landlord may enter the dwelling unit without consent of the tenant in case of emergency.

D. The landlord shall not abuse the right to access or use it to harass the tenant. Except in case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days' notice of the landlord’s intent to enter and enter only at reasonable times.

E. The landlord has no other right of access except by court order and as permitted by sections 33-1369 and 33-1370, or if the tenant has abandoned or surrendered the premises.

§ 33-1344 Tenant to use and occupy as a dwelling unit

Unless otherwise agreed, the tenant shall occupy his dwelling unit only as a dwelling unit.

Article 4 Remedies

§ 33-1361 Noncompliance by the landlord

A. Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement, including a material falsification of the written information provided to the tenant, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days. If there is a noncompliance by the landlord with section 33-1324 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than five days after receipt of the notice if the breach is not remedied in five days. For the purposes of this section, material falsification includes false information relating to availability of the unit, except when a holdover tenant is in illegal possession or in violation of the rental agreement, the condition of the premises and any current services as represented by the landlord in writing and any representation regarding future services and any future changes regarding the condition of the premises, the provision of utility services and the designation of the party responsible for the payment of utility services. The rental agreement shall terminate and the dwelling unit shall be vacated as provided in the notice subject to the following:

1. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate.

2. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent.

B. Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or with section 33-1318 or 33-1324.

C. The remedy provided in subsection B of this section is in addition to any right of the tenant arising under subsection A of this section.

D. If the rental agreement is terminated, the landlord shall return all security recoverable by the tenant under section 33-1321.

§ 33-1362 Failure to deliver possession

A. If the landlord fails to deliver physical possession of the dwelling unit to the tenant as provided in section 33-1323, rent abates until possession is delivered and the tenant may do either of the following:

1. Upon at least five days' written notice to the landlord terminate the rental agreement and upon termination the landlord shall return all prepaid rent and security.

2. Demand performance of the rental agreement by the landlord and, if the tenant elects, maintain an action for possession of the dwelling unit against the landlord or any person wrongfully in possession and recover the damages sustained by him.

B. If the landlord fails to deliver constructive possession to the tenant because of noncompliance with section 33-1324, rent shall not abate. Tenant may proceed with the remedies provided for in section 33-1361.

C. If a person's failure to deliver possession is willful and not in good faith, an aggrieved person may recover from that person an amount not more than two months' periodic rent or twice the actual damages sustained by him, whichever is greater.

§ 33-1363 Self-help for minor defects

A. If the landlord fails to comply with section 33-1324, and the reasonable cost of compliance is less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater, the tenant may recover damages for the breach under section 33-1361, subsection B, or may notify the landlord of the tenant's intention to correct the condition at the landlord's expense. After being notified by the tenant in writing, if the landlord fails to comply within ten days or as promptly thereafter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and, after submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work, not exceeding the amount specified in this subsection.

B. A tenant may not repair at the landlord's expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent or if the condition repaired does not constitute a breach of the fit and habitable condition of the premises.

§ 33-1364 Wrongful failure to supply heat, air conditioning, cooling, water, hot water or essential services

A. If contrary to the rental agreement or section 33-1324 the landlord deliberately or negligently fails to supply running water, gas or electrical service, or both if applicable, and reasonable amounts of hot water or heat, air-conditioning or cooling, where such units are installed and offered, or essential services, the tenant may give reasonable notice to the landlord specifying the breach and may do one of the following:

1. Procure reasonable amounts of hot water, running water, heat and essential services during the period of the landlord's noncompliance and deduct their actual reasonable cost from the rent. If the landlord has failed to provide any of the utility services specified in this section due to nonpayment of the landlord's utility bill for the premises, and if there is no separate utility meter for each tenant in the premises such that the tenant could avoid a utility shutoff by arranging to have services transferred to the tenant's name, the tenant may either individually or collectively with other tenants arrange with the utility company to pay the utility bill after written notice to the landlord of the tenant's intent to do so. With the utility company's approval the tenant or tenants may pay the landlord's delinquent utility bill and deduct from any rent owed to the landlord the actual cost of the payment the tenant made to restore utility services. The tenant or tenants may continue to make such payments to the utility company until the landlord has provided adequate assurances to the tenant that the above utility services will be maintained.

2. Recover damages based upon the diminution in the fair rental value of the dwelling unit.

3. Procure reasonable substitute housing during the period of the landlord's noncompliance, in which case the tenant is excused from paying rent for the period of the landlord's noncompliance. In the event the periodic cost of such substitute housing exceeds the amount of the periodic rent, upon delivery by tenant of proof of payment for such substitute housing, tenant may recover from landlord such excess costs up to an amount not to exceed twenty-five per cent of the periodic rent which has been excused pursuant to this paragraph.

B. A landlord shall provide all utilities and services specified in the lease agreement.

C. A landlord shall not terminate utility services as specified in subsection A of this section which are provided to the tenant as part of the rental agreement, except as necessary to make needed repairs or as provided in section 33-1368. Subsequent to the execution of the rental agreement, a landlord may not transfer the responsibility for payment of such utility services to the tenant without the tenant's written consent.

D. If a landlord is in violation of subsection C of this section, the tenant may recover damages, costs and reasonable attorneys fees and obtain injunctive relief. Nothing in this section shall preclude a tenant's right to recover damages as specified in section 33-1367.

E. A lease agreement shall not contain any terms contrary to this section.

F. In addition to the remedy provided in paragraph 3 of subsection A of this section, in the event the landlord's noncompliance is deliberate, the tenant may recover the actual and reasonable cost or fair and reasonable value of the substitute housing not in excess of an amount equal to the periodic rent.

G. If the tenant proceeds under this section, he may not proceed under section 33-1361 or section 33-1363 as to that breach, except as to damages which occur prior to the tenant proceeding under subsection A or B of this section.

H. The rights under this section do not arise until the tenant has given notice to the landlord and such rights do not include the right to repair. Such rights do not arise if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent.

§ 33-1365 Landlord's noncompliance as defense to action for possession or rent; definition

A. In an action for possession based upon nonpayment of the rent or in an action for rent where the tenant is in possession, if the landlord is not in compliance with the rental agreement or this chapter, the tenant may counterclaim for any amount which he may recover under the rental agreement or this chapter. In that event after notice and hearing the court from time to time may order the tenant to pay into court all or part of the undisputed rent accrued and all periodic rent thereafter accruing and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court and the balance, if any, by the other party. However, if no rent remains due after application of this section, or if the tenant is adjudged to have acted in good faith and satisfies a judgment for rent entered for the landlord, judgment shall be entered for the tenant in the action for possession.

B. In an action for rent where the tenant is not in possession, the tenant may counterclaim as provided in subsection A but the tenant is not required to pay any rent into court.

§ 33-1366 Fire or casualty damage

A. If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may do either of the following:

1. Immediately vacate the premises and notify the landlord in writing within fourteen days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating.

2. If continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant's liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

B. If the rental agreement is terminated the landlord shall return all security recoverable under section 33-1321. Accounting for rent in the event of termination or apportionment is to occur as of the date the tenant vacates all or part of the dwelling unit.

§ 33-1367 Tenant's remedies for landlord's unlawful ouster, exclusion or diminution of services

If the landlord unlawfully removes or excludes the tenant from the premises or wilfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than two months' periodic rent or twice the actual damages sustained by him, whichever is greater. If the rental agreement is terminated the landlord shall return all security recoverable under section 33-1321.

§ 33-1368 Noncompliance with rental agreement by tenant; failure to pay rent; utility discontinuation; liability for guests; definition

A. Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement, including material falsification of the information provided on the rental application, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than ten days after receipt of the notice if the breach is not remedied in ten days. For the purposes of this section, material falsification includes the following untrue or misleading information about the:

1. Number of occupants in the dwelling unit, pets, income of the prospective tenant, social security number and current employment listed on the application or lease agreement.

2. Tenant's criminal records, prior eviction record and current criminal activity. Material falsification of information in this paragraph is not curable under this section.

If there is a noncompliance by the tenant with section 33-1341 materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than five days after receipt of the notice if the breach is not remedied in five days. However, if the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate. If there is an additional act of these types of noncompliance of the same or a similar nature during the term of the lease after the previous remedy of noncompliance, the landlord may institute a special detainer action pursuant to section 33-1377 ten days after delivery of a written notice advising the tenant that a second noncompliance of the same or a similar nature has occurred. If there is a breach that is both material and irreparable and that occurs on the premises, which may include an illegal discharge of a weapon, homicide as prescribed in sections 13-1102, 13-1103, 13-1104 and 13-1105, prostitution as defined in section 13-3211, criminal street gang activity as prescribed in section 13-105, activity as prohibited in section 13-2308, the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in section 13-3451, threatening or intimidating as prohibited in section 13-1202, assault as prohibited in section 13-1203, acts that have been found to constitute a nuisance pursuant to section 12-991 or a breach of the lease agreement that otherwise jeopardizes the health, safety and welfare of the landlord, the landlord's agent or another tenant or involving imminent or actual serious property damage, the landlord may deliver a written notice for immediate termination of the rental agreement and shall proceed under section 33-1377. The foregoing list of actions which may constitute a material and irreparable breach of a tenant's lease is not exhaustive.

B. A tenant may not withhold rent for any reason not authorized by this chapter. If rent is unpaid when due and the tenant fails to pay rent within five days after written notice by the landlord of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement by filing a special detainer action pursuant to section 33-1377. Before the filing of a special detainer action the rental agreement shall be reinstated if the tenant tenders all past due and unpaid periodic rent and a reasonable late fee set forth in a written rental agreement. After a special detainer action is filed the rental agreement is reinstated only if the tenant pays all past due rent, reasonable late fees set forth in a written rental agreement, attorney fees and court costs. After a judgment has been entered in a special detainer action in favor of the landlord, any reinstatement of the rental agreement is solely in the discretion of the landlord.

C. The landlord may recover all reasonable damages resulting from noncompliance by the tenant with the rental agreement or section 33-1341 or occupancy of the dwelling unit, court costs, reasonable attorney fees and all quantifiable damage caused by the tenant to the premises.

D. The landlord may discontinue utility services provided by the landlord on the day following the day that a writ of restitution or execution is executed pursuant to section 12-1181. Disconnections shall be performed only by a person authorized by the utility whose service is being discontinued. This section does not supersede standard tariff and operational procedures that apply to any public service corporation, municipal corporation or special districts providing utility services in this state.

E. On the day following the day that a writ of restitution or execution is executed pursuant to section 12-1181, the landlord shall comply with section 33-1370, subsections D, E, F, G, H and I regarding the tenant's personal property.

F. For the purposes of this chapter, the tenant shall be held responsible for the actions of the tenant's guests that violate the lease agreement or rules or regulations of the landlord if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent those actions to the best of the tenant's ability.

G. For the purposes of this section, "days" means calendar days.

§ 33-1369 Failure to maintain

If there is noncompliance by the tenant with section 33-1341 materially affecting health and safety that can be remedied by repair, replacement of a damaged item or cleaning and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner and submit an itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as rent on the next date when periodic rent is due, or if the rental agreement has terminated, for immediate payment.

§ 33-1370 Abandonment; notice; remedies; personal property; definition

A. If a dwelling unit is abandoned after the time prescribed in subsection J of this section, the landlord shall send the tenant a notice of abandonment by certified mail, return receipt requested, addressed to the tenant's last known address and to any of the tenant's alternate addresses known to the landlord. The landlord shall also post a notice of abandonment on the door to the dwelling unit or any other conspicuous place on the property for five days.

B. Five days after the notice of abandonment has been both posted and mailed, the landlord may retake the dwelling unit and rerent the dwelling unit at a fair rental value if no personal property remains in the dwelling unit. After the landlord retakes the dwelling unit, money held by the landlord as a security deposit is forfeited and shall be applied to the payment of any accrued rent and other reasonable costs incurred by the landlord by reason of the tenant's abandonment.

C. If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent the dwelling unit at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement is deemed to be terminated as of the date the new tenancy begins. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.

D. After the landlord retakes possession of the dwelling unit, and if the tenant's personal property remains in the dwelling unit, the landlord shall prepare an inventory and notify the tenant of the location and cost of storage of the personal property in the same manner prescribed in subsection A of this section.

E. After the landlord retakes possession of the dwelling unit, the landlord may store the tenant's personal possessions in the unoccupied dwelling unit that was abandoned by the tenant, any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available. The landlord is not required to store the tenant's perishable items, plants and animals on behalf of the tenant. The landlord may remove or dispose of, as appropriate, the perishable items, including plants. At the landlord's discretion, the landlord may remove and dispose of any personal property in the dwelling unit that is contaminated, may be considered a biohazard or poses a health and safety risk. After notifying any person who was authorized by the tenant to retrieve the tenant's animal as prescribed in section 33-1314 and no retrieval occurs after one calendar day, the tenant's abandoned animals may be immediately removed and released to a shelter or boarding facility. The landlord shall keep a record of the name and location of the shelter or boarding facility to which the animal was released. If the landlord does not immediately remove and release the abandoned animals to a shelter or boarding facility, the landlord shall provide reasonable care for the abandoned animals for the period prescribed by subsection F of this section. If the landlord is unable or unwilling to provide reasonable care to the abandoned animals, the landlord shall notify the county enforcement agent as defined in section 11-1001 or an animal control officer as prescribed in section 9-499.04 of the presence of the tenant's abandoned animals on the property to be seized pursuant to section 13-4281. The landlord is not liable for any actions taken in good faith related to the removal, release, seizure or care of the abandoned animals pursuant to this section.

F. The landlord shall hold the tenant's personal property for a period of fourteen calendar days after the landlord retakes possession of the dwelling unit. The landlord shall use reasonable care in moving and holding the tenant's personal property. If the landlord holds the property for this period and the tenant makes no reasonable effort to recover it, the landlord may donate the personal property to a qualifying charitable organization as defined in section 43-1088 or otherwise recognized charity or sell the property. If the landlord sells the property, the landlord shall retain the proceeds and apply them toward the tenant's outstanding rent or other costs that are covered in the lease agreement or otherwise provided for in this chapter or title 12, chapter 8 and that have been incurred by the landlord, and excess proceeds shall be mailed to the tenant at the tenant's last known address. A tenant does not have any right of access to that property until the actual removal and storage costs have been paid in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including all those related to the tenant's immigration status, employment status, public assistance or medical care. The landlord may destroy or otherwise dispose of some or all of the property if the landlord reasonably determines that the value of the property is so low that the cost of moving and storing the property and conducting a public sale exceeds the amount that would be realized from the sale. Any tax benefit associated with the donation of the personal property belongs to the tenant. A landlord that complies with this section is not liable for any loss to the tenant or any third party that results from moving, storing or donating any personal property left in the dwelling unit.

G. For a period of twelve months after the sale, the landlord shall:

1. Keep adequate records of the outstanding and unpaid rent and the sale of the tenant's personal property.

2. Hold for the benefit of the tenant any excess proceeds that have been returned as undeliverable.

H. If the tenant notifies the landlord in writing on or before the date the landlord sells or otherwise disposes of the personal property that the tenant intends to remove the personal property from the dwelling unit or the place of safekeeping, the tenant has five days to reclaim the personal property. To reclaim the personal property the tenant must only pay for the costs associated with removal and storage for the period the tenant's personal property was stored. Except as provided in subsection E or I of this section for personal property exempt from storage requirements, within five days after a written offer by the tenant to pay the applicable storage or removal costs the landlord must surrender possession of the personal property in the landlord's possession to the tenant on the tenant's tender of payment. If the landlord fails to surrender possession of the personal property to the tenant, the tenant may recover the possessions or an amount equal to the damages determined by the court if the landlord has destroyed or disposed of the possessions before the fourteen days specified in this section or after the tenant's offer to pay.

I. Notwithstanding subsections D, E, F and G of this section, if the tenant returns to the landlord the keys to the dwelling unit and there is personal property remaining in the dwelling unit, the landlord may immediately remove and dispose of the personal property without liability to the tenant or a third party unless the landlord and tenant have agreed in writing to some other treatment of the property.

J. For the purposes of this section, "abandonment" means either of the following:

1. The absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent for the dwelling unit is outstanding and unpaid for ten days and there is no reasonable evidence other than the presence of the tenant's personal property that the tenant is occupying the residence.

2. The absence of the tenant for at least five days, if the rent for the dwelling unit is outstanding and unpaid for five days and none of the tenant's personal property is in the dwelling unit.

§ 33-1371 Acceptance of partial payments; waiver of right to terminate; exception

A. A landlord is not required to accept a partial payment of rent or other charges. A landlord accepting a partial payment of rent or other charges retains the right to proceed against a tenant only if the tenant agrees in a contemporaneous writing to the terms and conditions of the partial payment with regard to continuation of the tenancy. The written agreement shall contain a date on which the balance of the rent is due. The landlord may proceed as provided in this article and in title 12, chapter 8 against a tenant in breach of this agreement or any other breach of the original rental agreement. If the landlord has provided the tenant with a notice of failure to pay rent as specified in section 33-1368, subsection B before the completion of the agreement for partial payment, no additional notice under section 33-1368, subsection B is required in case of a breach of the partial payment agreement.

B. For the purposes of this section, a landlord's acceptance of a housing assistance payment does not constitute an acceptance of a partial payment of rent or a waiver of a landlord's right to terminate the rental agreement for any breach by the tenant.

C. Except as specified in subsections A and B of this section, acceptance of rent, or any portion of rent, with knowledge of a default by the tenant or acceptance of performance by the tenant that varied from the terms of the rental agreement or rules or regulations subsequently adopted by the landlord constitutes a waiver of the right to terminate the rental agreement for that breach.

§ 33-1372 Landlord liens; distraint for rent

A. A lien or security interest on behalf of the landlord in the tenant's household goods is not enforceable unless perfected before the effective date of this chapter.

B. Distraint for rent is abolished.

§ 33-1373 Remedy after termination

If the rental agreement is terminated, the landlord may have a claim for possession and for rent and a separate claim for actual damages for breach of the rental agreement.

§ 33-1374 Recovery of possession limited

A landlord may not recover or take possession of the dwelling unit by action or otherwise, including forcible removal of the tenant or his possessions, willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, except in case of abandonment, surrender or as permitted in this chapter.

§ 33-1375 Periodic tenancy; hold-over remedies

A. The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least ten days prior to the termination date specified in the notice.

B. The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty days prior to the periodic rental date specified in the notice.

C. If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is willful and not in good faith the landlord, in addition, may recover an amount equal to not more than two months' periodic rent or twice the actual damages sustained by the landlord, whichever is greater. If the landlord consents in writing to the tenant's continued occupancy, section 33-1314, subsection D applies.

§ 33-1376 Landlord and tenant remedies for abuse of access

A. If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access, or terminate the rental agreement. In either case, the landlord may recover actual damages.

B. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement. In either case, the tenant may recover actual damages not less than an amount equal to one month's rent.

§ 33-1377 Special detainer actions; service; trial postponement

A. Special detainer actions shall be instituted for remedies prescribed in section 33-1368. Except as provided in this section, the procedure and appeal rights prescribed in title 12, chapter 8, article 4 apply to special detainer actions.

B. The summons shall be issued on the day the complaint is filed and shall command the person against whom the complaint is made to appear and answer the complaint at the time and place named which shall be not more than six nor less than three days from the date of the summons. The tenant is deemed to have received the summons three days after the summons is mailed if personal service is attempted and within one day of issuance of the summons a copy of the summons is conspicuously posted on the main entrance of the tenant's residence and on the same day the summons is sent by certified mail, return receipt requested, to the tenant's last known address. The summons in a special detainer action shall be served at least two days before the return day and the return day made on the day assigned for trial. Service of process in this manner shall be deemed the equivalent of having served the tenant in person for the purposes of awarding a money judgment for all rent, damages, costs and attorney fees due.

C. For good cause shown supported by an affidavit, the trial may be postponed for not more than three days in a justice court or five days in the superior court.

D. In addition to determining the right to actual possession, the court may assess damages, attorney fees and costs as prescribed by law.

E. If a complaint is filed alleging a material and irreparable breach pursuant to section 33-1368, subsection A, the summons shall be issued as provided in subsection B of this section, except that the trial date and return date shall be set no later than the third day following the filing of the complaint. If after the hearing the court finds by preponderance of the evidence that the material and irreparable breach did occur, the court shall order restitution in favor of the plaintiff not less than twelve nor more than twenty-four hours later.

F. If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for late charges stated in the rental agreement, for costs and, at the plaintiff's option, for all rent found to be due and unpaid through the periodic rental period provided for in the rental agreement as described in section 33-1314, subsection C and shall grant a writ of restitution.

G. If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for 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.

§ 33-1378 Removal of guest

A person who is a guest of a tenant who is not named on a written lease and who remains on the premises without the permission of the tenant or the landlord is not a lawful tenant and that person's presence in or on the premises does not constitute residency or tenancy. A person who knowingly remains on the premises without the permission of the tenant or the landlord may be removed by a law enforcement officer at the request of the tenant or the landlord who is entitled to possession of the premises.

§ 33-1379 Eviction action; dismissal; sealed records

A. In any action for eviction pursuant to section 33-1368 or 33-1377 or pursuant to a forcible entry and detainer action, on the court entering an order that dismisses the action for eviction prior to entry of a judgment or that enters judgment in favor of the tenant, the court shall issue an order sealing all records related to the case.

B. The court shall also order the sealing of an eviction case on the filing of a written stipulation by the landlord and the tenant to set aside the order of eviction and seal the eviction case court file.

C. If the records in an eviction case court file are sealed, the tenant's case records shall only be made available to the following:

1. The person whose records are sealed and any party or any attorney who has made an appearance in the case where records are sealed.

2. The court, except that the tenant's sealed eviction case may not be sold or released as a part of a bulk or individual records transfer to a third party.

3. The clerk of the court or any department that is responsible for maintaining records, except that the tenant's sealed eviction case may not be sold or released as a part of a bulk or individual records transfer to a third party.

D. This section applies to all records relating to an action for summary eviction, a forcible entry and detainer action or a special detainer action that are maintained by the court, including the complaint and any other pleadings, proof of service, any findings and orders of the court and all other papers, records, proceedings and evidence, including exhibits and transcript of the testimony.

Article 5 Retaliatory Action

§ 33-1381 Retaliatory conduct prohibited

A. Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after any of the following:

1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety.

2. The tenant has complained to the landlord of a violation under section 33-1324.

3. The tenant has organized or become a member of a tenants' union or similar organization.

4. The tenant has complained to a governmental agency charged with the responsibility for enforcement of the wage-price stabilization act.

B. If the landlord acts in violation of subsection A of this section, the tenant is entitled to the remedies provided in section 33-1367 and has a defense in action against him for possession. In an action by or against the tenant, evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord's conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. "Presumption", in this subsection, means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

C. Notwithstanding subsections A and B of this section, a landlord may bring an action for possession if either of the following occurs:

1. The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent.

2. The tenant is in default in rent. The maintenance of the action does not release the landlord from liability under section 33-1361, subsection B.

Chapter 11 Arizona Mobile Home Parks Residential Landlord and Tenant Act

Article 1 General Provisions

§ 33-1401 Short title

This chapter shall be known and may be cited as the Arizona mobile home parks residential landlord and tenant act.

§ 33-1402 Purposes

Underlying purposes and policies of this chapter are:

1. To simplify, clarify and establish the law governing the rental of mobile home spaces and rights and obligations of landlord and tenant.

2. To encourage landlord and tenant to maintain and improve the quality of mobile home housing.

§ 33-1403 Supplementary principles of law applicable

Unless displaced by the provisions of this chapter, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating cause supplement its provisions.

§ 33-1404 Administration of remedies; enforcement; notice and pleading requirements

A. The remedies provided by this chapter shall be so administered that the aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages.

B. Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.

C. This chapter does not affect any rights under chapter 8, article 1 of this title.

D. Notwithstanding any other law, an agency of this state and an individual court may not adopt or enforce a rule or policy that requires a mandatory or technical form for providing notice or for pleadings in an action for forcible entry or forcible or special detainer. The form of any notice or pleading that meets statutory requirements for content and formatting of a notice or pleading is sufficient to provide notice and to pursue an action for forcible entry or forcible or special detainer.

§ 33-1405 Settlement of disputed claim or right

A claim or right arising under this chapter or on a rental agreement, if disputed in good faith, may be settled by agreement.

§ 33-1406 Territorial application

This chapter applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a mobile home space in a mobile home park located within this state.

§ 33-1407 Exclusions from application of chapter

A. This chapter does not apply to an occupancy in or operation of public housing as authorized, provided or conducted under or pursuant to title 36, chapter 12, or under or pursuant to any federal law or regulation that might conflict therewith.

B. This chapter does not apply to a mobile home and mobile home space if both are owned by the same person, to recreational vehicles or, except for sections 33-1476.01, 33-1476.02 and 33-1476.03, to travel trailers or to the rental of a mobile home space that is not located in a mobile home park.

C. This chapter does not apply to a mobile home that has not been occupied for residential purposes by one or more persons in its current location with the approval of the landlord since being titled to the mobile home's present owner unless the present owner proves by clear and convincing evidence that the mobile home owner acquired the mobile home for residential purposes but was prohibited from using the mobile home due to circumstances beyond the mobile home owner's control. This subsection includes a mobile home owned by a broker or dealer as defined in section 41-4001.

§ 33-1408 Jurisdiction and service of process; recovery of attorney fees; treble damages

A. The appropriate court of this state may exercise jurisdiction over any landlord or tenant with respect to any conduct in this state governed by this chapter or with respect to any claim arising from a transaction subject to this chapter. In addition to any other method provided by rule or by statute, personal jurisdiction over a landlord may be acquired in a civil action or proceeding instituted in the appropriate court by the service of process in the manner provided by this section.

B. If a landlord is not a resident of this state or is a legal entity not authorized to do business in this state and engages in any conduct in this state governed by this chapter, or engages in a transaction subject to this chapter, the landlord shall designate an agent upon whom service of process may be made in this state. The agent shall be a resident of this state or a legal entity authorized to do business in this state. The designation shall be in writing and filed with the secretary of state. If no designation is made and filed or if process cannot be served in this state upon the designated agent, process may be served upon the secretary of state, but the plaintiff or petitioner shall forthwith mail a copy of this process and pleading by certified mail to the defendant or respondent at his last reasonably ascertained address. If there is no last reasonably ascertainable address and if the defendant or respondent has not complied with section 33-1432, subsections A and B, service upon the secretary of state shall be sufficient service of process without the mailing of copies to the defendant or respondent. Service of process shall be deemed complete and the time shall begin to run for the purposes of this section at the time of service upon the secretary of state. The defendant shall appear and answer within thirty days after completion thereof in the manner and under the same penalty as if he had been personally served with the summons. An affidavit of compliance with this section shall be filed with the clerk of the court on or before the return day of the process, if any, or within any further time the court allows. Where applicable, the affidavit shall contain a statement that the defendant or respondent has not complied with section 33-1432, subsections A and B or the affiant could not ascertain compliance by inquiry directed to the secretary of state.

C. In any contested action arising out of an agreement entered into pursuant to this chapter or for violation of any provisions of this chapter, the court may award the successful party reasonable attorney's fees. The award of reasonable attorney's fees shall be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense. The award need not equal or relate to the attorney's fees actually paid or contracted and may not exceed the amount paid or agreed to be paid. Reasonable attorney's fees shall be awarded by the court upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith. In making such award, the court may consider such evidence as it deems appropriate and shall receive such evidence during trial on the merits of the cause, or separately, regarding the amount of such fees as it deems in the best interest of the parties.

D. Treble damages may be awarded by the court in any contested action arising under this chapter upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith. In making such award, the court may consider such evidence as it deems appropriate and shall receive this evidence during trial on the merits of the case, or separately. If the action is brought in justice court and a party intends to request treble damages, the party shall file with the justice court a pleading stating that treble damages are sought and that the justice court may lawfully award treble damages within the court's jurisdiction of civil actions. In the absence of such pleading, the justice of the peace may not award treble damages. If an opposing party files a verified pleading alleging that with treble damages the amount involved is potentially in excess of the justice court's jurisdiction of civil actions, the provisions of section 22-201, subsection G shall apply.

§ 33-1409 Definitions

In this chapter unless the context otherwise requires:

1. "Action" includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including an action for possession.

2. "Anniversary date" means an annual date applying to all tenants stated in the rental agreement on which the landlord may adjust the amount of rent.

3. "Appurtenances" means awnings, sheds, porches and other attachments to the mobile home.

4. "Building and housing codes" includes any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises, dwelling unit or mobile home space.

5. "Change in use" means either of the following:

(a) A change in the use of land from the rental of mobile home spaces in a mobile home park to some other use.

(b) The redevelopment of the mobile home park.

6. "Compatible" means a mobile home that is in a similar condition as the majority of the other mobile homes in the mobile home park, as determined by the maintenance, condition and overall appearance of the mobile home.

7. "Director" means the director of the Arizona department of housing.

8. "Dwelling unit" excludes real property used to accommodate a mobile home.

9. "Educational program" means a class, workshop or educational convention that primarily instructs attendees on issues dealing with the operation of a mobile home park and that is sponsored by a nonprofit organization whose sole or primary purpose is the advocacy and promotion of the rental mobile home parks industry.

10. "Fund" means the mobile home relocation fund.

11. "Good faith" means honesty in fact in the conduct or transaction concerned.

12. "Guest" means a nonresident, over and above the occupancy limit set for the resident's space under the terms of the rental agreement or by park rules, of a mobile home park who stays at the home of a person with constructive possession of the home with the consent of the resident for one or more nights and not more than thirty days in any twelve-month period.

13. "Landlord" means the owner, lessor, sublessor or operator, or any combination thereof, of a mobile home park and it also means a manager of the premises who fails to disclose as required by section 33-1432.

14. "Mobile home":

(a) Means either of the following:

(i) A residential structure that was manufactured on or before June 15, 1976, that is transportable in one or more sections, eight feet or more in body width, over thirty feet in body length with the hitch, built on an integral chassis, designed to be used as a dwelling when connected to the required utilities and not originally sold as a travel trailer or recreational vehicle and that includes the plumbing, heating, air conditioning and electrical systems in the structure.

(ii) A manufactured home built after June 15, 1976, originally bearing an appropriate insignia of approval issued by the United States department of housing and urban development.

(b) Does not include either of the following:

(i) A recreational vehicle such as a motor home, camping trailer, van, fifth wheel trailer or other type of recreational vehicle.

(ii) A structure known as a park model trailer that is a structure built on a single chassis, mounted on wheels and designed to be connected to the utilities necessary for the operation of installed fixtures and appliances and that has a gross interior area of not less than three hundred twenty square feet and not more than four hundred square feet when prepared for occupancy.

15. "Mobile home park" means any parcel of land that contains four or more mobile home spaces.

16. "Mobile home space" means a parcel of land for rent that has been designed to accommodate a mobile home and provide the required sewer and utility connections.

17. "Moving expenses" means the cost incurred by the tenant whose mobile home is moved for taking down, transporting and setting up the mobile home with the identical, or substantially similar, improvements as were attached to the tenant's mobile home on the mobile home space from which it was removed but does not include the cost of landscaping or the cost of utility lines, trenching or utility connections located in excess of twenty-five feet from the point of hookup on the mobile home.

18. "Organization" includes a corporation, limited liability company, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest and any other legal or commercial entity that is a landlord, owner, manager or designated agent pursuant to section 33-1432.

19. "Owner":

(a) Means one or more persons, jointly or severally, in whom is vested all or part of the legal title to property or all or part of the beneficial ownership and a right to present use and enjoyment of the premises.

(b) Includes a mortgagee in possession.

20. "Park manager" means the person who is primarily responsible for the day-to-day operation of a mobile home park.

21. "Person" includes a company, partnership or firm as well as a natural person.

22. "Premises" means the mobile home park and its existing facilities and appurtenances, including furniture and utilities where applicable, and grounds, areas and existing facilities held out for the use of tenants generally or whose use is promised to the tenant.

23. "Prospective tenant" means a person who desires to become a tenant.

24. "Redevelopment of the mobile home park" means that the spaces being redeveloped shall remain vacant for at least one hundred eighty days after the effective date of all change in use notices that are given to the tenants and either of the following applies:

(a) A minimum of twenty-five percent of the spaces in the park, in groups of at least five contiguous spaces, are being changed into an upgraded mobile home park.

(b) A minimum of twenty-five of the total number of spaces in the park, in groups of at least five contiguous spaces, are being changed into an upgraded mobile home park.

25. "Rent" means payments to be made to the landlord or designated agent in full consideration for the rented premises.

26. "Rental agreement" means leases or agreements and valid rules adopted under section 33-1452 embodying the terms and conditions concerning the use and occupancy of a mobile home space and premises, and includes month-to-month tenancies that arise out of the expiration of a written rental agreement pursuant to section 33-1413.

27. "Resident" means a person entitled under a rental agreement to occupy a mobile home space to the exclusion of others and does not include a person rendering necessary care or services under section 33-1413.03.

28. "Security" or "security deposit" means any refundable money or property given to assure payment or performance under a rental agreement.

29. "Tenant" means a person signing a rental agreement or otherwise agreeing with a landlord for the occupancy of a mobile home space.

30. "Visitor" means a nonresident of a mobile home park who stays at the home of a resident with the consent of the resident but does not stay overnight.

§ 33-1410 Obligation of good faith

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.

§ 33-1411 Unconscionability

A. If the hearing officer or court, as a matter of law, finds:

1. That a rental agreement or any provision thereof was unconscionable when made, the hearing officer or court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

2. That a settlement in which a party waives or agrees to forego a claim or right under this chapter or under a rental agreement was unconscionable at the time it was made, the hearing officer or court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid any unconscionable result.

B. If unconscionability is put into issue by a party or by the hearing officer or court upon his or its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the hearing officer or court in making the determination.

§ 33-1412 Notice

A. A person has notice of a fact if he has actual knowledge of it, has received a notice or notification of it or from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person "knows" or "has knowledge" of a fact if he has actual knowledge of it.

B. A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person "receives" a notice or notification when it comes to his attention, or in the case of the landlord, it is delivered in hand or mailed by registered or certified mail to the place of business of the landlord through which the rental agreement was made or at any place held out by him as the place for receipt of the communication or delivered to any individual who is designated as an agent by section 33-1432 or, in the case of the tenant, it is delivered in hand to the tenant or mailed by registered or certified mail to him at the place held out by him as the place for receipt of the communication or, in the absence of such designation, to his last known place of residence other than the landlord's mobile home or space, if known. If notice is mailed by registered or certified mail, the tenant or landlord is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.

C. "Notice" knowledge or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting the transaction and in any event from the time it would have been brought to his attention if the organization had exercised reasonable diligence, but such knowledge shall be subject to proof.

§ 33-1413 Terms and conditions of rental agreement

A. At the beginning of the tenancy, a signed, written rental agreement must be executed by the landlord or designated agent and a tenant. The rental agreement shall be executed in good faith by both parties and shall not provide for the waiver of any rights given to either party by other provisions of this chapter. The rental agreement shall be for a specific period and shall include:

1. The amount of the rent.

2. The amount of any security deposit.

B. If the landlord and tenant agree to the term of the rental agreement, the rental agreement may be for any term. If the landlord and tenant disagree on the term of the rental agreement, the rental agreement shall be for twelve months. The initial term of a rental agreement may be for less than twelve months if the reason is to ensure conformity with a standard anniversary date. Any written rental agreement shall have all blank spaces completed, and executed copies of the written rental agreement shall be furnished to all parties within ten days of execution.

C. The rental agreement may include conditions not prohibited by this chapter or other rule of law governing the rights and obligations of the parties.

D. The landlord shall attach to the rental agreement a statement signed by the prospective tenant acknowledging receipt of:

1. The disclosures required in section 33-1432.

2. A current copy of this chapter as prescribed in section 33-1432.

3. A current copy of the rules or regulations adopted pursuant to section 33-1452.

E. Rent shall be payable without demand or notice at the time and place agreed upon by the parties. Periodic rent is payable at the beginning of any term of one month or less, and thereafter, unless otherwise agreed, in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent shall be uniformly apportionable from day to day.

F. A landlord shall not prohibit a tenant who is a member of the armed forces of the United States from terminating a rental agreement with less than two weeks' notice to the landlord if he receives reassignment orders which do not allow such prior notification.

G. Notwithstanding any provision of this article to the contrary, upon the expiration or renewal of any rental agreement, the landlord may increase or decrease the total rent or change payment arrangements. The landlord shall notify the tenant in writing by first class or certified mail or by personal delivery at least ninety days prior to the expiration or renewal of any rental agreement of any such increase or change. Nothing in this subsection requires a landlord to provide cause for any change in rent if the landlord complies with notice requirements.

H. On expiration of a written rental agreement for a specified term or written renewal of a rental agreement, tenancy is on a month-to-month basis unless the landlord, its designated agent or the tenant requests a new written rental agreement. If the landlord and tenant agree to the term of the rental agreement, the rental agreement may be for any term. If the landlord and tenant disagree on the term of the rental agreement, the rental agreement shall be for twelve months.

I. In addition to any other rental provisions, the landlord is entitled to a rental increase effective at the expiration or renewal of any rental agreement or effective immediately if so provided in a written rental agreement to compensate the landlord for actual costs of insurance, taxes and rate increases for utilities, which shall be substantiated by the landlord in writing to the tenant.

J. As a condition of tenancy the rental agreement may require the prospective tenant to make improvements to the mobile home, including all appurtenances owned by the tenant, and to preserve or upgrade the quality of the mobile home park even if the prospective tenant is purchasing a home already located in the mobile home park. The improvements shall not exceed the requirements of the rules or regulations of the mobile home park.

K. Notwithstanding subsections A, B and H of this section, the tenant may demand in writing and the landlord shall offer a long-term initial or renewal rental agreement that complies with all of the following:

1. The long-term initial or renewal rental agreement shall be in writing and shall be for a term of four years. A long-term rental agreement may be for a term of less than four years if the reason is to ensure conformity with a standard park anniversary date.

2. All rents and other fees due during the term of the long-term rental agreement shall be clearly identified in the agreement.

3. The tenant has ten days from the date of receipt of the long-term rental agreement to accept or reject the agreement. If an agreement is not signed and returned to the landlord within the ten day period, the tenant is deemed to have rejected the agreement. On rejection of the agreement, subsections A, B and H of this section apply.

L. The rental agreement may contain conditions regarding the removal of a mobile home from the mobile home park and the restoration of a mobile home space by a tenant or a tenant’s successor in interest after removal of the mobile home. The conditions shall not include any provisions regarding environmental liability or environmental remediation, and any environmental liability or environmental remediation requirements shall be governed as otherwise provided by law.

§ 33-1413.01 Utility charges; waste, garbage and rubbish removal charges

A. If a landlord charges separately for gas, water or electricity there shall be a separate meter for every user. For each billing period the cost of the charges for the period shall be separately stated, along with the opening and the closing meter readings and the dates of the meter readings. Each bill shall show the computation of the charge generally in accordance with the serving utility company billing format for individual service supplied through a single service meter.

B. If the landlord separately charges for utilities, the landlord shall not charge more than the prevailing basic service single family residential rate charged by the serving utility or provider.

C. For the purpose of regulating mobile home parks as public or consecutive water systems, the state shall not adopt rules pursuant to title 49, chapter 2, article 9, that are more stringent than authorized by the federal government. Submetering solely to determine the charges for individual water use by park tenants for the purpose of water conservation, without other evidence indicating a transaction subject to regulation under title 49, chapter 2, article 9, shall not be used as a basis for treating any mobile home park as a public or consecutive water system.

D. A landlord may charge separately for removal of waste, garbage, rubbish, refuse and trash and for sewer services. Any charges for removal or sewer services may not exceed the prevailing single family residential charge, fee or rate for these services levied by the political subdivision or provider.

§ 33-1413.02 Guest fee

The rental agreement may provide that the landlord may charge a guest fee.

§ 33-1413.03 Care givers

Pursuant to state and federal fair housing laws, a resident who has a disability as defined in section 41-1491 may have one or more persons occupy the resident's mobile home to provide necessary live-in health care, personal care or supportive services if the care or services are necessary to afford the resident with a disability an equal opportunity to use and enjoy the dwelling. The landlord shall not charge a fee for the persons rendering live-in health care, personal care or supportive services. The persons rendering live-in health care, personal care or supportive services have no rights of tenancy, and any agreement between the resident and the persons rendering live-in health care, personal care or supportive services does not modify any term or condition of the rental agreement between the landlord and tenant. The persons rendering live-in health care, personal care or supportive services shall comply with the rules and regulations of the mobile home park.

§ 33-1414 Prohibited provisions in rental agreements; late payment penalty

A. A rental agreement shall not provide that the tenant agrees to:

1. Waive or to forgo rights or remedies under this chapter.

2. Pay the landlord's attorney fees, except an agreement in writing may provide that attorney fees may be awarded to the prevailing party in the event of court action.

3. The exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.

4. Permit the landlord to charge a penalty fee for late payment of rent unless a tenant is allowed a minimum of five days beyond the date the rent is due in which to remit payment.

5. Permit the landlord to charge a fee for a guest who does not stay for more than a total of fourteen days in any calendar month.

6. Waive or limit the tenant's right to summon or any other person's right to summon a peace officer or other emergency assistance in response to an emergency.

7. Payment of monetary penalties or otherwise penalizes the tenant for the tenant summoning or for any other person summoning a peace officer or other emergency assistance in response to an emergency.

8. Place any additional person's name on the title to the mobile home as a condition of tenancy or residency for that additional person or pay a fee or other form of penalty for failing to place an additional person's name on the title to the mobile home.

B. A provision that is prohibited by subsection A of this section and that is included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known to be prohibited, the tenant may recover actual damages sustained and the rental agreement is voidable by the tenant.

C. A landlord may charge a penalty fee of not to exceed five dollars per day from the due date of the rent for late payment of rent if the payment is not remitted by the sixth day from the due date.

D. This section does not limit the landlord's right to evict a tenant pursuant to section 33-1476.

§ 33-1415 Separation of rents and obligations to maintain property forbidden

A rental agreement, assignment, conveyance, trust deed or security instrument may not permit the receipt of rent, unless the landlord has agreed to comply with section 33-1434, subsection A.

§ 33-1416 Preemption by state; regulation of rents; exception

A. Notwithstanding any other provision of law, the state legislature determines that the imposition of rent control on mobile home spaces by counties, cities, including charter cities, and towns is of statewide concern. Therefore, the power to control rents on mobile home spaces is preempted by the state. Counties, cities, including charter cities, or towns do not have the power to control rents.

B. Subsection A does not apply to mobile home spaces which are owned, financed, insured or subsidized by any state agency, or by any county, city, including a charter city, or town.

§ 33-1417 Rebates and referrals prohibited; mobile homes and manufactured homes; damages

A. A landlord shall not offer, solicit, pay, receive or require from another landlord or from a person who is licensed pursuant to title 41, chapter 37, article 4 any form of compensation or benefit in connection with the purchase, sale, rental, location or removal of a mobile or manufactured home to or from a mobile home park or mobile home space.

B. A person who is licensed pursuant to title 41, chapter 37, article 4 shall not offer, solicit, pay, receive or require from another person who is licensed pursuant to title 41, chapter 37, article 4 or from a landlord any form of compensation or benefit in connection with the purchase, sale, rental, location or removal of a mobile or manufactured home to or from a mobile home park or mobile home space.

C. This section does not apply to any of the following:

1. Compensation paid by a licensed dealer or broker to a licensed salesperson for activities within the scope of employment.

2. Money or other benefits paid directly to a tenant or prospective tenant by a landlord when fully disclosed to the tenant in writing.

3. Payments or other benefits provided between a landlord and a licensed dealer or broker with an ongoing business relationship if those payments or benefits received total less than one hundred dollars in a calendar year.

4. Payments made by a landlord to a licensed dealer or broker as a commission in connection with the sale of a mobile or manufactured home or recreational vehicle owned by the landlord.

D. A person who violates this section is liable for three times the amount of money damages suffered by the person harmed.

§ 33-1418 Incorporated tenants' park purchase association

A. An incorporated tenants' park purchase association may be formed for the purpose of giving written notification to the owner of a mobile home park of the association's interest in purchasing the park.

B. This section does not confer a right of first refusal to an association formed under subsection A. A mobile home park sale shall not be restricted in any way to affect the marketability of title.

§ 33-1419 Inheritance of mobile home; requirements

For any person who inherits a mobile home by will, trust or any other testamentary conveyance, all of the following apply:

1. The person may do either of the following:

(a) Reside in the mobile home on the premises only if the person meets the requirements prescribed for other tenants in the mobile home park, including compliance with age requirements, background checks and signing the mobile home park's standard rental documentation.

(b) Sell the mobile home in accordance with the provisions of this article and the deceased tenant's rental agreement.

2. The person shall pay any amount past due to the landlord from the deceased tenant.

3. The landlord shall apply all of the deceased tenant's prepaid amounts or credits, including security deposits, for the benefit of the person inheriting the mobile home.

Article 2 Landlord Obligations

§ 33-1431 Security deposits

A. A landlord shall not demand or receive as security, however denominated, prepaid rent in an amount or value in excess of two months' rent. This subsection does not prohibit a tenant from voluntarily paying more than two months' rent in advance.

B. The landlord shall pay not less than five per cent annual interest on any damage, security, cleaning or landscaping deposit required by a landlord of a tenant. The landlord shall either pay the interest annually or compound the interest annually.

C. Upon termination of the tenancy, any security deposit, less any accrued rent and damages, if applicable, shall be returned to the tenant within fourteen days. The security deposit may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with section 33-1451 if it is itemized by the landlord in a written notice delivered to the tenant together with the amount due within fourteen days of termination of the tenancy and delivery of possession by the tenant.

D. If the landlord fails to comply with subsections B and C of this section the tenant may recover the property and money due the tenant together with damages in an amount equal to twice the amount wrongfully withheld.

E. This section does not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter.

F. The holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this section.

G. The amount of any security deposit shall not be changed after the tenant executes the initial rental agreement.

§ 33-1432 Disclosure of written rental agreement

A. The landlord or any person authorized to enter into a rental agreement on the landlord's behalf shall disclose to the tenant in writing before entering into the rental agreement each of the following:

1. The name and address of the person authorized to manage the premises.

2. The name and address of the owner of the premises.

3. If applicable, the name and address of a person authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for notices and demands.

4. For a prospective tenant on an initial rental agreement, a written statement that shows the rent increases for the three full calendar years immediately preceding the prospective initial rental agreement date. This information shall be for basic space rental only and does not apply to other fees such as late charges, guest fees and utility charges. The landlord may disclose the rent history with calculations that fairly describe the rent history and that are made in any manner that reasonably informs the prospective tenant of the history of basic space rent in the mobile home park during that period. The disclosure calculation may be made in January of each year by adding the dollar amounts or percentage amounts for aggregate rental increases that became effective in the prior calendar year for every space in the park and dividing that number by the total number of occupied revenue spaces for which rent was or could have been increased. This average amount of rental increase or average percentage of rental increase shall be posted at the rental office for three years. Disclosure calculations made pursuant to this section shall be made to the best of the landlord's ability.

B. The information required to be furnished by this section shall be kept current and refurnished to the tenant on the tenant's request except that any successor landlord shall not be required to provide average rent disclosures relating to previous landlords.

C. When there is a new owner or operator this section extends to and is enforceable against any successor landlord, owner or manager.

D. A person who fails to comply with subsection A, paragraph 1, 2 or 3 or subsection B of this section becomes an agent of each person who is a landlord for the following purposes:

1. Service of process and receiving and receipting for notices and demands.

2. Performing the obligations of the landlord under this chapter and under the rental agreement and expending or making available for the purpose all rent collected from the premises.

E. The landlord or any person authorized to enter into a rental agreement on the landlord's behalf shall post in a conspicuous place a copy of the current utility rates unless the tenant is charged directly by the utility company.

F. Each tenant shall be notified, in writing, of any rent increase at least ninety days prior to the increase by first class or certified mail or by personal delivery. The mobile home parks hearing officer has jurisdiction to determine whether notices have been served properly and in a timely manner.

G. Before entering into a rental agreement, the landlord or any person authorized to enter into the rental agreement shall provide to the prospective tenant a concise written summary of the Arizona mobile home parks residential landlord and tenant act that is approved by the director annually by November 1 and that includes any legislative changes made in the preceding year. The director shall post the approved summary on the Arizona department of housing's website. The landlord shall provide the summary to the tenant at no cost to the tenant. The summary shall include information regarding where a complete copy of the act may be obtained or reviewed, including listing the Arizona department of housing's website. This subsection does not apply to renewal of rental agreements. The Arizona department of housing shall post the act on the Arizona department of housing's website.

H. The landlord shall make available to all tenants a concise written summary of the Arizona mobile home parks residential landlord and tenant act that is approved by the director annually by November 1 and that includes any legislative changes made in the preceding year. The summary shall include information regarding where a complete copy of the act may be obtained or reviewed, including listing the Arizona department of housing's website. The director shall post the approved summary on the Arizona department of housing's website. The landlord shall provide the summary at no cost to the tenants.

§ 33-1433 Landlord to deliver possession of mobile home space

At the commencement of the term the landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and section 33-1434. The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in section 33-1483.

§ 33-1434 Landlord to maintain fit premises

A. The landlord shall:

1. Comply with the requirements of all applicable city, county and state codes materially affecting health and safety.

2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.

3. Keep all common areas of the premises in a clean and safe condition.

4. Maintain in good and safe working order and condition all swimming pool, shower, bathhouse, electrical, plumbing and sanitary facilities, including the recreational hall or meeting facilities supplied or required to be supplied or maintained by the landlord.

5. Provide for removal of garbage, rubbish and other waste incidental to the occupancy of the mobile home space.

6. Furnish outlets for electric, water and sewer services. The landlord shall also furnish a prospective tenant with information concerning the type, size and power rating of all electrical, water and sewer connections.

7. Provide a statement of proposed interruption of utility service to the tenants within a reasonable time frame except in the case of an interruption caused by an emergency. An emergency does not include any failure or refusal on the part of the landlord to fulfill the landlord's duties and obligations as specified in this section. A statement of proposed interruption of utility service may be provided by posting an announcement of the period of the interruption in a conspicuous place within the mobile home park or by individual delivery to each tenant.

B. A mobile home park landlord shall not impose any conditions of rental or occupancy that restrict the mobile home owner in the mobile home owner's choice of a seller of fuel, furnishings, goods, services or mobile homes connected with the rental or occupancy of a mobile home space unless such condition is necessary to protect the health, safety, aesthetic value or welfare of mobile home residents in the park. However, the landlord may impose reasonable conditions relating to central gas, oil, electricity or water meter systems in the park.

C. For new tenants who are moving into a mobile home park, any rental agreements that are executed or adopted after December 31, 2016 shall specifically disclose in writing any requirement that the tenant maintain one or more existing trees located on the mobile home space.

D. Any change regarding the tenant's obligation to maintain any one or more trees located on the mobile home space constitutes a substantial modification of the rental agreement pursuant to section 33-1452.

§ 33-1435 Limitation of liability

A. Unless otherwise agreed, a landlord who conveys premises that include a mobile home space subject to a rental agreement in a good faith sale to a bona fide purchaser is relieved of liability under the rental agreement and this chapter as to events occurring subsequent to written notice to the tenant of the conveyance. He remains liable to the tenant for any right of possession, property and money to which the tenant is entitled under section 33-1431.

B. Unless otherwise agreed, a manager of premises that include a mobile home space is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the termination of his management, except such notice shall not terminate any agreement or legal liability.

§ 33-1436 Statement of policy; amendment; contents; new statements

A. Before execution of the rental agreement the landlord or any person authorized to enter into the rental agreement shall provide the tenant with the statements of policy of the mobile home park and the date of expiration of each statement. The landlord or any successor in interest shall not delete or amend any statement of policy while it is in force.

B. The statements of policy shall be attached to the rental agreement and shall include a statement of the following:

1. The classification of the mobile home park as a family community or a housing community for older persons.

2. The period of time before any change in use is expected.

3. Any method of determining rent changes.

4. The right of first refusal on the sale of the mobile home park if any is given to the tenants and under what conditions the right may be exercised.

5. The size and other specifications of mobile homes allowed in the mobile home park including whether the mobile home must be new or used and whether it must be set at ground level or above ground level.

6. The improvements required as a condition of tenancy. If consistent with the rental agreement, the statement of policy may require improvements that the tenant will be required to furnish, install and maintain to the mobile home space being rented and that constitute permanent improvements that cannot be removed at the expiration of the rental agreement including the estimated cost of each permanent improvement. Any change in a statement of policy regarding permanent improvements does not apply to an existing tenant or to any renewal of a rental agreement by an existing tenant.

7. That insuring the mobile home is the tenant's responsibility including fire department response insurance in unincorporated areas.

C. At least sixty days before the expiration of a statement of policy, the landlord shall notify all of the tenants of any new statement of policy.

D. Beginning on January 1, 2000, a landlord may have only one set of statements of policy in effect at any period of time and that set of statements of policy applies to all tenants. A landlord with more than one set of statements of policy in effect on January 1, 2000 shall provide to all tenants by February 1, 2000 a copy of the set with the longest expiration date and that set of statements of policy applies to all tenants at that park.

§ 33-1437 Education requirements for park managers; complaint; administrative hearing; civil penalty

A. Within six months after employment as a park manager, a park manager shall complete at least six hours of educational programs and shall complete at least six additional hours of educational programs every two years.

B. A park manager shall post proof of completion of and compliance with the educational program requirements prescribed by this section in a conspicuous place at the mobile home park.

C. A tenant may file a complaint with the director if, on request from the tenant, the tenant’s park manager cannot produce proof of completion of the requirements prescribed in this section. The director shall issue a show cause order to the landlord directing the landlord to provide proof that the requirements of subsection A have been satisfied. If the landlord fails to produce satisfactory evidence of compliance or fails to respond within thirty days after service by certified mail of the show cause order, the director shall impose a five hundred dollar civil penalty, with an additional five hundred dollar per month civil penalty to accrue each full calendar month beginning with the second month following service of the notice of imposition of civil penalty. All civil penalties shall be exonerated if, within six months after service of the notice of imposition of civil penalty, the landlord furnishes satisfactory evidence of compliance. Otherwise, the matter shall be referred to the attorney general for enforcement and collection of the civil penalties and a ten per cent surcharge on the total amount of the civil penalties collected. All civil penalties shall be deposited in the state general fund and the ten per cent surcharge shall be deposited in the mobile home relocation fund.

§ 33-1438 Transfer of records; sale of park

On the sale or other transfer of a mobile home park, the landlord shall deliver to the buyer or other transferee all available plans, drawings and records pertaining to the location of all underground facilities in the parks, all plans, drawings, surveys and plats of the park, all records pertaining to tenant security deposits and complete files for each tenant of the park at closing containing rental agreements and all other documents and disclosures required by this chapter that are in the possession of the landlord. A landlord who fails to deliver reasonably accurate and maintained installation records of active, inactive and abandoned underground facilities installed after December 31, 2006 is liable for all damages proximately caused by the failure, including all expenses incurred by successor landlords to create the installation records.

Article 3 Tenant Obligations

§ 33-1451 Tenant to maintain mobile home space; notice of vacating; clearance for removal; criminal violation

A. A tenant of a mobile home space shall exercise diligence to maintain that part of the premises that the tenant has rented in as good condition as when the tenant took possession and shall:

1. Comply with all obligations primarily imposed on tenants by applicable provisions of city, county and state codes materially affecting health and safety.

2. Keep that part of the premises that the tenant occupies and uses as clean and safe as the condition of the premises permits.

3. Dispose from the tenant's mobile home space all rubbish, garbage and other waste in a clean and safe manner as prescribed by park rules.

4. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so.

5. Conduct himself and require other persons on the premises with the tenant's consent to conduct themselves in a manner that will not disturb the tenant's neighbors' peaceful enjoyment of the premises.

6. Inform the landlord or manager of the mobile home park at least thirty days before the expiration of the rental agreement that the agreement will not be renewed by the tenant and that the premises will be vacated. If timely notice is not given prior to moving from the mobile home space, the tenant is responsible for rent equal to an amount consistent with the applicable notice period.

B. A tenant shall not remove a mobile home from a mobile home space unless the tenant has received from the landlord a clearance for removal showing that all monies due the landlord as of the date of removal have been paid or that the landlord and tenant have otherwise agreed to the removal. The landlord shall not interfere with the removal of a mobile home for any reason other than nonpayment of monies due as of the date of removal even if the term of the rental agreement has not expired.

C. A person shall not enter a mobile home park and begin work on the removal of a mobile home from a mobile home park without first satisfying the requirements for a clearance for removal as prescribed in section 33-1485.01. A person who has not satisfied the requirements for a clearance for removal as prescribed in section 33-1485.01 and who refuses to leave and remove their removal equipment from the mobile home park on request from the landlord commits criminal trespass in the third degree pursuant to section 13-1502. This subsection does not apply if the landlord refuses to provide the clearance for removal if the requirements in section 33-1485.01 are satisfied.

§ 33-1452 Rules and regulations

A. A landlord shall adopt written rules or regulations, however described, concerning the tenant's use and occupancy of the premises. Such rules or regulations are enforceable against the tenant only if:

1. Their purpose is to promote the convenience, safety or welfare of the tenants on the premises, preserve the landlord's property from abusive use, preserve or upgrade the quality of the mobile home park or make a fair distribution of services and facilities held out for the tenants generally.

2. They are reasonably related to the purpose for which adopted.

3. They apply to all tenants on the premises in a fair manner.

4. They are sufficiently explicit in prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what must or must not be done to comply.

5. They are not for the purpose of evading the obligations of the landlord.

6. The prospective tenant has a copy of the current rules and regulations before the prospective tenant enters into the rental agreement.

B. Beginning May 31, 2016, a new rule adopted after the execution of the tenant's initial rental agreement that imposes a recurring financial obligation on a tenant is not enforceable against the tenant.

C. A new tenant who brings a mobile home into a mobile home park or who purchases an existing mobile home in a mobile home park shall comply with all current statements of policy and rules or regulations, including those pertaining to the size, condition and appearance of the mobile home, and exterior materials with which the mobile home has been constructed.

D. A new tenant who purchases an existing mobile home in a mobile home park shall comply with all current statements of policy and rules and regulations, including those pertaining to the size, condition and appearance of the mobile home and exterior materials with which the mobile home has been constructed, except that the landlord shall not require the replacement of the siding and skirting on a mobile home unless the replacement siding and skirting will significantly change or improve the appearance of the mobile home.

E. If any mobile home park owner adds, changes, deletes or amends any rule, notice in writing of all such additions, changes, deletions or amendments shall be furnished to all mobile home tenants thirty days before they become effective by first class or certified mail. Any rule or condition of occupancy that is unfair and deceptive or that does not conform to the requirements of this chapter shall be unenforceable. A rule or regulation adopted after the tenant enters into the rental agreement is enforceable against the tenant only if it does not work a substantial modification of the rental agreement.

F. A person who owns or operates a mobile home park shall not:

1. Deny rental unless the mobile home does not meet the requirements of the rules and regulations of the landlord and the statements of policy prescribed pursuant to section 33-1436 or the park resident or prospective resident cannot conform to park rules and regulations.

2. Require any person as a precondition to renting, leasing or otherwise occupying a space for a mobile home in a mobile home park to pay an entrance or exit fee of any kind unless for services actually rendered or pursuant to a written agreement.

3. Deny any resident of a mobile home park the right to sell the resident's mobile home at a price of the resident's own choosing during the term of the tenant's rental agreement, but the landlord may reserve the right to approve the purchaser of such mobile home as a tenant but such permission may not be unreasonably withheld, except that the landlord may require, notwithstanding paragraph 6 of this subsection, in order to preserve or upgrade the quality of the mobile home park, that any mobile home not in compliance with the landlord's current rules and regulations and statements of policy, in a rundown condition or in disrepair be removed from the park within sixty days. Within ten days of a written request by the seller or prospective purchaser, a landlord shall notify the seller and the prospective purchaser in writing of any reasons for withholding approval of a purchaser pursuant to this paragraph. The notice to the prospective purchaser shall identify the reasons for disapproval with reasonable specificity. The notice to the seller shall identify the reasons in summary fashion consistent with applicable federal and state consumer protection laws and shall inform the seller that the seller should consult with the prospective purchaser for more specific details.

4. Exact a commission or fee with respect to the price realized by the tenant selling the mobile home, unless the park owner or operator has acted as agent for the mobile home owner pursuant to a written agreement.

5. Require a tenant or prospective tenant to use any specific sales agency, manufacturer, retailer or broker.

6. Notwithstanding section 33-1436, subsection C, require an existing tenant to furnish permanent improvements that cannot be removed without damage thereto or to the mobile home space by a tenant at the expiration of the rental agreement. If the landlord includes any requirements for permanent improvements in the rules or statements of policy, these requirements shall not apply to any mobile home already existing in the mobile home park.

7. Prohibit a tenant from advertising the sale or exchange of the tenant's mobile home, including the display of a "for sale" or "open house" sign on the dwelling or in the window of the mobile home stating the name, address and telephone number of the owner or agent of the mobile home. The sign may be no larger than twelve inches wide and eighteen inches long. In addition to the display of a sign in the window, the tenants may display the signs on a central posting board in the park that is reasonably accessible to the public seven days a week during daylight hours.

8. Require a tenant to place any additional person's name on the title to the mobile home as a condition of tenancy or residency for that additional person or pay a fee or other form of penalty for failing to place an additional person's name on the title to the mobile home.

9. Prohibit a tenant from installing reasonably necessary commercial cooling methods on the tenant's mobile home.

G. The landlord or manager of a mobile home park shall include, in rules and regulations, an emergency number to be called when the park is left unattended, regardless of the size of the park.

H. The landlord shall not prohibit or adopt a rule that prohibits tenants or a tenant association from meeting with permission of the tenant in the tenant's mobile home, assembling at common facilities or areas within the park or meeting with or without invited visiting speakers in the mobile home park to discuss issues relating to mobile home living and affairs including the forming of a tenant association. Such meetings shall be allowed in common facilities if such meetings are held during normal operating hours of the common facility and when the facility is not otherwise in use. The tenant or tenant association shall be allowed to post notice of a meeting on a bulletin board in the mobile home park used for similar notices and shall be allowed to include notice of a meeting in a park newsletter. Meeting notices and meetings prescribed in this subsection shall not constitute a solicitation. For the purposes of this subsection, "common facilities" means a recreation hall, a clubhouse, a community center and any outdoor common area meeting location that is utilized by the tenants.

I. Any improvements made by a tenant such as plants, vines, edgings, gravel, stone or other additions made for the benefit of the tenancy may be removed by the tenant, or by agreement of both parties the landlord may retain the improvements by paying the tenant for their actual cost.

J. If a tenant dies, any surviving joint tenant or cotenant continues as tenant with the same rights, privileges and liabilities as if the surviving tenant were the original tenant, with the additional right to terminate the rental agreement by giving sixty days' written notice to the landlord within sixty days after the death of the tenant.

K. If a tenant who was sole owner of the mobile home dies during the term of the rental agreement, the tenant's heirs or legal representative have the right to cancel the lease by giving thirty days' written notice to the landlord with the same rights, privileges and liabilities of the original tenant.

L. This section does not prohibit a landlord from requiring removal of a mobile home from the mobile home park within sixty days after the sale by a tenant if the mobile home does not meet the current requirements of the rules and regulations and statements of policy, including those pertaining to the size, condition and appearance of the mobile home, and exterior materials with which the mobile home has been constructed.

M. On the sale of a mobile home that was manufactured after June 15, 1976 to a tenant who is otherwise qualified for tenancy, a landlord shall not require removal of that mobile home from the mobile home park solely because of the age of the mobile home. A landlord may require the removal of a mobile home on the sale of the mobile home solely because of the age of the mobile home if the mobile home was manufactured on or before June 15, 1976. This subsection shall not be construed to preclude a landlord from prohibiting a mobile home from being moved into a mobile home park solely because of the age of the mobile home without regard to its date of manufacture.

§ 33-1453 Access

A. The landlord has no right of access to a mobile home owned by a tenant.

B. The landlord and tenant may mutually agree, in writing, to give the landlord access.

§ 33-1454 Tenant to occupy as a dwelling unit; authority to sublet

A. Unless otherwise agreed, the tenant shall occupy the tenant's mobile home only as a dwelling unit and may sublet, upon written agreement with the park management.

B. If a landlord adopts a policy of permitting subleasing, the landlord shall not unreasonably withhold approval of subleases and subtenants. A landlord may adopt a policy that prohibits subleasing, but that policy is not effective against any subleasing that had been approved by the landlord and that was in effect at the time the subleasing prohibition was adopted.

C. This section shall not be construed to require any landlord to permit subleasing of spaces.

Article 4 Remedies

§ 33-1471 Noncompliance by the landlord

A. Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement, the rules and regulations or statements of policy, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days. If there is a noncompliance by the landlord with section 33-1434 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days. The rental agreement shall terminate and the mobile home space shall be vacated as provided in the notice subject to the following:

1. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate.

2. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.

B. Except as provided in this chapter, the tenant may recover damages, and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or section 33-1434.

C. The remedy provided in subsection B of this section is in addition to any right of the tenant arising under subsection A of this section.

D. If the rental agreement is terminated, the landlord shall return all deposits less reasonable damages.

§ 33-1472 Failure to deliver possession

A. If the landlord fails to deliver physical possession of the mobile home space to the tenant as provided in section 33-1433, rent abates until possession is delivered and the tenant may do either of the following:

1. Upon at least five days' written notice to the landlord terminate the rental agreement and upon termination the landlord shall return all deposits.

2. Demand performance of the rental agreement by the landlord and, if the tenant elects, maintain an action for possession of the mobile home space against the landlord or any person wrongfully in possession and recover the damages sustained by him.

B. If the landlord fails to deliver constructive possession to the tenant because of noncompliance with section 33-1434, rent shall not abate. The tenant may proceed with the remedies provided for in section 33-1471.

C. If a person's failure to deliver possession is wilful and not in good faith, an aggrieved person may recover from that person the actual damages sustained by him, plus any attorney's fees and court costs.

§ 33-1473 Self-help for minor defects

A. If the landlord fails to comply with section 33-1434, the tenant may recover damages for the breach under section 33-1471, subsection B, or may notify the landlord of his intention to correct the condition at the landlord's expense. After being notified by the tenant in writing, if the landlord fails to comply within twenty days or as promptly thereafter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and, after submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work.

B. A tenant may not repair at the landlord's expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.

§ 33-1474 Wrongful failure to supply essential services

A. If contrary to the rental agreement or section 33-1434, the landlord deliberately or negligently fails to supply essential services, the tenant may give reasonable notice to the landlord specifying the breach under tenant's remedies.

B. The rights under this section do not arise until the tenant has given notice to the landlord. Such rights do not arise if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.

§ 33-1475 Tenant's remedies for landlord's unlawful ouster, exclusion or diminution of services

If the landlord unlawfully removes or excludes the tenant from the premises or wilfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount equal to two months' periodic rent and twice the actual damages sustained by him. If the rental agreement is terminated, the landlord shall return all deposits.

§ 33-1476 Termination or nonrenewal of rental agreement by landlord; noncompliance with rental agreement by tenant; failure to pay rent

A. The landlord shall specify the reason or reasons for the termination or nonrenewal of any tenancy in the mobile home park. The reason or reasons relied on for the termination or nonrenewal shall be stated in writing with specific facts, so that the date, place and circumstances concerning the reason or reasons for termination or nonrenewal can be determined. Reference to or recital of the language of this chapter, or both, is not sufficient compliance with this subsection.

B. The landlord may not terminate or refuse to renew a tenancy without good cause. "Good cause" means:

1. Noncompliance with any provision of the rental agreement.

2. Nonpayment of rent.

3. Change in use of land.

4. Clear and convincing evidence that a tenant has repeatedly violated any provision of this chapter and established a pattern of noncompliance with such provisions.

C. The landlord's right to terminate or to refuse to renew a tenancy pursuant to subsection B of this section does not arise until the landlord has complied with subsection D, E or H of this section.

D. Except as otherwise prohibited by law:

1. If there is a material noncompliance by the tenant with the rental agreement, the landlord shall deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days. If the tenant remedies the situation within the time specified in the notice, the landlord shall issue a notice to the tenant releasing the tenant from the termination of rental agreement notice. If within fourteen days of receipt of the notice of the breach the tenant presents to the landlord a signed contract with a contractor who is licensed pursuant to title 32, chapter 10 to correct the breach showing the breach will be repaired within sixty days of the notice, the landlord shall extend the time for repairs from fourteen days to sixty days.

2. If there is a noncompliance by the tenant with section 33-1451 materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days. However, if the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate. If the tenant remedies the situation within the time specified in the notice, the landlord shall issue a notice to the tenant releasing the tenant from the termination of rental agreement notice.

3. If there is a noncompliance that is both material and irreparable and that occurs on the premises, including an illegal discharge of a weapon, homicide as prescribed in sections 13-1102 through 13-1105, criminal street gang activity as prescribed in section 13-105, activity as prohibited in section 13-2308, prostitution as defined in section 13-3211, the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in section 13-3451, threatening or intimidating as prohibited in section 13-1202, infliction of serious bodily harm, assault as prohibited in section 13-1203, criminal activity involving serious property damage or acts that have been found to constitute a nuisance pursuant to section 12-991, the landlord may deliver a written notice for immediate termination of the rental agreement and proceed pursuant to section 33-1485.

4. If a tenant engages in repetitive conduct that is the subject of notices under this subsection, after two incidents of the same type documented by the landlord within a twelve month period or after receipt by the landlord of two written complaints from other tenants about the repetitive conduct within a twelve month period, the landlord may deliver a written notice to the tenant specifying the repetitive conduct and the documentation and advising the tenant that on documentation of the next incident of the same type final notice will be given and the rental agreement or tenancy will be terminated thirty days after the date of the notice.

5. If a tenant has been involved in three or more documented incidents of conduct of any type described in this section within a twelve month period, the landlord may deliver a written notice to the tenant specifying the conduct and the documentation and advising the tenant that on documentation of the next incident final notice will be given and the rental agreement or tenancy will be terminated thirty days after the date of the notice.

E. If rent is unpaid when due and the tenant fails to pay rent within seven days after written notice by the landlord of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement. Before judgment in an action brought by the landlord under this subsection, the tenant may have the rental agreement reinstated by tendering the past due but unpaid periodic rent, reasonable attorney's fees incurred by the landlord and court costs, if any.

F. Except as provided in this chapter, the landlord may recover actual damages, obtain injunctive relief or recover possession of the premises pursuant to an action in forcible detainer for repeated noncompliance by the tenant with the rental agreement or section 33-1451.

G. The remedy provided in subsection F of this section is in addition to any right of the landlord arising under subsection D of this section.

H. If a change in use is intended for the land on which a mobile home park or a portion of a mobile home park is located and the landlord intends eviction of a mobile home tenant due to a change in use, the landlord shall notify all tenants in the park in writing that:

1. The change in use may subsequently result in the termination of a rental agreement.

2. The tenant being terminated due to the change in use will receive a one hundred eighty day notice before the actual termination of the rental agreement.

§ 33-1476.01 Change in use; notices; compensation for moving expenses; payments by the landlord; applicability

A. The landlord shall notify the director and all tenants in writing of a change in use at least one hundred eighty days before the change in use. The landlord may not increase rent within ninety days before giving notice of a change in use.

B. The landlord shall inform all tenants in writing about the mobile home relocation fund established by section 33-1476.02.

C. If a tenant is required to move due to a change in use or redevelopment of the mobile home park, the tenant may do any of the following:

1. Collect payment from the mobile home relocation fund for the lesser of the actual moving expenses of relocating the mobile home to a new location that is within a one hundred-mile radius of the vacated mobile home park or the maximum of $12,500 for a single section mobile home or $20,000 for a multisection mobile home. Moving expenses include the cost of stabilizing, taking down, moving and setting up the mobile home in the new location.

2. Abandon the mobile home in the mobile home park and collect an amount equal to forty percent of the maximum allowable moving expense for that mobile home from the mobile home relocation fund. To qualify for abandonment payment pursuant to this paragraph, the tenant shall deliver to the landlord the current title to the mobile home with the notarized endorsement of the owner of record together with complete releases of all liens that are shown on the title and proof that all taxes owing on the mobile home have been paid to date. The tenant shall provide a copy of these documents to the Arizona department of housing in support of the tenant's application for payment. If the tenant chooses to abandon the mobile home pursuant to this paragraph, the landlord is exempt from making the payments to the fund prescribed in subsection D of this section.

3. If a mobile home is relocated to a location outside of the vacated mobile home park and, in the sole judgment of the director, the mobile home was ground set in the mobile home park from which it was removed, the tenant may collect additional monies not to exceed $2,500 for the incremental costs of removing a ground-set mobile home. These monies are in addition to any monies provided pursuant to paragraph 1 of this subsection.

D. Except as provided in subsection C, paragraph 2 and subsection F of this section and section 33-1476.04, subsection D, if there is a change in use the landlord shall pay $500 for each single section mobile home and $800 for each multisection mobile home relocated to the fund for each tenant filing for relocation assistance with the director.

E. If a change in use occurs before the time stated in the statements of policy and the landlord does not comply with subsection A of this section and with section 33-1436 and section 33-1476, subsection H, the landlord shall pay to the fund in addition to the monies prescribed in subsection D of this section:

1. $500 for each mobile home space occupied by a single-section mobile home.

2. $800 for each mobile home space occupied by a multisection mobile home.

F. The landlord is not required to make the payments prescribed in subsections D and E of this section for moving mobile homes owned by the landlord or for moving a mobile home under a contract with the tenant if the tenant does not file for relocation assistance with the director.

G. If a change in use occurs within two hundred seventy days after relocations under section 33-1476.04, the landlord shall pay to the fund in addition to the monies prescribed in subsection D of this section:

1. $500 for each mobile home space occupied by a single section mobile home.

2. $800 for each mobile home space occupied by a multisection mobile home.

H. The tenant shall submit a contract for relocation of a mobile home for approval to the director within sixty days after the relocation to be eligible for payment of relocation expenses. The director must approve or disapprove the contract within fifteen days after receipt of the contract, or the contract is deemed to be approved.

I. If the contract is approved, the payment of relocation expenses shall be made to the installer when both of the following are complete:

1. The installer obtains valid permits to move the mobile or manufactured home to a new location.

2. The installer provides documentation to the department that the installation of the mobile or manufactured home at the new location is complete and has been inspected by the department or its designee and is approved for occupancy.

J. If the contract is not approved, the tenant may appeal to an administrative law judge pursuant to title 41, chapter 37, article 5. The tenant shall provide notice pursuant to section 33-1451, subsection A, paragraph 6 if the tenant relocates.

K. If this state or a political subdivision of this state exercises eminent domain and the mobile home park is sold or a sale is made to this state or a political subdivision of this state that intends to exercise eminent domain, the state or political subdivision is responsible for the relocation costs of the tenants.

L. If a tenant is vacating the premises and has informed the landlord or manager before the change-in-use notice has been given, the tenant is not eligible for compensation under this section.

M. A person who purchases a mobile home already situated in a park or moves a mobile home into a park in which a change-in-use notice has been given is not eligible for compensation under this section.

N. After delivery of the one hundred eighty-day notice prescribed by subsection A of this section, the landlord and the tenants shall inform any prospective buyer or tenant that closure of the park is pending.

O. This section does not apply to a change in use if the landlord moves a tenant to another space in the mobile home park at the landlord's expense.

§ 33-1476.02 Mobile home relocation fund; investment of monies

A. The mobile home relocation fund is established consisting of monies collected pursuant to sections 33-1476.03 and 33-2151 and any surcharge collected pursuant to section 33-1437. The director shall administer the fund.

B. Fund monies shall be used as prescribed in sections 33-1476.04 and 41-4008 and to pay premiums and other costs of purchasing, from a private insurer who is licensed to transact insurance business in this state, insurance coverage for tenant relocation costs due to a change in use as prescribed in sections 33-1476.01, 33-1476.05, 33-2149 and 33-2150. Any insurance rebates shall be deposited in the fund. If such insurance is not available, or if the insurance costs exceed the amount available from the fund, the fund shall be used to make direct payments for tenant relocation costs. Monies in the fund in excess of the amount required for these purposes shall be used, as necessary, to support the Arizona department of housing's administration of the hearing function pursuant to section 41-4062 and the Arizona department of housing's administration of section 33-1437, subsection C.

C. On notice from the director, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. Any unexpended and unencumbered monies remaining in the fund at the end of the fiscal year do not revert to the state general fund but remain in the fund, separately accounted for, as a contingency reserve.

D. The director shall adopt, amend or repeal rules pursuant to title 41, chapter 6 for the administration of the fund. Fund monies shall be paid to the Arizona department of housing to offset the costs of administering the fund, including the direct and indirect costs of processing applications for reimbursement submitted under section 41-4008 and administering the direct and indirect costs of section 33-1437, subsection C. The attorney general shall review the costs charged to the fund.

§ 33-1476.03 Assessments for mobile home relocation fund; waiver

A. In order to provide monies for the mobile home relocation fund, each owner of a mobile home located in a mobile home park who does not own the land on which the mobile home is located shall pay each year to the state an assessment equal to a rate of $.50 per $100 of the taxable assessed valuation, derived by applying the applicable percentage specified in title 42, chapter 15, article 1 to the limited property value, for each mobile home the person owns. The county treasurer shall collect the assessment imposed by this subsection at the same time and in the same manner as personal property taxes. The county treasurer shall separately list the assessment on the tax roll and shall transfer the revenues collected to the state treasurer for deposit in the mobile home relocation fund. The county treasurer shall send to the state treasurer a written notice of the total taxable assessed valuation, derived by applying the applicable percentage specified in title 42, chapter 15, article 1 to the limited property value, of all mobile homes in the county on which the assessment prescribed by this section is assessed. The assessment constitutes a lien on the mobile home.

B. The director shall notify all county assessors to waive the assessment for any year if the monies in the fund exceed $8,000,000. The director shall send a copy of the notice to the county treasurers.

C. If at the end of a fiscal year the amount of monies in the relocation fund is less than $6,000,000, the director shall notify the county assessors to reinstate the assessment prescribed by this section. If the director notifies the county assessors, the director shall send a copy of the notice to the county treasurers.

§ 33-1476.04 Relocations due to rent increase; mobile home relocation fund; applicability

A. A tenant is eligible for payment from the mobile home relocation fund if all of the following conditions are met:

1. The tenant resides in a mobile home that is owned by the tenant and that is located in a mobile home park.

2. A rent increase will be effective at the expiration or renewal of the tenant's rental agreement.

3. The rent increase either singly or in combination during any consecutive twelve-month period is more than a total of ten percent plus the current increase in the consumer price index over the most recent one-year period before the date of the notice of the rent increase. For the purposes of this paragraph, "consumer price index" means the "west-A" index that is published by the United States department of labor, bureau of labor statistics, and that demonstrates changes in prices in certain cities in the western United States.

B. A landlord who increases rent as prescribed by subsection A of this section shall give written notice of the applicability of this section to all affected tenants.

C. A tenant is eligible to receive relocation expenses pursuant to subsection A of this section as follows:

1. At least thirty days before the effective date of the rent increase that exceeds the limits prescribed by subsection A of this section, the tenant shall submit a contract for relocation of the mobile home to the director for approval and to the landlord.

2. Before the effective date of the rent increase, the tenant shall have a fully signed contract with a licensed installer or contractor to move the mobile home to a specific location.

3. The director shall approve or disapprove the contract submitted within fifteen days after receipt of the contract, and the contract is deemed to be approved on the sixteenth day if the director takes no action.

4. If the contract is approved, the payment of relocation expenses shall be made to the installer or contractor when both of the following are complete:

(a) The installer or contractor obtains valid permits to move the mobile or manufactured home to a new location.

(b) The installer or contractor provides documentation to the department that the installation of the mobile or manufactured home at the new location is complete and has been inspected by the department or its designee and is approved for occupancy.

5. If the contract is not approved, the tenant may appeal to an administrative law judge pursuant to title 41, chapter 37, article 5. The tenant shall provide notice pursuant to section 33-1451, subsection A, paragraph 6 if the tenant relocates.

6. On approval, the tenant is eligible for the lesser of the actual moving expenses of relocating the mobile home or $12,500 for a single-section mobile home or $20,000 for a multisection mobile home. Compensable moving expenses include the cost of taking down, moving and setting up the mobile home in the new location if the mobile home is relocated to a residential location within a one hundred-mile radius of the vacated mobile home park.

D. As an alternative to receiving payment as prescribed in subsection C of this section, a tenant who is eligible to receive payment pursuant to subsection A of this section may abandon the mobile home in the mobile home park and collect an amount equal to forty percent of the maximum allowable moving expense for that mobile home from the mobile home relocation fund. To qualify for an abandonment payment pursuant to this subsection, the tenant shall deliver to the landlord the current title to the mobile home with the notarized endorsement of the owner of record together with complete releases of all liens that are shown on the title and proof that all taxes owing on the mobile home have been paid to date. The tenant shall provide a copy of these documents to the Arizona department of housing in support of the tenant's application for payment. If the tenant chooses to abandon the mobile home pursuant to this subsection, the landlord is exempt from making the payments to the fund prescribed in section 33-1476.01, subsection D.

E. This section does not apply to rent increases that are prescribed in a written rental agreement.

F. This section does not make any rent increase unreasonable.

§ 33-1476.05 Relocations due to change in age-restricted community use; payment from mobile home relocation fund; applicability

A. The landlord shall notify the director and all tenants in writing of a change in use at least sixty days before a change in the age-restricted community to an all-age community use as defined by the housing for older persons act of 1995.

B. A tenant is eligible for payment from the mobile home relocation fund if both of the following conditions are met:

1. The tenant resides in a mobile home or manufactured home that is owned by the tenant and that is located in an age-restricted mobile home park.

2. The landlord implements a change from an age-restricted community to an all-age community as defined by the housing for older persons act of 1995.

C. A landlord who changes a mobile home park designation from an age-restricted community shall give written notice of the applicability of this section to all affected tenants.

D. A tenant is eligible to receive relocation expenses pursuant to subsection B of this section as follows:

1. Within one hundred eighty days after the effective date of notification of the change in the age-restricted community's use, the tenant shall submit a contract for relocation of the mobile or manufactured home to the director for approval and to the landlord.

2. After notice of approval by the director for the payment of relocation expenses, the tenant shall have a fully signed contract with a licensed installer or contractor to move the mobile or manufactured home to a specific location.

3. The director shall approve or disapprove the contract submitted within fifteen days after receipt of the contract, and the contract is deemed to be approved on the sixteenth day if the director takes no action.

4. If the contract is approved, the payment of relocation expenses shall be made to the installer or contractor when both of the following are complete:

(a) The installer or contractor obtains valid permits to move the mobile or manufactured home to a new location.

(b) The installer or contractor provides documentation to the department that the installation of the mobile or manufactured home at the new location is complete and has been inspected by the department or its designee and is approved for occupancy.

5. If the contract is not approved, the tenant may appeal to an administrative law judge pursuant to title 41, chapter 37, article 5. The tenant shall provide notice pursuant to section 33-1451, subsection A, paragraph 6 if the tenant relocates.

6. On approval, the tenant is eligible for the lesser of the actual moving expenses of relocating the mobile home or $12,500 for a single-section mobile home or $20,000 for a multisection mobile home. Compensable moving expenses include the cost of taking down, moving and setting up the mobile home in the new location if the mobile home is relocated to another age-restricted community within a one hundred-mile radius of the vacated mobile home park.

E. The landlord shall not be responsible for making any payment into the mobile home relocation fund for any mobile or manufactured home moved pursuant to this section.

§ 33-1477 Failure to maintain by tenant

If there is noncompliance by the tenant with section 33-1451 materially affecting health and safety that can be remedied by repair, replacement of a damaged item or cleaning and the tenant fails to comply as promptly as conditions require in case of emergency or within ten days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the mobile home space, cause the work to be done in a workmanlike manner and submit an itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as additional rent on the next date when periodic rent is due, or if the rental agreement was terminated, for immediate payment.

§ 33-1478 Remedies for abandonment; required registration

A. If the tenant abandons the mobile home unit on a mobile home space, it is incumbent upon the landlord to locate the legal owner or lienholder of the mobile home unit within ten days and communicate to him his liability for any costs incumbered for the mobile home space for such mobile home unit, including rent and utilities due and owing. However, the landlord shall be entitled to a maximum of sixty days' rent due prior to notice to lienholder. Any and all costs shall then become the responsibility of the legal owner or lienholder of the mobile home. The mobile home unit may not be removed from the mobile home space without a signed written agreement from the mobile home park landlord, owner or manager showing clearance for removal, showing all monies due and owing paid in full, or an agreement reached with the legal owner and the landlord.

B. A required standardized registration form shall be filled out by each mobile home space renter, upon mobile home space rental, showing mobile home make, year, serial number and license number if any be legally required, and also showing if the mobile home is paid for, if there is a lien on the mobile home, and if so the lienholder, and who is the legal owner of the mobile home unit. The registration cards or forms shall be kept on file with the park management as long as the mobile home is on the mobile home space within the park. Notice shall be given to park management within ten days of any changes in a new lien, changes of existing lien or settlement of lien.

§ 33-1480 Landlord liens; distraint for rent abolished

A. A lien or security interest on behalf of the landlord in the tenant's household goods is not enforceable unless perfected before the effective date of this chapter.

B. Distraint for rent is abolished.

§ 33-1481 Remedy after termination

A. If the rental agreement is terminated, the landlord may have a claim for possession of the mobile home space and for rent and a separate claim for actual damages for breach of the rental agreement.

B. In the execution of any writ of restitution issued pursuant to section 12-1178 or 12-1181, the landlord may provide written instructions to the sheriff or constable not to remove the mobile home from its space, and if those written instructions are provided, the sheriff or constable may fully execute the writ of restitution by removing all occupants and their possessions from the mobile home and from the space it occupies. The mobile home shall then be deemed abandoned and section 33-1478 applies and the landlord may terminate any utility services that are provided by the landlord. An owner of a mobile home in compliance with the provisions of subsection C of this section may recover possession of the owner's mobile home while the title remains in the owner's name.

C. A mobile home that is subject to a judgment for forcible detainer may not be removed from its space until the provisions of section 33-1451, subsection B have been satisfied. The landlord may agree in writing to accept other terms in satisfaction of the judgment. This provision shall not apply to any lienholder of record on the date of judgment or its successors or assigns.

§ 33-1482 Recovery of possession limited

A landlord may not recover or take possession of the mobile home space by action or otherwise, including wilful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, except in case of abandonment, surrender or as permitted in this chapter.

§ 33-1483 Periodic tenancy; holdover remedies

A. The landlord may terminate a tenancy only as provided in this chapter.

B. If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is wilful and not in good faith the landlord in addition may recover an amount equal to not more than two months' periodic rent and twice the actual damages sustained by him.

§ 33-1484 Landlord and tenant remedies for abuse of access

A. If the tenant refuses to allow lawful access, the landlord may terminate the rental agreement and may recover actual damages.

B. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement. In either case, the tenant may recover actual damages not less than an amount equal to one month's rent plus attorney's fees, plus any unused prepaid rent.

§ 33-1485 Special detainer actions; service; trial postponement

A. Special detainer actions shall be instituted for remedies prescribed in section 33-1476, subsection D, paragraph 3. Except as provided in this section, the procedure and appeal rights prescribed in title 12, chapter 8, article 4 apply to special detainer actions.

B. The summons shall be issued on the day the complaint is filed and shall command the person against whom the complaint is made to appear and answer the complaint at the time and place named that is at least three days but not more than six days from the date of the summons. The tenant is deemed to have received the summons three days after the summons is mailed if personal service is attempted and within one day of issuance of the summons, a copy of the summons is conspicuously posted on the main entrance of the tenant's residence and on the same day the summons is sent by certified mail, return receipt requested, to the tenant's last known address. The summons in a special detainer action shall be served at least two days before the return day and the return day shall be made on the day assigned for trial. Service of process in this manner shall be deemed the equivalent of having served the tenant in person for the purposes of awarding a money judgment for all rent, damages, costs and attorney fees due.

C. For good cause supported by an affidavit, the trial may be postponed for not more than three days in a justice court or five days in the superior court.

D. If after the hearing the court finds by a preponderance of the evidence that the material and irreparable breach did occur, the court shall order restitution in favor of the plaintiff at least twelve but not more than twenty-four hours later.

E. If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for late charges stated in the rental agreement, for costs and, at the plaintiff's option, for all rent found to be due and unpaid through the periodic rental period provided for in the rental agreement and shall grant a writ of restitution.

F. If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for 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.

§ 33-1485.01 Removal of mobile home from mobile home park; violation; joint and several liability

A. A tenant or a tenant's successor in interest shall provide the landlord with a written notification of intent to remove a mobile home from a mobile home space. The notification shall include the date the mobile home will be removed from the mobile home park, the name, address and telephone number of the person or entity that will be removing the mobile home from the mobile home park and the name, address and telephone number of the person or entity that will be the responsible party for restoring the mobile home space in accordance with the rental agreement and the mobile home park rules and regulations. If the responsible party is not licensed by the Arizona department of housing or the registrar of contractors, the landlord may require a security deposit or surety bond of not more than two thousand five hundred dollars minus the amount of any security deposit that was collected at the beginning of the tenant's tenancy. The security deposit or surety bond shall be paid or provided before work begins on restoring the mobile home space and shall secure the cost of restoration if the responsible party fails to completely restore the mobile home space. The landlord shall provide an accounting of any security deposit as prescribed in section 33-1431, subsection C.

B. A mobile home shall not be removed from a mobile home park by any tenant, any mobile home owner or any other person or entity unless the person or entity that is removing the mobile home has received from the landlord a written clearance for removal. The landlord shall not interfere with the removal of a mobile home for any reason other than nonpayment of monies due as of the date of removal even if the term of the rental agreement has not expired. The written clearance shall contain both of the following:

1. A statement that all monies due for space rent as of the date of removal have been paid or that the landlord and that person or entity have otherwise agreed to the removal.

2. The requirements for a mobile home space restoration as prescribed by the rental agreement and by the mobile home park rules and regulations and that shall be performed by the responsible party listed in the removal notification that is required by subsection A of this section.

C. A person or entity who violates subsection B of this section shall be liable for two times the amount of any rents due.

D. The responsible party identified in the removal notification that is removing a mobile home from a mobile home space shall also remove all accessory structures unless the landlord has agreed in writing to allow those structures to remain. The responsible party identified in the removal notification that is removing the mobile home shall also remove all construction debris, trash and personal property on the rental space from the mobile home park and shall be responsible for restoring the space in accordance with the rental agreement and the mobile home park rules and regulations. The rules and regulations may contain conditions regarding the removal of a mobile home from the mobile home park and the restoration of a mobile home space by a tenant or a tenant's successor in interest after removal of the mobile home. The conditions shall not include any provisions regarding environmental liability or environmental remediation, and any environmental liability or environmental remediation requirements shall be governed as otherwise provided by law. If a rental space does not satisfy the requirements of this section following removal of a mobile home, the landlord may provide the last tenant, the tenant's successor in interest or the mobile home owner and the responsible party identified in the removal notification with written notice that specifies what must be done to bring the space into compliance and that requests that the parties remedy the condition within ten days. If the work is not completed within ten days, the landlord may cause the work to be done and shall prepare an itemized bill for the actual and reasonable cost or the fair and reasonable value of the work and submit it to the last tenant, the tenant's successor in interest or the mobile home owner and the responsible party identified in the removal notification. All of those persons shall be jointly and severally liable for the expenses.

Article 5 Retaliatory Action

§ 33-1491 Retaliatory conduct prohibited; eviction

A. Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction after any of the following:

1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety.

2. The tenant has complained to the landlord of a violation under this chapter.

3. The tenant has organized or become a member of a tenant's union or similar organization.

4. The tenant has filed an action against the landlord in the appropriate court or with the appropriate hearing officer.

B. If the landlord acts in violation of subsection A of this section, the tenant is entitled to the remedies provided in section 33-1475 and has a defense in action against him for eviction. In an action by or against the tenant, evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord's conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. For the purpose of this subsection, "presumption" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

C. The landlord of a mobile home park shall specify the reason for the termination of any tenancy in such mobile home park. The reason relied on for the termination shall be set forth with specific facts, so that the date, place and circumstances concerning the reason for termination can be determined. Reference to or recital of the language of this chapter, or both, is not sufficient compliance with this subsection.

D. Notwithstanding subsections A and B of this section, a landlord may bring an action for eviction if either of the following occurs:

1. The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent.

2. The tenant is in default in rent. The maintenance of the action does not release the landlord from liability under section 33-1471, subsection B.

Article 6 Affidavit of Affixture

§ 33-1501 Affidavit of affixture for mobile home in mobile home park

A. Notwithstanding any other statute, a person who owns a mobile home that is located in a mobile home park on real property that is not owned by that person may file an affidavit of affixture with the county recorder of the county in which the real property is located if all of the following conditions are met:

1. The mobile home has been installed on the real property with all wheels and axles removed in compliance with applicable state and local mobile home installation standards.

2. The owner of the mobile home has entered into a lease for the real property on which the mobile home is located for a primary term of at least twenty years and the lease specifically permits the recording of an affidavit of affixture.

3. Before filing the affidavit of affixture, a memorandum of lease is recorded that includes all of the following:

(a) The names and addresses of the landlord and the tenant.

(b) The duration of the primary term of the lease.

(c) The conditions of any lease renewal provisions.

(d) The make, year, size, manufacturer's list price and vehicle identification numbers of the mobile home.

(e) The legal description of the real property on which the mobile home is located.

(f) The acknowledged signatures of both the landlord and the tenant. A memorandum of lease is not valid unless the signatures of both the landlord and the tenant are included on the memorandum and are acknowledged.

B. For a mobile home park, a legal description of the real property is sufficient as follows:

1. For a mobile home park that has a subdivision plat recorded with the county recorder that identifies the individual lots, the description shall refer to the lot, the name of the community as shown on the plat and the recording information for the plat of record.

2. A mobile home park may record a leasehold map of the mobile home park. A leasehold map shall, at a minimum, set forth the legal description of the land comprising the mobile home park, show the location of all rental spaces of the mobile home park and assign each space a unique identifying number. To qualify as a leasehold map, the map shall identify the mobile home park by name and contain a certification by the owner of the land that it accurately depicts the location and dimensions of all mobile home spaces in the mobile home park. Leasehold maps shall be recorded as maps by the county recorder and shall conform to size and other restrictions applicable to the recording of maps. For a mobile home park that has recorded a leasehold map, the legal description is sufficient if it refers to the space number of the mobile home space as shown on the leasehold map and refers to the recording data pertaining to the leasehold map.

3. For a mobile home park that does not have a plat recorded with the county recorder that identifies individual lots, the description shall comply with any of the following:

(a) A metes and bounds description of the real property that is subject to the lease. This description shall also serve as the legal description of the mobile home lot in the lease.

(b) A reference to a lot number that is contained in an unrecorded plat of the mobile home park if a legible copy of the plat is attached to both the memorandum of lease and the affidavit of affixture and each copy of the unrecorded plat sets forth the exact dimensions of the mobile home lot. The location of the lot shall be shown on the plat so that the lot can be located with certainty.

(c) A reference to a lot number that is contained in a development plan that has been reviewed and approved by the county or municipal planning department that has jurisdiction over the land depicted in the development plan. The description is sufficient if it contains the name and date of the development plan, the lot number of the designated lot and the actual or approximate date of approval of the development plan by the planning department. A legible copy of the development plan lot shall be attached to both the memorandum of lease and the affidavit of affixture and each copy of the development plan lot shall set forth the exact dimensions of the mobile home lot and shall show its exact location.

C. An affidavit of affixture that is filed pursuant to this section shall contain all of the following:

1. The make, year, size, manufacturer's list price and vehicle identification numbers of the mobile home.

2. The legal description of the real property to which the mobile home has been affixed.

3. A statement that the mobile home has not previously been assessed and taxed in this state as personal property or the name and address of the persons to whom the last tax statement for the mobile home was sent and the location of the mobile home when it was last taxed.

4. The name of the holder of any security interests in the mobile home that are not terminated by the consent of the secured party that is contained in the affidavit of affixture pursuant to subsection E of this section and the original principal amount that is secured by the security interest.

D. The department of transportation's receipt that is issued pursuant to section 28-2063, subsection A, paragraph 3 shall be filed with the assessor in the county the affidavit of affixture is recorded.

E. The recording of an affidavit of affixture does not impair the rights of any holder of a perfected security interest in the mobile home unless the affidavit of affixture contains the acknowledged consent of the secured party to the termination of the security interest. If a secured party so consents, that security interest terminates when the affidavit of affixture is recorded.

F. If an affidavit of affixture is submitted for recording on a mobile home that enters this state for sale or installation, a certificate of compliance or waiver that is issued by the Arizona department of housing is required and shall be submitted with the affidavit of affixture.

G. The landlord under the lease who is also the owner of the real property on which the mobile home is located may record a notice and affidavit that terminates an affidavit of affixture of a mobile home on the landlord's real property if the lease has been terminated before its expiration. In that event, the landlord shall attach to the notice and affidavit one of the following:

1. An agreement executed by both the landlord and the tenant in which both parties agree to the termination of the lease.

2. A copy of a judgment for forcible detainer that is entered by a court of competent jurisdiction, that upholds the termination of the lease and that awards possession of the real property to the landlord.

3. An affidavit of the landlord stating that the mobile home has been removed from the real property.

H. At any time after the landlord records a notice and affidavit terminating an affidavit of affixture pursuant to subsection G of this section, the department of transportation shall retitle the mobile home to the owner of the mobile home on presentation of a copy of the notice and affidavit that terminates the affidavit of affixture, together with a document that contains a tax clearance from the county treasurer's office, and on satisfaction of other requirements that the department of transportation imposes.

I. The mobile home and the leasehold interest to which it is affixed shall be treated as real property. This chapter applies to the relationship between the landlord and the owner of the mobile home as tenant.

J. If there is a change in the identity of the owner of the mobile home during the term of any lease for which an affidavit of affixture has been recorded pursuant to this section, the landlord and the new owner of the mobile home as successor tenant shall execute an amended memorandum of lease that identifies the successor tenant and that refers to the affidavit of affixture by date and recording information. On the recording of the amended memorandum of lease, the successor tenant succeeds to the rights and obligations of the owner under the affidavit of affixture.

Chapter 12 Liabilities and Duties on Property Used for Education and Recreation

Article 1 General Provisions

§ 33-1551 Duty of owner, lessee or occupant of premises to recreational users or educational users; liability; definitions

A. A public or private owner, easement holder, lessee, tenant, manager or occupant of premises is not liable to a recreational user or educational user except on a showing that the owner, easement holder, lessee, tenant, manager or occupant was guilty of wilful, malicious or grossly negligent conduct that was a direct cause of the injury to the recreational user or educational user. A recreational user or educational user accepts the risks created by the user's activities and shall exercise reasonable care in those activities.

B. A landowner, easement holder, lessee, tenant manager or occupant of private or public land is not liable for damages in any civil action for unknown conditions on the land. Installing a sign or other form of warning of a dangerous condition, use, structure or activity, or any modification made for the purpose of improving the safety of others, or failing to maintain or keep in place any sign, other form of warning or any modification made to improve safety does not create liability on the part of an owner, easement holder, lessee, tenant manager or occupant of land if there is no other basis for that liability.

C. This section is applicable to the duties and liability of any governmental entity, nongovernmental organization or person that provides monies, that reasonably performs maintenance, that reasonably makes or supports improvements or that takes similar reasonable action regarding land made available to the public for recreational or educational purposes.

D. This section does not create a duty of care or basis of liability for injury to persons or property. This section does not relieve any person using the land of another for recreational or educational purposes from any obligation that the person may have in the absence of this section to exercise care in the person's use of that land and in the activities on the land or from legal consequences for failing to employ such care.

E. Any person that uses the land of another for recreational or educational purposes with or without permission is liable for any damage to the land, property, livestock or crops that the person may cause while on that land.

F. This section does not limit the liability that otherwise exists for maintaining an attractive nuisance, except with respect to dams, channels, canals and lateral ditches used for flood control, agricultural, industrial, metallurgical or municipal purposes.

G. For the purposes of this section:

1. "Educational user" means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to enter premises to participate in an educational program, including the viewing of historical, natural, archaeological or scientific sites. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section.

2. "Grossly negligent" means a knowing or reckless indifference to the health and safety of others.

3. "Park" includes outdoor school grounds that are open to recreational users, excluding swimming pools and other aquatic features.

4. "Premises" means agricultural, range, open space, park, flood control, mining, forest, water delivery, water drainage or railroad lands, and any other similar lands, wherever located, that are available to a recreational user or educational user, including paved or unpaved multiuse trails and special purpose roads or trails not open to automotive use by the public and any building, improvement, fixture, water conveyance system, body of water, channel, canal or lateral, road, trail or structure on such lands.

5. "Recreational user":

(a) Means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to travel across or to enter premises to hunt, fish, trap, camp, hike, ride, engage in off-highway vehicle, off-road recreational motor vehicle or all-terrain vehicle activity, operate aircraft, exercise, swim or engage in other outdoor recreational pursuits. The purchase of a state hunting, trapping or fishing license, an off-highway vehicle user indicia or a state trust land recreational permit or payment by an agency of this state to an owner, easement holder or lessee for public recreational access to the premises is not the payment of an admission fee or any other consideration as provided in this section. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section.

(b) Does not include a student who is registered at a school during designated times that the student is allowed to be on the school grounds as determined by district personnel or who is participating in a school-sanctioned activity.

6. "School" has the same meaning prescribed in section 15-101.

Chapter 13 Due on Sale Clauses

Article 1 General Provisions

§ 33-1571 Real property loans; exercise of due on sale clauses; prohibition

Notwithstanding any provisions of title 6 to the contrary, as provided by the thrift institutions restructuring act, P.L. 97-320, section 341, subsection (c)(1)(A) the real property loans defined and described therein are regulated as follows:

1. From and after October 14, 1987, and not before, P.L. 97-320, section 341, subsection (b) applies to real property loans that were made or assumed, including transfers of liened property subject to real property loans, between July 8, 1971, and October 15, 1982, and that are secured by one to four family units utilized for residential purposes of two and one-half acres or less. Prior to October 15, 1987, upon a transfer of interest in such property, the interest rate on such loans shall not be increased by more than one-half of one per cent, and all other limitations provided in section 33-806.01 shall apply.

2. P.L. 97-320, section 341, applies in accordance with its terms to all real property loans other than those described in paragraph 1 of this section.

Chapter 15 Self-Service Storage

Article 1 General Provisions

§ 33-1701 Definitions; exception

A. In this article, unless the context otherwise requires:

1. "Default" means the failure to perform on time any obligation or duty set forth in the rental agreement.

2. "Department" means the Arizona game and fish department in the case of motorized watercraft and the department of transportation in the case of all other vehicles.

3. "Email":

(a) Means an electronic message or an executable program or computer file that contains an image of a message that is transmitted between two or more computers or electronic terminals.

(b) Includes electronic messages that are transmitted within or between computer networks from which a confirmation of receipt is received.

4. "Last known address" means that postal address or electronic address provided by the occupant in the rental agreement or the postal address or electronic address provided by the occupant in a subsequent written notice of a change of address.

5. "Late fee" means a reasonable fee or charge that is assessed by the operator for the failure of the occupant to pay rent when due pursuant to section 33-1703.

6. "Leased space" means the storage space or spaces at the self-service storage facility that are rented to an occupant pursuant to a rental agreement.

7. "Net proceeds" means the total proceeds received from the lien sale minus the total amount of the lien.

8. "Occupant" means a person or the person's sublessee, successor or assign that is entitled to use the leased space at a self-service storage facility under a rental agreement, to the exclusion of others.

9. "Operator" means the owner, operator, lessor or sublessor of a self-service storage facility, an agent or any other person authorized to manage the facility.

10. "Personal information" has the same meaning prescribed in section 18-551.

11. "Personal property":

(a) Means movable property that is not affixed to land.

(b) Includes goods, wares, merchandise, household items and furnishings and vehicles.

12. "Protected property" means personal property for which the sale or disposal is regulated by state or federal law and that is one of the following:

(a) Documents, files or electronic data that contain personal information relating to clients, customers, patients or others in connection with the occupant's business.

(b) Alcoholic beverages.

(c) Pharmaceuticals other than those dispensed by a licensed pharmacy for the occupant's personal use.

(d) Firearms.

13. "Registered owner" means an owner of a vehicle as stated in the official records of the department.

14. "Rental agreement" means any written agreement provided to the occupant that establishes or modifies the terms, conditions or rules concerning the use and occupancy of leased space at a self-service storage facility.

15. "Self-service storage facility" means any real property used for renting or leasing storage spaces in which the occupants themselves customarily store and remove their own personal property on a self-service basis.

16. "Vehicle" means a motor vehicle, a trailer or a semitrailer as defined in section 28-101 and a motorized watercraft as defined in section 5-301.

17. "Verified mail" means any method of mailing that is offered by the United States postal service and that provides evidence of mailing.

B. This article does not apply to a warehouseman unless the warehouseman issues a warehouse receipt, bill of lading or other document of title for the personal property stored.

§ 33-1702 Residential use; prohibition

A. An operator shall not knowingly permit a leased space at a self-service storage facility to be used for residential purposes.

B. An occupant shall not use a leased space for residential purposes.

§ 33-1703 Lien; rental agreement; contents; late fees

A. The operator of a self-service storage facility has a possessory lien from the date the rent is unpaid and due on all personal property stored within the leased space for rent, late fees and labor or other charges, and for expenses reasonably incurred in its sale, as provided in this article. The lien shall not impair any other lien or security interest at the time the storage was commenced, unless the lienor or secured party knows and consents to the storage of the personal property.

B. The rental agreement shall contain a statement, in at least ten-point bold-faced type, advising the occupant:

1. Of the accrual of the lien as of the date the rent is unpaid and due.

2. That property stored in the leased space may be sold or otherwise disposed of if the occupant is in default.

3. That any insurance protecting the personal property stored within the storage space against fire, theft or damage must be provided by the occupant.

4. That a late fee may be charged by the operator for each month that the occupant does not pay rent when due. The rental agreement shall state the date on which rent is due and the date on which the late fee accrues.

C. The rental agreement shall contain a provision requiring the occupant to disclose the following:

1. Any lienholders or secured parties who have an interest in property that is or will be stored in the self-service storage facility.

2. Whether any protected property is or will be stored in the leased space.

D. The rental agreement may provide for a limit on the value of the property that is stored by the occupant on the premises and that limit is deemed to be the maximum value of stored property for all purposes.

E. The operator may impose a reasonable late fee on the occupant for each month the occupant does not pay rent when due. For the purposes of this section, a reasonable late fee may be computed as the greater of $10 per month or twenty percent of the amount of monthly rent. Any late fee imposed by the operator pursuant to this section is in addition to any other remedy provided by law or contract.

F. The operator shall provide adequate notice to the occupant before a late fee is imposed. Adequate notice is provided if the rental agreement complies with subsection B of this section or if a notice is sent to the occupant by verified mail that notifies the occupant that a late fee may be charged in any month in which the occupant does not pay rent when due.

§ 33-1704 Enforcement of lien

A. If the occupant is in default for a period of more than thirty days, the operator may foreclose the lien by selling the property stored in the leased space at a public sale, for cash, or if the property is protected property, by disposing of the property pursuant to this section. Proceeds shall then be applied as provided in subsection H of this section. If the contents of the leased space include a vehicle, section 28-4839 does not apply.

B. Before conducting a sale under subsection A of this section, the operator shall:

1. Send notice of the default by verified mail or email to the occupant at the occupant's last known address.

2. Send a second notice of default by first class mail not less than seven days after the mailing date of the first notice to the occupant at the occupant's last known address that includes:

(a) A statement that the contents of the occupant's leased space are subject to the operator's lien.

(b) A statement of the operator's claim, indicating the charges due on the date of the notice and any other charges that may accrue.

(c) A demand for payment of the charges due within a specified time, not less than fourteen days after the mailing date of the second notice or thirty additional days if the address of the occupant is outside of the continental United States.

(d) A statement that unless the claim is paid within the time stated, the contents of the leased space will be sold at a specified time and place, or in the case of protected property, otherwise disposed of at a specified time and place.

(e) The name, street address and telephone number of the operator, or the operator's designated agent, whom the occupant may contact to respond to the notice.

3. If the contents of the leased space include a vehicle:

(a) At the time the notice is sent pursuant to paragraph 1 of this subsection, send a notice of default by verified mail to the registered owner at the registered owner's most recent address as shown in the records of the department.

(b) At the time the notice is sent pursuant to paragraph 2 of this subsection, send a notice of default by first class mail to the registered owner at the registered owner's most recent address as shown in the records of the department.

(c) The operator is not required to send a notice pursuant to this paragraph if ownership information for a vehicle is unavailable.

(d) In any notice that is sent, include a description of the vehicle and its vehicle identification number.

4. At least ten days before the sale, send notice by verified mail to any record lienholder or secured party who has an interest in the property to be sold, of whom the operator has actual or constructive knowledge either through the disclosure provision of the rental agreement or through any other written or recorded notice of the sale, that any prior record lienor or secured party may at any time before the sale recover possession of the item of personal property to which the record lien or security interest attaches.

C. At any time before a sale under this section or before the disposal of protected property, whichever occurs first, the occupant may pay the amount necessary to satisfy the lien and redeem the occupant's personal property.

D. If the personal property includes a vehicle, any person listed as a registered owner or lienholder on the records of the department may pay the amount necessary to satisfy the lien, redeem the vehicle and recover possession of the vehicle. The operator is not liable to the occupant or any other person who claims an interest in the vehicle if the operator releases the vehicle to a person listed as a registered owner or lienholder pursuant to this subsection.

E. If the personal property includes a vehicle, watercraft or trailer and the occupant is in default for more than thirty days, the operator may contract with a towing company to remove the property. At least ten days before the towing company removes the property, the operator must send notice by verified mail or email to the occupant at the occupant's last known address. The notice shall provide the name, address and telephone number of the towing company that will remove the property if the occupant does not cure the default by the date prescribed in the notice. On receipt of the property by the towing company, the operator is not liable to the occupant or any other person who claims an interest in the property.

F. If the personal property is subject to a restitution lien, any person listed as the holder of the restitution lien in the public records may pay the amount necessary to satisfy the lien, redeem the personal property and recover possession of the personal property. The operator is not liable to the occupant or any other person who claims an interest in the personal property if the operator releases the personal property to a person listed as a restitution lienholder pursuant to this subsection.

G. If the leased space contains protected property and the operator has actual knowledge of the protected property, the protected property shall not be sold but is subject to disposal by the operator. The operator is not liable to the occupant or to any other person who claims an interest in protected property if the operator disposes of the protected property pursuant to this section. Proper disposal methods include destruction of the protected property or surrendering the protected property to appropriate state or federal authorities if those appropriate state or federal authorities accept the protected property.

H. If a sale is held under this section, the operator shall distribute the proceeds in the following manner:

1. To pay all reasonable costs of sale.

2. To satisfy the valid claims of any lienholder or secured party not otherwise subordinated pursuant to section 33-1703, subsection A.

3. To satisfy the operator's lien.

4. To satisfy the valid claims of any record lienholder or secured party subordinated pursuant to section 33-1703, subsection A.

5. To the occupant on demand.

6. If the occupant does not claim the balance due to the occupant within ninety days after the sale, the operator shall pay the balance to the department of revenue. If the occupant, at any time within two years after the date of payment to the department of revenue, establishes the occupant's right to the money to the satisfaction of the director of the department of administration, it shall be paid to the occupant. After two years, all unclaimed monies shall be deposited in the permanent state school fund.

I. If five or more bidders who are unrelated to the operator are in attendance at a sale held under this section, the sale and its proceeds are deemed to be commercially reasonable.

J. A purchaser in good faith of any personal property sold under this article:

1. Does not acquire ownership of protected property contained in the leased space and shall return to the operator any protected property that is found in the leased space.

2. Except for protected property prescribed in paragraph 1 of this subsection, takes the property free and clear of any rights of any party.

K. If the operator complies with this article, the operator's liability arising from the sale:

1. To the occupant is limited to the net proceeds received from the sale of the personal property.

2. To other lienholders or a secured party is limited to the net proceeds received from the sale of any personal property covered by that other lien.

L. If an occupant is in default, the operator may deny the occupant access to the leased space.

M. Unless the rental agreement specifically provides otherwise and until a lien sale under this article, the exclusive care, custody and control of all personal property stored in the leased space remain vested in the occupant. If the occupant is in default for a period of more than thirty days and until the time of sale, the operator, in addition to denying the occupant access to the personal property, may transfer the personal property to a place of safekeeping.

§ 33-1705 Notice posted in the office

Each operator acting pursuant to this article shall at all times keep posted in a prominent place in the operator's office or on the premises of the self-service storage facility, a notice that reads as follows:

Articles stored pursuant to a rental agreement may be sold or disposed of if any storage charges are overdue for more than thirty days.

§ 33-1706 Failure to comply; penalty

Any person aggrieved by a violation of any provision of this article may bring a civil action. In any civil action brought for a violation of this article, in addition to any award for damages, the court may impose a civil penalty not to exceed five hundred dollars and may award reasonable attorney's fees and court costs.

Chapter 16 Planned Communities

Article 1 General Provisions

§ 33-1801 Applicability; exemptions; voluntary election to be subjected to chapter

A. This chapter applies to all planned communities.

B. Notwithstanding any provisions in the community documents, this chapter does not apply to any school that receives monies from this state, including a charter school, and a school is exempt from regulation or any enforcement action by any homeowners' association that is subject to this chapter. With the exception of homeschools as defined in section 15-802, schools shall not be established within the living units of a homeowners' association. The homeowners' association may enter into a contractual agreement with a school district or charter school to allow use of the homeowners' association's common areas by the school district or charter school.

C. This chapter does not apply to either of the following:

1. Timeshare plans or associations that are subject to chapter 20 of this title.

2. Notwithstanding any provision in the community documents, a nonprofit corporation or unincorporated association of owners that is created or incorporated before January 1, 1974 and that does not have authority to enforce covenants, conditions and restrictions related to the use, occupancy or appearance of the separately owned lots, parcels or units in a real estate development, unless a majority of all the members of such a nonprofit corporation or unincorporated association of owners elect in writing to subject the corporation or association to this chapter by recording a notice of election pursuant to subsection D of this section.

D. A nonprofit corporation or unincorporated association of owners that has the power under recorded covenants to assess members to pay the costs and expenses incurred in the performance of obligations created by recorded covenants for a real estate development that does not qualify as a planned community may elect to subject the nonprofit corporation or unincorporated association of owners to this chapter with the written approval of a majority of all the members. A notice of election to be subject to this chapter shall be recorded by the nonprofit corporation or unincorporated association of owners with the county recorder of the county or counties in which the real estate development is located. The notice is effective as of the date of the recording of the notice. Any such election may be rescinded in the same manner as an election and is effective as of the date of the recording of the notice of rescission.

§ 33-1802 Definitions

In this chapter and in the community documents, unless the context otherwise requires:

1. "Association":

(a) Means a nonprofit corporation or unincorporated association of owners that is created pursuant to a declaration to own and operate portions of a planned community and that 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.

(b) Does not include a nonprofit corporation or unincorporated association of owners that is created or incorporated before January 1, 1974 and that does not have authority to enforce covenants, conditions or restrictions related to the use, occupancy or appearance of the separately owned lots, parcels or units in a real estate development, unless the nonprofit corporation or unincorporated association of owners elects to be subject to this chapter pursuant to section 33-1801, subsection D.

2. "Common expense lien" means the lien for assessments, charges for late payment of assessments if authorized in the declaration, reasonable collection fees and costs incurred or applied by the association and reasonable attorney fees and costs that are incurred with respect to those assessments, if the attorney fees and costs are awarded by a court.

3. "Community documents" means the declaration, bylaws, articles of incorporation, if any, and rules, if any.

4. "Declaration" means any instruments, however denominated, that establish a planned community and any amendment to those instruments.

5. "Member expenses":

(a) Means fees, charges, late charges and monetary penalties or interest.

(b) Does not include any amount that is included in a common expense lien.

6. "Planned community":

(a) Means a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation or unincorporated association of owners, that is created for the purpose of managing, maintaining or improving the property and in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.

(b) Does not include any of the following:

(i) A timeshare plan or a timeshare association that is governed by chapter 20 of this title.

(ii) A condominium that is governed by chapter 9 of this title.

(iii) A real estate development that is not managed or maintained by an association.

§ 33-1803 Assessment limitation; penalties; notice to member of violation

A. Unless limitations in the community documents would result in a lower limit for the assessment, the association shall not impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year's assessment without the approval of the majority of the members of the association. Unless reserved to the members of the association, the board of directors may impose reasonable charges for the late payment of assessments. A payment by a member is deemed late if it is unpaid fifteen or more days after its due date, unless the community documents provide for a longer period. Charges for the late payment of assessments are limited to the greater of fifteen dollars or ten percent of the amount of the unpaid assessment and may be imposed only after the association has provided notice that the assessment is overdue or provided notice that the assessment is considered overdue after a certain date. Any monies paid by the member for an unpaid assessment shall be applied first to the principal amount unpaid and then to the interest accrued.

B. After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association. Notwithstanding any provision in the community documents, the board of directors shall not impose a charge for a late payment of a penalty that exceeds the greater of fifteen dollars or ten percent of the amount of the unpaid penalty. A payment is deemed late if it is unpaid fifteen or more days after its due date, unless the declaration, bylaws or rules of the association provide for a longer period. Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued. Notice pursuant to this subsection shall include information pertaining to the manner in which the penalty shall be enforced.

C. A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents without regard to whether a monetary penalty is imposed by the notice may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice. The response shall be sent to the address identified in the notice.

D. Within ten business days after receipt of the certified mail containing the response from the member, the association shall respond to the member with a written explanation regarding the notice that shall provide at least the following information unless previously provided in the notice of violation:

1. The provision of the community documents that has allegedly been violated.

2. The date of the violation or the date the violation was observed.

3. The first and last name of the person or persons who observed the violation.

4. The process the member must follow to contest the notice.

E. Unless the information required in subsection D, paragraph 4 of this section is provided in the notice of violation, the association shall not proceed with any action to enforce the community documents, including the collection of attorney fees, before or during the time prescribed by subsection D of this section regarding the exchange of information between the association and the member and shall give the member written notice of the member's option to petition for an administrative hearing on the matter in the state real estate department pursuant to section 32-2199.01. At any time before or after completion of the exchange of information pursuant to this section, the member may petition for a hearing pursuant to section 32-2199.01 if the dispute is within the jurisdiction of the state real estate department as prescribed in section 32-2199.01.

§ 33-1804 Open meetings; exceptions; notice; agenda; policy statement

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be allowed to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall allow a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping and videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on their use as evidence in any dispute resolution process. If a board records a meeting that is open to the members, the board shall keep a copy of the recording for at least six months and make the unedited recording available to any member on request in compliance with section 33-1805, subsection A. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:

1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

2. Pending or contemplated litigation.

3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session.

B. Notwithstanding any provision in the community documents, all meetings of the members' association and the board shall be held in this state. A meeting of the members' association shall be held at least once each year. Special meetings of the members' association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten or more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the date, time and place of the meeting. A notice of any annual, regular or special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The secretary shall also provide an agenda for any meeting of the members' association by hand delivery, mail, website posting, email or other electronic means or posting at a community center or other similar location. The failure of any member to receive actual notice of a meeting of the members or the meeting agenda does not affect the validity of any action taken at that meeting.

C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting.

D. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors and meeting agendas shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the date, time and place of the meeting. The failure of any member to receive actual notice of a meeting of the board of directors or a meeting agenda does not affect the validity of any action taken at that meeting.

E. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:

1. The agenda shall be available in advance for all members attending.

2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.

3. A quorum of the board of directors may meet by means of a telephone conference if a speakerphone is available in the meeting room that allows board members and association members to hear all parties who are speaking during the meeting.

4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.

F. It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided in advance for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

§ 33-1805 Association financial and other records

A. Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.

B. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:

1. Privileged communication between an attorney for the association and the association.

2. Pending litigation.

3. Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to section 33-1804.

4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

C. The association shall not be required to disclose financial and other records of the association if disclosure would violate any state or federal law.

§ 33-1806 Resale of units; information required; fees; civil penalty; definition

A. For planned communities with fewer than fifty units, a member shall mail or deliver to a purchaser or a purchaser's authorized agent within ten days after receipt of a written notice of a pending sale of the unit, and for planned communities with fifty or more units, the association shall mail or deliver to a purchaser or a purchaser's authorized agent within ten days after receipt of a written notice of a pending sale that contains the name and address of the purchaser all of the following in either paper or electronic format:

1. A copy of the bylaws and the rules of the association.

2. A copy of the declaration.

3. A dated statement containing:

(a) The telephone number and address of a principal contact for the association, which may be an association manager, an association management company, an officer of the association or any other person designated by the board of directors.

(b) The amount of the common regular assessment and the unpaid common regular assessment, special assessment or other assessment, fee or charge currently due and payable from the selling member. If the request is made by a lienholder, escrow agent, member or person designated by a member pursuant to section 33-1807, failure to provide the information pursuant to this subdivision within the time provided for in this subsection shall extinguish any lien for any unpaid assessment then due against that property.

(c) A statement as to whether a portion of the unit is covered by insurance maintained by the association.

(d) The total amount of money held by the association as reserves.

(e) If the statement is being furnished by the association, a statement as to whether the records of the association reflect any alterations or improvements to the unit that violate the declaration. The association is not obligated to provide information regarding alterations or improvements that occurred more than six years before the proposed sale. Nothing in this subdivision relieves the seller of a unit from the obligation to disclose alterations or improvements to the unit that violate the declaration, nor precludes the association from taking action against the purchaser of a unit for violations that are apparent at the time of purchase and that are not reflected in the association's records.

(f) If the statement is being furnished by the member, a statement as to whether the member has any knowledge of any alterations or improvements to the unit that violate the declaration.

(g) A statement of case names and case numbers for pending litigation with respect to the unit filed by the association against the member or filed by the member against the association. The member shall not be required to disclose information concerning such pending litigation that would violate any applicable rule of attorney-client privilege under Arizona law.

(h) A statement that provides "I hereby acknowledge that the declaration, bylaws and rules of the association constitute a contract between the association and me (the purchaser). By signing this statement, I acknowledge that I have read and understand the association's contract with me (the purchaser). I also understand that as a matter of Arizona law, if I fail to pay my association assessments, the association may foreclose on my property." The statement shall also include a signature line for the purchaser and shall be returned to the association within fourteen calendar days.

4. A copy of the current operating budget of the association.

5. A copy of the most recent annual financial report of the association. If the report is more than ten pages, the association may provide a summary of the report in lieu of the entire report.

6. A copy of the most recent reserve study of the association, if any.

7. A statement summarizing any pending lawsuits, except those relating to the collection of assessments owed by members other than the selling member, in which the association is a named party, including the amount of any money claimed.

B. A purchaser or seller who is damaged by the failure of the member or the association to disclose the information required by subsection A of this section may pursue all remedies at law or in equity against the member or the association, whichever failed to comply with subsection A of this section, including the recovery of reasonable attorney fees.

C. The association may charge the member a fee of not more than an aggregate of four hundred dollars to compensate the association for the costs incurred in the preparation and delivery of a statement or other documents furnished by the association pursuant to this section for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of the property. In addition, the association may charge a rush fee of not more than one hundred dollars if the rush services are required to be performed within seventy-two hours after the request for rush services, and may charge a statement or other documents update fee of not more than fifty dollars if thirty days or more have passed since the date of the original disclosure statement or the date the documents were delivered. The association shall make available to any interested party the amount of any fee established from time to time by the association. If the aggregate fee for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of a property is less than four hundred dollars on January 1, 2010, the fee may increase at a rate of not more than twenty percent per year based on the immediately preceding fiscal year's amount not to exceed the four hundred dollar aggregate fee. The association may charge the same fee without regard to whether the association is furnishing the statement or other documents in paper or electronic format.

D. The fees prescribed by this section shall be collected no earlier than at the close of escrow and may only be charged once to a member for that transaction between the parties specified in the notice required pursuant to subsection A of this section. An association shall not charge or collect a fee relating to services for resale disclosure, lien estoppel and any other services related to the transfer or use of a property except as specifically authorized in this section. An association that charges or collects a fee in violation of this section is subject to a civil penalty of not more than one thousand two hundred dollars.

E. This section applies to a managing agent for an association that is acting on behalf of the association.

F. The following are exempt from this section:

1. A sale in which a public report is issued pursuant to section 32-2183 or 32-2197.02.

2. A sale pursuant to section 32-2181.02.

3. A conveyance by recorded deed that bears an exemption listed in section 11-1134, subsection B, paragraph 3 or 7. On recordation of the deed and for no additional charge, the member shall provide the association with the changes in ownership including the member's name, billing address and phone number. Failure to provide the information shall not prevent the member from qualifying for the exemption pursuant to this section.

G. For the purposes of this section, unless the context otherwise requires, "member" means the seller of the unit title and excludes any real estate salesperson or real estate broker who is licensed under title 32, chapter 20 and who is acting as a salesperson or broker, any escrow agent who is licensed under title 6, chapter 7 and who is acting as an escrow agent and also excludes a trustee of a deed of trust who is selling the property in a trustee's sale pursuant to chapter 6.1 of this title.

§ 33-1806.01 Rental property; member and agent information; fee; disclosure

A. A member may use the member's property as a rental property unless prohibited in the declaration and shall use it in accordance with the declaration's rental time period restrictions.

B. A member may designate in writing a third party to act as the member's agent with respect to all association matters relating to the rental property, except for voting in association elections and serving on the board of directors. The member shall sign the written designation and shall provide a copy of the written designation to the association. On delivery of the written designation, the association is authorized to conduct all association business relating to the member's rental property through the designated agent. Any notice given by the association to a member's designated agent on any matter relating to the member's rental property constitutes notice to the member.

C. Notwithstanding any provision in the community documents, on rental of a member's property an association shall not require a member or a member's agent to disclose any information regarding a tenant other than the name and contact information for any adults occupying the property, the time period of the lease, including the beginning and ending dates of the tenancy, and a description and the license plate numbers of the tenants' vehicles. If the planned community is an age restricted community, the member, the member's agent or the tenant shall show a government issued identification that bears a photograph and that confirms that the tenant meets the community's age restrictions or requirements.

D. On request of an association or its managing agent for the disclosures prescribed in subsection C of this section, the managing agent or, if there is no managing agent, the association may charge a fee of not more than twenty-five dollars, which shall be paid within fifteen days after the postmarked request. The fee may be charged for each new tenancy for that property but may not be charged for a renewal of a lease. Except for the fee permitted by this subsection and fees related to the use of recreational facilities, the association or its managing agent shall not assess, levy or charge a fee or fine or otherwise impose a requirement on a member's rental property any differently than on an owner-occupied property in the association.

E. Notwithstanding any provision in the community documents, the association is prohibited from doing any of the following:

1. Requiring a member to provide the association with a copy of the tenant's rental application, credit report, lease agreement or rental contract or other personal information except as prescribed by this section. This paragraph does not prohibit the association from acquiring a credit report on a person in an attempt to collect a debt.

2. Requiring the tenant to sign a waiver or other document limiting the tenant's due process rights as a condition of the tenant's occupancy of the rental property.

3. Prohibiting or otherwise restricting a member from serving on the board of directors based on the member's not being an occupant of the property.

4. Imposing on a member or managing agent any fee, assessment, penalty or other charge in an amount greater than fifteen dollars for incomplete or late information regarding the information requested pursuant to subsection C of this section.

F. Any attempt by an association to exceed the fee, assessment, penalty or other charge authorized by subsection D or E of this section voids the fee, assessment, penalty or other charge authorized by subsection D or E of this section. This section does not prevent an association from complying with the housing for older persons act of 1995 (P.L. 104–76; 109 Stat. 787).

G. An owner may use a crime free addendum as part of a lease agreement. This section does not prohibit the owner's use of a crime free addendum.

H. This section does not prohibit and an association may lawfully enforce a provision in the community documents that restricts the residency of persons who are required to be registered pursuant to section 13-3821 and who are classified as level two or level three offenders.

I. An owner of rental property shall abate criminal activity as authorized in section 12-991.

§ 33-1807 Common expense liens; priority; mechanics' and materialmen's liens; notice

A. The association has a common expense lien on a property for any assessment levied against that property from the time the assessment becomes due. The association's common expense lien may be foreclosed in the same manner as a mortgage on real estate but may be foreclosed only if the owner has been and remains delinquent in the payment of any assessment or portion of the assessment for a period of eighteen months or in the amount of $10,000 or more, whichever occurs first, as determined on the date the action is filed. The association board of directors shall exercise reasonable efforts to communicate with the member and offer a reasonable payment plan before filing a foreclosure action. If an assessment is payable in installments, the full amount of the assessment is a common expense lien from the time the first installment of the assessment becomes due.

B. Notwithstanding any provision in the community documents, member expenses are not enforceable as common expense liens under this section. The association has a judgment lien for member expenses after the entry of a judgment in a civil suit for those member expenses from a court of competent jurisdiction and the recording of that judgment in the office of the county recorder as otherwise provided by law. The association's judgment lien for member expenses may not be foreclosed and is effective only on conveyance of any interest in the real property.

C. A common expense lien under this section is prior to all other liens, interests and encumbrances on a property except:

1. Liens and encumbrances recorded before the recordation of the declaration.

2. A recorded first mortgage on the property, a seller's interest in a first contract for sale pursuant to chapter 6, article 3 of this title on the property recorded before the common expense lien arising pursuant to subsection A of this section or a recorded first deed of trust on the property.

3. Liens for real estate taxes and other governmental assessments or charges against the property.

D. Subsection C of this section does not affect the priority of mechanics' or materialmen's liens. The common expense lien under this section is not subject to chapter 8 of this title.

E. Unless the declaration otherwise provides, if two or more associations have common expense liens created at any time on the same real estate those common expense liens have equal priority.

F. Recording the declaration constitutes record notice and perfection of the common expense lien. Further recordation of any claim of common expense lien under this section is not required.

G. A common expense lien is extinguished unless proceedings to enforce the common expense lien are instituted within six years after the full amount of the assessment becomes due.

H. This section does not prohibit:

1. Actions to recover amounts for which subsection A or B of this section creates a lien.

2. An association from taking a deed in lieu of foreclosure.

I. A judgment or decree in any action brought under this section may include costs and reasonable attorney fees for the prevailing party.

J. On written request, the association shall furnish to a lienholder, escrow agent, member or person designated by a member a statement setting forth the amount of any unpaid liens prescribed by subsection A or B of this section against the property. The association shall furnish the statement within ten days after receipt of the request. The statement is binding on the association if the statement is requested by an escrow agency that is licensed pursuant to title 6, chapter 7. Failure to provide the statement to the escrow agent within the time provided for in this subsection extinguishes any lien for any unpaid assessment then due.

K. Notwithstanding any provision in the community documents or in any contract between the association and a management company or any other agent of the association, including any agreement or contract with any attorney, unless the member directs otherwise, all payments received on a member's account shall be applied first to any unpaid assessments, due but not delinquent assessments, unpaid charges for late payment of those assessments if authorized in the declaration, unpaid reasonable collection fees and costs incurred or applied by the association, and unpaid attorney fees and costs incurred with respect to those assessments if awarded by a court, in that order, with any remaining amounts applied next to other unpaid fees, charges and monetary penalties or interest and late charges on any of those amounts.

L. For a delinquent account for unpaid common expense liens, the association shall provide the following written notice to the member at the member's address as provided to the association at least thirty days before authorizing an attorney, or a collection agency that is not acting as the association's managing agent, to begin collection activity on behalf of the association:

Your account is delinquent. If you do not bring your account current or make arrangements that are approved by the association to bring your account current within thirty days after the date of this notice, your account will be turned over for further collection proceedings. Such collection proceedings could include bringing a foreclosure action against your property.

The notice shall be in bold-faced type or all capital letters and shall include the contact information for the person that the member may contact to discuss payment. The notice shall be sent by certified mail, return receipt requested, and may be included within other correspondence sent to the member regarding the member's delinquent account.

M. Except for planned communities that have fewer than fifty lots and that do not contract with a third party to perform management services on behalf of the association, the association shall provide a statement of account in lieu of a periodic payment book to the member with the same frequency that assessments are provided for in the declaration. The statement of account shall include the current account balance due and the immediately preceding ledger history. If the association offers the statement of account by electronic means, a member may opt to receive the statement electronically. The association may stop providing any further statements of account to a member if collection activity begins by an attorney, or a collection agency that is not acting as the association's managing agent, regarding that member's unpaid account. After collection activity begins, a member may request statements of account by written request to the attorney or collection agency. Any request by a member for a statement of account after collection activity begins by an attorney or a collection agency that is not acting as the association's managing agent must be fulfilled by the attorney or the collection agency responsible for the collection. The statement of account provided by the attorney or collection agency responsible for the collection shall include all amounts claimed to be owing to resolve the delinquency through the date set forth in the statement, including attorney fees and costs, regardless of whether such amounts have been reduced to judgment.

N. An agent for the association may collect on behalf of the association directly from a member the assessments and other amounts owed by cash or check, by mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, by credit, charge or debit card or by other electronic means. For any form of payment other than for cash or for mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, the agent may charge a convenience fee to the member that is approximately the amount charged to the agent by a third-party service provider. The association may not transfer ownership or control of debt for common expense liens or member expenses.

§ 33-1808 Flag display; political signs; caution signs; for sale, rent or lease signs; political and community activities; definitions

A. Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of any of the following:

1. The American flag or an official or replica of a flag of the uniformed services of the United States by an association member on that member's property if the American flag or a uniformed services flag is displayed in a manner consistent with the federal flag code (P.L. 94-344; 90 Stat. 810; 4 United States Code sections 4 through 10).

2. The POW/MIA flag.

3. The Arizona state flag.

4. An Arizona Indian nations flag.

5. The Gadsden flag.

6. A first responder flag. A first responder flag may incorporate the design of one or two other first responder flags to form a combined flag.

7. A blue star service flag or a gold star service flag.

8. Any historic version of the American flag, including the Betsy Ross flag, without regard to how the stars and stripes are arranged on the flag.

B. The association shall adopt reasonable rules and regulations regarding the placement and manner of display of the flags prescribed by subsection A of this section. The association rules:

1. May regulate the location and size of flagpoles.

2. May limit the member to two wall-mounted flagpole holders.

3. May limit the member to displaying not more than two flags at once.

4. May limit the height of the flagpole to not more than the height of the rooftop of the member's home.

5. Shall not prohibit installing a flagpole in the front yard or backyard of the member's property.

C. Notwithstanding any provision in the community documents, an association shall not prohibit the indoor or outdoor display of a political sign by an association member on that member's property, except that an association may prohibit the display of political signs as follows:

1. Earlier than seventy-one days before the day of a primary election.

2. Later than fifteen days after the day of the general election.

3. For a sign for a candidate in a primary election who does not advance to the general election, later than fifteen days after the primary election.

D. An association may regulate the size and number of political signs that may be placed on a member's property if the association's regulation is not more restrictive than any applicable city, town or county ordinance that regulates the size and number of political signs on residential property. If the city, town or county in which the property is located does not regulate the size and number of political signs on residential property, the association shall not limit the number of political signs, except that the maximum aggregate total dimensions of all political signs on a member's property shall not exceed nine square feet.

E. Notwithstanding any provision in the community documents, an association shall not prohibit using cautionary signs regarding children if the signs are used and displayed as follows:

1. The signs are displayed in residential areas only.

2. The signs are removed within one hour of children ceasing to play.

3. The signs are displayed only when children are actually present within fifty feet of the sign.

4. The temporary signs are not taller than three feet in height.

5. The signs are professionally manufactured or produced.

F. Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.

G. Notwithstanding any provision in the community documents, an association shall not prohibit or charge a fee for the use of, the placement of or the indoor or outdoor display of a for sale, for rent or for lease sign and a sign rider by an association member on that member's property in any combination, including a sign that indicates the member is offering the property for sale by owner. The size of a sign offering a property for sale, for rent or for lease shall be in conformance with the industry standard size sign, which shall not exceed eighteen by twenty-four inches, and the industry standard size sign rider, which shall not exceed six by twenty-four inches. This subsection applies only to a commercially produced sign, and an association may prohibit using signs that are not commercially produced. With respect to real estate for sale, for rent or for lease in the planned community, an association shall not prohibit in any way other than as is specifically authorized by this section or otherwise regulate any of the following:

1. Temporary open house signs or a member's for sale sign. The association shall not require the use of particular signs indicating an open house or real property for sale and may not further regulate the use of temporary open house or for sale signs that are industry standard size and that are owned or used by the seller or the seller's agent.

2. Open house hours. The association may not limit the hours for an open house for real estate that is for sale in the planned community, except that the association may prohibit an open house being held before 8:00 a.m. or after 6:00 p.m. and may prohibit open house signs on the common areas of the planned community.

3. An owner's or an owner's agent's for rent or for lease sign unless an association's documents prohibit or restrict leasing of a member's property. An association shall not further regulate a for rent or for lease sign or require the use of a particular for rent or for lease sign other than the for rent or for lease sign shall not be any larger than the industry standard size sign of eighteen by twenty-four inches on or in the member's property. If rental or leasing of a member's property is not prohibited or restricted, the association may prohibit an open house for rental or leasing being held before 8:00 a.m. or after 6:00 p.m.

H. Notwithstanding any provision in the community documents, an association shall not prohibit door-to-door political activity, including solicitations of support or opposition regarding candidates or ballot issues, and shall not prohibit circulating political petitions, including candidate nomination petitions or petitions in support of or opposition to an initiative, referendum or recall or other political issue on property normally open to visitors within the association, except that an association may do the following:

1. Restrict or prohibit the door-to-door political activity from sunset to sunrise.

2. Require the prominent display of an identification tag for each person engaged in the activity, along with the prominent identification of the candidate or ballot issue that is the subject of the support or opposition.

3. Prohibit a person who is not accompanied by a member or resident of the planned community from entering the planned community if the planned community restricts vehicular or pedestrian access.

I. A planned community shall not make any regulations regarding the number of candidates supported, the number of public officers supported or opposed in a recall or the number of propositions supported or opposed on a political sign.

J. A planned community shall not require political signs to be commercially produced or professionally manufactured or prohibit the utilization of both sides of a political sign.

K. Notwithstanding any provision in the community documents, an association may not prohibit or unreasonably restrict the indoor or outdoor display of an association-specific political sign by a member by placement of a sign on that member's property. An association may adopt reasonable rules regarding the placement, location and manner of display of association-specific political signs, except an association shall not do any of the following:

1. Prohibit the display of association-specific political signs between the date that the association provides written or absentee ballots to members and three days after the planned community election.

2. Limit the number of association-specific political signs, except that the association may limit the aggregate total dimensions of all association-specific political signs on a member's property to not more than nine square feet.

3. Require association-specific political signs to be commercially produced or professionally manufactured or prohibit using both sides of the sign.

4. Regulate the number of candidates supported or opposed, the number of board members supported or opposed in a recall or the number of ballot measures supported or opposed on an association-specific political sign.

5. Make any other regulations regarding the content of an association-specific political sign except that the association may prohibit using profanity and discriminatory text, images or content based on race, color, religion, sex, familial status or national origin as prescribed by federal or state fair housing laws.

L. Notwithstanding any provision in the community documents, an association may not prohibit or unreasonably restrict a member's ability to peacefully assemble and use common areas of the planned community if done in compliance with reasonable restrictions for the use of that property adopted by the board of directors. An individual member or group of members may assemble to discuss matters related to the planned community, including board elections or recalls, potential or actual ballot issues or revisions to the community documents, property maintenance or safety issues or any other planned community matters. A member may invite one political candidate or one non-member guest to speak to an assembly of members about matters related to the community. The association shall not prohibit a member from posting notices regarding those assemblies of members on bulletin boards located on the common areas or within common area facilities. An assembly of members prescribed by this subsection does not constitute an official members' meeting unless the meeting is noticed and convened as prescribed in the community documents and this chapter.

M. An association or managing agent that violates subsection G of this section forfeits and extinguishes the lien rights authorized under section 33-1807 against that member's property for a period of six consecutive months after the date of the violation.

N. For the purposes of this section:

1. "Association-specific political sign" means a sign that supports or opposes a candidate for the board of directors, the recall of a board member or a planned community ballot measure that requires a vote of the association members.

2. "Betsy Ross flag" means a historic flag of the United States that consists of thirteen stripes alternating between red and white stripes and thirteen five-pointed white stars arranged in a circle against a blue background.

3. "First responder flag" means a flag that recognizes and honors the services of any of the following:

(a) Law enforcement and that is limited to the colors blue, black and white, the words "law enforcement", "police", "officers", "first responder", "honor our", "support our" and "department" and the symbol of a generic police shield in a crest or star shape.

(b) Fire departments and that is limited to the colors red, gold, black and white, the words "fire", "fighters", "F", "D", "FD", "first responder", "department", "honor our" and "support our" and the symbol of a generic Maltese Cross.

(c) Paramedics or emergency medical technicians and that is limited to the colors blue, black and white, the words "first responder", "paramedic", "emergency medical", "service", "technician", "honor our" and "support our" and the symbol of a generic star of life.

4. "Political sign" means a sign or flag that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

§ 33-1809 Parking; public service and public safety emergency vehicles; definition

A. Notwithstanding any provision in the community documents, an association shall not prohibit a resident from parking a motor vehicle on a street or driveway in the planned community if the vehicle is required to be available at designated periods at the person's residence as a condition of the person's employment and either of the following applies:

1. The resident is employed by a public service corporation that is regulated by the corporation commission, an entity regulated by the federal energy regulatory commission or a municipal utility and the public service corporation or municipal utility is required to prepare for emergency deployments of personnel and equipment for repair or maintenance of natural gas, electrical, telecommunications or water infrastructure, the vehicle has a gross vehicle weight rating of twenty thousand pounds or less and is owned or operated by the public service corporation or municipal utility and the vehicle bears an official emblem or other visible designation of the public service corporation or municipal utility.

2. The resident is employed by a public safety agency, including police or fire service for a federal, state, local or tribal agency or a private fire service provider or an ambulance service provider that is regulated pursuant to title 36, chapter 21.1, and the vehicle has a gross vehicle weight rating of ten thousand pounds or less and bears an official emblem or other visible designation of that agency.

B. For the purposes of this section, "telecommunications" means the transmission of information of the user's choosing between or among points specified by the user without change in the form or content of the information as sent and received. Telecommunications does not include commercial mobile radio services.

§ 33-1810 Board of directors; annual audit

Unless any provision in the planned community documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association. The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available upon request to the members within thirty days after its completion.

§ 33-1811 Board of directors; contracts; conflict

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors or any person who is a parent, grandparent, spouse, child or sibling of a member of the board of directors or a parent or spouse of any of those persons, that member of the board of directors shall declare a conflict of interest for that issue. The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue. Any contract entered into in violation of this section is void and unenforceable.

§ 33-1812 Proxies; absentee ballots; definition

A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10-3708 or the provisions of the community documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:

1. The ballot shall set forth each proposed action.

2. The ballot shall provide an opportunity to vote for or against each proposed action.

3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.

4. The ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.

5. The ballot does not authorize another person to cast votes on behalf of the member.

6. The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.

7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.

B. Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.

C. Notwithstanding subsection A of this section, an association for a timeshare plan as defined in section 32-2197 may permit votes by a proxy that is duly executed by a unit owner.

D. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the community documents or by virtue of superior voting power.

§ 33-1813 Removal of board member; special meeting

A. Notwithstanding any provision of the declaration or bylaws to the contrary, all of the following apply to a meeting at which a member of the board of directors, other than a member appointed by the declarant, is proposed to be removed from the board of directors:

1. The members of the association who are eligible to vote at the time of the meeting may remove any member of the board of directors, other than a member appointed by the declarant, by a majority vote of those voting on the matter at a meeting of the members.

2. The meeting of the members shall be called pursuant to this section and action may be taken only if a quorum is present.

3. The members of the association may remove any member of the board of directors with or without cause, other than a member appointed by the declarant.

4. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply:

(a) In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least twenty-five percent of the votes in the association or by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33-1804, subsection B.

(b) Notwithstanding section 33-1804, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least ten percent of the votes in the association or by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1804, subsection B.

(c) The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

(d) If all of the requirements of this subsection for calling a special meeting are met and the board of directors fails to call, notice and hold a special meeting within thirty days after receipt of the petition, the members of the board of directors are deemed removed from office effective at midnight of the thirty-first day.

(e) For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise allowed by law.

(f) If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs.

(g) The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors and any election or other action taken for that director's replacement for at least one year after the date of the special meeting and shall allow members to inspect those documents and records pursuant to section 33-1805.

(h) A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

5. On removal of at least one but fewer than a majority of the members of the board of directors at a special meeting of the membership called pursuant to this subsection, the vacancies shall be filled as provided in the community documents.

6. On removal of a majority of the members of the board of directors at a special meeting of the membership called pursuant to this subsection, or if the community documents do not provide a method for filling board vacancies, the association shall hold an election for the replacement of the removed directors at a separate meeting of the members of the association that is held not later than thirty days after the meeting at which the members of the board of directors were removed.

7. A member of the board of directors who is removed pursuant to this subsection is not eligible to serve on the board of directors again until after the expiration of the removed board member's term of office, unless the community documents specifically provide for a longer period of ineligibility.

B. For an association in which board members are elected from separately designated voting districts, a member of the board of directors, other than a member appointed by the declarant, may be removed only by a vote of the members from that voting district, and only the members from that voting district are eligible to vote on the matter or be counted for purposes of determining a quorum.

§ 33-1814 Slum property; professional management

For any residential rental units that have been declared a slum property by the city or town pursuant to section 33-1905 and that are in the planned community, the association is responsible for enforcing any requirement for a licensed property management firm that is imposed by a city or town pursuant to section 33-1906.

§ 33-1815 Association authority; commercial signage

Notwithstanding any provision in the community documents, after an association has approved a commercial sign, including its registered trademark that is located on properties zoned for commercial use in the planned community, the association, including any subsequently elected board of directors, may not revoke or modify its approval of that sign if the owner or operator of the sign has received approval for the sign from the local or county governing body with jurisdiction over the sign.

§ 33-1816 Solar energy devices; reasonable restrictions; fees and costs

A. Notwithstanding any provision in the community documents, an association shall not prohibit the installation or use of a solar energy device as defined in section 44-1761.

B. An association may adopt reasonable rules regarding the placement of a solar energy device if those rules do not prevent the installation, impair the functioning of the device or restrict its use or adversely affect the cost or efficiency of the device.

C. Notwithstanding any provision of the community documents, the court shall award reasonable attorney fees and costs to any party who substantially prevails in an action against the board of directors of the association for a violation of this section.

§ 33-1817 Declaration amendment; design, architectural committees; review

A. Except during the period of declarant control, or if during the period of declarant control with the written consent of the declarant in each instance, the following apply to an amendment to a declaration:

1. The declaration may be amended by the association, if any, or, if there is no association or board, the owners of the property that is subject to the declaration, by an affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration.

2. An amendment to a declaration may apply to fewer than all of the lots or less than all of the property that is bound by the declaration and an amendment is deemed to conform to the general design and plan of the community, if both of the following apply:

(a) The amendment receives the affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration.

(b) The amendment receives the affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies.

3. Within thirty days after the adoption of any amendment pursuant to this section, the association or, if there is no association or board, an owner that is authorized by the affirmative vote on or the written consent to the amendment shall prepare, execute and record a written instrument setting forth the amendment.

4. Notwithstanding any provision in the declaration that provides for periodic renewal of the declaration, an amendment to the declaration is effective immediately on recordation of the instrument in the county in which the property is located.

B. Notwithstanding any provision in the community documents:

1. Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.

2. For new construction of the main residential structure on a lot or for rebuilds of the main residential structure on a lot and only in a planned community that has enacted design guidelines, architectural guidelines or other similar rules, however denominated, and if the association documents permit the association to charge the member a security deposit and the association requires the member to pay a security deposit to secure completion of the member's construction project or compliance with approved plans, all of the following apply:

(a) The deposit shall be placed in a trust account with the following instructions:

(i) The cost of the trust account shall be shared equally between the association and the member.

(ii) If the construction project is abandoned, the board of directors may determine the appropriate use of any deposit monies.

(iii) Any interest earned on the refundable security deposit shall become part of the security deposit.

(b) The association or the design review committee must hold a final design approval meeting for the purpose of issuing approval of the plans, and the member or member's agent must have the opportunity to attend the meeting. If the plans are approved, the association's design review representative shall provide written acknowledgement that the approved plans, including any approved amendments, are in compliance with all rules and guidelines in effect at the time of the approval and that the refund of the deposit requires that construction be completed in accordance with those approved plans.

(c) The association must provide for at least two on-site formal reviews during construction for the purpose of determining compliance with the approved plans. The member or member's agent shall be provided the opportunity to attend both formal reviews. Within five business days after the formal reviews, the association shall cause a written report to be provided to the member or member's agent specifying any deficiencies, violations or unapproved variations from the approved plans, as amended, that have come to the attention of the association.

(d) Within thirty business days after the second formal review, the association shall provide to the member a copy of the written report specifying any deficiencies, violations or unapproved variations from the approved plans, as amended, that have come to the attention of the association. If the written report does not specify any deficiencies, violations or unapproved variations from the approved plans, as amended, that have come to the attention of the association, the association shall promptly release the deposit monies to the member. If the report identifies any deficiencies, violations or unapproved variations from the approved plans, as amended, the association may hold the deposit for one hundred eighty days or until receipt of a subsequent report of construction compliance, whichever is less. If a report of construction compliance is received before the one hundred eightieth day, the association shall promptly release the deposit monies to the member. If a compliance report is not received within one hundred eighty days, the association shall release the deposit monies promptly from the trust account to the association.

(e) Neither the approval of the plans nor the approval of the actual construction by the association or the design review committee shall constitute a representation or warranty that the plans or construction comply with applicable governmental requirements or applicable engineering, design or safety standards. The association in its discretion may release all or any part of the deposit to the member before receiving a compliance report. Release of the deposit to the member does not constitute a representation or warranty from the association that the construction complies with the approved plans.

3. Approval of a construction project's architectural designs, plans and amendments shall not unreasonably be withheld.

§ 33-1818 Community authority over public roadways; vote of the membership; applicability

A. For any planned community for which the declaration is recorded after December 31, 2014 and notwithstanding any provision in the community documents, after the period of declarant control, an association has no authority over and shall not regulate any roadway for which the ownership has been dedicated to or is otherwise held by a governmental entity.

B. After the period of declarant control, for any planned community for which the declaration was recorded before January 1, 2015 and that regulates any roadway for which the ownership has been dedicated to or is otherwise held by a governmental entity, the existing regulations continue in effect until either of the following occurs:

1. Not later than June 30, 2025, the planned community shall call a meeting of the membership on the question of whether to continue to regulate public roadways. If the number of owners voting at the meeting on the question is sufficient to constitute a quorum of the membership and a majority of that number votes to continue regulating public roadways in the planned community, the planned community retains its authority to regulate those public roadways. The board of directors shall record in the office of the county recorder of the county in which the planned community is located a document confirming that the planned community continues to regulate the public roadways.

2. If the vote prescribed by paragraph 1 of this subsection fails or if the planned community does not hold a vote of the membership in compliance with paragraph 1 of this subsection, the planned community no longer has authority to regulate the public roadways in the planned community and any existing regulations expire.

C. This section does not apply to any one-way streets, without regard to ownership, or to any privately owned roadways.

§ 33-1819 Artificial turf ban; prohibition; restrictions; attorney fees; applicability

A. Except as prescribed in subsection B of this section and notwithstanding any provision in the community documents, in any planned community that allows natural grass on a member's property, after the period of declarant control, the association may not prohibit installing or using artificial turf on any member's property. An association may do all of the following:

1. Adopt reasonable rules regarding the installation and appearance of artificial turf if those rules do not prevent installing artificial turf in the same manner that natural grass would be allowed by the community documents. Those rules may regulate the location on the property and percentage of the property that may be covered with artificial turf to the same extent as natural grass and may regulate artificial turf quality.

2. Require the removal of a member's artificial turf if the artificial turf creates a health or safety issue that the member does not correct.

3. Require replacement or removal of the artificial turf if the artificial turf is not maintained in accordance with the association's standards for maintenance.

B. The association may prohibit the installation of artificial turf if the artificial turf would be installed in an area that the association is required to maintain or irrigate. If an association prohibits new installation of natural grass on a member's property, the association may also prohibit new installation of artificial turf on a member's property, except that, in that instance, an association may not prohibit a member from converting natural grass to artificial turf on the member's property.

C. Notwithstanding any provision in the community documents, in an action against the association for a violation of this section, the court shall award reasonable attorney fees and costs to any party that prevails as determined by the court.

D. This section does not:

1. Affect an association's responsibility to carry out both the express and the reasonably implied intent of a declaration that provides that the design standards of the planned community are required to be followed to protect the natural environment in which the planned community is developed.

2. Apply to a planned community that has unique vegetation and geologic characteristics that require preservation by the association and in which the viability of those characteristics is protected, supported and enhanced as a result of the continued existence of natural landscaping materials.

§ 33-1820 Declarant control

Notwithstanding any provision in the community documents:

1. Each declaration that provides for a period of declarant control of the association shall also provide for a date of or method for calculating the date of the termination of declarant control.

2. For every planned community, without regard to whether the community documents provide for the termination of declarant control, declarant control terminates not later than the date on which the second to last lot in the planned community is conveyed to a buyer.

3. After termination of the period of declarant control and while the declarant owns one or more lots in the planned community, the association shall:

(a) Provide at least the same level maintenance of common areas that the declarant provided.

(b) Not impede the declarant's ability to develop, construct and sell its lots and not impede access to and use of common areas by the declarant in the same manner as other members.

Chapter 17 Residential Rental Property

Article 1 General Provisions

§ 33-1901 Definitions

In this article, unless the context otherwise requires:

1. "Managing agent" means a person, corporation, partnership or limited liability company that is authorized by the owner to operate and manage the property.

2. "Residential rental property" means property that is used solely as leased or rented property for residential purposes. If the property is a space rental mobile home park, residential rental property includes the rental space that is leased or rented by the owner of that rental space but does not include the mobile home or recreational vehicle that serves as the actual dwelling if the dwelling is owned and occupied by the tenant of the rental space and not by the owner of the rental space.

3. "Slum property" means residential rental property that has deteriorated or is in a state of disrepair and that manifests one or more of the following conditions that are a danger to the health or safety of the public:

(a) Structurally unsound exterior surfaces, roof, walls, doors, floors, stairwells, porches or railings.

(b) Lack of potable water, adequate sanitation facilities, adequate water or waste pipe connections.

(c) Hazardous electrical systems or gas connections.

(d) Lack of safe, rapid egress.

(e) Accumulation of human or animal waste, medical or biological waste, gaseous or combustible materials, dangerous or corrosive liquids, flammable or explosive materials or drug paraphernalia.

§ 33-1902 Residential rental property; recording with the assessor; agent designation; civil penalty; fee

A. An owner of residential rental property shall maintain with the assessor in the county where the property is located information required by this section in a manner to be determined by the assessor. The owner shall update any information required by this section within ten days after a change in the information occurs. The following information shall be maintained:

1. The name, address and telephone number of the property owner.

2. If the property is owned by a corporation, limited liability company, partnership, limited partnership, trust or real estate investment trust, the name, address and telephone number of any of the following:

(a) For a corporation, a corporate officer.

(b) For a partnership, a general partner.

(c) For a limited liability company, the managing or administrative member.

(d) For a limited partnership, a general partner.

(e) For a trust, a trustee.

(f) For a real estate investment trust, a general partner or an officer.

3. The street address and parcel number of the property.

4. The year the building was built.

B. An owner of residential rental property who lives outside this state shall designate and record with the assessor a statutory agent who lives in this state and who will accept legal service on behalf of the owner. The owner shall designate the agent in a manner to be determined by the assessor. The information shall include the name, address and telephone number of the agent.

C. Residential rental property shall not be occupied if the information required by this section is not on file with the county assessor. If the owner has not filed the information required by this section with the county assessor and the residential rental property is occupied by a tenant and the tenant chooses to terminate the tenancy, the tenant shall deliver to the landlord, owner or managing agent of the property a written ten day notice to comply with this section. The notice shall be delivered by certified mail, return receipt requested, or by hand delivery. If the owner does not comply with this section within ten days after receipt of the notice, the tenant may terminate the rental agreement and the landlord shall return all prepaid rent to the tenant. Security deposits shall be returned in accordance with section 33-1321, subsection D. The landlord shall return those monies by certified mail, return receipt requested, or by hand delivery to the tenant within ten days after the termination of the rental agreement. This subsection applies to any existing lease and to any new lease after August 25, 2004. Notwithstanding this subsection, an owner is in compliance with this subsection only if the owner had filed the information required by subsection A of this section with the county assessor.

D. All records, files and documents that are required by this section are public records.

E. For residential rental property that is acquired by an owner after the date of the notice of assessed valuation and the notice prescribed by section 42-15103 and until the issuance of the next notice of assessed valuation, a city or town shall assess a civil penalty of one thousand dollars against a person who fails to comply with this section, plus an additional one hundred dollars for each month after the date of the original violation until compliance occurs. The court shall not suspend any portion of the civil penalty provided by this subsection.

F. Notwithstanding subsection E of this section, if a person complies within ten days after receiving the complaint that notices the violation, the court shall dismiss the complaint and shall not impose a civil penalty.

G. Except for newly acquired residential rental property as prescribed by subsection E of this section, if a residential rental property owner fails to register with the county assessor as prescribed by this section, the city or town may impose a civil penalty in the amount of one hundred fifty dollars per day for each day of violation after the date of the most recent notice of assessed valuation and the notice prescribed by section 42-15103. If a person complies within ten days after receiving the notice from the county assessor, the court shall dismiss the complaint and shall not impose a civil penalty.

H. In carrying out this section, the county assessor shall have immunity as provided in section 12-820.01.

I. The county assessor may assess a fee of not more than ten dollars for each initial registration and each change of information in the registry.

J. On request from a city or town the county assessor shall provide the most current list of all registered rental property owners within the city's or town's boundaries.

§ 33-1903 Appointment of temporary receiver; term; duties, accounting

A. This state or a city, town or county of this state may apply to the superior court for the appointment of a temporary receiver to manage a property that is designated as a slum property by a city, town or county or the state.

B. If the court determines that the appointment of a temporary receiver is necessary, the court may order the appointment of a temporary receiver to manage or operate the premises for as long as the court deems necessary. The court shall not appoint a temporary receiver for a term of more than one year.

C. A temporary receiver who is appointed pursuant to subsection B of this section either shall be a real estate licensee specializing in property management or an attorney specializing in real estate law and shall swear or affirm to faithfully and fairly discharge the receiver's duties. The court may require the temporary receiver to post a bond in an amount fixed by the court.

D. The court shall determine the following:

1. The management duties of the receiver.

2. The amount of compensation to be paid to the receiver.

3. The method of payment.

4. The payment periods.

E. The temporary receiver shall continue to manage the property during the pendency of any appeal or until relieved by the court. The court may remove a temporary receiver on its own motion or on the motion of any party or the temporary receiver.

F. The temporary receiver may do any of the following:

1. Take control of the property.

2. Pay the mortgage on the property if there are sufficient monies derived from the income of the property to do so.

3. Collect rents due on the property.

4. Make or have made any repairs that are necessary to bring the property into compliance with any statute or ordinance.

5. Make payments that are necessary for the maintenance or restoration of utilities to the property.

6. Purchase materials that are necessary to make repairs.

7. Renew, terminate or modify existing rental contracts and leases as provided by law.

8. Enter into new rental contracts and leases.

9. Affirm, renew or terminate an existing insurance contract that covers the property as provided by law.

10. Enter into a new contract that provides for insurance coverage on the property.

11. Hire security or other personnel that are necessary for the safe and proper operation and maintenance of the property.

12. Prosecute or defend suits that flow from the management of the property and retain counsel.

13. Exercise all other authority that an owner of the property would have except the authority to sell the property.

G. Before the receiver spends monies in excess of ten thousand dollars the court and the party who is responsible for the payment of the temporary receiver's expenditures shall approve the expenditure of those monies.

H. The costs of compensation to and expenditures by the temporary receiver shall be paid in the following order of priority:

1. From the income that is derived from the property and that is available after all taxes and mortgages are satisfied.

2. By the party who requested the appointment of the temporary receiver.

I. On filing with the county recorder of the county in which the property is located, a lien is created in favor of the party who pays the temporary receiver's costs of compensation and expenditures other than the defendant. The lien is prior to all other liens, obligations or encumbrances except for prior recorded mortgages, restitution liens, child support liens and general tax liens.

J. On the completion of the receivership, the temporary receiver shall file with the court a full accounting of all costs and expenses incurred and all income received during course of the receivership.

K. On finding that the appointment of a temporary receiver is no longer warranted, the court on its own motion or the motion of any party may terminate the temporary receivership.

L. After all violations have been cured, the temporary receivership shall be terminated.

§ 33-1904 Inspections

A. In addition to any other statute or ordinance providing for the inspection of property, a city, town or county or the state may inspect the residential rental property if either of the following occurs:

1. A property owner fails to comply with the provisions of section 33-1902. The property is subject to immediate inspection until there is compliance. If the property is occupied, the inspecting authority shall request consent of the tenant before entering the interior of the structure. Except as otherwise provided by law, the right of inspection does not extend to the interior of a dwelling unit in a space rental mobile home park or recreational vehicle park that is not owned by a landlord unless the tenant is in possession of the dwelling unit or, if the dwelling unit is vacant or abandoned, the owner consents to the inspection. If the tenant refuses to consent to the entry, the inspecting authority has recourse to any remedy provided by law to secure entry.

2. A property has been designated as a slum property by a city, town or county or the state. The city, town, county or state may annually inspect a property designated as a slum property for three consecutive years. A city, town or county or the state shall establish the process by which a property is designated as a slum property.

B. The property owner is responsible for the costs of an inspection that is conducted pursuant to this section. If the property that is inspected is a dwelling unit in a space rental mobile home park or recreational vehicle park that is not owned by a landlord, the owner of the dwelling unit is responsible for the costs of the inspection.

C. On recording a penalty or inspection cost with the recorder's office in the county in which the property is located, the penalty or inspection cost is deemed to be an assessment and is prior to all other liens, obligations or encumbrances except for liens under title 12, chapter 7, article 12, prior recorded mortgages, restitution liens, child support liens and general tax liens. If the property that was inspected was a dwelling unit in a space rental mobile home park or recreational vehicle park that is not owned by a landlord, a lien shall not be recorded against the owner of the property other than the dwelling. The lien may be filed with the department of transportation and, if filed, has the same effect as otherwise provided for in this section.

D. This section shall not affect any other statute or ordinance pertaining to inspection of property.

§ 33-1905 Slum property; appeal

A. A governmental agency that may designate a residential rental property as a slum property shall establish procedures by which the owner of the property may file an administrative appeal contesting the designation of the property.

B. The decision at the hearing on the administrative appeal is the final administrative decision.

C. A party may appeal the administrative decision pursuant to title 12, chapter 7, article 6.

§ 33-1906 Licensed property management company; training program

A city or town may require a residential rental property owner whose property has been designated as a slum or exhibits the criteria prescribed in section 9-1303, relating to violations that materially affect the health and safety of the occupants of the property, to hire a property management firm that is regulated pursuant to title 32, chapter 20, article 3.1 to manage the property, participate in the city or town's crime free multihousing program, if applicable, and attend city or town approved landlord tenant training classes if available from the city or town. The city or town may also require the property owner to participate in comparable training provided by a nonprofit corporation that is designated as a section 501(c)(3), 501(c)(4), 501(c)(5) or 501(c)(6) corporation and that is certified by the city or town to provide that training. This shall not apply to mobile home parks which are in compliance with section 33-1437.

§ 33-1907 Registration with one-call notification center

This article does not relieve a landlord of an apartment community as defined in section 40-360.21 or a landlord of a mobile home park from the obligation to register with a one-call notification center as prescribed by section 40-360.32.

Chapter 18 Homeowners' Association Dwelling Actions

Article 1 General Provisions

§ 33-2001 Definitions

In this chapter, unless the context otherwise requires:

1. "Community documents" means condominium documents as defined in section 33-1202 or community documents as defined in section 33-1802, including covenants, conditions and restrictions and deed restrictions applicable to the dwelling.

2. "Dwelling" means a newly constructed single family or multifamily unit designed for residential use and property and improvements that are either owned by a homeowners' association or jointly by all of the members of a homeowners' association. Dwelling includes the systems, other components and improvements that are part of a newly constructed single family or multifamily unit at the time of construction.

3. "Good faith" means honesty in fact in the conduct or transaction concerned.

4. "Homeowners' association" means an association as defined in section 33-1202 or 33-1802.

5. "Homeowners' association dwelling action" means any action involving a construction defect as defined in section 12-1361 filed by a homeowners' association against the seller of a dwelling arising out of or related to the design, construction, condition or sale of the dwelling.

6. "Seller" means any of the following:

(a) Any person, firm, partnership, corporation, association or other organization that is engaged in the business of building or selling dwellings.

(b) Any person, firm, partnership, corporation, association or other organization that performs functions relating to or furnishes the design, specifications, surveying, planning, supervising, testing, constructing or observation of the constructing of a dwelling.

(c) A real estate broker or salesperson as defined in section 32-2101.

§ 33-2002 Homeowners' association dwelling actions; conditions

A. Notwithstanding any provision to the contrary in title 10, chapter 39 or chapter 9 or 16 of this title and in addition to any requirements prescribed in the community documents of a homeowners' association, a homeowners' association may file a homeowners' association dwelling action only after all of the following have occurred:

1. The board of directors has provided full disclosure in writing to all members of the association of all material information relating to the filing of the action. The material information shall include a statement that describes the nature of the action and the relief sought including any demands, notices, offers to settle or responses to offers to settle made either by the association or the seller and the expenses and fees that the association anticipates will be incurred, directly or indirectly, in prosecuting the action including attorney fees, consultant fees, expert witness fees, court costs and impacts on the values of the dwellings that are the subject of the action and those that are not. The material information described by this paragraph shall be distributed to all members before the meeting described in paragraph 2 of this subsection occurs.

2. The association has held a meeting of its members and board of directors for which reasonable and adequate notice was provided to all members in the manner prescribed in section 33-1248 or 33-1804, as applicable.

3. The board of directors of the homeowners' association authorizes the filing of the action pursuant to the procedures prescribed in the community documents. At the time of commencing a dwelling action or amending a complaint to add a cause of action for a construction defect, the homeowners' association has an affirmative duty to demonstrate compliance with the procedures prescribed in the community documents and the requirements of this section.

4. The association provides the seller with notice of the alleged construction defects and the right to repair or replace the alleged construction defects pursuant to section 12-1363.

B. If the notice required by subsection A, paragraph 2 of this section is provided to the homeowners' association's members less than sixty days before the expiration of a statute of limitations affecting the right of the association to bring a homeowners' association dwelling action, the statute of limitations is tolled for sixty days. The homeowners' association may meet the remaining requirements of subsection A of this section during the tolling period.

C. Notwithstanding any provision to the contrary in title 10, chapter 39 or in chapter 9 or 16 of this title and in addition to any requirements prescribed in the community documents of a homeowners' association, the board of directors of a homeowners' association or its authorized representative shall disclose in writing to the members of the association a plan that describes the manner in which the proceeds of a homeowners' association dwelling action, whether obtained by way of judgment, settlement or other means, have been or will be allocated. The plan shall be disclosed within thirty days after the association receives the proceeds of any homeowners' association dwelling action. The plan is not binding on the homeowners' association, but the board of directors or its authorized representative must disclose any material changes to the plan to the members of the association within thirty days of making the changes.

D. A homeowners' association shall prepare and preserve for a period of five years records that are adequate to demonstrate its compliance with this section.

E. A director who acts in good faith pursuant to this chapter is not liable for any act or failure to act pursuant to this chapter. In any action filed against a director arising out of any act or failure to act pursuant to this chapter, a director is presumed in all cases to have acted in good faith. The burden is on the party challenging a director's conduct to establish by clear and convincing evidence facts that rebut the good faith presumption.

F. In any contested dwelling action, the seller has standing to assert a failure of the homeowners' association to comply with the procedures prescribed by the community documents and the requirements of this section.

§ 33-2003 Applicability

A. This chapter applies only to homeowners' association dwelling actions. This chapter does not apply to:

1. Actions filed by individual members of a homeowners' association against a seller.

2. Claims for personal injury, death or damage to property other than a dwelling.

3. Common law fraud claims.

4. Proceedings brought pursuant to title 32, chapter 10, whether filed by a homeowners' association or by individual members of a homeowners' association.

B. A homeowners' association dwelling action is also subject to title 12, chapter 8, article 14.

Chapter 19 Recreational Vehicle Long-Term Rental Space Act

Article 1 General Provisions

§ 33-2101 Application; duration of stay; exclusions; notice and pleading requirements

A. This chapter applies to, regulates and determines rights, obligations and remedies for a recreational vehicle space that is rented in a recreational vehicle park or mobile home park by the same tenant under a rental agreement for more than one hundred eighty consecutive days. For a park model or park trailer that is located in a recreational vehicle park or mobile home park, this chapter applies if the space is rented by the same tenant for more than one hundred eighty consecutive days without regard to whether a rental agreement is executed.

B. This chapter does not apply to mobile homes, manufactured homes and factory-built buildings or to a property with one or two recreational vehicle rental spaces.

C. Notwithstanding any other law, an agency of this state and an individual court may not adopt or enforce a rule or policy that requires a mandatory or technical form for providing notice or for pleadings in an action for forcible entry or forcible or special detainer. The form of any notice or pleading that meets statutory requirements for content and formatting of a notice or pleading is sufficient to provide notice and to pursue an action for forcible entry or forcible or special detainer.

§ 33-2102 Definitions

In this chapter, unless the context otherwise requires:

1. "Action" includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including an action for possession.

2. "Appurtenances" means awnings, sheds, porches and other attachments to the recreational vehicle.

3. "Change in use" means a change in the use of land from the rental of recreational vehicle spaces in a recreational vehicle park to some other use.

4. "Compatible" means a recreational vehicle that is in a similar condition as the majority of the other recreational vehicles in the recreational vehicle park, as determined by the maintenance, condition and overall appearance of the recreational vehicle.

5. "Factory-built building" means a residential or nonresidential building, including a dwelling unit or habitable room of the building, that is either wholly or in substantial part manufactured at an off-site location to be assembled on site, except that it does not include a manufactured home, recreational vehicle or mobile home as defined in section 41-4001.

6. "Good faith" means honesty in fact in the conduct or transaction concerned.

7. "Guest" means a nonresident of a recreational vehicle park, over and above the limit set for the resident's space under the terms of the rental agreement or by park rules, who stays at the home of a person with constructive possession of the home with the consent of the resident for one or more nights and not more than fourteen days in any twelve month period.

8. "Landlord" means:

(a) The owner, lessor, sublessor or operator, or any combination of these persons, of a recreational vehicle park.

(b) A manager of the premises.

9. "Mobile home" means either of the following:

(a) A residential structure that was manufactured on or before June 15, 1976, that is transportable in one or more sections, eight feet or more in body width, over thirty feet in body length with the hitch, built on an integral chassis, designed to be used as a dwelling when connected to the required utilities and not originally sold as a travel trailer or recreational vehicle and that includes the plumbing, heating, air conditioning and electrical systems in the structure.

(b) A manufactured home built after June 15, 1976, originally bearing an appropriate insignia of approval issued by the United States department of housing and urban development.

10. "Mobile home park" means any parcel of land that contains four or more mobile home spaces and two or more recreational vehicle spaces.

11. "Mobile home space" means a parcel of land for rent that has been designed to accommodate a mobile home and provide the required sewer and utility connections.

12. "Notice" means delivery by hand or mailed by registered or certified mail to the last known address of the landlord or tenant. If notice is mailed by registered or certified mail, the landlord or tenant is deemed to have received the notice on the date the notice is actually received or five days after the date the notice is mailed, whichever occurs first.

13. "Organization" includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest and any other legal or commercial entity that is a landlord, owner, manager or designated agent.

14. "Owner" means one or more persons, jointly or severally, in whom is vested all or part of the legal title to property or all or part of the beneficial ownership and a right to present use and enjoyment of the premises. Owner includes a mortgagee in possession.

15. "Person" includes a company, partnership or firm as well as a natural person.

16. "Premises" means the recreational vehicle park and existing facilities and appurtenances in the park, including furniture and utilities, if applicable, and grounds, areas and existing facilities held out for the use of tenants generally or whose use is promised to the tenant.

17. "Prospective tenant" means a person who expresses an interest to a landlord in becoming a tenant.

18. "Recreational vehicle" means a vehicular type unit that is any of the following:

(a) A portable camping trailer mounted on wheels and constructed with collapsible partial sidewalls that fold for towing by another vehicle and unfold for camping.

(b) A motor home designed to provide temporary living quarters for recreational, camping or travel use and built on or permanently attached to a self-propelled motor vehicle chassis or on a chassis cab or van that is an integral part of the completed vehicle.

(c) A park trailer or park model built on a single chassis, mounted on wheels or originally mounted on wheels and from which the wheels have been removed and designed to be connected to utilities necessary for operation of installed fixtures and appliances and has a gross trailer area of not less than three hundred twenty square feet and not more than four hundred square feet when it is set up, except that it does not include fifth wheel trailers.

(d) A travel trailer mounted on wheels, designed to provide temporary living quarters for recreational, camping or travel use and of a size or weight that may or may not require special highway movement permits when towed by a motorized vehicle and that has a trailer area of less than three hundred twenty square feet. This subdivision includes fifth wheel trailers. If a unit requires a size or weight permit, it shall be manufactured to the standards for park trailers in section A 119.5 of the American national standards institute code.

(e) A portable truck camper constructed to provide temporary living quarters for recreational, camping or travel use and consisting of a roof, floor and sides designed to be loaded onto and unloaded from the bed of a pickup truck.

19. "Recreational vehicle space" means a parcel of land for rent that has been designed to accommodate a recreational vehicle and provide the required sewer and utility connections.

20. "Rent" means payments to be made to the landlord or designated agent in full consideration for the rented premises.

21. "Rental agreement" means oral or written leases or agreements and valid rules embodying the terms and conditions concerning the use and occupancy of a recreational vehicle space.

22. "Resident" means a person entitled under a rental agreement to occupy a recreational vehicle space to the exclusion of others.

23. "Security deposit" means money or property given to assure payment or performance under a rental agreement.

24. "Tenant" means a person signing a rental agreement or otherwise agreeing with a landlord for the occupancy of a recreational vehicle space for more than one hundred eighty days.

25. "Visitor" means a nonresident of a recreational vehicle park who stays at the home of a resident with the consent of the resident but does not stay overnight.

§ 33-2103 Obligation of good faith

Every duty under this chapter and every act that must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.

§ 33-2104 Unconscionability

A. If a court, as a matter of law, finds that:

1. A rental agreement or any provision of a rental agreement was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision or limit the application of any unconscionable provision to avoid an unconscionable result.

2. A settlement in which a party waives or agrees to forgo a claim or right under this chapter or under a rental agreement was unconscionable at the time it was made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision or limit the application of any unconscionable provision to avoid any unconscionable result.

B. If unconscionability is put into issue by a party or by the court on its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination.

§ 33-2105 Terms and conditions of rental agreement; notice, removal

A. At the request of either the landlord or the tenant, a signed, written rental agreement shall be executed. The rental agreement shall be executed in good faith by both parties and shall not provide for the waiver of any rights given to either party by other provisions of this chapter. The rental agreement shall be for a specific period and:

1. Shall include:

(a) The amount of the rent. Rent is payable without demand or notice at the time and place agreed on by the parties. Unless otherwise agreed, rent is uniformly apportionable from day to day.

(b) The amount of any security deposit.

2. May provide that the landlord may charge a late fee of not more than five dollars per day from the due date of the rent until the rent is paid if the rent is not remitted by the sixth day after the due date.

B. If the landlord and tenant agree to the term of the rental agreement, the rental agreement may be for any term. In the case of a renewal of a rental agreement, if the landlord and tenant do not agree on the term, the agreement shall be for the same term as the previous agreement but not longer than one year. Any written rental agreement shall have all blank spaces completed, and executed copies of the written rental agreement shall be furnished to all parties within ten days after execution.

C. The rental agreement may include conditions not prohibited by this chapter or other rule of law governing the rights and obligations of the parties.

D. The rental agreement may provide that if a dispute arises the prevailing party may recover costs and reasonable attorney fees. In any action arising under this chapter, the court may award the prevailing party costs and reasonable attorney fees even if the rental agreement does not contain such a provision.

E. The landlord shall provide with the rental agreement a current copy of the rules of the recreational vehicle park.

F. On the expiration or renewal of any rental agreement, the landlord may increase or decrease the total rent or change payment arrangements. The landlord shall notify the tenant in writing by first class or certified mail or by personal delivery at least sixty days before the expiration or renewal of any rental agreement of any such increase or change.

G. As a condition of tenancy the rental agreement may require the prospective tenant to make improvements to the recreational vehicle, including all appurtenances owned by the tenant, to preserve or upgrade the quality of the recreational vehicle park even if the prospective tenant is purchasing a recreational vehicle already located in the park. The improvements shall not exceed the requirements of the rules of the park.

H. A moving company or the tenant shall contact the landlord or manager at least thirty days before a recreational vehicle is moved into or out of the park.

I. The resident shall inform the landlord or park manager at least thirty days before the expiration of the rental agreement if the tenant is not renewing the rental agreement and is vacating the space. If timely notice is not given before the tenant moves from the space, the tenant shall pay rent equal to the amount of rent for the notice period.

J. A tenant shall not remove a recreational vehicle from a recreational vehicle or mobile home space unless the tenant has received from the landlord a clearance for removal that shows that all monies, including rent and utilities, due the landlord as of the date of removal have been paid or that the landlord and tenant have otherwise agreed to the removal.

K. The rental agreement may provide that the landlord may charge a guest fee.

§ 33-2106 Prohibited provisions in rental agreements

A. A rental agreement shall not provide that the tenant agrees to:

1. Waive or forgo rights or remedies provided by law.

2. Place any additional person's name on the title to the recreational vehicle as a condition of tenancy or residency for that additional person or pay a fee or other form of penalty for failing to place an additional person's name on the title to the recreational vehicle.

B. A provision that is prohibited by subsection A of this section and that is included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known to be prohibited, the tenant may recover actual damages sustained and the rental agreement is voidable by the tenant.

§ 33-2107 Utility fees; service interruption; waste, garbage and rubbish removal fees; refunds; enforcement

A. A landlord may charge separately for gas, water or electricity by doing either of the following:

1. Installing a submetering system.

2. Allocating the charges separately through a ratio utility billing system.

B. If a landlord charges separately for gas, water or electricity by installing a submetering system:

1. The landlord shall provide a separate meter for every user.

2. For each billing period the cost of the charges for the period shall be separately stated, along with the opening and the closing meter readings and the dates of the meter readings. Each bill shall show the computation of the charge generally in accordance with the serving utility company billing format for individual service supplied through a single service meter.

3. The landlord shall not charge more than the prevailing basic service single family residential rate charged by the serving utility or provider and any other fees and taxes imposed on the landlord by the provider relating to this rate.

C. If a landlord charges separately for gas, water or electricity pursuant to a ratio utility billing system:

1. The landlord may recover the charges imposed on the landlord by the utility provider, except that a landlord shall not include a charge by the supplying utility for gas, water or electricity used in a common area or office if the common area or office is separately metered. The landlord shall post in a conspicuous place on the premises the current rate under which the landlord pays for the utility service, as well as the expenses included in the administrative fee and a statement that the total administrative fee charged in the aggregate does not exceed ten per cent of the landlord's total charge during the billing period. For the purposes of this paragraph, "charges" means the landlord's actual expense of obtaining the utility, including the taxes and fees assessed by or through the utility provider and imposed on the landlord by the utility provider.

2. The landlord may charge an administrative fee for the landlord's actual administrative costs. Any monthly administrative fee shall not exceed the greater of the landlord's actual administrative costs or ten per cent of the monthly charges by the utility provider in the aggregate to the landlord. The landlord shall not impose any other additional charges. If the landlord arranges for utility billings to be handled by a third party, the utility billings shall instead include the actual and reasonable cost charged by the third party for the service. Those third party charges shall not exceed ten per cent of the monthly charges by the utility provider for that utility in the aggregate to the landlord. For the purposes of this paragraph, "administrative costs" includes the direct actual costs to the landlord of billing for utilities, including the cost of staff time to calculate and mail the bills, postage and stationery.

3. The rental agreement shall contain a disclosure that lists the utility services that are separately charged to the tenant and shall state that an administrative fee covering the landlord's administrative expenses in making the calculations under the ratio utility billing system will also be assessed. The rental agreement also shall state that total administrative fees assessed each billing period shall not exceed ten per cent of the landlord's total charges for that utility provider.

4. Allocation shall be made on the basis of rented spaces.

D. A landlord that is also a mobile home park as defined in section 33-1409 shall comply with subsection A, paragraph 1 and subsection B of this section.

E. The landlord shall provide a statement of proposed interruption of utility service to the tenants within a reasonable time, except in the case of an interruption caused by an emergency. An emergency does not include any failure or refusal by the landlord to fulfill the duties and obligations to maintain fit premises. A statement of proposed interruption of utility service may be provided by posting an announcement of the period of the interruption in a conspicuous place on the premises where a recreational vehicle space is located or by individual delivery to each tenant.

F. For the purpose of regulating recreational vehicle parks as public or consecutive water systems, the state shall not adopt rules pursuant to title 49, chapter 2, article 9 that are more stringent than authorized by the federal government. Submetering solely to determine the charges for individual water use by park tenants for the purpose of water conservation, without other evidence indicating a transaction subject to regulation under title 49, chapter 2, article 9, shall not be used as a basis for treating any recreational vehicle park as a public or consecutive water system.

G. A landlord may charge separately for removal of waste, garbage, rubbish, refuse and trash and for sewer services. Any charges for removal or sewer services shall not exceed the prevailing single family or residential charge, fee or rate for these services levied by the political subdivision or provider.

H. A landlord who determines, on the landlord's own or as a result of a tenant objection, that the landlord has overcharged tenants shall refund the overcharged amount to the tenants who were overcharged and who reside in the recreational vehicle park at the time the overcharge is determined. The refund shall be made through a credit toward future utility charges or a refund and shall be provided within sixty days.

I. If a tenant believes that a landlord is not in compliance with this section, the tenant shall provide written notice to the landlord regarding the alleged violation of this section. If the dispute is not resolved within thirty days after the notice is received by the landlord, the tenant may file a civil complaint in justice court to enforce this section. In an action pursuant to this subsection, the court shall award the prevailing party court costs and reasonable attorney fees.

Article 2 Landlord Obligations

§ 33-2121 Security deposits

A. On termination of the tenancy, any security deposit may be applied to the payment of accrued rent, including utilities, and the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with the law if the accrued rent and damages are itemized by the landlord in a written notice delivered to the tenant together with the amount due within fourteen days after termination of the tenancy and delivery of possession by the tenant.

B. The holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this section.

C. The amount of any security deposit shall not be changed after the tenant executes the initial rental agreement.

§ 33-2122 Disclosure

A. The landlord or any person authorized to enter into a rental agreement on the landlord's behalf shall disclose to the tenant in writing before entering into the rental agreement the name and address of each of the following:

1. The person authorized to manage the premises.

2. The owner of the premises and, if applicable, a person authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and providing receipts for notices and demands.

B. The information required to be furnished by this section shall be kept current and refurnished to the tenant on the tenant's request. If there is a new owner or operator this section extends to and is enforceable against any successor landlord, owner or manager.

C. Failure to comply with subsection A or B of this section renders the manager, any employee and the owner's agent subject to the following:

1. Service of process and receiving and receipting for notices and demands.

2. Performing the obligations of the landlord under the rental agreement and spending or making available for the purpose of performing the landlord's obligations all rent collected from the premises.

D. Each tenant shall be notified in writing of any rent increase at least sixty days before the increase by first class or certified mail or by personal delivery.

E. Except for renewals of a rental agreement, the landlord or any person authorized to enter into a rental agreement on the landlord's behalf shall provide to the tenant before entering into a rental agreement for a recreational vehicle park trailer space the following:

1. A copy of the Arizona recreational vehicle long-term rental space act.

2. For persons who are purchasing or placing in the park a recreational vehicle that is a park trailer or park model, a notice that the park trailer or park model is governed by the Arizona recreational vehicle long-term rental space act and not the Arizona mobile home parks residential landlord and tenant act.

F. The landlord shall also make available to all tenants a current copy of the Arizona recreational vehicle long-term rental space act.

§ 33-2123 Landlord to maintain fit premises

The landlord shall:

1. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.

2. Comply with all applicable provisions of city, county and state codes materially affecting health and safety.

Article 3 Tenant Obligations

§ 33-2131 Tenant to maintain recreational vehicle space

A tenant of a recreational vehicle space shall exercise diligence to maintain that part of the premises that the tenant has rented in as good condition as when the tenant took possession and shall:

1. Comply with all obligations primarily imposed on tenants by applicable provisions of city, county and state codes materially affecting health and safety.

2. Comply with all park rules regarding sanitary and aesthetic guidelines.

§ 33-2132 Rules

A. A landlord shall adopt written rules, however described, concerning the tenant's use and occupancy of the premises. Rules are enforceable against the tenant only if:

1. They apply to all tenants on the premises in a fair manner.

2. They are sufficiently explicit in prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what the tenant must or must not do to comply.

3. They are not for the purpose of evading the obligations of the landlord.

4. The prospective tenant has a copy of the current rules before entering into the rental agreement.

B. If the owner or agent adds, changes, deletes or amends any rule, the owner or agent shall provide notice in writing of all additions, changes, deletions or amendments to all tenants thirty days before they become effective. Any rule or condition of occupancy that is unfair and deceptive or that does not conform to the requirements of this chapter is unenforceable. A rule adopted after the tenant enters into the rental agreement is enforceable against the tenant only if the rule does not substantially modify the rental agreement. For purposes of this subsection, notice shall be by personal delivery or mailed by first class or certified mail.

C. A landlord shall not:

1. Deny rental unless the prospective resident cannot conform to park rules. A landlord is not required to enter into an initial recreational vehicle space agreement in excess of one hundred seventy-nine days.

2. Charge an exit fee to a tenant whose rental agreement has expired.

3. Require a person as a precondition to renting, leasing or otherwise occupying a recreational vehicle space in a recreational vehicle or mobile home park to pay an entrance or exit fee, unless the fee is for services that are actually rendered or pursuant to a written agreement.

4. Deny any resident of a recreational vehicle park the right to sell the recreational vehicle at a price of the resident's own choosing during the term of the tenant's rental agreement, but the landlord may reserve the right to approve the purchaser of the recreational vehicle as a tenant. This permission shall not be unreasonably withheld, except that the landlord may require, in order to preserve or upgrade the quality of the recreational vehicle park, that any recreational vehicle not compatible with the other recreational vehicles in the park, in a rundown condition or in disrepair be removed from the park within sixty days. Within ten days after a written request by the seller or prospective purchaser, a landlord shall notify the seller and the prospective purchaser in writing of any reasons for withholding approval of a purchase pursuant to this paragraph. The notice to the prospective purchaser shall identify the reasons for disapproval with reasonable specificity. The notice to the seller shall identify the reasons in summary fashion consistent with applicable federal and state consumer protection laws and shall inform the seller that the seller should consult with the prospective purchaser for more specific details.

5. Require an existing tenant to furnish permanent improvements that cannot be removed without damage to the improvements or to the recreational vehicle space by a tenant at the expiration of the rental agreement.

6. Prohibit a tenant from advertising the sale or exchange of the tenant's recreational vehicle, including the display of a for sale or open house sign on the recreational vehicle or in the window of the recreational vehicle stating the name and contact information of the owner or agent of the recreational vehicle. In addition, a tenant may display a sign on a central posting board in the park that is reasonably accessible to the public seven days a week during daylight hours.

7. Require a tenant or prospective tenant to use any specific sales agency, manufacturer, retailer or broker.

8. Require a tenant to place any additional person's name on the title to the recreational vehicle as a condition of tenancy or residency for that additional person or pay a fee or other form of penalty for failing to place an additional person's name on the title to the recreational vehicle.

9. For recreational vehicles as defined in section 33-2102, paragraph 18, subdivision (b), (c) or (d), prohibit a tenant from installing reasonably necessary commercial cooling methods on the tenant's recreational vehicle.

D. The landlord shall not prohibit or adopt a rule that prohibits tenants or a tenant association from meeting with permission of the tenant in the tenant's recreational vehicle or from assembling or meeting with or without invited speakers in the park to discuss issues relating to recreational vehicle or mobile home living and affairs, including the forming of a tenant association. Such meetings shall be allowed in common facilities if such meetings are held during normal operating hours of the common facility and when the facility is not otherwise in use. The tenant or tenant association shall be allowed to post notice of a meeting on a bulletin board in the park used for similar notices and shall be allowed to include notice of a meeting in a park newsletter. Meeting notices and meetings prescribed in this subsection shall not constitute a solicitation. For the purposes of this subsection, "common facilities" means a recreation hall, a clubhouse, a community center and any outdoor common area meeting location that is used by the tenants.

E. If a tenant dies, any surviving joint tenant or cotenant continues as a tenant with the same rights, privileges and liabilities as if the surviving tenant were the original tenant.

F. A new tenant who brings a recreational vehicle into a park or who purchases an existing recreational vehicle or mobile home shall comply with all rules then in effect.

G. Pursuant to state and federal fair housing laws, a resident who has a disability as defined in section 41-1491 may have one or more persons occupy the recreational vehicle to provide necessary live-in health care, personal care or supportive services if the care or services are necessary to afford the resident with a disability an equal opportunity to use and enjoy the dwelling. The landlord shall not charge a fee for the persons rendering live-in health care, personal care or supportive services. The persons rendering live-in health care, personal care or supportive services have no rights of tenancy. Any agreement between the resident and the persons rendering live-in health care, personal care or supportive services does not modify the rental agreement between the landlord and tenant. The persons rendering live-in health care, personal care or supportive services shall comply with the rules of the park.

§ 33-2133 Access

Unless provided in a written agreement, the landlord has no right of access to a tenant's recreational vehicle without the tenant's permission.

Article 4 Remedies

§ 33-2141 Noncompliance by the landlord

A. Except as otherwise provided by law, if there is a material noncompliance by the landlord with the rental agreement or the rules, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days. If there is a noncompliance by the landlord materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days. The rental agreement shall terminate and the recreational vehicle space shall be vacated as provided in the notice subject to the following:

1. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate.

2. The tenant shall not terminate the rental agreement for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or any other person on the premises with the tenant's consent.

B. Except as otherwise provided by law, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or any other provision of law.

C. The remedy provided in subsection B is in addition to any right of the tenant arising under subsection A.

D. If the rental agreement is terminated pursuant to this section, the landlord shall return all deposits less reasonable damages.

§ 33-2142 Tenant's remedies for landlord's unlawful ouster, exclusion or diminution of services

If the landlord unlawfully removes or excludes the tenant from the premises or wilfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount equal to two months' periodic rent. If the rental agreement is terminated, the landlord shall return all deposits, less any utility charges and damages.

§ 33-2143 Termination or nonrenewal of rental agreement by landlord; noncompliance with rental agreement by tenant; failure to pay rent; notice; damages; definition

A. Except as provided in subsection F of this section, the landlord shall specify the reason or reasons for the termination or nonrenewal of any tenancy subject to this chapter. The reason or reasons relied on for the termination or nonrenewal shall be stated in writing with specific facts, so that the date, place and circumstances concerning the reason or reasons for termination or nonrenewal can be determined. Reference to or recital of the language of this chapter, or both, is not sufficient compliance with this subsection.

B. Except as provided in subsection F of this section, the landlord shall not terminate or refuse to renew a rental agreement without good cause.

C. The landlord's right to terminate or to refuse to renew a rental agreement pursuant to subsection B of this section does not arise until the landlord has complied with subsection D, E or F of this section.

D. Except as otherwise prohibited by law:

1. If there is a material noncompliance by the tenant with the rental agreement, the landlord shall deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days.

2. If there is a noncompliance by the tenant materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days. If the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement does not terminate.

3. If there is a noncompliance by the tenant that is both material and irreparable, including an unlawful discharge of a weapon, prostitution as defined in section 13-3211, the unlawful manufacture, sale, use, storage, transfer or possession of a controlled substance as defined in section 13-3451, the infliction of serious bodily harm, assault as prescribed in section 13-1203 or any other action that involves imminent serious property damage, the landlord may deliver a written notice for immediate termination of the rental agreement and proceed in a special detainer action pursuant to section 33-1485.

4. If a tenant engages in repetitive conduct that is the subject of notices under this subsection, after two incidents of the same type documented by the landlord within a twelve month period or after receipt by the landlord of two written complaints from other tenants about the repetitive conduct within a twelve month period, the landlord may deliver a written notice to the tenant specifying the repetitive conduct and the documentation and advising the tenant that on documentation of the next incident of the same type final notice will be given and the rental agreement or tenancy will be terminated thirty days after the date of the notice.

5. If a tenant has been involved in three or more documented incidents of conduct of any type described in this section within a twelve month period, the landlord may deliver a written notice to the tenant specifying the conduct and the documentation and advising the tenant that on documentation of the next incident final notice will be given and the rental agreement or tenancy will be terminated thirty days after the date of the notice.

E. If rent is unpaid when due and the tenant fails to pay rent within five days after written notice by the landlord of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement. Before judgment in an action brought by the landlord under this subsection, the tenant may have the rental agreement reinstated by tendering the past due but unpaid periodic rent, reasonable attorney fees incurred by the landlord and court costs, if any.

F. Except for those recreational vehicles that are park trailers as prescribed in section 33-2102, a landlord may refuse to renew a rental agreement without good cause by serving written notice to the tenant at least ninety days before the end of the rental agreement. In that event, the tenant must vacate the premises on or before the end of the rental agreement. For park trailers only, a landlord may refuse to renew or may terminate a rental agreement only with good cause.

G. For the purposes of this section, "good cause" means:

1. Noncompliance with any provision of the rental agreement.

2. Nonpayment of rent.

3. Clear and convincing evidence that a tenant has repeatedly violated this chapter and established a pattern of noncompliance with this chapter.

4. Change in use of land.

§ 33-2144 Abandonment

A. If a tenant abandons a recreational vehicle on the space, the landlord shall notify the owner and lienholder of record of the recreational vehicle within fifteen days about the owner's or lienholder's liability for any costs incurred for the rental space including rent and utility costs due. Before notice is provided to the legal owner or lienholder, the landlord is entitled to a maximum of sixty days' rent. After notice is provided, the legal owner or lienholder is responsible for all costs. The recreational vehicle shall not be removed from the space without a signed statement from the landlord, owner or park manager that shows clearance for removal of the recreational vehicle, that all monies due have been paid in full or that the legal owner and landlord have agreed to allow removal.

B. This section applies only to recreational vehicles as defined in section 33-2102, paragraph 18, subdivision (c).

§ 33-2145 Remedy after termination

A. If the rental agreement is terminated, the landlord may have a claim for possession of the recreational vehicle space and for rent and a separate claim for actual damages for breach of the rental agreement.

B. In the execution of any writ of restitution issued pursuant to section 12-1178 or 12-1181, the landlord may provide written instructions to the sheriff or constable not to remove the recreational vehicle from its space, and if those written instructions are provided, the sheriff or constable may fully execute the writ of restitution by removing all occupants and their possessions from the recreational vehicle and from the space it occupies. The recreational vehicle is deemed abandoned, and the landlord may terminate any utility services that are provided by the landlord. An owner of a recreational vehicle in compliance with subsection C of this section may recover possession of the recreational vehicle while the title remains in the owner's name.

C. A recreational vehicle that is subject to a judgment for forcible detainer may not be removed from its space until the tenant has received from the landlord a clearance for removal that shows that all monies due the landlord as of the date of removal have been paid or that the landlord and tenant have otherwise agreed to the removal. The landlord may agree in writing to accept other terms in satisfaction of the judgment. This subsection does not apply to any lienholder of record on the date of judgment or its successors or assigns.

§ 33-2146 Failure to maintain by tenant

If there is noncompliance by the tenant with law that materially affects health and safety and that can be remedied by repair, replacement of a damaged item or cleaning and the tenant fails to comply as promptly as conditions require in case of emergency or within ten days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the recreational vehicle space, cause the work to be done in a workmanlike manner and submit an itemized bill for the actual and reasonable cost or the fair and reasonable value of the work as additional rent on the next date when periodic rent is due, or if the rental agreement was terminated, for immediate payment.

§ 33-2147 Periodic tenancy; holdover remedies

A. The landlord may terminate a tenancy only as provided in this chapter.

B. If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and rent for the holdover period.

§ 33-2148 Retaliatory conduct prohibited; eviction

A. Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction after any of the following:

1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation that applies to the premises and that materially affects health and safety.

2. The tenant has complained to the landlord of a violation under this chapter.

3. The tenant has organized or become a member of a tenants' union or similar organization.

4. The tenant has filed an action seeking relief pursuant to section 33-2107 or has filed any other action against the landlord in an appropriate court.

B. If the landlord acts in violation of subsection A of this section, the tenant is entitled to an amount equal to two months' periodic rent and twice the actual damages sustained by the tenant and has a defense in action against the landlord for eviction, unless the landlord proves good cause for the landlord's action.

C. Notwithstanding subsections A and B of this section, a landlord may bring an action for eviction if either of the following occurs:

1. The violation of an applicable building or housing code was caused primarily by lack of reasonable care by the tenant or another person in the tenant's household or who was on the premises with the tenant's consent.

2. The tenant is in default in rent. The filing of an action does not release the landlord from liability pursuant to section 33-2141, subsection B.

§ 33-2149 Change in use; notices; compensation for moving expenses; payments by the landlord; applicability

For recreational vehicles that are park trailers or park models only:

1. The landlord shall notify the director and all tenants in writing of a change in use at least one hundred eighty days before the change in use. The landlord may not increase rent within ninety days before giving notice of a change in use.

2. The landlord shall inform all tenants in writing about the mobile home relocation fund established by section 33-1476.02.

3. If a tenant is required to move due to a change in use or redevelopment of the park, the tenant may do any of the following:

(a) Collect payment from the mobile home relocation fund for the lesser of the actual moving expenses of relocating the park trailer or park model to a new location that is within a one hundred-mile radius of the vacated park or the maximum of $6,000. Moving expenses include the cost of stabilizing, taking down, moving and setting up the park trailer or park model in the new location.

(b) Abandon the park trailer or park model in the park and collect an amount equal to forty percent of the maximum allowable moving expense for that park trailer or park model from the mobile home relocation fund. To qualify for abandonment payment pursuant to this subdivision, the tenant shall deliver to the landlord the current title to the park trailer or park model with the notarized endorsement of the owner of record together with complete releases of all liens that are shown on the title and proof that all taxes owing have been paid to date. The tenant shall provide a copy of these documents to the Arizona department of housing in support of the tenant's application for payment. If the tenant chooses to abandon the park trailer or park model pursuant to this subdivision, the landlord is exempt from making the payments to the fund prescribed in paragraph 4 of this section.

(c) If a park trailer or park model is relocated to a location outside of the vacated park and, in the sole judgment of the director, the park trailer or park model was ground set in the park from which it was removed, the tenant may collect additional monies not to exceed $2,500 for the incremental costs of removing a ground-set park trailer or park model. These monies are in addition to any monies provided pursuant to subdivision (a) of this paragraph.

4. Except as provided in paragraph 3, subdivision (b) and paragraph 6 of this section, if there is a change in use the landlord shall pay $250 for each park trailer or park model relocated to the fund for each tenant filing for relocation assistance with the director.

5. If a change in use occurs and the landlord does not comply with paragraph 1 of this section, the landlord shall pay to the fund in addition to the monies prescribed in paragraph 4 of this section $250 for each space occupied by a park trailer or park model.

6. The landlord is not required to make the payments prescribed in paragraphs 4 and 5 of this section for moving a park trailer or park model owned by the landlord or for moving a park trailer or park model under a contract with the tenant if the tenant does not file for relocation assistance with the director.

7. The tenant shall submit a contract for relocation of a park trailer or park model for approval to the director within sixty days after the relocation to be eligible for payment of relocation expenses. The director must approve or disapprove the contract within fifteen days after receipt of the contract, or the contract is deemed to be approved.

8. If the contract is approved, the payment of relocation expenses shall be made to the installer when both of the following are complete:

(a) The installer obtains valid permits to move the park trailer or park model to a new location.

(b) The installer provides documentation to the department that the installation of the park trailer or park model at the new location is complete and has been inspected by the department or its designee and is approved for occupancy.

9. If the contract is not approved, the tenant may appeal to an administrative law judge pursuant to title 41, chapter 37, article 5. The tenant shall provide notice pursuant to section 33-2105, subsection I, if the tenant relocates.

10. If this state or a political subdivision of this state exercises eminent domain and the park is sold or a sale is made to this state or a political subdivision of this state that intends to exercise eminent domain, the state or political subdivision is responsible for the relocation costs of the tenants.

11. If a tenant is vacating the premises and has informed the landlord or manager before the change-in-use notice has been given, the tenant is not eligible for compensation under this section.

12. A person who purchases a park trailer or park model already situated in a park or moves a park trailer or park model into a park in which a change-in-use notice has been given is not eligible for compensation under this section.

13. This section does not apply to a change in use if the landlord moves a tenant to another space in the park at the landlord's expense.

§ 33-2150 Relocations due to change in age-restricted community use; payment from mobile home relocation fund; applicability

For recreational vehicles that are park trailers or park models only:

1. The landlord shall notify the director and all tenants in writing of a change in use at least sixty days before a change in the age-restricted community to an all-age community use as defined by the housing for older persons act of 1995.

2. A tenant is eligible for payment from the mobile home relocation fund if both of the following conditions are met:

(a) The tenant resides in a park trailer or park model that is owned by the tenant and that is located in an age-restricted park.

(b) The landlord implements a change from an age-restricted community to an all-age community as defined by the housing for older persons act of 1995.

3. A landlord who changes a park designation from an age-restricted community shall give written notice of the applicability of this section to all affected tenants.

4. A tenant is eligible to receive relocation expenses pursuant to paragraph 2 of this section as follows:

(a) Within one hundred eighty days after the effective date of notification of the change in the age-restricted community's use, the tenant shall submit a contract for relocation of the park trailer or park model to the director for approval and to the landlord.

(b) After notice of approval by the director for the payment of relocation expenses, the tenant shall have a fully signed contract with a licensed installer or contractor to move the park trailer or park model to a specific location by a specific date and must have moved the park trailer or park model pursuant to that contract within forty-five days after notice from the director.

(c) The director shall approve or disapprove the contract submitted within fifteen days after receipt of the contract, and the contract is deemed to be approved on the sixteenth day if the director takes no action.

(d) If the contract is approved, the payment of relocation expenses shall be made to the installer or contractor when both of the following have been completed:

(i) The installer or contractor has obtained valid permits to move the park trailer or park model to a new location.

(ii) The installer or contractor provides documentation to the department that the installation of the park trailer or park model at the new location is complete and has been inspected by the department or its designee and is approved for occupancy.

(e) If the contract is not approved, the tenant may appeal to an administrative law judge pursuant to title 41, chapter 37, article 5. The tenant shall provide notice pursuant to section 33-2105, subsection I, if the tenant relocates.

(f) On approval, the tenant is eligible for the lesser of the actual moving expenses of relocating the park trailer or park model or four thousand dollars. Compensable moving expenses include the cost of stabilizing, taking down, moving and setting up the park trailer or park model in the new location if the park trailer or park model is relocated to another age-restricted community within this state.

5. The landlord shall not be responsible for making any payment into the mobile home relocation fund for any park trailer or park model moved pursuant to this section.

§ 33-2151 Assessments for mobile home relocation fund; waiver

For recreational vehicles that are park trailers or park models only:

1. In order to provide monies for the mobile home relocation fund, each owner of a park trailer or park model located in a park who does not own the land on which the park trailer or park model is located shall pay each year to the state an assessment in an amount determined by making the assessment as prescribed by section 33-1476.03. The county treasurer shall collect the assessment imposed by this paragraph at the same time and in the same manner as personal property taxes. The county treasurer shall separately list the assessment on the tax roll and shall transfer the revenues collected to the state treasurer for deposit in the mobile home relocation fund. The county treasurer shall send to the state treasurer a written notice of the total taxable assessed valuation, derived by applying the applicable percentage specified in title 42, chapter 15, article 1 to the limited property value, of all park trailers or park models in the county on which the assessment prescribed by this section is assessed. The assessment constitutes a lien on the park trailer or park model.

2. The director shall notify all county assessors to waive the assessment for any year if the monies in the fund exceed eight million dollars. The director shall send a copy of the notice to the county treasurers.

3. If at the end of a fiscal year the amount of monies in the relocation fund is less than six million dollars, the director may notify the county assessors to reinstate the assessment prescribed by this section. If the director notifies the county assessors, the director shall send a copy of the notice to the county treasurers.

Chapter 20 Timeshare Owners' Association and Management Act

Article 1 General Provisions

§ 33-2201 Application

This chapter applies to all timeshare plans, timeshare property and associations in this state that are established on or after the effective date of this chapter. This chapter also applies, unless the timeshare instrument provides otherwise, to timeshare plans, timeshare property and associations in this state that are established at any time before the effective date of this chapter. Notwithstanding this title or title 32 this chapter governs if there is any conflict between this chapter and any other statute related to the operation and management of timeshare plans, timeshare property or associations in this state.

§ 33-2202 Definitions

In this chapter, unless the context otherwise requires:

1. "Accommodation" means any apartment, condominium or cooperative unit, cabin, lodge, hotel or motel room or other private or commercial structure that contains toilet facilities, that is designed and available for use and occupancy as a residence by one or more individuals and that is included in the offering of a timeshare plan.

2. "Assessment" means the share of monies that are required for the payment of common expenses and that the managing entity assesses periodically against each owner, and any other amount required to be paid by owners under a timeshare instrument.

3. "Association" means any organized body consisting solely of the owners of timeshare interests in a timeshare plan.

4. "Board" means the governing body designated in the timeshare instrument to act on behalf of an association.

5. "Common expenses" means the costs and expenses of and for operating the timeshare plan and timeshare property as set forth in the timeshare instrument.

6. "Developer" means either of the following:

(a) Any person, corporation, partnership, limited liability company, trust or other entity, other than a sales agent, that creates a timeshare plan.

(b) Any person or entity that succeeds to the interest of the developer by sale, lease, assignment, mortgage or other transfer if the person offers timeshare interests in a particular timeshare plan and the person is in the business of selling timeshare interests or employs sales agents to sell timeshare interests.

7. "Managing entity" means the association or other person that undertakes the duties, responsibilities and obligations of the management of a timeshare plan.

8. "Owner" means the owners of a timeshare interest in a timeshare plan, other than as security for an obligation. Owner includes developer to the extent the developer owns timeshare interests.

9. "Timeshare estate" means the right of occupancy in a timeshare property that is coupled with an estate in real property.

10. "Timeshare instrument" means one or more documents creating or governing the operation of a timeshare plan.

11. "Timeshare interest" means either a timeshare estate or a timeshare use.

12. "Timeshare period" means the period of time when the owner of a timeshare interest is afforded the opportunity to use the accommodations of a timeshare plan.

13. "Timeshare plan" means any arrangement, plan or similar device, other than an exchange program, whether by membership agreement, or sales, lease, deed, license or right-to-use agreement or by any other means, in which an owner, in exchange for consideration, receives ownership rights in or the right to use accommodations for a period of time that is less than a full year during any given year, but not necessarily for consecutive years, if the use rights extend for at least three years.

14. "Timeshare property" means one or more accommodations that are subject to the same timeshare instrument, together with any other property or rights to property appurtenant to those accommodations.

15. "Timeshare use" means the right to occupy a timeshare property that is not coupled with an estate in real property.

§ 33-2203 Management of timeshare plan and timeshare property

A. For each timeshare plan and timeshare property in this state, the developer shall provide in the timeshare instrument for a managing entity. The managing entity may be the developer, a separate manager or management firm or an association. There may be different managing entities for the timeshare plan and the timeshare property or for portions of the timeshare property. This section applies to a managing entity only to the extent of its authority to manage the timeshare plan or timeshare property under the timeshare instrument.

B. The managing entity shall act in the capacity of a fiduciary to the owners of timeshare interests in the timeshare plan.

C. The association or other managing entity may enter into a contract with a manager or management firm to provide some or all of the management services to the timeshare plan or timeshare property, but the manager or management firm shall not be considered the managing entity of the timeshare plan or timeshare property.

D. For any management contract entered into during any period of time in which the developer or an affiliate of the developer is the managing entity or controls a majority of the voting interests in the association, the initial term of the management contract shall expire no later than at the end of five years.

E. Any management contract between the association and a manager or management firm may provide that it is automatically renewable for successive terms not exceeding five years each, unless the owners vote to discharge the manager or management firm. A discharge vote shall be conducted by the board of the association on written request of owners who hold at least two per cent of the voting interests in the association and who are not delinquent in assessments for common expenses, or such lower number as set forth in the timeshare instrument. The written request must be made no earlier than twelve months before the renewal date and no later than six months before the renewal date. The manager or management firm is deemed to be discharged if at least sixty-six per cent of the votes cast vote to discharge and those votes include at least fifty per cent of all votes allocated to owners, or such lesser percentages as are provided in the timeshare instrument.

F. The management contract shall contain the following provisions:

1. The management contract may be terminated for cause by a vote in favor of termination by a majority of the votes cast by owners concerning the issue and those votes include at least twenty-five per cent of all votes allocated to owners, or such lesser percentages as are provided in the timeshare instrument.

2. The resignation of the manager or management firm is not effective until one hundred twenty days after receipt of the written resignation by the board, or by the owners if there is no association, or such longer period after receipt as provided in the timeshare instrument except that the board or the owners may designate a shorter period in written notice to the manager or management firm.

G. The management contract may provide for other rights of termination by the association.

H. If a manager or management firm resigns or is discharged, the association, if any, or other managing entity shall remain responsible for operating and maintaining the applicable timeshare plan or timeshare property, or both, pursuant to the timeshare instrument and this chapter.

I. If the association or other managing entity fails to operate and maintain in any material respect the timeshare plan or timeshare property pursuant to the timeshare instrument and this chapter and that failure materially and adversely affects the timeshare plan, the timeshare property or the owners, any owner may apply to the superior court in the county in which the timeshare plan or any timeshare property is located for the appointment of a receiver to manage the affairs of the association, timeshare plan or timeshare property. At least thirty days before applying to the court, the owner shall mail by certified mail to the board of the association or other managing entity and post in a conspicuous place on the timeshare property a notice describing the intended action. During that thirty day period, the association or other managing entity may attempt to cure the alleged failure. If a receiver is appointed, the association or other managing entity is responsible, as a common expense of the timeshare plan, for payment of the salary and expenses of the receiver relating to the discharge of the receiver's duties and obligations, together with the receiver’s court costs, and reasonable attorney fees. The receiver has all powers and duties of the managing entity and serves until discharged by the court.

§ 33-2204 Powers of board; limitations; period of developer control; election of directors and officers; removal of directors

A. Except as provided in the timeshare instrument, subsection B or other provisions of this chapter, the board may act in all instances on behalf of the association.

B. Except as expressly authorized in the timeshare instrument, the board shall not act on behalf of the association to amend the timeshare instrument, terminate the timeshare plan, elect or remove members of the board or determine the qualifications, powers and duties or terms of office of directors. The board may fill vacancies in its membership for the unexpired portion of any term, subject to the timeshare instrument.

C. Except as otherwise provided in this section, the timeshare instrument may provide for a period of developer control of an association during which the developer, or a person designated by the developer, may appoint and remove the officers of the association and the members of the board. Notwithstanding the period provided in the timeshare instrument, the period of developer control of the association terminates no later than the earlier of:

1. One hundred twenty days after conveyance of ninety-five per cent of the timeshare interests that were created by the timeshare instrument to owners other than the developer.

2. Five years after the developer has ceased to offer timeshare interests for sale in the ordinary course of business, under either the timeshare plan itself or another timeshare plan in which the timeshare interests are included, whichever is later.

D. A developer may voluntarily surrender the right to appoint and remove officers of the association and members of the board before the end of the period provided for in subsection C by executing a written instrument declaring the surrender and providing a copy of the instrument to the owners. If the timeshare instrument is recorded, the developer’s surrender instrument shall be recorded. In the developer’s surrender instrument, the developer may require that, for the duration of the period of the developer’s control, specified actions of the association or board as described in the timeshare instrument be approved by the developer before they become effective.

E. If the timeshare instrument provides for a developer control period of shorter duration than any period prescribed by this section, the timeshare instrument controls.

F. No later than the termination of any period of developer control, the owners shall elect a board of at least three members, which may include representatives of the developer. The board shall elect the officers of the association. The board members and officers of the association take office on election.

G. Notwithstanding any provision of a timeshare instrument or the bylaws of an association to the contrary, the owners, by a vote representing at least two-thirds of all voting rights of persons present in person or by proxy who are entitled to vote at any meeting of the owners at which a quorum is present, may remove any member of the board, with or without cause, other than a member appointed by the developer during the period of developer control under subsection C.

§ 33-2205 Quorums; votes

A. Unless the timeshare instrument provides for a higher quorum requirement, the percentage of voting interests required to make decisions and to constitute a quorum at a meeting of the members of an association shall be ten per cent of the voting interests of owners who are not delinquent in assessments for common expenses, in person or by proxy. If a quorum is not present at any meeting of the association at which members of the board are to be elected, the meeting may be adjourned and reconvened within ninety days for the sole purpose of electing members of the board, and the quorum for such adjourned meeting shall be ten per cent of the voting interests of owners who are not delinquent in assessments for common expenses, in person or by proxy.

B. Unless the timeshare instrument provides otherwise, a quorum shall be deemed to be present throughout a meeting of the board if persons entitled to cast a majority of the votes on that board are present at the beginning of the meeting.

C. If only one of the multiple owners of a timeshare interest is present at a meeting of the association, that owner is entitled to cast all the votes allocated to that timeshare interest. If more than one of the multiple owners are present, the votes allocated to that timeshare interest may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the timeshare interest expressly provides otherwise. There is a majority agreement if any one of the multiple owners casts the votes allocated to that timeshare interest without protest being made promptly to the person presiding over the meeting by any of the other owners of the timeshare interest.

D. Votes allocated to a timeshare interest may be cast pursuant to a proxy duly executed by an owner. A proxy shall expressly state its dates of execution and termination. An owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is revoked on presentation of a later dated proxy executed by the same owner. A proxy terminates twenty-five months after its date of execution, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.

E. Unless the timeshare instrument for a timeshare plan provides otherwise, votes allocated to a timeshare interest in that timeshare plan owned by the association for that timeshare plan shall not be cast.

F. The timeshare instrument for a timeshare plan may authorize votes of members of an association to be conducted by mail on compliance with all of the following:

1. Mail ballots are mailed or sent to all members in the manner prescribed for notices of special meetings pursuant to section 33-2208.

2. The period for return of mail ballots is at least thirty days after the date the ballots are mailed or sent to members.

3. The required minimum number of ballots that must be returned by members for the vote to be effective is at least equal to the quorum percentage prescribed in subsection A of this section.

G. Except as otherwise provided in the timeshare instrument, owners who are delinquent in assessments for common expenses do not have the right to cast votes.

H. Only timeshare interests included in the timeshare plan have voting rights.

§ 33-2206 Duties of the managing entity

A. The duties of the applicable managing entity for a timeshare plan or timeshare property may include, but are not limited to:

1. Management of the timeshare plan or management and maintenance of the timeshare property, or both, in accordance with the timeshare instrument.

2. Collection of all assessments for common expenses, including reserves, if applicable, in accordance with the timeshare instrument.

3. Making available annually to all owners an itemized annual budget that includes all estimated revenues and expenses. The budget shall be prepared by the managing entity for the current fiscal year and adopted as provided in the timeshare instrument. The managing entity shall notify the owners of the availability of the adopted annual budget not later than forty-five days after its adoption. The budget shall contain, as a footnote or otherwise, any related party transaction disclosures or notes related to the timeshare plan or timeshare property that appear in any audited financial statements of the managing entity, manager and management firm for the previous budget year. The budget prepared by any managing entity may be for a timeshare plan or only for specified timeshare property as provided in the timeshare instrument.

4. Maintenance of all books and records concerning the timeshare plan or timeshare property, or both.

5. If owners are not entitled to use specific timeshare periods, scheduling occupancy of the accommodation in accordance with the timeshare instrument. A timeshare instrument may provide timeshare owners with the use rights to accommodations beyond the owners’ timeshare interests as an incident of ownership on terms set forth in the timeshare instrument.

6. Maintaining insurance policies in accordance with the timeshare instrument.

7. Acting as agent of the owners pursuant to section 42-13454.

8. Performing any other functions and duties that are necessary and proper to maintain the timeshare plan or timeshare property, as provided in the timeshare instrument. The timeshare instrument may impose requirements on the managing entity beyond those set forth in this chapter.

B. Monies in any deferred maintenance or capital expenditure reserve account may not be transferred to an operating account for any purpose other than to pay for deferred maintenance or capital expenditures without the consent of owners of a majority of the timeshare interests in the timeshare property. Except as provided in the timeshare instrument, the managing entity may transfer monies in any operating account to any deferred maintenance or capital expenditure reserve account without the vote or approval of owners of the timeshare interests. The managing entity or board may transfer monies from one reserve account to another reserve account without the vote or approval of the owners of the timeshare interests.

C. The managing entity may invest the operating and reserve monies of the timeshare plan or timeshare property but the managing entity shall give safety of capital greater weight than production of income. The managing entity shall not invest timeshare plan or timeshare property monies with a developer or with any entity that is not independent of any developer or any managing entity, and the managing entity shall not invest timeshare plan or timeshare property monies in notes and mortgages related in any way to the timeshare plan or timeshare property.

D. The managing entity of a timeshare plan or timeshare property shall not commingle operating monies with reserve monies but the managing entity may maintain operating and reserve monies within a single account for a period not to exceed ninety days after the date on which the managing entity received payment of those monies.

E. A managing entity that serves as managing entity of more than one timeshare plan shall not commingle the common expense monies of any one timeshare plan with the common expense monies of any other timeshare plan.

F. The managing entity may levy and enforce assessments on any timeshare interests in accordance with the timeshare instrument, and the assessment constitutes a debt of the owner of the interest at the time the assessment is made. Assessments and other monetary obligations are governed as follows:

1. The timeshare instrument shall provide for the allocation of common expenses among timeshare interests, as assessments, on a reasonable basis. The timeshare instrument may allocate expenses differently between accommodations that are part of the timeshare plan and facilities that are not part of the timeshare plan if the different allocations are based on reasonable differences in the benefit provided to each type of property. The timeshare instrument shall allocate common expenses to timeshare interests owned or not yet sold by a developer on the same basis that common expenses are allocated to similar or equivalent timeshare interests sold to purchasers, as assessments, except if a subsidy agreement or similar document is in place that provides for the developer to pay no, or a lesser share of, common expenses in return for subsidizing any deficits or shortfalls in the operating monies of the timeshare plan, and if that exclusion from or reduced assessments and subsidy agreement or other document are referred to in the public reports issued under section 32-2197.08.

2. The managing entity may impose reasonable monetary penalties for violation of the timeshare instrument, as an assessment, as authorized by the timeshare instrument.

3. Assessments may include personal charges and other amounts as authorized by the timeshare instrument.

4. The managing entity may assign to the delinquent owners the costs of collection, including attorney fees, administrative fees, late fees, interest and penalties as authorized by the timeshare instrument.

5. The amount of any assessment plus any other charges such as interest, collection costs, attorney fees, administrative fees, late fees, interest and penalties, as may be provided for in the timeshare instrument, are a lien on the timeshare interest assessed from the time the assessment became due. The lien has priority over other liens as provided in the timeshare instrument. The lien may be enforced, foreclosed or realized on as provided in the timeshare instrument.

6. On the receipt of a written request, the managing entity shall furnish to an owner or any lender who has a security interest in a timeshare interest or the timeshare property a statement setting forth the amount of unpaid assessments made against the owner’s timeshare interest. The statement must be furnished within ten business days after receipt of the request and is binding on the managing entity, the association, the board and every owner.

§ 33-2207 Foreclosure of assessment liens

A. If an association, developer or other managing entity files an action to foreclose the assessment lien on timeshare interests, the association, developer or other managing entity may join in the same action multiple defendant obligors and junior interest holders of separate timeshare interests, on compliance with all of the following:

1. The foreclosure proceeding involves a single timeshare plan.

2. The foreclosure proceeding is filed by a single plaintiff.

3. The default and remedy provisions in the written instruments on which the foreclosure proceeding is based are substantially the same for each defendant.

4. The nature of the defaults alleged is the same for each defendant.

B. In any foreclosure proceeding involving multiple defendants filed pursuant to subsection A, the court shall sever for separate trial any count of the complaint in which a defense or counterclaim is timely raised by a defendant.

§ 33-2208 Association open meetings; exceptions; notices

A. Notwithstanding any provision in the timeshare instrument to the contrary and except as provided in this section, after the period of developer control under section 33-2204, all meetings of the association and board are open to all members of the association and all members so desiring shall be permitted to attend and listen to the deliberations and proceedings. Meetings shall be conducted as provided in the timeshare instrument. The board may close any portion of a meeting of the board if that portion of the meeting is limited to consideration of one or more of the following:

1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

2. Pending or contemplated litigation.

3. Financial information about an individual member of the association, an individual employee of the association, an individual employee of the managing entity or an individual employee of a contractor for the association or managing entity.

4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association, an individual employee of the managing entity or an individual employee of a contractor of the association or managing entity who works under the direction of the association or the managing entity.

B. A meeting of the members of the association shall be held at least once each year after the period of developer control under section 33-2204. Special meetings of the members of the association may be called by the president, by a majority of the board or by owners having at least twenty-five per cent of the votes in the association, or any lower percentage specified in the timeshare instrument. Unless otherwise provided in the timeshare instrument, not fewer than thirty nor more than ninety days in advance of any regular meeting of the owners, and not fewer than ten nor more than sixty days in advance of any special meeting of the owners, the association or managing entity shall cause notice of the meeting to be sent or provided to the mailing address of each owner on record with the association. The notice of any meeting of the owners shall state the time and place of the meeting. The notice of any special meeting of the owners shall also state the purpose for which the meeting is called. Notices of meetings may be in the form of an annual or other list of upcoming meetings and need not be specific to one meeting. The failure of any owner to receive actual notice of a meeting of the owners does not affect the validity of any action taken at that meeting.

C. Unless otherwise provided in the timeshare instrument, for meetings of the board of directors that are held after the termination of developer control of the association, at least ten days in advance of any meeting of the board, the association or managing entity shall cause notice of the meeting to be sent to the mailing address of each owner on record with the association. Notice to owners of meetings of the board is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the time and place of the meeting. Notices of meetings may be in the form of an annual or other list of upcoming meetings and need not be specific to one meeting. The failure of any owner to receive actual notice of a meeting of the board does not affect the validity of any action taken at that meeting.

D. Notices may be in newsletters or similar mailings. Mailing shall occur by prepaid United States mail or electronic mail for those owners who have provided electronic mail addresses or any other reasonable method selected by the board. An affidavit of notice by an officer of the association or by the managing entity is prima facie evidence that notice was given as prescribed by this section.

§ 33-2209 Financial and other records

A. Except as provided in this section and section 33-2210, any owner or any person designated by the owner in writing as the owner’s representative may inspect and copy all financial and other records of the association or other managing entity that are directly related to the timeshare plan at the location where such records are normally kept, or at another location reasonably specified by the association or other managing entity, during normal business hours.

B. An owner may inspect and copy the records identified in subsection A of this section only if the following conditions are met:

1. The owner’s request is in writing and is received by the managing entity in care of the person and at the address designated by the managing entity for receipt of such requests.

2. The owner’s written request is made in good faith and for a proper purpose.

3. The owner’s written request describes with reasonable particularity the owner’s purpose and the records the owner desires to inspect.

4. The records are directly connected with the owner’s purpose.

5. The owner agrees in writing not to use the records for any purpose other than the purpose described in the written request.

C. The board of the association or other managing entity is responsible for determining the appropriateness of any owner request under this section, and shall provide a written response within thirty days after receipt of the request. If the owner’s request includes copies pursuant to subsection E of this section, the copies shall be provided within thirty days after the later of the board’s or other managing entity’s determination under this subsection or the owner making suitable financial arrangements pursuant to subsection E of this section.

D. This section does not affect either:

1. Inspection of records under section 10-3720, if applicable, or, if the owner is in litigation with the association or other managing entity, inspection of records to the same extent as any other litigant.

2. The power of a court, independently of this chapter, to compel the production of records for examination on proof by an owner of proper purpose.

E. A request to copy records under this section includes, if reasonable, receiving copies made by photographic, xerographic or other means. The association or other managing entity may impose a reasonable charge covering the cost of labor and materials for copies of any documents provided to the owner or the owner’s representative. The charge shall not exceed the estimated cost of production or reproduction of the records.

F. In addition to subsection B of this section, books and records kept by or on behalf of the association and the board or other managing entity may be withheld from disclosure to the extent that the portion withheld relates to any of the following:

1. Privileged communication between an attorney for the association or other managing entity and the association or managing entity.

2. Pending or contemplated litigation.

3. Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to section 33-2208.

4. Personal, health and financial records of an individual owner, an individual employee of the association or managing entity or an individual employee of a contractor of the association or managing entity.

5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or managing entity or an individual employee of a contractor of the association or managing entity who works under the direction of the association or managing entity.

G. The association or other managing entity shall not be required to disclose financial and other records of the association or other managing entity if disclosure would violate any state or federal law.

H. The timeshare instrument may provide for greater access of owners to records of the association or other managing entity.

§ 33-2210 List of owners

A. The association or other managing entity shall maintain among its records a complete list of the names and addresses of all owners of timeshare interests in the timeshare plan. The association or other managing entity shall update this list no less frequently than quarterly. Neither the association nor other managing entity may publish this owners’ list or provide a copy of it to any owner or to any third party.

B. The association or other managing entity shall mail to those persons listed on the owners’ list prescribed by subsection A any materials provided by any owner, on the written request of that owner, if the purpose of the mailing is to advance legitimate association business, such as a proxy solicitation for any purpose, including the recall of one or more board members elected by the owners or the discharge of the manager or management firm. The use of any proxies solicited in this manner must comply with the timeshare instrument and this chapter. A mailing requested for the purpose of advancing legitimate association business shall occur within thirty days after receipt of a request from an owner. The board of the association or the managing entity is responsible for determining the appropriateness of any mailing requested pursuant to this subsection and for establishing reasonable procedures for the exercise of the rights provided in this section. The association or other managing entity does not have an obligation to mail items that the association or other managing entity reasonably believes may be libelous or otherwise actionable or on advice of legal counsel. The owner who requests the mailing shall reimburse the association or other managing entity in advance for the actual costs in performing the mailing or a proportionate share of actual costs if the mailing is included in a mailing that includes other items.

C. If the requesting owner has complied with the reasonable procedures established by the board or managing entity for mailing requests, it is a violation of this chapter for the association or other managing entity to refuse to mail any material requested by the owner to be mailed, if the sole purpose of the materials is to advance legitimate association business and the requesting owner has either tendered to the association or managing entity payment of the cost pursuant to subsection B or has requested an invoice for that cost and has not received an invoice within ten days after delivering that request to the association or managing entity. If the purpose of the mailing is a proxy solicitation to recall one or more board members elected by the owners or to discharge the manager or management firm and the association or other managing entity does not mail the materials within thirty days after receipt of a request from an owner, the superior court in the county in which the timeshare plan or property is located, on application from the requesting owner, may summarily order the mailing of the materials solely related to the recall of one or more board members elected by the owners or the discharge of the manager or managing firm. The court shall dispose of an application on an expedited basis. In the event of such an order, the court may order the association or other managing entity to pay the owner’s costs, including attorney fees reasonably incurred to enforce the owner’s rights, unless the managing entity can demonstrate it refused the mailing in good faith because of a reasonable basis for doubt about the legitimacy of the mailing.

D. Notwithstanding any law to the contrary, the association or other managing entity may not furnish the name, address, telephone number or electronic mail address of any owner to any other owner or authorized agent of an owner unless the owner whose name, address, phone number or electronic mail address is requested first approves the disclosure in writing.

§ 33-2211 Trustee's sale of timeshare estates; notice; cure; notice to prevent sale; definitions

A. The association or other managing entity may cause a trustee's sale of the timeshare estate, of an owner who is delinquent in the payment of assessments for that timeshare estate to that association or managing entity, under a timeshare instrument pursuant to this section, but only if that owner has been delinquent in the payment of assessments for that timeshare estate for a period of one year.

B. An association or other managing entity that desires to use a trustee's sale shall prepare, execute and acknowledge a notice of delinquency identifying the owner of the timeshare estate, the nature and amount of the owner's current delinquency in payment of assessments, the legal description of the owner's timeshare estate, the name and address of the association or other managing entity and the name and address of the trustee designated by the association or managing entity to conduct the trustee's sale.

C. A notice of delinquency may apply to multiple timeshare estates owned by an owner if the owner is delinquent in payment of assessments for all of the timeshare estates included in the notice of delinquency and the notice of delinquency states separately the delinquent assessments for each timeshare estate. A notice of delinquency may apply to multiple delinquent owners if each owner's delinquency or delinquencies are listed separately and the notice includes the information required by subsection B of this section for each owner.

D. The association or managing entity shall record the notice of delinquency with the county recorder of the county in which the timeshare property relating to the timeshare estate or estates is located and shall mail by certified mail, return receipt requested, a copy of the notice of delinquency to the owner or owners listed in the notice at the last address for each delinquent owner according to the records of the association or managing entity. The association or other managing entity shall post a summary of the notice of delinquency on an owners' bulletin board or other owner notice board provided by the association or other managing entity at the timeshare property, subject to other applicable law.

E. A trustee appointed in a notice of delinquency and any properly appointed substitute trustee may conduct a trustee's sale of a timeshare estate under this section. The recording of a notice of delinquency shall satisfy all requirements for the trustee, or any properly appointed substitute trustee, to appear in the chain of title for the timeshare estate in order for the trustee to be entitled to issue a trustee's deed on completion of a trustee's sale for the timeshare estate.

F. If the delinquencies identified in a notice of delinquency are not cured within thirty days after the association or managing entity mails the notice of delinquency to the delinquent owner under subsection D of this section, the association or managing entity may cause the trustee to conduct a trustee's sale of the delinquent owner's timeshare estate pursuant to sections 33-803.01, 33-804, 33-807, 33-808, 33-809, 33-810, 33-811, 33-812, 33-813 and 33-820, except as otherwise provided in this section. For the purposes of a trustee's sale of a delinquent owner's timeshare estate pursuant to chapter 6.1 of this title:

1. "Contract secured by the trust deed" means a specific owner's obligation to pay delinquent assessments for a specific timeshare estate.

2. "Deed of trust" means a specific owner's obligation for payment of assessments under the timeshare instrument and the lien securing payment of that obligation, however denominated.

3. "Trust property" means the timeshare estate or estates for which a specific owner is delinquent in the payment of assessments.

4. "Trustee" means a person who is qualified to serve as trustee as prescribed by section 33-803 and who is appointed as trustee pursuant to this section or any substitute trustee appointed by the beneficiary in accordance with section 33-804.

G. The posting of the notice of the time and place of sale required by section 33-808, subsection A, paragraph 3 shall occur on an owners' bulletin board or other owner notice board provided by the association or other managing entity at the timeshare property, on the association's or other managing entity's website for the timeshare property, if any, and in the association's or other managing entity's next newsletter, if any. Any format of notice of trustee's sale may be used if the required information stated in section 33-808, subsection C is provided. A request for notice under section 33-809 must identify a specific trustor and timeshare estate and the recorded timeshare instrument, if any. The mailing of the notice of the time and place of sale required by section 33-809, subsection B, shall include a return receipt requested. A copy of the notice of delinquency under subsection B of this section constitutes the statement of breach or nonperformance under section 33-809, subsection C, and the trustor's address for mailing is the address stated in the notice of delinquency. The bid deposit under section 33-810, subsection A is one thousand dollars, as a single deposit for all timeshare estates included in the notice of trustee's sale. Only the beneficiary or its assignee may make a credit bid in place of cash at the sale. The proceeds of a trustee's sale shall be applied as provided in section 33-812, including the payment of all remaining excess proceeds to the trustor under section 33-812, subsection A. The trustor and junior lienholders may reinstate by paying all amounts due in accordance with section 33-813.

H. The trustee's sale may include multiple timeshare estates owned by an owner if the owner is delinquent in payment of assessments for all of the timeshare estates included in the trustee's sale proceeding. The trustee's sale may include timeshare estates owned by multiple owners if the notice of trustee's sale provides all information required by section 33-808, subsection D for each owner and timeshare estate and each timeshare estate is sold separately.

I. If fee title to a timeshare estate was acquired by an owner before January 1, 2009, the trustee shall proceed as follows and the owner may prevent a trustee's sale as to that timeshare estate as follows:

1. The notice of delinquency for any timeshare estate acquired by the owner before January 1, 2009 shall include a statement informing the owner of the owner's right to prevent a trustee's sale as to that timeshare estate by returning the form that is described in paragraph 2 of this subsection and that is signed by the owner, by certified mail, return receipt requested, to the trustee and to the association or other managing entity at the addresses stated in the notice of delinquency within thirty days after the association or other managing entity sends the notice of delinquency to the owner.

2. The notice of delinquency shall be accompanied by a form of notice in substantially the following form:

Notice of Election to Prevent

Trustee's Sale

The undersigned, (name(s)) , is (are) the owner(s) of timeshare estate nos. _________ at (timeshare plan name) . The undersigned has received a notice of delinquency dated _______________, ____ from (association or other managing entity) . The undersigned hereby exercises the undersigned's right to prevent a trustee sale of the timeshare estate(s) that was (were) acquired by me (us) before January 1, 2009, pursuant to Arizona Revised Statutes section 33-2211, subsection I.

Dated: __________________________

---

Owner's signature(s)

3. If an owner returns the signed form described in paragraph 2 of this subsection to the trustee and the association or other managing entity as required by paragraph 1 of this subsection, the association or other managing entity and the trustee shall desist from any trustee's sale proceedings with respect to the timeshare estate that was acquired by the owner before January 1, 2009 and described in the notice, but the association or managing entity may continue to use other available remedies to collect delinquent assessments for the timeshare estate. If the owner does not timely return the signed form as prescribed by this subsection, the owner waives any rights under this subsection.

J. The remedy provided by this section does not exclude the use of any other available remedy of the association or managing entity for delinquency by a timeshare estate owner, unless an owner's timeshare estate is sold pursuant to a trustee's power of sale, in which case an action may not be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses in connection with that timeshare estate. This section does not prohibit an association or other managing entity from taking a deed in lieu of foreclosure executed by an owner of a timeshare estate.

K. This section shall not apply to any timeshare property for which the timeshare instrument expressly mandates that judicial foreclosure is the sole method for the association or other managing entity to foreclose or realize upon a lien securing payment of assessments due to that association or other managing entity.

L. For the purposes of this section:

1. "Beneficiary" means the association or other managing entity entitled to collect assessments.

2. "Trustor" means a specific owner who is delinquent in payment of assessments for a timeshare estate or estates.

Chapter 21 Commercial Buildings Telecommunications Services

Article 1 General Provisions

§ 33-2301 Commercial buildings; telecommunications service; notice; definition

A. For any commercial building in this state on request of a prospective tenant, the owner of the building shall provide to the prospective tenant written notice of the names of any currently available telecommunications service providers that have equipment, property or connections in place at the building to provide telecommunications services to the tenant. The owner shall provide that notice to the tenant after the tenant's request at or before entering into any lease or rental agreement with the tenant.

B. This state and any of its political subdivisions shall not require the owner of a commercial building to accept or maintain facilities or services from one or more providers of telecommunications services.

C. For the purposes of this chapter, "telecommunications" means the transmission of information between users that does not change the form or content of the information and includes commercial cable services.

§ 33-2302 Applicability; commercial properties

This chapter applies only to owners of commercial rental property and their tenants and does not apply to any landlord tenant relationship arising out of the leasing or rental of residential dwelling units that is governed by chapter 10, 11, 19 or 20 of this title.

Chapter 22 Access to Private Property

Article 1 General Provisions

§ 33-2401 Access to private property

A. Notwithstanding any other law, reasonable access to private property shall not be denied by this state or any political subdivision of this state.

B. If an owner's private property is surrounded by land owned by this state or any political subdivision of this state, the owner of the private property may request a nonexclusive right-of-way for a term of at least thirty years from this state or any political subdivision of this state to legally access the owner's private property at the owner's discretion.

C. This state or any political subdivision of this state shall grant a nonexclusive right-of-way for a term of at least thirty years to the owner of private property if the grant of the right-of-way is for the purpose of providing legal access to the owner's private property to which access across land owned by this state or any political subdivision of this state is necessary because land owned by this state or any political subdivision of this state surrounds the private property.

D. Following reasonable consultation with the owner of the private property, this state or any political subdivision of this state shall determine the appropriate location and width of the right-of-way to be granted and may relocate the right-of-way after the grant at the discretion of this state or the political subdivision of this state.

E. If the right-of-way has been in use by the private property owner and new road construction is not necessary to provide legal access to the private property, this state is not required to comply with sections 41-861, 41-862 and 41-864.

F. A right-of-way granted pursuant to this section shall be granted according to the constitution and laws of this state and the rules adopted by a state agency, as applicable.

Chapter 23 Private Property Rights

Article 1 General Provisions

§ 33-2501 Drop box; private property; required consent; exemptions; definitions

A. Any person that places a drop box on private property shall obtain notarized approval that is signed by the private property owner or the private property owner's authorized agent before placing the drop box on the private property, provided the private property owner or the private property owner's authorized agent complies with the requirements of any applicable covenant, condition or restriction on the property where the drop box is to be located.

B. All drop boxes shall display, in a clear and conspicuous manner, the name of the person that owns the drop box and the contact information for the drop box owner, including the person's name, address, telephone number and e-mail address.

C. The private property owner or the private property owner's authorized agent may rescind permission for the placement of a drop box on the private property at any time. The private property owner or the private property owner's authorized agent shall notify the owner of the drop box by certified mail of the decision to rescind permission for the placement of the drop box. The notice shall be mailed to the address listed on the drop box. The drop box owner shall remove the drop box within ten business days after receipt of the notification. If the drop box is not removed after ten business days, the private property owner or the private property owner's authorized agent may dispose of the drop box and its contents.

D. Any drop box that is placed on private property without notarized consent of the private property owner or the private property owner's authorized agent may be removed and disposed of by the private property owner or the private property owner's authorized agent at any time without notification.

E. A private property owner or the private property owner's authorized agent who removes a drop box pursuant to subsection C or D of this section is not liable for the losses associated with the removal of a drop box and its contents.

F. This section does not:

1. Apply to a drop box that is located on private property that is owned by the person that owns the drop box, provided the private property owner or the private property owner's authorized agent complies with the requirements of any applicable covenant, condition or restriction on the property where the drop box is to be located.

2. Preempt a city or town from adopting an ordinance to regulate drop boxes if the ordinance does not conflict with this section.

3. Preempt a county board of supervisors from adopting an ordinance or resolution to regulate drop boxes if the ordinance or resolution does not conflict with this section.

4. Apply to a written license or lease agreement or written contract between the private property owner and the owner of the drop box, provided the private property owner or the private property owner's authorized agent complies with the requirements of any applicable covenant, condition or restriction on the property where the drop box is to be located.

5. Apply to an existing tenant on private property provided the tenant obtains prior approval from the private property owner or the private property owner’s authorized agent of the private property where the drop box is to be located, provided the private property owner or the private property owner's authorized agent complies with the requirements of any applicable covenant, condition or restriction on the property where the drop box is to be located.

6. Create any additional liability, responsibility or duty on another tenant or lessee of the private property.

G. For the purposes of this section:

1. "Drop box" means any container, storage unit or structure, other than a primary building or accessory building, used for the collection of donated items by the general public, including clothing, materials, household goods, toys, books and papers.

2. "Private property owner's authorized agent" means an individual who is either:

(a) If the private property owner is a corporation, a principal executive officer or other corporate officer with signatory powers pursuant to the corporation's bylaws or a vote of the directors.

(b) If the private property owner is a partnership or sole proprietorship, a general partner or proprietor.

(c) A duly authorized representative who is responsible for the overall operation of the private property or who has authority to sign contracts, permits, permit applications, monitoring results and other documents in the private property owner's name.

Chapter 24 Uniform Commercial Real Estate Receivership Act

Article 1 General Provisions

§ 33-2601 Definitions

In this chapter, unless the context otherwise requires:

1. "Affiliate" means:

(a) With respect to an individual:

(i) A companion of the individual.

(ii) A lineal ancestor or descendant, whether by blood or adoption, of either the individual or a companion of the individual.

(iii) A companion of an ancestor or descendant described in item (ii) of this subdivision.

(iv) A sibling, aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece or grandnephew of the individual, whether related by the whole or the half blood or adoption, or a companion of any of them.

(v) Any other individual occupying the residence of the individual.

(b) With respect to a person other than an individual:

(i) Another person that directly or indirectly controls, is controlled by or is under common control with the person.

(ii) An officer, director, manager, member, partner, employee or trustee or other fiduciary of the person.

(iii) A companion of, or an individual occupying the residence of, an individual described in item (i) or (ii) of this subdivision.

2. "Companion" means:

(a) The spouse of an individual.

(b) The domestic partner of an individual.

(c) Another individual in a civil union with an individual.

3. "Court" means the superior court.

4. "Executory contract" means a contract, including a lease, under which each party has an unperformed obligation and the failure of a party to complete performance would constitute a material breach.

5. "Governmental unit" means an office, department, division, bureau, board, commission or other agency of this state or a subdivision of this state.

6. "Lien" means an interest in property that secures payment or performance of an obligation.

7. "Mortgage" means a record, however denominated, that creates or provides for a consensual lien on real property or rents, even if it also creates or provides for a lien on personal property.

8. "Mortgagee" means a person entitled to enforce an obligation secured by a mortgage.

9. "Mortgagor" means a person that grants a mortgage or a successor in ownership of the real property described in the mortgage.

10. "Owner" means the person for whose property a receiver is appointed.

11. "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

12. "Proceeds" means the following property:

(a) Whatever is acquired on the sale, lease, license, exchange or other disposition of receivership property.

(b) Whatever is collected on, or distributed on account of, receivership property.

(c) Rights arising out of receivership property.

(d) To the extent of the value of receivership property, claims arising out of the loss, nonconformity, or interference with the use of, defects or infringement of rights in, or damage to the property.

(e) To the extent of the value of receivership property and to the extent payable to the owner or mortgagee, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to the property.

13. "Property" means all of a person's right, title and interest, both legal and equitable, in real and personal property, tangible and intangible, wherever located and however acquired. Property includes proceeds, products, offspring, rents or profits of or from the property.

14. "Receiver" means a person who is appointed by the court as the court's agent and, subject to the court's direction, to take possession of, manage, and, if authorized by this chapter or court order, transfer, sell, lease, license, exchange, collect or otherwise dispose of receivership property.

15. "Receivership" means a proceeding in which a receiver is appointed.

16. "Receivership property" means the property of an owner that is described in the order appointing a receiver or a subsequent order. Receivership property includes any proceeds, products, offspring, rents, or profits of or from the property.

17. "Record", used as a noun, means information that is inscribed on a tangible medium or that is stored on an electronic or other medium and is retrievable in perceivable form.

18. "Rents" means:

(a) Sums payable for the right to possess or occupy, or for the actual possession or occupation of, real property of another person.

(b) Sums payable to a mortgagor under a policy of rental-interruption insurance covering real property.

(c) Claims arising out of a default in the payment of sums payable for the right to possess or occupy real property of another person.

(d) Sums payable to terminate an agreement to possess or occupy real property of another person.

(e) Sums payable to a mortgagor for payment or reimbursement of expenses incurred in owning, operating and maintaining real property or constructing or installing improvements on real property.

(f) Other sums payable under an agreement relating to the real property of another person that constitute rents under law of this state other than this chapter.

19. "Secured obligation" means an obligation the payment or performance of which is secured by a security agreement.

20. "Security agreement" means an agreement that creates or provides for a lien.

21. "Sign" means, with present intent to authenticate or adopt a record, either:

(a) To execute or adopt a tangible symbol.

(b) To attach to or logically associate with the record an electronic sound, symbol or process.

22. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

§ 33-2602 Notice and opportunity for hearing; exceptions

A. Except as otherwise provided in subsection B of this section, the court may issue an order under this chapter only after notice and opportunity for a hearing appropriate in the circumstances.

B. The court may issue an order under this chapter:

1. Without prior notice if the circumstances require issuance of an order before notice is given.

2. After notice and without a prior hearing if the circumstances require issuance of an order before a hearing is held.

3. After notice and without a hearing if no interested party timely requests a hearing.

§ 33-2603 Scope; exclusions

A. Except as otherwise provided in subsection B or C of this section, this chapter applies to a receivership for an interest in commercial real property and any personal property related to or used in operating the real property.

B. This chapter does not apply to a receivership for an interest in real property improved by one to four dwelling units unless:

1. The interest is used for agricultural, commercial, industrial, or mineral-extraction purposes, other than incidental uses by an owner occupying the property as the owner's primary residence.

2. The interest secures an obligation incurred at a time when the property was used or planned for use for agricultural, commercial, industrial or mineral-extraction purposes.

3. The owner planned or is planning to develop the property into one or more dwelling units to be sold or leased in the ordinary course of the owner's business.

4. The owner is collecting or has the right to collect rents or other income from the property from a person other than an affiliate of the owner.

C. This chapter does not apply to a receivership authorized by another law other than this chapter in which the receiver is a governmental unit or an individual acting in an official capacity on behalf of the unit except to the extent provided by law.

D. This chapter does not limit the authority of a court to appoint a receiver under another law other than this chapter.

E. Unless displaced by a particular provision of this chapter, the principles of law and equity supplement this chapter.

§ 33-2604 Power of court

The court that appoints a receiver under this chapter has exclusive jurisdiction to direct the receiver and determine any controversy related to the receivership or receivership property.

§ 33-2605 Appointment of receiver

A. The court may appoint a receiver:

1. Before judgment, to protect a party that demonstrates an apparent right, title or interest in real property that is the subject of the action, if the property or its revenue-producing potential:

(a) Is being subjected to or is in danger of waste, loss, dissipation or impairment.

(b) Has been or is about to be the subject of a voidable transaction.

(c) Needs to be protected and preserved or if the rights of the parties need to be protected and preserved, even if the action does not include any other claim for relief.

2. After judgment:

(a) To carry the judgment into effect.

(b) To preserve nonexempt real property pending appeal or when an execution has been returned unsatisfied and the owner refuses to apply the property in satisfaction of the judgment.

3. In an action in which a receiver for real property may be appointed on equitable grounds.

4. During any time allowed for redemption, to preserve real property sold in an execution or foreclosure sale and to secure its rents to the person entitled to the rents.

B. In connection with the foreclosure or other enforcement of a mortgage, the court may appoint a receiver for the mortgaged property if:

1. Appointment is necessary to protect the property from waste, loss, transfer, dissipation or impairment.

2. The mortgagor agreed in a signed record to appointment of a receiver on default.

3. The owner agreed, after default and in a signed record, to appointment of a receiver.

4. The property and any other collateral held by the mortgagee are not sufficient to satisfy the secured obligation.

5. The owner fails to turn over to the mortgagee proceeds or rents the mortgagee was entitled to collect.

6. The holder of a subordinate lien obtains appointment of a receiver for the property.

7. The property or the rights of the parties need to be protected and preserved, even if the action does not include any other claim for relief.

§ 33-2606 Disqualification from appointment as a receiver; exceptions; nomination

A. The court may not appoint a person as receiver unless the person submits to the court a statement under penalty of perjury that the person is not disqualified.

B. Except as otherwise provided in subsection C of this section, a person is disqualified from appointment as receiver if the person:

1. Is an affiliate of a party.

2. Has an interest materially adverse to an interest of a party.

3. Has a material financial interest in the outcome of the action, other than compensation the court may allow the receiver.

4. Has a debtor-creditor relationship with a party.

5. Holds an equity interest in a party, other than a noncontrolling interest in a publicly traded company.

C. A person is not disqualified from appointment as receiver solely because the person:

1. Was appointed receiver or is owed compensation in an unrelated matter involving a party or was engaged by a party in a matter unrelated to the receivership.

2. Is an individual obligated to a party on a debt that is not in default and was incurred primarily for personal, family or household purposes.

3. Maintains with a party a deposit account as defined in section 47-9102.

D. A person seeking the appointment of a receiver may nominate a person to serve as receiver.

§ 33-2607 Receiver's bond; alternative security

A. Except as otherwise provided in subsection B of this section, a receiver shall post with the court a bond that:

1. Is conditioned on the faithful discharge of the receiver’s duties.

2. Has one or more sureties approved by the court.

3. Is in an amount the court specifies.

4. Is effective as of the date of the receiver's appointment.

B. The court may approve the posting by a receiver with the court of alternative security, such as a letter of credit or deposit of funds. The receiver may not use receivership property as alternative security. Interest that accrues on deposited funds must be paid to the receiver on the receiver's discharge.

C. The court may authorize a receiver to act before the receiver posts the bond or alternative security required by this section.

§ 33-2608 Status of receiver as lien creditor

On appointment of a receiver, the receiver has the status of a lien creditor under the Uniform Commercial Code, title 47, chapter 9, as to receivership property that is personal property or fixtures and chapter 7, article 5 of this title as to receivership property that is real property.

§ 33-2609 Security agreement covering after-acquired property

Except as otherwise provided by law, property that a receiver or owner acquires after appointment of the receiver is subject to a security agreement entered into before the appointment to the same extent as if the court had not appointed the receiver.

§ 33-2610 Collection and turnover of receivership property

A. Unless the court orders otherwise, on demand by a receiver:

1. A person that owes a debt that is receivership property and is matured or payable on demand or on order shall pay the debt to or on the order of the receiver, except to the extent the debt is subject to setoff or recoupment.

2. Subject to subsection C of this section, a person that has possession, custody or control of receivership property shall turn the property over to the receiver.

B. A person that has notice of the appointment of a receiver and owes a debt that is receivership property may not satisfy the debt by payment to the owner.

C. If a creditor has possession, custody or control of receivership property and the validity, perfection or priority of the creditor’s lien on the property depends on the creditor's possession, custody or control, the creditor may retain possession, custody or control until the court orders adequate protection of the creditor’s lien.

D. Unless a bona fide dispute exists about a receiver's right to possession, custody or control of receivership property, the court may sanction as civil contempt a person's failure to turn the property over when required by this section.

§ 33-2611 Powers and duties of receiver

A. Except as limited by court order or another law, a receiver may:

1. Collect, control, manage, conserve and protect receivership property.

2. Operate a business constituting receivership property, including preservation, use, sale, lease, license, exchange, collection or disposition of the property in the ordinary course of business.

3. In the ordinary course of business, incur unsecured debt and pay expenses incidental to the receiver's preservation, use, sale, lease, license, exchange, collection or disposition of receivership property.

4. Assert a right, claim, cause of action or defense of the owner that relates to receivership property.

5. Seek and obtain instruction from the court concerning receivership property, exercise of the receiver's powers and performance of the receiver's duties.

6. On subpoena, compel a person to submit to examination under oath, or to produce and permit inspection and copying of designated records or tangible things, with respect to receivership property or any other matter that may affect administration of the receivership.

7. Engage a professional as provided in section 33-2614.

8. Apply to a court of another state for appointment as ancillary receiver with respect to receivership property located in that state.

9. Exercise any power conferred by court order, this chapter or another law other than this chapter.

B. With court approval, a receiver may:

1. Incur debt for the use or benefit of receivership property other than in the ordinary course of business.

2. Make improvements to receivership property.

3. Use or transfer receivership property other than in the ordinary course of business as provided in section 33-2615.

4. Adopt or reject an executory contract of the owner as provided in section 33-2616.

5. Pay compensation to the receiver as provided in section 33-2619, and to each professional engaged by the receiver as provided in section 33-2614.

C. A receiver shall:

1. Prepare and retain appropriate business records, including a record of each receipt, disbursement and disposition of receivership property.

2. Account for receivership property, including the proceeds of a sale, lease, license, exchange, collection or other disposition of the property.

3. Record in the office of the county recorder a copy of the order appointing the receiver and, if a legal description of the real property is not included in the order, the legal description.

4. Disclose to the court any fact arising during the receivership that would disqualify the receiver under section 33-2606.

5. Perform any duty imposed by court order, this chapter or another law other than this chapter.

D. Notwithstanding any other provision of this chapter, the powers and duties of a receiver may be expanded, modified, or limited by court order.

§ 33-2612 Duties of owner

A. An owner shall:

1. Assist and cooperate with the receiver in the administration of the receivership and the discharge of the receiver's duties.

2. Preserve and turn over to the receiver all receivership property in the owner's possession, custody or control.

3. Identify all records and other information relating to the receivership property, including passwords, authorizations or other information needed to obtain or maintain access to or control of the receivership property and make available to the receiver the records and information in the owner's possession, custody or control.

4. On subpoena, submit to examination under oath by the receiver concerning the acts, conduct, property, liabilities and financial condition of the owner or any matter relating to the receivership property or the receivership.

5. Perform any duty imposed by court order, this chapter or another law other than this chapter.

B. If an owner is a person other than an individual, this section applies to each officer, director, manager, member, partner, trustee or other person exercising or having the power to exercise control over the affairs of the owner.

C. If a person knowingly fails to perform a duty imposed by this section, the court may:

1. Award the receiver actual damages caused by the person's failure, reasonable attorney fees and costs.

2. Sanction the failure as civil contempt.

§ 33-2613 Stay; injunction

A. Except as otherwise provided in subsection D of this section or ordered by the court, an order appointing a receiver operates as a stay, applicable to all persons, of an act, action or proceeding:

1. To obtain possession of, exercise control over or enforce a judgment against receivership property.

2. To enforce a lien against receivership property to the extent the lien secures a claim against the owner that arose before entry of the order.

B. Except as otherwise provided in subsection D of this section, the court may enjoin an act, action or proceeding against or relating to receivership property if the injunction is necessary to protect the property or facilitate administration of the receivership.

C. A person whose act, action or proceeding is stayed or enjoined under this section may apply to the court for relief from the stay or injunction for cause.

D. An order under subsection A or B of section does not operate as a stay or injunction of:

1. An act, action or proceeding to foreclose or otherwise enforce a mortgage by the person seeking appointment of the receiver.

2. An act, action or proceeding to perfect, or maintain or continue the perfection of, an interest in receivership property.

3. Commencement or continuation of a criminal proceeding.

4. Commencement or continuation of an action or proceeding, or enforcement of a judgment other than a money judgment in an action or proceeding, by a governmental unit to enforce its police or regulatory power.

5. Establishment by a governmental unit of a tax liability against the owner or receivership property or an appeal of the liability.

E. The court may void an act that violates a stay or injunction under this section.

F. If a person knowingly violates a stay or injunction under this section, the court may:

1. Award actual damages caused by the violation, reasonable attorney's fees and costs.

2. Sanction the violation as civil contempt.

§ 33-2614 Engagement and compensation of professional

A. With court approval, a receiver may engage an attorney, accountant, appraiser, auctioneer, broker or other professional to assist the receiver in performing a duty or exercising a power of the receiver. The receiver shall disclose to the court:

1. The identity and qualifications of the professional.

2. The scope and nature of the proposed engagement.

3. Any potential conflict of interest.

4. The proposed compensation.

B. A person is not disqualified from engagement under this section solely because of the person's engagement by, representation of, or other relationship with the receiver, a creditor or a party. This chapter does not prevent the receiver from serving in the receivership as an attorney, accountant, auctioneer or broker when authorized by law.

C. A receiver or professional engaged under subsection A of this section shall file with the court an itemized statement of the time spent, work performed and billing rate of each person that performed the work and an itemized list of expenses. To the extent the receivership has sufficient assets, the receiver shall pay the amount approved by the court.

§ 33-2615 Use or transfer of receivership property not in the ordinary course of business; definition

A. With court approval, a receiver may use receivership property other than in the ordinary course of business.

B. With court approval, a receiver may transfer receivership property other than in the ordinary course of business by sale, lease, license, exchange or other disposition. Unless the agreement of sale provides otherwise, a sale under this section is free and clear of a lien of the person that obtained appointment of the receiver, any subordinate lien and any right of redemption but is subject to a senior lien.

C. A lien on receivership property that is extinguished by a transfer under subsection B of this section attaches to the proceeds of the transfer with the same validity, perfection, and priority the lien had on the property immediately before the transfer, even if the proceeds are not sufficient to satisfy all obligations secured by the lien.

D. A transfer under subsection A or B of this section may occur by means other than a public auction sale. A creditor holding a valid lien on the property to be transferred may purchase the property and offset against the purchase price part or all of the allowed amount secured by the lien, if the creditor tenders funds sufficient to satisfy in full the reasonable expenses of transfer. The property transferred is subject to any senior lien unless extinguished by the transfer.

E. A reversal or modification of an order approving a transfer under subsection A or B of this section does not affect the validity of the transfer to a person that acquired the property in good faith or revive against the person any lien extinguished by the transfer, whether the person knew before the transfer of the request for reversal or modification, unless the court stayed the order before the transfer.

F. For the purposes of this section, "good faith" means honesty in fact and the observance of reasonable commercial standards of fair dealing.

§ 33-2616 Executory contract; definition

A. Except as otherwise provided in subsection G of this section, with court approval, a receiver may adopt or reject an executory contract of the owner relating to receivership property. The court may condition the receiver's adoption and continued performance of the contract on terms appropriate under the circumstances.

B. A receiver's performance of an executory contract before court approval under subsection A of this section of its adoption or rejection is not an adoption of the contract and does not preclude the receiver from seeking approval to reject the contract.

C. A provision in an executory contract which requires or permits a forfeiture, modification, or termination of the contract because of the appointment of a receiver or the financial condition of the owner does not affect a receiver’s power under subsection A of this section to adopt the contract.

D. A receiver's right to possess or use receivership property pursuant to an executory contract terminates on rejection of the contract under subsection A of this section. Rejection is a breach of the contract effective immediately before appointment of the receiver. A claim for damages for rejection of the contract must be submitted by the later of:

1. The time set for submitting a claim in the receivership.

2. Thirty days after the court approves the rejection.

E. If at the time a receiver is appointed, the owner has the right to assign an executory contract relating to receivership property under another law other than this chapter, the receiver may assign the contract with court approval.

F. If a receiver rejects under subsection A of this section an executory contract for the sale of receivership property that is real property in possession of the purchaser or a real-property timeshare interest, the purchaser may:

1. Treat the rejection as a termination of the contract, and in that case the purchaser has a lien on the property for the recovery of any part of the purchase price the purchaser paid.

2. Retain the purchaser's right to possession under the contract, and in that case the purchaser shall continue to perform all obligations arising under the contract and may offset any damages caused by nonperformance of an obligation of the owner after the date of the rejection, but the purchaser has no right or claim against other receivership property or the receiver on account of the damages. If the purchaser retains the purchaser's rights to possession, the court may order the receiver to deliver title to the purchaser in accordance with the provisions of the contract and relieve the receiver of all other obligations under the contract.

G. A receiver may not reject an unexpired lease of real property under which the owner is the landlord if the tenant occupies the leased premises as the tenant's primary residence and either of the following applies:

1. The receiver was appointed at the request of a person other than a mortgagee.

2. The receiver was appointed at the request of a mortgagee and either:

(a) All of the following apply:

(i) The lease is superior to the lien of the mortgage.

(ii) The tenant has an enforceable agreement with the mortgagee or the holder of a senior lien under which the tenant's occupancy will not be disturbed as long as the tenant performs its obligations under the lease.

(iii) The mortgagee has consented to the lease, either in a signed record or by its failure timely to object that the lease violated the mortgage.

(b) The terms of the lease were commercially reasonable at the time the lease was agreed to and the tenant did not actually know or have reason to constructively know that the lease violated the mortgage.

H. For the purposes of this section, "timeshare interest" means an interest having a duration of more than three years which grants its holder the right to use and occupy an accommodation, facility, or recreational site, whether improved or not, for a specific period less than a full year during any given year.

§ 33-2617 Defenses and immunities of receiver

A. A receiver is entitled to all defenses and immunities provided by a law other than this chapter for an act or omission within the scope of the receiver's appointment.

B. A receiver may be sued personally for an act or omission in administering receivership property only with approval of the court that appointed the receiver and if the court finds that the receiver acted without authority.

§ 33-2618 Interim report of receiver

A receiver may file or, if ordered by the court, shall file an interim report that includes:

1. The activities of the receiver since appointment or a previous report.

2. Receipts and disbursements, including a payment made or proposed to be made to a professional engaged by the receiver.

3. Receipts and dispositions of receivership property.

4. Fees and expenses of the receiver and, if not filed separately, a request for approval of payment of the fees and expenses.

5. Any other information required by the court.

§ 33-2619 Fee and expenses

A. The court may award a receiver from receivership property the reasonable and necessary fees and expenses of performing the duties of the receiver and exercising the powers of the receiver.

B. The court may order one or more of the following to pay the reasonable and necessary fees and expenses of the receivership, including reasonable attorney fees and costs:

1. A person that requested the appointment of the receiver, if the receivership does not produce sufficient funds to pay the fees and expenses.

2. A person whose conduct justified or would have justified the appointment of the receiver under section 33-2605, subsection A, paragraph 1.

3. Any other person as equity justifies.

§ 33-2620 Removal of receiver; replacement; termination of receivership

A. The court may remove a receiver for cause.

B. The court shall replace a receiver that dies, resigns or is removed.

C. If the court finds that a receiver that resigns or is removed, or the representative of a receiver that is deceased, has accounted fully for and turned over to the successor receiver all receivership property and has filed a report of all receipts and disbursements during the service of the replaced receiver, the replaced receiver is discharged.

D. The court may discharge a receiver and terminate the court's administration of the receivership property if the court finds that appointment of the receiver was improvident or that the circumstances no longer warrant continuation of the receivership. If the court finds that the appointment was sought wrongfully or in bad faith, the court may assess against the person that sought the appointment:

1. The fees and expenses of the receivership, including reasonable attorney fees and costs.

2. Actual damages caused by the appointment, including reasonable attorney fees and costs.

§ 33-2621 Final report of receiver; discharge

A. On completion of a receiver's duties, the receiver shall file a final report including:

1. A description of the activities of the receiver in the conduct of the receivership.

2. A list of receivership property at the commencement of the receivership and any receivership property received during the receivership.

3. A list of disbursements, including payments to professionals engaged by the receiver.

4. A list of dispositions of receivership property.

5. A list of distributions made or proposed to be made from the receivership for creditor claims.

6. If not filed separately, a request for approval of the payment of fees and expenses of the receiver.

7. Any other information required by the court.

B. If the court approves a final report filed under subsection A of this section and the receiver distributes all receivership property, the receiver is discharged.

§ 33-2622 Receivership in another state; ancillary proceeding

A. The court may appoint a receiver appointed in another state, or that person's nominee, as an ancillary receiver with respect to property located in this state or subject to the jurisdiction of the court for which a receiver could be appointed under this chapter, if:

1. The person or nominee would be eligible to serve as receiver under section 33-2606.

2. The appointment furthers the person's possession, custody, control or disposition of property subject to the receivership in the other state.

B. The court may issue an order that gives effect to an order entered in another state appointing or directing a receiver.

C. Unless the court orders otherwise, an ancillary receiver appointed under subsection A of this section has the rights, powers and duties of a receiver appointed under this chapter.

§ 33-2623 Effect of enforcement by mortgagee

A request by a mortgagee for appointment of a receiver, the appointment of a receiver or application by a mortgagee of receivership property or proceeds to the secured obligation does not:

1. Make the mortgagee a mortgagee in possession of the real property.

2. Make the mortgagee an agent of the owner.

3. Constitute an election of remedies that precludes a later action to enforce the secured obligation.

4. Make the secured obligation unenforceable.

5. Limit any right available to the mortgagee with respect to the secured obligation.

§ 33-2624 Court's authority under this chapter

The court may issue any order, process or judgment that is necessary or appropriate to carry out this chapter.

§ 33-2625 Uniformity of application and construction

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§ 33-2626 Relation to electronic signature in global and national commerce act

This chapter modifies, limits or supersedes the electronic signatures in global and national commerce act, 15 United States Code sections 7001 through 7031, but does not modify, limit or supersede section 101(c) of that act, 15 United States Code section 7001(c) or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 United States Code section 7003(b).