Our attorney friend Andy Hull continues to amaze us with great legal content for our readers. Yeah Andy!!
Today’s topic will be the role and use of a constable to remove tenants who just don’t want to leave despite having lost the battle and have an eviction judgment filed against them. Below are some thoughts from the man they call Dr. Evictor, landlord/tenant attorney extraordinaire, or simply Andy Hull.
As you read this I wonder if you will be surprised at the various options constables have while performing their job… quite insightful stuff here.
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One area that clients always have questions about is Constables. As you know, once you have obtained an eviction Judgment against a tenant and they have refused to move, you must order a Writ of Restitution.
A Writ of Restitution is an order to the Court Constable to come and remove the tenants from the property. If you wish to avoid having to pay the Constable (approximately $150.00) to come out and remove the tenant, the only other legal way would be to do a Notice of Abandonment. If you believe the tenants have vacated, you can post the Notice of Abandonment conspicuously on the door and send a copy certified mail to a last known address (usually the residence). You cannot simply go in to the property and change locks. The only exception to this is if the tenant has returned the keys to you and/or provided you with written notification that they no longer live in the premises, then you may go in.
Absent the tenant returning the keys or doing the Notice of Abandonment, if the tenant appears to be gone you do need to file the Writ of Restitution for the Constable. Even if a tenant verbally tells you over the phone they have moved, you do not want to enter the property other than to possibly check for occupancy. The problem you run into is that if you do enter the property without following the legal means available to you, the tenants can claim an illegal entry and also then sue for all of the “alleged” valuable property that they left behind in the rental unit, and for an “alleged” wrongful ouster.
The Constables do have total discretion in how expeditiously they serve the Writ of Restitution. There is currently no one you can really complain to if a Constable does not timely serve the Writ. You may certainly call our office and we will attempt to get hold of the Constable if there are delays in serving the Writs. Also, because of the court consolidation and Judges sharing a court building and also sharing their staff, Writs of Restitution do get misplaced and sometimes are delayed in being signed by the Judge. It is not unusual for a Constable to take up to a week or longer to come out and remove a tenant from the property.
The Constables also have full discretion on how they wish to remove the tenant. For instance, they can give the tenant overnight or through the weekend to move out before being locked out. Generally, if you believe the tenants have moved and you cancel the Constable and you find out subsequently that the tenants have not moved, the Constables will require another fee to be paid before they will come back out.
If the Constable is not doing their job as the law currently is, unfortunately, you must sue the County as well as the Constable in a civil lawsuit. Of course, the best advise is to build up a reporé with your Constable, find out how he likes to have the lock-outs done, and cooperate fully with the procedure that that particular Constable is comfortable with. As a reminder, the Courts will not reimburse your Writ fee if you later cancel the Writ, and the Writ is only valid for 30 days after the Judgment.
Lots to think about in this post. Once again we thank Andy Hull for providing our readers with great information. You can call Mr. Hull and his team at 602-230-0088.
Be mindful that Andy Hull practices law in the State of Arizona and his commentary may not apply to other states and countries.
Best to all our loyal and faithful readers… you make our work here at Real Estate Investing 101 worth every minute. Please pass our URL to others who may benefit.
Gene Urban & Ron Urban
The Urban Team at Realty Executives
602-234-5777
