1 civil process lieutenant richard a. speer, # l-12 traffic bureau chandler police department

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CIVIL PROCESSCIVIL PROCESSLieutenant Richard A. Speer, Lieutenant Richard A. Speer, # L-12# L-12

Traffic BureauTraffic Bureau

Chandler Police DepartmentChandler Police Department

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CIVIL v. CRIMINALCIVIL v. CRIMINAL

Criminal actions are lawsuits filed against individuals by the state or federal government for a public offense.

Civil actions are lawsuits between “persons” as defined by statute which may mean people, corporations, government agencies or other entities.

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CIVIL LITIGATIONCIVIL LITIGATION

Involves the enforcement, protection or redress of a private legal interest. Civil litigation remedies private wrongs. Includes all actions that are not criminal.

Enables private persons to resolve non-criminal disputes in a civilized manner.

What is a Civil Dispute?What is a Civil Dispute?

A situation in which no crime has occurred, yet there is the need for police presence to maintain the peace and provide safety to individuals and property. Examples include landlord-tenant disputes, mechanic’s liens and disputes over towed vehicles.

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REPOSSESSION OF REPOSSESSION OF PROPERTYPROPERTY

LIENS

Possessory lien is a lien where the lien holder can keep the property until paid.

A registered lien merely gives the lien holder a security interest in the property.

Auto RepossessionsAuto Repossessions

Self Help Repossessions

“Breach of the Peace”

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SELF-HELPSELF-HELP

A bank or finance company loans money on a car and conditions the loan on a lien (security interest).

Appropriate paperwork is completed and filed so the bank is a secured party.

Secured party can retake possession without court order for breach of contract as long as it can be done without breach of the peace.

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BREACH OF THE PEACEBREACH OF THE PEACE

Secured party can enter private property to retake possession as long as there is no resistance (yelling and shouting).

Breach of the peace, found in the UCC, is a civil concept and not criminal by itself.

These situations may result in crimes such as trespass, threats, assaults, etc.

Landlord-Tenant DisputesLandlord-Tenant Disputes

Residential Landlord and Tenant Act (A.R.S. § 33-1301through 1377).

Mobile Home Parks Residential Landlord and Tenant Act (A.R.S. § 33-1401 through 1417).

Recreational Vehicle Space Rental Act (A.R.S. § 33-2100 through 33-2117).

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Residential LTAResidential LTA

Applies whether or not there is a lease. If no lease, the tenancy is week to week,

or month to month, depending on how rent is paid.

A landlord cannot require a tenant to waive the provisions of the Act.

– Residence at an educational/medical institution– Occupancy under a contract for sale– Manager/custodian– Fraternities and sororities– Federally regulated public housing– Owners of condominiums or cooperatives– Transient occupancy in a hotel/motel

Residential Landlord and Tenant Residential Landlord and Tenant ActAct

Exclusions (A.R.S. § 13-1308): Exclusions (A.R.S. § 13-1308):

SurrenderSurrender - voluntary; with notice.AbandonmentAbandonment - voluntary; without

notice.EvictionEviction – involuntary.

Ways a Landlord Can Recover Ways a Landlord Can Recover Possession of a rented apartment, Possession of a rented apartment,

house or mobile home from a house or mobile home from a tenant:tenant:

Begins with notice to tenant regarding breach of the rental agreement

What is a “breach” of the agreement?What is a “breach” of the agreement?

Anything that violates the provisions of the statute or the lease.

Eviction ProcessEviction Process

Notice to tenant regarding breach of the rental agreement

Remedy the breach

If the breach is not remedied and the tenant

does not move out, then the landlord files suit

Trial (hearing)

Judgment

Writ of Restitution

Eviction ProcessEviction Process

A writ is a court order, issued after judgment in favor of a landlord, and is executed by a constable, not by a police officer. Some landlords will seek assistance from law enforcement to enforce a writ, or a judgment. Unless specifically authorized by state statute (sheriffs are authorized, in certain situations), peace officers have no authority to execute or enforce judgments or writs of execution.

Writ of RestitutionWrit of Restitution

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Return by TenantReturn by Tenant

Once the tenant has been properly evicted, they can be arrested if they return and re-enter the residence.

What is the correct criminal charge?

Personal Property Left at the Personal Property Left at the ResidenceResidence

Hold the property for 21 days after an eviction/10 days after an abandonment.

Unclaimed property may be sold, proceeds go to the landlord to cover outstanding amounts due, excess is returned to the tenant.

Landlord owes a duty of care to the tenant with regard to the property.

Personal Property Left at the Residence

Landlord may require the payment of reasonable costs of removal and storage before releasing the property, no other payment for release of the personal property is allowed (in other words, there is no longer an “Apartment Keeper’s Lien”).

Tenant has immediate right of access to medicine, clothing, tools, ID, financial documents, etc.

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Security deposits are to be returned within 14

days, with an itemized list of deductions.

If you are dealing with the renting of space (land) upon which to park a mobile home, the Mobile Home Parks Residential Landlord and Tenant Act, (A.R.S. § 33-1401 through 1417) applies.

If you are dealing with the rental for more than 180 days of space to park an RV, the rules are slightly different and the Recreational Vehicle Space Rental Act (A.R.S. 33-2100 through 33-2117) applies.

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Mobile Homes and RVsMobile Homes and RVs

Must be a written agreement.

Parties must always act ingood faith.

Commercial PropertyCommercial Property

Can lock out 5 days after breach.

No court order needed.No court order needed.

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COMMERCIAL PROPERTYCOMMERCIAL PROPERTY

Landlord has lien on lessee’s personal property in the building pending payment of rent.

Officers should not get involved in any issue about the personal property as there are many complicated legal points that can arise.

Municipal law enforcement officers do not have the authority to evict a

tenant and officers should notshould not evict, threaten to evict or assist in evicting a tenant in situations covered by one of

these three Acts.

Innkeeper-Guest DisputesInnkeeper-Guest Disputes

A.R.S. § 33-951 and 33-952.

Requirement to Post.

Criminal Violations.

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Inn Keeper – Guests Inn Keeper – Guests DisputesDisputes

A guest who has not paid and who refuses to leave the premises may be arrested for trespass after a reasonable request to leave by the management.

Towed CarsTowed Cars

A tow company has no right to keep the vehicle until paid, unless:– the tow was directed by a law enforcement

officer (A.R.S. § 28-872).– the tow was done by an express agreement

between the owner and a garage, repair station or service station (A.R.S. § 33-1022).

Towing (con’t.)Towing (con’t.)

If confronted with a situation in which a tow company refuses to release a vehicle to its owner, the officer should:

Determine if the vehicle was towed under either of the two conditions stated previously.

If it was, the owner must pay the cost of

the towing/storage prior to the vehicle being released.

If the tow was not pursuant to an agreement with a repair, garage or service station, and was not ordered by law enforcement, advise the tow truck driver to release the vehicle to the owner. The tow truck operator or company should be advised that the debt owed is a civil debt and that they can proceed to recover on that debt as they would any civil debt (in court).

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MECHANIC’S LIENMECHANIC’S LIEN

This lien gives the lien holder the right to retain possession of the vehicle until bill is paid.

The charges must be agreed to by both parties for the lien to exist, but there does not have to be a written agreement.

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MATERIALMAN’S LIENSMATERIALMAN’S LIENS

Also known as labor liens. Has right to retain possession of property

until charges are paid. There is no statutory requirement that

the charges be agreed to by both parties or even that the amount of the charges be reasonable.

Other LiensOther Liens

Mechanic’s Lien, § 33-1022: A lien exists “when the amount of the charge is agreed to by the proprietor and the owner.”

Personal, Real Property and Livestock Liens, ETC!!!

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PRE-JUDGMENT PRE-JUDGMENT SEIZURESSEIZURES

Writ of Attachment or Writ of Replevin. Order that may include taking or seizing

property and bringing it under control of the court.

Purpose of attachment is to hold property of defendant as security for satisfaction of judgment the plaintiff may obtain in a suit for contract or direct payment of money.

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WRIT OF GARNISHMENTWRIT OF GARNISHMENT

A writ where a party with a judgment or a pre-judgment order serves the writ on a employer or person holding money of the defendant in order to obtain the money for satisfaction of a judgment.

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WRIT OF GENERAL WRIT OF GENERAL EXECUTIONEXECUTION

Order to enforce judgment of the court. Directs sheriff or other official to process

execution of judgment. Judgment is executed by official seizing

enough of defendant’s property to sell at auction to satisfy judgment.

Used for seizure of non-exempt property.

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WRIT OF SPECIAL WRIT OF SPECIAL EXECUTIONEXECUTION

This writ is issued for the seizure of specifically identified property and return it to the owner or sell it according to the instructions in the court order.

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WRIT OF REPLEVINWRIT OF REPLEVIN

A court action that allows the owner or person entitled to repossession of goods, to recover those goods from one who has wrongfully taken or detained them.

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LIMITATIONS ON LIMITATIONS ON REPOSSESSIONSREPOSSESSIONS

Self-help limitations Court ordered repossessions

– No use of force allowed unless Writ of Restitution (eviction).

– Officer is only allowed to seize enough property to satisfy judgment.

– Deputies must take reasonable care to protect seized property.

Basic Responsibilities of a Police Basic Responsibilities of a Police Officer at the Scene of a Civil Officer at the Scene of a Civil

Dispute:Dispute:

Keep the peace. Determine if a crime has been committed. Provide safety to individuals and property. Attempt to refer or resolve the problem. Be tactful. Retain reasoning powers.

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QUESTIONSQUESTIONS

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Contact Information:Contact Information:

Lt. Richard Speer, # L-12richard.speer@chandleraz.govCellular # (480) 695-4137Office # (480) 782-4844