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Material Breach of Rental Agreement 5-day Notice

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The following does not apply to mobile home park evictions, recreational vehicle park evictions, and certain subsidized housing. Below is information that may be helpful to you but is not a substitute for legal advice. There are other rules and laws that may be applicable to your situation, but these are common rules and laws that apply in eviction actions.

A.R.S. means Arizona Revised Statutes and RPEA means Rules of Procedure for Eviction Actions.

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Eviction Notice Image

1. Notice

  • The landlord must give the tenant a written notice stating what the problem is and that the rental agreement will end after 5 days if the problem is not fixed immediately. A.R.S. § 33-1368(A).
  • In instances of a Material Breach Affecting Health and Safety, the landlord must wait the full 5 days after giving the tenant notice before filing an eviction action with the court on day 6.  The tenant has these 5 days to try to rectify the breach.
  • The court must dismiss the eviction action, if the tenant did not receive:
    • A termination notice and an opportunity to fix the problems; or
    • the notice does not comply with the law or was not properly served  RPEA 13(a)(2).
  • If the tenant recieved a 5-day notice and fixed the problems, then is given a second 5-day notice for the same or a similar violation in the same rental agreement period, the landlord may file an eviction action after 10 days. Even if the tenant fixes the problems specified in the second notice, the landlord can still file the eviction action.
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2. Complaint and Service

The following must also be served with the eviction notice:

  • A copy of the lease agreement
  • Any addendums that are related to why an eviction was served

Generally, an eviction action summons and complaint must be served by a constable or sheriff in one of two ways:

    1. personally served to the tenant, or
    2. placed in an obvious place (like on the front door) and mailed to the tenant by certified mailRPEA 5(f)
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3. Answer

  • An answer is where the tenant agrees with what the landlord claims or denies the claims.  If they deny what the landlord states, they have to provide a defense in their answer.
  • If the court sets a trial date, the tenant may be ordered to file a written answer.  If the tenant is not required to file a written answer, they may ask to speak to the claims of the landlord on the record in court.  RPEA 7.
  • If the tenant cannot afford the filing fee, ask the clerk for a fee waiver/deferral application.  If approved the tenant will either not be charged, will have to pay the fee back at a later date, or may be placed on a payment plan.
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4. Defenses

  • Did Not Happen
    • Problems claimed in the notice and complaint did not occur.
  • Issue Fixed
    • If there was a time period given where the tenant to fix the problems specified in the notice, and the tenant fixed the problems before the final day of the 5-day notice.
  • Retaliation
    • If a person who lives in the residence (apartment, condo, house etc.) complains to the landlord or government agency about a housing issue that affects their health or safety (in the last 6 months) and the landlord tries to evict them; then the law presumes that it is a retaliatory eviction. The tenant may be entitled to damages if this happened. See Legal Info Sheet: Eviction Actions: Claims Against your Landlord. A.R.S. § 33-1381.
  • The landlord accepted rent, or a part of rent, (knowing that the tenant was in default) without having the tenant sign a written statment explaining the terms and conditions of accepting the payment. A.R.S. § 33-1371, RPEA 13(a)(4). This defense applies even if part of the rent is paid by a religious organization, community action agency, non-profit, friend, family member, or anyone else.  This does not apply if the payor had a contract with the landlord and is:
    • A government agency;
    • Housing authority;
    • Agent for government agency/housing authority; or
    • Agent for a for-profit organization.
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6. Evidence and Testimony

  • Evidence and testimony (documents and statements) must be relevant to the proceeding.
  • A witness must testify to things that they say or heard first hand. The witness telling the court what somebody else said is called hearsay, and is generally not allowed.
  • Both sides have a responsibility to make objections right away. If a witness testifies to a fact they did not see or hear directly or if the testimony is not relevant to the claim, immediately tell the judge you object to the testimony or evidence.  For instance, if the witness is talking about how the tenant had their car repossessed, this is not a material breach and could be objected.
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5. Trial

  • The tenant has a right to a trial if the court decides that the tenant MAY have a defense or proper counterclaim. RPEA 11(b)(1).
  • Unless waived in writing in the lease, the tenant may have a right to a jury trial. The tenant must ask for a jury trial the first time they see the judge. The judge will then decide if there are facts in dispute that can be determined by a jury. If there are no factual matters appropriate for a jury, the case will be heard by the judge. RPEA 11(d).
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7. Judgment

  • A default judgment may be entered against the tenant if they do not appear in court when the case is called by the judge. RPEA 13.
  • A stipulated judgment is when the tenant agrees that the claims made by the landlord in the complaint are true.  The judgment is entered against the tenant. The tenant does not have an opportunity to offer a defense and cannot appeal from this type of judgment.
  • The judge may award the landlord:
    • Possession of the property;
    • Rent;
    • Late fees (as listed in the lease);
    • Attorney fees;
    • Court costs; and
    • Other damages if there is a legal and factual basis to award these damages.
  • See Legal Info Sheet: Eviction Actions: After an Eviction Judgment for important information if the judge rules against you.