Name, Attorney No

Name, Attorney No.

ORGANIZATION

Address

City, State ZIP

Phone

Attorney for Defendant

IN THE JUSTICE COURT

IN AND FOR THE COUNTY OF MARICOPA, STATE OF ARIZONA

Plaintiff,
v.
Defendant. / Case No.
DEFENDANT’S
MOTION TO DISMISS
AND MEMORANDUM OF
POINTS AND AUTHORITIES

COMES NOW the Defendant, , by and through counsel and pursuant to Civil Rule 12(b)(6), Section 33-1371(B) of the Arizona Revised Statutes, and as otherwise permitted or required by law, to move this Honorable Court for an order dismissing Plaintiff’s Complaint with prejudice for the reasons set forth below in the Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. Plaintiff’s Acceptance of Rent Waives His Right to Terminate the Rental Agreement. If Plaintiff accepts payment of rent with knowledge of Defendant’s prior default, the law bars Plaintiff from terminating the rental agreement based on such prior default. Under the Arizona Residential Landlord-Tenant Act (“ARLTA”), “[a]cceptance of rent ... with knowledge of a default by tenant or acceptance of performance by the tenant that varied from the terms of the rental agreement ... constitutes a waiver of the right to terminate the rental agreement for that breach.” A.R.S. § 33-1371(B).

In this case, Plaintiff claims that Defendant has committed a material and irreparable breach of the lease agreement. Yet the incident on which the allegation is based dates back to In the interim, Plaintiff has accepted a March, April, May rent payment from the Defendant.

Because Defendant’s alleged default occurred more than three weeks ago, and because Plaintiff has accepted rent from both Defendant and the Section Eight program since that time, Plaintiff may not terminate Defendant’s tenancy based on such breach.

Case law regarding acceptance of rent was established by the Arizona Supreme Court almost 50 years ago. In Butterfield v. Duquesne Mining Co., the Supreme Court stated: “...it is a universal rule that if the landlord accepts rent from his tenant after full notice or knowledge of a breach of a covenant or condition in his lease for which a forfeiture might have been demanded, this constitutes a waiver of forfeiture which cannot afterward be asserted for that particular breach or any other breach which occurred prior to the acceptance of the rent.” Butterfield v. Duquesne Mining Co., 66 Ariz. 29, 32, 182 P.2d 102, 103 (1947).

The law is clear: Plaintiff cannot both accept rent from the tenant and evict him at the same time. As a result of his actions, Plaintiff has waived his right to proceed with a forcible detainer. Although other civil remedies may be available to Plaintiff , under the Supreme Court’s ruling in Butterfield, Plaintiff’s acceptance of rent requires that this matter be dismissed with prejudice.

Finally, as there has been no valid termination in accordance with the ARLTA, the Defendant cannot be considered to have “held over after termination” and therefore, the special detainer statute (A.R.S. §33-1377) cannot be invoked. Consequently, if there is no proper termination and no special detainer, this Court cannot exercise subject matter jurisdiction over this Complaint, and this matter must be dismissed.

WHEREFORE, as Plaintiff has already accepted rent from Defendant and otherwise wholly failed to comply with the termination of tenancy requirements of the ARLTA, this action must be dismissed with prejudice at Plaintiff’s costs.

In the alternative, if this Court denies the Motion to Dismiss, Defendant requests the Court issue findings of fact and conclusions of law pursuant to Civil Rule 52(a).

RESPECTFULLY SUBMITTED this th day of

ORGANIZATION

By:______

1

Name

Address

City, State ZIP

Attorney for DEFENDANT

COPY of the foregoing

hand-delivered this 5th

day of, to:

Counsel for Plaintiff

By______

1