Every Arizona residential rental agreement should include a jury trial waiver (updated 03/18/2020).
A properly written jury trial waiver is enforceable in Arizona and may save the landlord a lot of money (i.e., thousands of dollars).
Most landlords DO NOT want a jury trial.Why? Because it delays trial of the action for possession until the court can summon a jury, which will normally take several days and may take weeks. In addition, if the landlord is represented by legal counsel, a jury trial will be an enormous expense. An *ordinary* eviction action (if there is such a thing) will generally take less than one-half hour. A jury trial will take most of the day and can take much longer, depending on the number and complexity of issues involved.
Most tenants want a jury.Why? For the same reasons above. They want additional time and they want to force the landlord to incur as much expense as possible.
How do we fix this problem?The right to a jury trial is found in the United States Constitution. The Arizona State Legislature also granted tenants the right to a jury trial. Parties to a contract, however, can agree to voluntarily waive the right to a jury trial. The question is whether an Arizona judge will find that a tenant*s agreement to waive a jury trial, in advance (i.e., at the time the rental agreement is signed, which will occur before any controversy arises), is enforceable?
This is *leading edge* stuff. The law is not clear on this issue in Arizona. The tenant may argue that a jury trial is a right given to him/her by the Arizona Residential Landlord and Tenant Act (the "Act") and, pursuant to A.R.S. * 33-1315(A)(1), the tenant cannot agree to *waive or forego rights or remedies under the [Act].* The tenant*s right to a jury trial, however, is not found in the Act; it is found in the forcible detainer statutes. The Act does not state that the tenant cannot waive the right to a jury trial or any of the rights given to him/her by the forcible detainer statutes and, therefore, the tenant*s argument should fail. Moreover, Arizona case law and statutory law exists that says parties to a contract can agree, in advance, to waive their right to a jury trial.
Several factors will be important in helping the judge reach the right decision: (1) the waiver provision must be written in clear and unambiguous language; (2) the waiver provision must be conspicuous; (3) the negotiability of all contract terms, including the waiver provision; (4) the disparity in the parties* bargaining power; (5) the knowledge and intelligence of the party opposing the waiver (i.e., whether the tenant has an eighth grade education or whether s/he has a Ph.D.); and (6) the business experience of the party opposing the waiver. In short, the court will look for a voluntary waiver of a known right by a person who understood what s/he was waiving; waiver will never be implied.
So what provision will work?There are no guarantees, but it has always worked for me and none of my clients have reported to me that a judge refused to enforce that provision and it has yet to be tested in a reported appellate court case (which is the only way a judge's refusal to enforce this provision would set a legal precedent that other judges would have to follow). I include the following language in all my custom-drafted and "readymade" rental agreements. Feel free to use the following provision, but recognize that some judges simply will not enforce such a provision, regardless of the language used in your rental agreement.
I recommend that the following provision (farther below) be in bold type, in a type size as large or larger than the other portions of the rental agreement, and placed immediately above the signature line.
This is MY jury trial waiver provision.TO MINIMIZE DELAY AND TO REDUCE THE COST OF POTENTIAL LITIGATION, THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO A TRIAL BY JURY. THE PARTIES HERETO UNDERSTAND THAT THEY MAY BE ENTITLED TO A JURY TRIAL FOR CLAIMS ARISING OUT OF THIS RENTAL AGREEMENT AND/OR THE ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT, BUT KNOWINGLY AND VOLUNTARILY WAIVE THIS RIGHT.