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Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 20 - PROPERTY



Art. I In General, §§ 20-1 - 20-10


Art. II. Recording, §§ 20-11 - 20-20

Art. III. Land Assignments, §§ 20-21 - 20-30

Art. IV. Leasing, §§ 20-31 - 20-40

Art. V. Residential Landlord and Tenant, §§ 20-41 - 20-80

Div. 1. Generally, §§ 20-41 - 20-50
Div. 2. Landlord Obligations, §§ 20-51 - 20-60
Div. 3. Tenant Obligations, §§ 20-61 - 20-70
Div. 4. Remedies, §§ 20-71 - 20-80
Art. VI. Eviction, §§ 20-81 - 20-100

Art. VII. Mortgages/Installment Contracts and Foreclosure, §§ 20-101 - 20-130

Art. VIII. Eminent Domain, §§ 20-131 - 20-140

Art. IX. Repossession of Personal Property, §§ 20-141 - 20-160



ARTICLE I. IN GENERAL

Sec. 20-1. PURPOSE AND INTENT.

This Chapter shall be interpreted and construed to fulfill the following purposes:
  1. To simplify the law governing the occupation of premises and to protect the rights of lessors and lessees.

  2. To preserve the peace, harmony, safety, health and general welfare of the people of the Tribe and those permitted to enter upon or reside within the territory of the Tribe.

  3. To provide for the assignment of lands within the territory of the Tribe to members of the Tribe in general and in a manner which will facilitate financing for the construction and/or purchase of family residences upon such lands.

  4. To provide eviction procedures and to require lessors to use those procedures when evicting lessees.

  5. To encourage lessors and lessees to maintain and improve premises within the territory of the Tribe in order to improve the quality of housing as a resource of the Tribe.

  6. To simplify the law governing the rights, obligations, and remedies of the owners, sellers, buyers, lessors, and lessees of property.

  7. To avail the Tribe and its members of financing for the construction and/or purchase of family residences on land within the territory of the Tribe by prescribing procedures for the recording, priority and foreclosure of mortgages given to secure loans.

  8. To establish laws and procedures which are necessary in order to obtain funding for Tribal housing programs or loan guarantees for private or Tribal housing construction, purchase, or renovation.

  9. To establish procedures governing condemnation of property by the Tribe or other exercises of the tribe's power of eminent domain.

  10. To establish laws and procedures governing the repossession and removal from the territory of the Tribe of personal property.

Sec. 20-2. APPLICABILITY OF CHAPTER


Except as otherwise expressly provided, this Chapter shall apply to any and all arrangements, formal or informal, written or oral or by the practice of the parties, in selling, buying, renting, leasing, occupying, or using any and all forms of property.


Sec. 20-3. JURISDICTION.
  1. This Chapter shall apply to all persons and property, personal and real, subject to the jurisdiction of the Tribe as established by the Constitution of the Tribe; the inherent sovereignty of the Tribe; and other applicable laws, regulations, and ordinances.

  2. The Tribal Court shall have exclusive subject matter jurisdiction over any and all proceedings authorized to be brought in Tribal Court by this Chapter and personal jurisdiction over all persons and property, personal and real, subject of such proceedings.

  3. Nothing in this Chapter shall be construed as a limitation upon the sovereignty or sovereign immunity of the Tribe or jurisdiction of the Tribe or Tribal Court.

Sec. 20-4. SUPPLEMENTARY PRINCIPLES OF LAW APPLICABLE.


The common law of the Tribe, as defined in the first paragraph of Section 5-1 of Article I of Chapter 5 of this Law and Order Code, shall supplement the provisions of this Chapter.


Sec. 20-5. SEVERABILITY.


If any article, section, or provision of this Chapter or amendment made by this Chapter is held invalid, the remaining articles, sections or provisions of this Chapter and amendments made by this Chapter shall continue in full force and effect.


Sec. 20-6. DEFINITIONS.


As used in this Chapter:
  1. "Tribal Council" means the Tribal Council or Community Council of the Fort McDowell Yavapai Indian Community of the Fort McDowell Indian Reservation as defined in the Constitution of the Fort McDowell Yavapai Indian Community.

  2. "Laws of the Tribe" has the same meaning as that term is explained in the first paragraph of Section 5-1 of Article I of Chapter 5 of this Law and Order Code.

  3. "Territory of the Tribe" means the physical territory of the Fort McDowell Yavapai Indian Community as it is described in its Constitution and shall include the lawful jurisdiction of the Tribe provided nothing in this subsection shall be construed to limit the physical territory, jurisdiction, or sovereignty of the Tribe.

  4. "Tribal Court" means the Tribal Court as established by the Constitution and/or laws of the Tribe or such body as may now or hereafter be authorized by the laws of the Tribe.

  5. "Tribe" refers to the Fort McDowell Yavapai Indian Community of the Fort McDowell Indian Reservation as defined in the Constitution of the Tribe and its agencies, departments, divisions, instrumentalities, economic enterprises, and officials thereof.

  6. Reference to persons by terms denoting sex shall be taken as referring to either sex. Reference to persons or things by a term denoting the singular shall include the plural.
(Sec. 20-7 - 20-10. Reserved.)




ARTICLE II. RECORDING

Sec. 20-11. APPLICABILITY.

Any instrument affecting real property, as that term is defined in this Article, shall be recorded as provided by this Article.


Sec. 20-12. DEFINITIONS.


As used in this Article:
  1. "Grantee" means any person or entity, such as a mortgagor, lessee, or purchaser, who receives any interest in real property by assignment, deed, mortgage, lease, installment contract, rental agreement, or other agreement by a grantor; such term shall include any person or entity on any instrument affecting real property who is granted an interest in real property by another.

  2. "Grantor" means the Tribe or any other person or entity, such as a mortgagee, lessor, or seller, who has an interest in real property and assigns, sells, mortgages, leases, conveys by installment contract, rents, or otherwise transfers all or some of its interest in such real property; such term shall include any person or entity on any instrument affecting real property who grants an interest in real property to another.

  3. "Instrument affecting real property" or "instrument" means any document or instrument related to or affecting the transfer of an interest in real property or part thereof, including, but not limited to, a land assignment, deed, mortgage, installment contract, lien, lease, rental agreement, sublease or assignment, or any other instruments the Tribal Council may designate by law or resolution to be included under this Article. Notwithstanding the fact that households and homes are classified as personal property in other sections of this code, instruments relating to households or homes must be recorded under this Article.

  4. "Recorder" refers to the Land Use/Lease Department of the Tribe or other agency, department, or official properly designated by resolution or law of the Tribal Council to perform the functions required under this Article.

Sec. 20-13. PRIORITY.

  1. An instrument affecting real property recorded in accordance with this Article shall be notice to all persons and entities of the existence of the transaction or transfer and any rights, interests, or liabilities created thereby.

  2. Unless otherwise expressly provided by the laws of the Tribe, any instrument affecting real property recorded in accordance with this Article shall have priority over any instrument, lien, or claim not recorded at the time of such recording unless there is notice, actual or constructive, of the existence of such unrecorded instrument, lien, or claim.

  3. Instruments affecting real property executed before enactment of this Article shall not be subject to subsection (b) of this Section. Unless otherwise expressly provided by the laws of the Tribe, an instrument affecting real property executed before the enactment of this Article shall have priority over any subsequent instrument, lien, or claim provided such prior instrument has been recorded in accordance with this Article or there is notice, actual or constructive, of the existence of such prior instrument.

  4. An unrecorded instrument shall have priority over any subsequent unrecorded instrument, lien, or claim.

  5. A lien or claim of the Tribe shall have priority over any and all other instruments, liens, and claims without regard to recordation, notice, or priority in time.

Sec. 20-14. RECORDING
.
  1. The recorder shall perform the recording functions under this Article.


  2. The recorder shall maintain, within its own system of records, a system for the recording of instruments affecting real property.


  3. The recorder shall endorse upon any instrument affecting real property received for recording under this Article:


    1. The date and time of receipt of the instrument affecting real property;


    2. The filing number, to be assigned by the recording agent, which shall be a unique number for each instrument affecting real property; and


    3. The name of the individual recorder receiving the instrument affecting real property. Upon completion of the above endorsements, the recorder shall make a true and correct copy of the instrument affecting real property and shall notarize such copy. The recorder shall maintain such copy of the instrument affecting real property in the records of the recording system and shall return the original of the instrument affecting real property to the person that presented the same for recording.

  4. The recorder shall maintain a log of each recorded instrument affecting real property, in which there shall be entered:


    1. The name of the grantor of each instrument, identified as such;


    2. The name of the grantee of each instrument, identified as such;


    3. The date and time of receipt;


    4. The filing number assigned by the recorder;

    5. The name of the individual recorder receiving the instrument affecting real property;


    6. A description of the real property of the instrument; and


    7. A description of the transaction of the instrument.

  5. The certified copies of the instruments and the log maintained by the recorder shall be made available for public inspection and copying.


  6. In lieu of presenting an original instrument affecting real property for recording, any person or entity may present a copy of the same upon which there is an original certification which has been signed and sealed by a notary public or other authorized official.


  7. The Tribal Council may from time to time establish recording fees, copying fees, and fees for the certification of any instrument recorded under the recording system established under this Article.
(Sec. 20-15 - 20-20. Reserved.)



ARTICLE III. LAND ASSIGNMENTS

Sec. 20-21. GENERALLY.
  1. Special boards of community members or departments may be selected by the Tribal Council who may be designated by the Tribal Council to perform any duty under this Article.

  2. Land assignments issued (i) pursuant to the Land Ordinance adopted June 13, 1994 and (ii) issued prior to June 13, 1994 if the assignee has been using the land for the assigned purposes during the five years prior to June 13, 1994 shall continue in fill force and effect subject to continued compliance with the provisions of this Chapter.

Sec. 20-22. ASSIGNMENT OF LAND.


Tribal lands shall be assigned in conformity with the following rules:
  1. Application for assignment of Tribal land shall be made in writing to the Land Use/lease Department or other authorized designee of the Tribal Council which shall record and file the application. The Tribal Council will then take up and consider the application.

  2. Assignments of land shall be made by the Tribal Council in the form of a written agreement. This agreement shall include a description of the land and shall define the purposes for which the land is being assigned.

  3. The Tribal Council, before taking any action in assigning any particular tract of land, shall post a notice twenty (20) days before the proposed action is to be taken at the Tribal Office and on the land itself so that anyone claiming prior rights in or to the land in question may appear before the Tribal Council and voice his or her protest against the proposed assignment.

  4. Assignments of Tribal land may be made only to enrolled members of the Tribe or to tribal enterprises. Every enrolled member of the Tribe who has reached the age of twenty-one (21) or is married shall be considered eligible to receive an assignment at the discretion of the Tribal Council.

  5. The amount of land requested which is included in each assignment shall be based upon the ability of the applicant to make beneficial use of the land. In general:

    1. The size of farming assignments will be 10 acres, but more or less than this amount may be assigned at the discretion of the Tribal Council. A member shall not be permitted to hold more than one farming assignment at any one time; and

    2. Land assignments for residential or business use will generally be no more than one acre, but more or less than this amount may be assigned at the discretion of the Tribal Council.

  6. Assignments of land will be made in such a way that they do not conflict with long range or overall Tribal plans for land use. This means that an eligible applicant may be denied an assignment for one piece of land and be encouraged instead to apply for an assignment in a different area.

Sec. 20-23. CHANGES IN LAND ASSIGNMENTS.
  1. If a person wishes to temporarily give up an assignment or change the use for which the land was assigned, it will be the responsibility of the assignee to obtain the approval of the Tribal Council for these changes. Such request shall be made in writing and shall follow the same procedures outlined in this Article for the assignment of land.

  2. If a Tribal member who is using his or her assignment wishes to have that assignment enlarged or increased to include additional area, it will be necessary for the member to apply for a new land assignment in accordance with this Article that includes both the original assignment and the additional area.

Sec. 20-24. CANCELLATION OF LAND ASSIGNMENTS.

  1. The Tribal Council, before taking any action to cancel an assignment, shall post a notice twenty (20) days before the proposed action is to be taken at the Tribal Office and on the land itself so that interested persons will have an opportunity to appear before the Tribal Council to support or oppose the proposed action. The Tribal Council shall also send, via certified mail, the notice to the last known address of the person holding the assignment.


  2. Except as provided by this Section, the Tribal Council may cancel any assignment of land for one or more of the following reasons:

    1. Failure to use the land as assigned for a period of two (2) or more consecutive years; or

    2. Use of the land in violation of the agreement of assignment, Mortgage, or Installment Contact; or

    3. Violation of any applicable ordinances of the Tribe relating to the use of the land; or

    4. Use of the land in any manner to the injury of the Tribe or Community in general; or

    5. Condemnation pursuant to the tribe's power of eminent domain.

  3. Failure to use the land as assigned for a period of four consecutive years will result in the automatic cancellation of the assignment.


  4. No assignment may be canceled for nonuse, during the two years following the assignment, if the assignee has been prevented from using the land as assigned due to natural disasters or the breakdown of the irrigation system.


  5. For land assignments made for farming or pasture, "use as assigned" means clearing, planting, and irrigating farm lands and clearing and irrigating pasture land. Merely building and maintaining fences around the assigned area does not qualify as "use as assigned."

  6. The entering of final judgement by the Tribal Court in any foreclosure or eviction proceeding shall result in the automatic cancellation of the related land assignment and such land assignment shall be disposed of according to Sections 20-111 (b) and 20-112 of Article VII of this Chapter.

  7. If an assignee's home is located on a farming assignment and the farming assignment is canceled, the assignee may request and receive a residential assignment for the home site only.

Sec. 20-25. USE OF LAND ASSIGNMENT.
  1. Except as otherwise provided by the laws of the Tribe, assignments of land under this Article are rights of use and occupancy which shall be held for life or until relinquished by the assignee. Except as otherwise expressly provided by the laws of the Tribe, the relinquishment, expiration, cancellation, or other termination of a land assignment shall result in the reversion of the land to the Tribe.


  2. All mineral and subsurface rights and the right to take easements on Tribal lands shall be reserved to the Tribe.


  3. Unless the Tribal Council consents in a duly authorized Council Resolution or a specific exception of this Code explicitly authorizes otherwise, the following shall not be sold, devised, willed, inherited, or otherwise removed from the land by a retiring assignee as they will be considered part of the realty:


    1. Any structures, residences, homes, fences, or other improvements constructed or placed upon the land at Tribal expense (Homes conveyed subject to an Installment Contract may be conveyed pursuant to the terms of the Installment Contract and the applicable policies);

    2. Wells, including the curbing and casings;

    3. Concrete ditching;

    4. Mature trees and vines (not to include nursery stock);

    5. All native timber;

    6. Land, dirt, and rocks; or

    7. Any other property owned by the Tribe.

  4. Structures, homes, residences, and other improvements placed upon Tribal assigned land by the assignee or owned by the assignee shall be considered personal property of the person placing the improvements on the land and may be disposed of and removed from the land in the same manner as other personal property so long as the land is returned to a condition substantially similar to its condition at the time of assignment.

  5. Land assignments may not be sold, leased, or rented by assignees without the approval of the Tribal Council or authorized representative of the Tribal Council, but may be mortgaged or otherwise encumbered to secure a loan for the sole purpose of improving the land assigned in conformance with the use as assigned.

  6. A land assignment may not be devised, willed, inherited, or otherwise transferred from one person to another, however:

    1. If an assignee dies and the spouse of the deceased assignee is a member of the Tribe, the surviving spouse may continue to occupy the assigned homesite.

    2. If an assignee dies and the spouse of the deceased assignee is a nonmember of the Tribe, the surviving spouse may continue to occupy the assigned homesite with special written permission from the Tribal Council;

    3. The Tribal Council may give preference in reassignments to descendants or relatives of the previous assignee;

    4. If the land assignment is mortgaged or otherwise encumbered as authorized by subsection (e) of this Section and the land assignment expires, is relinquished, canceled, or otherwise terminated, the Tribal Council shall (i) aid the mortgagee or other lender in replacing the assignee with a suitable purchaser, including the heirs of a deceased assignee, and assign the land assignment to such new purchaser in accordance with this Article; and/or (ii) execute a lease in favor of the mortgagee or other lender for the period remaining for the repayment of such mortgage or other loan; and

    5. If the land assignment (i) contains personal property which may not reasonably be disposed of or removed from the land, such as a house, and (ii) the Tribal Council does not reassign the land assignment to the heir or other descendant of the previous assignee, then the Tribe shall pay such heir or other descendant the reasonable market value of the personal property less any amounts remaining on any mortgage, installment contract, or other security interest. If the secured party is someone other than the Tribe, the balance owed on the personal property shall be paid to the secured party.

    6. Personal property which may not reasonably be disposed of or removed from the land, such as a house, shall not be devised, willed, inherited, or otherwise transferred to a nonmember of the Tribe except with express written permission of the Tribal Council.
(Sec. 20-26 - 20-30. Reserved.)




ARTICLE IV. LEASING

Sec. 20-31. DEFINITIONS.


As used in this Article:
  1. "Lease" means all tenancies and agreements, written, oral, or implied by law, including valid rules and regulations, embodying the terms and conditions concerning the use and occupancy of land and its buildings, structures, and fixtures thereon, any portion thereof, or any other real property.

  2. "Lessee" means any person or entity, including a sublessee or assignee, who occupies land or other real property under a lease and includes a tenant for residential property.

  3. "Lessor" refers to the Tribe or to any other person or entity who has a legal, beneficial, or equitable interest in land or other real property which for a limited time has been leased or rented to another; and the term lessor shall include any person or entity which has or leases land or other real property under an agreement or other arrangement whereby the lessee may, on certain conditions, obtain ownership of the occupied property at the end of occupancy under the agreement.

  4. "Premises" means land, real property, and/or any structures or parts thereof, existing facilities and appurtenances, including, but not limited to, furniture and utilities where applicable, grounds, areas, and existing facilities.


  5. "Rent" means payments to be made to the lessor in full consideration for the lease, rental, or use of the premises.

Sec. 20-32. TERMINATION OF LEASES.
  1. A lease from year to year terminates at the end of each year unless written permission is given to remain for a longer period. The permission shall specify the time the lessee may remain, and upon termination of such time the lease expires.


  2. A lease from month to month may be terminated by either the lessor or the lessee by giving at least thirty (30) days written notice thereof.


  3. When a lease is for a certain period, and the time expires, the lessee shall surrender possession. Notice to quit or demand of possession is not then necessary unless otherwise provided by the lease.

Sec. 20-33. EFFECT OF LESSEE HOLDING OVER.


When a lessee holds over and retains possession of a premises after the expiration of the term of the lease without express contract with the owner or lessor, the holding over shall not operate to renew the lease for the term of the formal lease, but thereafter the lease is month to month.


Sec. 20-34. RULES, REGULATIONS, AND POLICIES.
  1. A lessor, from time to time, may adopt rules, regulations, or policies, however described, concerning the lessee's use and occupancy of the premises. Such rules, regulations, or policies are enforceable against the lessee only if:

    1. They are reasonably related to the purpose for which adopted; and


    2. They are sufficiently explicit in prohibition, direction, or limitation of the lessee's conduct to fairly inform him of what he must or must not do to comply; and


    3. They apply to all lessees in or on the premises in a fair manner; and


    4. They are not for the purpose of evading the obligations of the lessor; and


    5. The lessee has notice of them at the time he enters into the lease.

  2. A rule, regulation, or policy adopted after the lessee enters into the lease is enforceable against the lessee if reasonable notice is given to the lessee and it does not work a substantial modification of his lease unless the lessee gives his voluntary express written consent to such a modification at the time of adoption of such rule, regulation, or policy.

Sec. 20-35. SUBLEASE AND ASSIGNMENT.


No sublease or assignment of a lease shall be valid without the express written consent of the lessor and the Tribe.


Sec. 20-36. MAINTENANCE OF PREMISES.


A lessee shall exercise diligence to maintain the premises in as good condition as when he took possession, ordinary wear and tear excepted.


Sec. 20-37. DAMAGES TO PREMISES.


The lessee shall be liable to the lessor for any removal or intentional and material alteration or damage of any part of the land, a building, the furnishings thereof, or any permanent fixture, by or at the instance of the lessee, other occupants, or persons on the leased property with lessee's consent, without prior permission of the lessor or his agent.


Sec. 20-38. FEDERAL LAW


All leases of Tribal Trust land must comply with all applicable mandatory provisions of federal law.

(Sec. 20-39. - 20-40. Reserved.)



ARTICLE V. RESIDENTIAL LANDLORD AND TENANT

DIVISION 1. GENERALLY

Sec. 20-41. APPLICABILITY.

This Article shall apply to all leases and other rental agreements for residential purposes such as houses, apartments, mobile homes and condominiums, but shall not apply to commercial or other leasing and assignments.


Sec. 20-42. DEFINITIONS.


As used in this Article:
  1. "Building and housing codes" means any law, ordinance, or regulation of the Tribe concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises.


  2. "Landlord" refers to the Tribe or to any other person or entity who has an interest in land or other real property which for a limited time has been leased or rented to another.

  3. "Premises" means any structures or parts of land or real property, existing facilities and appurtenances, including, but not limited to, furniture and utilities where applicable, grounds, areas, and existing facilities, except that such term shall never include the title or ownership interest in tribal, trust, or otherwise restricted land.


  4. "Rent" means payments to be made to the landlord in full consideration for the lease, rental, or use of the premises.

  5. "Rental agreement" means all tenancies and agreements, written, oral, or implied by law, including but not limited to, a lease, embodying the terms and conditions concerning the use and occupancy of a premises but shall not include a mortgage, installment contract, or other lien upon or loan secured by real property as those terms are defined in Section 20-102 of Article VII of this Chapter.

  6. "Security" means money or property given to assure payment or performance under a rental agreement.

  7. "Single family residence" means a structure maintained and used as a residence under a single rental agreement such as a house or trailer home, but not including residential structures commonly referred to as apartments or condominiums or any other such structure designed or used for the occupancy of several families or groups of occupants.

  8. "Tenant" means any person or entity who occupies land or other real property under a rental agreement.


  9. The terms "nuisance" and "waste" shall have the same meanings as those terms are defined in Section 20-81 of Article VI of this Chapter.

Sec. 20-43. PROHIBITED RENTAL AGREEMENTS AND PROVISIONS.
  1. Except with the express written approval of the Tribal Council, no rental agreement shall provide for the rental of a premises to any person or entity unless at least one tenant or occupant is an enrolled member of the Tribe.


  2. No rental agreement shall provide that the tenant agrees to any of the following:

    1. To waive or forego rights or remedies under this Article or under the laws of the Tribe;


    2. To the exculpation of limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.

  3. A rental agreement violating subsection (a) of this Section or a provision included in a rental agreement prohibited by subsection (b) of this Section shall be unenforceable.
(Sec. 20-44 - 20-50. Reserved.)




DIVISION 2. LANDLORD OBLIGATIONS

Sec. 20-51. SECURITY DEPOSITS.
  1. A landlord shall not demand or receive security, however denominated, including, but not limited to, prepaid rent, in an amount or value in excess of one and one-half month's rent. This subsection does not prohibit a tenant from voluntarily paying more than one and one-half month's rent in advance.


  2. Any deposits or security, if nonrefundable, must be so stated in writing by the landlord.


  3. Upon termination of the rental agreement, property or money held by the landlord as prepaid rent and security may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant's failure to maintain the premises as required by Section 20-61 of this Article all as itemized by the landlord in a written notice delivered to the tenant together with the amount due within fourteen (14) days after termination of the rental agreement and return of possession to the landlord by the tenant.


  4. Upon termination of the rental agreement, property or money held by the landlord as prepaid rent and security shall be refunded to the tenant within fourteen (14) days after termination of the rental agreement and return of possession to the landlord by the tenant excepting any of such property or money rightfully withheld for the purposes of subsection (c) of this Section.


  5. If the landlord fails to comply with subsections (b), (c), and (d) of this Section, the tenant may recover the property and money due him plus damages in an amount equal to twice the amount wrongfully withheld.This Section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this Article.

Sec. 20-52. DISCLOSURE AND TENDER OF WRITTEN RENTAL AGREEMENT.
  1. If there is a written rental agreement, the landlord must tender and deliver a signed copy of such rental agreement to the tenant and the tenant must sign and deliver to the landlord one fully executed copy of such rental agreement within a reasonable time after the agreement is executed. A form written rental agreement shall have all blank spaces completed.


  2. Noncompliance with this Section shall be deemed a material noncompliance by the landlord or the tenant, as the case may be, of the rental agreement.

Sec. 20-53. LANDLORD TO SUPPLY POSSESSION OF PREMISES.


At the commencement of the term of tenancy the landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and Section 20-54 of this Article. The landlord may bring an action for possession against any person wrongfully in possession as provided by this Article.


Sec. 20-54. LANDLORD TO MAINTAIN FIT PREMISES.

  1. The landlord shall:

    1. Comply with the requirements of applicable building and housing codes materially affecting health and safety and all other laws of the Tribe regarding land and other real property and its uses;


    2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;


    3. Keep all common areas, if any, of the premises in a clean and safe condition;


    4. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances supplied or required to be supplied by him;


    5. Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the premises and arrange for their removal; and


    6. Supply running water and reasonable amounts of hot water at all times, reasonable heat and reasonable air conditioning or cooling where such units are installed and offered, when required by seasonal weather conditions, except where the premises are so constructed that heat, air conditioning or cooling, or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection.

  2. The landlord and tenant of a single family residence may agree in writing supported by adequate consideration, that the tenant perform the landlord's duties specified in subsection (a) of this Section and also specified repairs, maintenance tasks, alterations and remodeling, but only if:


    1. The transaction is entered into in good faith; and


    2. The lessor delivers possession of the premises at the beginning of the term of the rental agreement in a healthy, safe, fit, and habitable condition.

Sec. 20-55. EXCLUSIONS AND EXCEPTIONS.
  1. Subsection (b), paragraph (2) of Section 20-43 of this Article shall not apply, except by express written agreement, to the Tribe as landlord.


  2. Section 20-54 of this Article shall not apply to land assignments under Article III of this Chapter.


  3. Nothing in this Article shall be construed as waiving the sovereign immunity of the Tribe or granting any right to recover costs, attorney's or advocate's fees, or other damages from the Tribe except that when the Tribe is landlord, the tenant may bring an action against the Tribe:


    1. To recover security wrongfully withheld as provided by subsection (e) of Section 20-51 of this Article provided the monetary damages permitted by such subsection (e) of Section 20-51 shall not be available; and

    2. For injunctive or declaratory relief for noncompliance by the Tribe as provided by subsection (b) of Section 20-71 of this Article provided the damages permitted by such subsection (b) of Section 20-71 shall not be available.
(Sec. 20-56 - 20-60. Reserved.)



DIVISION 3. TENANT OBLIGATIONS

Sec. 20-61. TENANT TO MAINTAIN PREMISES.

The tenant shall:
  1. Comply with all obligations primarily, imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;

  2. Keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit;


  3. Dispose from the premises all ashes, rubbish, garbage, and other waste in a clean and safe manner;


  4. Keep all plumbing fixtures on the premises or used by the tenant as clean as their condition permits;

  5. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances in the premises;

  6. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or commit waste or knowingly permit any person to do so;

  7. Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises nor cause a nuisance;

  8. Exercise diligence to maintain the premises in as good condition as when he took possession, ordinary wear and tear excepted;

  9. Comply with all other laws of the Tribe imposing obligations on tenants.

Sec. 20-62. ACCESS.
  1. The tenant shall not unreasonably withhold consent to the landlord to enter onto or into the premises in order to inspect the premises; make necessary or agreed repairs, decorations, alterations or improvements; supply necessary or agreed services; or exhibit the premises to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.

  2. The landlord may enter the premises without consent of the tenant in case of emergency.

  3. The landlord shall not abuse the right to access or use it to harass the tenant. Except in case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two (2) days notice of his intent to enter and enter only at reasonable times.
(Sec. 20-63 - 20-70. Reserved.)



DIVISION 4. REMEDIES

Sec. 20-71. NONCOMPLIANCE BY LANDLORD.
  1. Except as otherwise provided in this Article, if there is a material noncompliance by the landlord with the rental agreement or noncompliance with the landlord's obligations under this Article and not relieved by agreement of the parties pursuant to subsection (b) of Section-26-54 of this Article the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than fourteen (14) days after receipt of the notice if the breach is not remedied within ten (10) days. The rental agreement shall terminate and the premises shall be vacated as provided in the notice subject to the following:

    1. If the breach is remediable and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate; and


    2. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his family or other occupant of the premises, or other person on the premises with his consent.


  2. Except as provided in this Article and in addition to any right of the tenant arising under subsection (a) of this Section, the tenant may recover damages and obtain injunctive or declaratory relief for any noncompliance by the landlord with the rental agreement or the landlord's obligations under this Article not relieved by agreement of the parties pursuant to subsection (b) of Section 20-54 of this Article.

  3. If the rental agreement is terminated, the landlord shall return any and all security recoverable by the tenant under Section 20-51 of this Article.

  4. The provisions of subsection (b) of this Section providing for the recovery by the tenant of damages shall not apply to the Tribe as landlord.

Sec. 20-72. NONCOMPLIANCE BY TENANT.


Except as otherwise provided in this Article, the landlord's remedies shall be limited to an action for unlawful detainer in accordance with Article VI of this Chapter.


Sec. 20-73. LANDLORD'S LIEN FOR RENT.

  1. In the event a tenant defaults on the payment of rent, the landlord shall have a lien on all property of his tenant not exempt by the laws of the Tribe, placed upon or used on the leased or rented premises, until the rent is paid.

  2. The landlord may seize for rent any personal property of his tenant and other lawful occupants found on the premises, but the property of any other person, although found on the premises, shall not be liable therefor. If the tenant fails to allow the landlord to take possession of such property, the landlord may reduce the property to possession by an action to recover possession in Tribal Court, and may hold or sell the property for the payment of the rent.

  3. The landlord shall have a lien for rent upon crops grown or growing upon the premises, whether the rent is payable in money, articles of property, or products of the premises, and the lien shall continue for a period of six months after expiration of the term of the lease.

  4. When the premises are sublet or when the rental agreement is assigned, the landlord shall have the same lien against the sublessee or assignee as he would have against the tenant and may enforce the lien in like manner.
(Sec. 20-74 - 20-80. Reserved.)



ARTICLE VI. EVICTION
Sec. 20-81. DEFINITIONS.
  1. "Eviction" and "evict" mean the actual and forceful expulsion of a lessee from rented or leased premises and terminating such lessee's interest in such premises. Such terms shall not include a lessee surrendering the premises to the lessor after the termination of a lease due to the expiration of the term of the lease nor the lawful termination of the lease by the lessee.

  2. "Nuisance" is the maintenance on a premises of a condition which:

    1. Unreasonably threatens the health, safety, or welfare of the Tribe, its members, the public at large, or neighboring land users; or,

    2. Unreasonably and substantially interferes with the ability of neighboring property users to enjoy the reasonable use and occupancy of their property.

  3. "Unlawful detainer action" means a suit brought before the Tribal Court to terminate a lessee's interest in land or other real property and/or evict any person from occupancy of a premises.

  4. "Waste" means the spoil or destruction by a lessee of land, buildings, gardens, trees, or other improvements or natural occurrences which results in substantial injury to the lessor's interest in the premises or, when it is not the lessor, the tribe's interest in the premises; such term shall include any of the enumerated reasons set forth in subsections (b) and (c) of Section 20-24 of Article III of this Chapter constituting sufficient cause to cancel an assignment of land.

  5. "Writ of restitution" means an order of the Tribal Court:

    1. Restoring an owner or lessor to possession of real property and,

    2. Evicting a lessee or other occupant therefrom.

  6. The terms "lease," "lessee," "lessor," "premises," and "rent" shall have the same meanings as those terms are defined in Section 20-31 of Article IV of this Chapter, except that in the case of an eviction regarding a lease or other rental agreement for residential purposes, such terms shall have the same meanings as "rental agreement," "tenant," "landlord," "premises," and "rent," respectively, as those terms are defined in Section 20-42 of Article V of this Chapter.

Sec. 20-82. GROUNDS FOR EVICTION.


A lessee or other occupier of land may be evicted by his lessor in accordance with this Article if such person shall remain in possession of the premises under any of the following situations:
  1. Without the requirement of any notice, a lessor may utilize self-help eviction under the following circumstances:

    1. If such person has entered onto or remains on the premises of another without the permission of the owner and without having any substantial claim of a lease or other legal interest in the premises; or

    2. After the Tribe has canceled a person's land assignment pursuant to Section 20-24 of Article III of this Chapter; or

    3. Thirty (30) days after such person's interest in the premises has been foreclosed in a foreclosure proceeding in the Tribal Court pursuant to Article VII of this Chapter.

  2. After providing proper notice, a lessor may utilize self-help eviction under the following circumstances:

    1. When the lease has expired and the lessor has given notice, as required by the lease and otherwise in accordance with this Article, that the lease shall terminate at a time specified by the notice, but not less than thirty (30) days from the date of such notice; or

  3. When such person fails or continues to fail to keep or perform any material condition or covenant of the lease after he has been given notice and opportunity to remedy in accordance with this Article and the lease;

  4. When such person is in default in the payment of rent for at least ten (10) calendar days after the date such rent is due and has received at least five (5) days notice, in accordance with this Article, and such person has remained in possession after receipt of such notice without either surrendering possession of the premises or paying the rent;

  5. When such person continues to fail to comply with applicable rules, regulations, or policies after he has been given notice and opportunity to remedy in accordance with this Article provided that such rules, regulations, or policies shall comply with Section 20-34 of Article IV;

  6. When such person continues to commit or to permit waste upon or maintain a nuisance upon the occupied premises after having been given notice and opportunity to remedy in accordance with this Article;

  7. When such person has been convicted of a criminal offense where the activity of such criminal offense threatens the health, safety, welfare, or right of peaceful enjoyment of other residents of the community and no appeal is pending and he has been given notice, in accordance with this Article, that the lease shall terminate at a time specified by the notice, but not less than thirty (30) days from the date of such notice; or

  8. When such person has been convicted of a criminal offense regarding drugs on or near the premises and no appeal is pending and he has been given notice, in accordance with this Article, that the lease shall terminate at a time specified by the notice, but not less than thirty (30) days from the date of such notice.

Sec. 20-83. PROCEDURES FOR SERVICE OF NOTICE.

  1. Unless specifically mandated otherwise, notices required or authorized by subsections (b) through (i) of Section 20-82 or any other Section of this Article shall be given at least twenty (20) days prior to the lessor taking any authorized action and shall comply with subsection (b) of this Section. Such notices shall be given to the lessee by either:

    1. Delivering a copy personally to the lessee or occupier or to any adult member of his family resident on the premises; or

    2. Posting said notice in a conspicuous place near the entrance to said premises, and by sending an additional copy to the lessee or occupier by certified mail, return receipt requested, properly addressed, postage prepaid.

      Proof of service by either of the above methods may be made by affidavit of any adult person stating that he or she has complied fully with the requirements of one of the above methods of service.

  2. Notices required under this Article shall be in writing substantially in the following form:

    "I (or we) hereby give you notice that your are to quit possession or occupancy of the premises now occupied by you at (here insert the address or other reasonable description of the location of the premises), on or before the (here insert the date) for the following reason(s) (here insert the legally cognizable reason or reasons for the notice to quit possession using the statutory language or words of similar import). Signed, (here insert the signature, name and address of the lessor as well as the date and place of signing.)"

Sec. 20-84. DEFENSES.


One or more of the following shall constitute a sufficient defense, to the extent necessary to ensure justice, to any unlawful detainer action:
  1. Due to the fault of the lessor and no fault of the tenant, that the premises are untenable or uninhabitable such that they constitute a real and serious hazard to human health and safety and not mere inconvenience;

  2. That the lessor has failed or refused to make repairs which are his responsibility after a reasonable demand by the lessee to do so, without good cause, and such repairs are necessary for the reasonable enjoyment of the premises;

  3. That the lessor has failed or continued to fail to keep or perform any material condition or covenant of the lease after reasonable notice and opportunity to remedy;

  4. That the lessor has failed to keep or perform any obligations primarily imposed upon lessors by applicable provisions of building and housing codes materially affecting health and safety after reasonable notice and opportunity to remedy;

  5. That the lessee has remedied any default or otherwise rendered moot any alleged ground for eviction; or

  6. Any other material or relevant fact or legal defense the lessee presents which may demonstrate his eviction would be unjust and unfair.

Sec. 20-85. SETTLEMENT.

  1. After notice has been served on the lessee and anytime before the entering of a writ of restitution by the Tribal Court, a lessor and lessee may settle the matter between the parties without affecting their rights in any manner except as agreed upon. Such settlement may include, but is not limited to:

    1. The lessee voluntarily quitting the premises without the lessor filing an unlawful detainer action or the entering of a writ of restitution;

    2. The barter for services or goods, or any other means of securing a fair exchange of value for the use of the premises;

    3. The stipulation of a judgement to be entered by the Tribal Court; or

    4. The dismissal of the matter in exchange for any agreement reached.

  2. The Tribal Court may stay an unlawful detainer action, as necessary and just, where the parties have entered negotiations for settlement.

Sec. 20-86. ACTUAL EVICTION.

  1. A lessor or owner of real property may evict a lessee or other occupant only in accordance with this Article and only for the grounds specified in Section 20-82 of this Article.

  2. Except as otherwise provided by Section 20-82 (a) and (b), eviction of a lessee shall require the filing of an action in Tribal Court for unlawful detainer and the issuance of a writ of restitution pursuant to this Article.

Sec. 20-87. ACTION FOR UNLAWFUL DETAINER.


If the requirements of notice have been met and the lessee remains on the premises, a lessor or owner may commence an unlawful detainer action by filing with the Tribal Court, in compliance with the laws of the Tribe, the following:
  1. A complaint, signed and verified by the owner, lessor, authorized agent, or advocate:

    1. Naming the lessee and each occupant of the premises;

    2. Stating the facts on which he seeks to recover, including the alleged grounds for eviction;

    3. Containing a description of the leased or rented premises so that they can be identified with reasonable certainty;

    4. Stating any claim for damages or compensation due from the persons to be evicted;

    5. Having appended as exhibits true and correct copies of (i) the rental or other agreement between the parties, (ii) any and all notices required or authorized by Section 20-82 of this Article and the lease between the parties, and (iii) all other necessary documents; and

    6. Including an allegation that all relevant requirements and conditions prescribed in (i) any and all applicable laws, regulations, and policies, and (ii) the provisions of the lease have been complied with by the lessor.

  2. A summons issued as in other cases requiring the defendants to appear for trial upon the complaint.

  3. When a complaint is filed in the Tribal Court, it shall be immediately presented to a judge of the Tribal Court. This shall be on the date of the filing, or, if no judge is present, on the first regular Court day after filing or when a judge may first be found. The judge shall review the complaint and shall, if it appears in compliance with subsection (a) of this Section and served as set forth in Section 20-83 of this Article, issue an order of the Court requiring the defendant named in the complaint to appear before the Court on a certain date to contest such complaint. The date for appearance for answering the complaint shall be no less than (5) calendar days after the date of the order in matters involving serious nuisance or fifteen (15) calendar days in all other cases.

Sec. 20-88. SERVICE OF PROCESS AND PROCEDURE.


Unless specifically provided otherwise in this Article, the laws of the Tribe governing service of process and all other matters relating to the conduct of Tribal Court proceedings shall apply to any unlawful detainer action under this Article.


Sec. 20-89. COMMENCEMENT OF PROCEEDINGS.

  1. If the lessee appears before the Tribal Court in person or in writing to test the complaint, the Court shall set a hearing date. Any written response shall state any defenses or factual disputes and where any defendant appears in person, a written response shall be served upon the plaintiff within ten (10) calendar days of any hearing, excluding weekends and holidays.

  2. The Tribal Court shall set a hearing date which is no more than fifteen (15) calendar days following the date for appearance, except when the hearing date would fall on a weekend or holiday, and in such a situation, on the first regular Court day following that date.

  3. A defendant may, for good cause shown, and upon payment of a reasonable sum for the fair rental value of the premises between the date on which the complaint was filed and the date of hearing, obtain an extension of time, beyond the fifteen (15) day period. The Tribal Court may refuse to extend the date of hearing where the complaint is based upon nuisance provided in Section 20-82 (f), and shall not extend the date of hearing where the complaint is based upon conduct which is alleged to constitute a serious danger to public health, safety, or peace.

  4. The Tribal Court may, in its discretion, on motion from the lessor order the lessee to pay into the Court rents for the use and occupancy of the premises during the pendency of the action for unlawful detainer.

Sec. 20-90. EVIDENCE.


Evidence in proceedings under this Article shall be informal, and may include relevant and reliable hearsay evidence if such evidence is not the basis for the final decision. The books and records of the parties as to the payment or nonpayment of monies owed will be received in evidence and the files and business records of the lessor with respect to the agreement of the parties will be received in evidence upon their presentation to the Tribal Court provided that a lessee may examine the custodian of such records as to their contents. All hearings will be informal and designed to receive evidence in a fair and just manner.


Sec. 20-91. POWER OF THE TRIBAL COURT.

  1. After the commencement of an unlawful detainer action under this Article, provided the parties have not settled, the Tribal Court shall enter a writ of restitution if:

    1. Notice of suit and trial is given by service of summons and complaint in accordance with the procedures provided by the laws of the Tribe, including this Chapter; and

    2. The Tribal Court shall find (i) that the lessee has received notices as required by and in accordance with this Article; (ii) that the lessor has complied with all applicable laws, regulations, and policies and the lease; and (iii) that one or more grounds for eviction enumerated in Section 20-82 of this Article actually and truly exists without a valid defense of the lessee.

  2. Upon issuance of a writ of restitution or a finding for the lessor or owner, in whole or in part, the Tribal Court shall have the authority to enter against the defendant a judgment ordering any of the following:

    1. The payment of back rent; unpaid utilities; charges due the Tribe or land owner under any rental or other occupancy agreement (not including a mortgage, installment contract, or other loan secured by real property, as those terms are defined in Section 20-102 of Article VII of this Chapter); damages caused by the defendants to the premises other than ordinary wear and tear; and damages required by the lease, if any are so provided, or this Chapter;

    2. The performance of any obligation required by law; and

    3. Any other necessary and just relief.

  3. Upon a finding for the defendant, in whole or in part, the Court shall have the authority to enter against the lessor or owner a judgement ordering any of the following:

    1. The payment of damages for injury caused by the lessor or required by the lease, if any are so provided, or this Chapter, except where such damages would be awarded against the Tribe without its express and unambiguous consent;

    2. Possession of the premises by lessee;

    3. The performance of any obligation required by law; and

    4. Any other necessary and just relief.

  4. The Tribal Court shall have the authority to award to the prevailing party his costs and reasonable advocate's fees in bringing suit, except where such costs and advocate's fees would be awarded against the Tribe without its express and unambiguous written consent.

Sec. 20-92. STAY OF EXECUTION.


After the entry of a writ of restitution against a lessee, such lessee may apply to the Tribal Court for a stay of execution of such writ if, within five (5) days of the judgement being entered, the lessee establishes:
  1. Good and reasonable grounds affecting the well-being of the party are stated;

  2. There would be not substantial prejudice or injury to the lessor or owner during the period of the stay;

  3. Execution of the writ of restitution could result in extreme hardship for the lessee; or

  4. A bond is posted or monies paid to the Tribal Court to satisfy the judgement or pay for the reasonable use and occupancy of the premises during the period of the stay.

Sec. 20-93. ENFORCEMENT.


Upon issuance of a valid and final writ of restitution by the Tribal Court, tribal law enforcement officers shall enforce such writ of restitution, as necessary, by evicting the defendants and their property from the premises which are unlawfully occupied unless the lessee has applied for, without rejection, or actually obtained a stay of execution from the Tribal Court.


Sec. 20-94. APPEALS.


The laws of the Tribe governing appeals shall apply to any unlawful detainer action permitted under this Article.


Sec. 20-95. EXCLUSIONS AND EXCEPTIONS.


This Article shall not apply to land assignments.

(Sec. 20-96 - 20-100. Reserved.)



ARTICLE VII. MORTGAGES/INSTALLMENT CONTRACTS AND FORECLOSURE.

Sec. 20-101. APPLICABILITY OF ARTICLE.

This Article shall apply to any and all mortgages of real property and households, whether of a leasehold, land assignment, or other interest in real property; any and all installment contracts for the purchase of a household, real property, or any interest therein; any and all liens upon real property or any interest therein; and any and all loans secured, directly, indirectly, or collaterally, by real property or any interest therein. Reference to "mortgage or installment contract" shall include any lien upon real property or any interest therein as well as any loan secured, directly, indirectly, or collaterally, by real property or any interest therein and reference to "mortgagor or purchaser" and "mortgagee or seller" shall include the parties to any such lien or loan. This Article shall not apply to any mortgages of, liens upon, installment contracts for the purchase of, or loans secured by personal property.

For purposes of the remedies provided by this Article, "households" or "homes" shall be considered "real property" even though other sections of this code classify households and homes as personal property. For purposes of federal leasing law, households shall be considered personal property.


Sec. 20-102. DEFINITIONS.


As used in this Article:
  1. "Foreclosure proceeding" means a proceeding in the Tribal Court to foreclose the interest of the mortgagor or purchaser, and each person or entity claiming through the mortgagor or purchaser, in a mortgage or installment contract and in the real property for which such mortgage or installment contract has been given.

  2. "Guarantor" means a person or entity who secures, insures, or guarantees the unpaid amount and/or interest due on a mortgage or installment contract as to the mortgagee or seller. Unless provided otherwise, such person shall have the same rights and liabilities as the mortgagee or seller to bring a foreclosure action under this Article against a mortgagor or purchaser.

  3. "Installment contract" means an agreement by which a purchaser agrees to make periodic payments toward the purchase of a household or other real property to a seller and such term shall include the sale of homes by the Tribe to its members.

  4. "Land assignment" means the assignment of tribal or restricted land pursuant to Article III of this Chapter.

  5. "Lease" means an agreement or other arrangement other than a land assignment or license, whether oral, written, or implied by law, providing for the use and occupancy of tribal or restricted land.

  6. "Lessor" means the Tribe or other beneficial or equitable owner of tribal or restricted land under a lease or the heirs, successors, executors, administrators, or assigns of such lessor.

  7. "Mortgage" means the mortgage of an interest in real property or a household, including leasehold interests and land assignment interests, given to secure a loan whether or not guaranteed by a third entity and such term shall include any lien upon real property or any interest therein as well as any loan secured, directly, indirectly, or collaterally, by real property or any interest therein.

  8. "Mortgagee" means the person or entity who takes or receives a mortgage, such as a bank, mortgage company, or other lender, or the successor in interest of any such person or entity and such term shall include any person or entity who holds a lien on real property or grants a loan secured by real property, or the successor in interest of any such person or entity.

  9. "Mortgagor" means the person or entity who is the debtor for a mortgage or other lien on or loan secured by real property.

  10. "Purchaser" means a person or entity who buys, purchases, or otherwise receives a household or real property from another under an installment contract or the heirs, successors, executors, administrators, or assigns of such person or entity.

  11. "Real property" means all improvements and fixtures upon land, including crops grown or growing upon land; that which is incidental or appurtenant to land; all rights, interests, privileges, easements, and encumbrances relating to land, including tenancies and liens of judgement, mortgage, or otherwise; and any portion of these, except that such term shall never include subsurface rights or the title or ownership interest in tribal, trust, or otherwise restricted land.

  12. "Seller" means the person or entity who vends, sells, or otherwise transfers real property or a household to another under an installment contract or the successor in interest of such person or entity.

  13. "Subordinate lienholder" means the holder of any lien, including a subsequent mortgage or installment contract, perfected subsequent to another mortgage or installment contract affecting the same real property provided that such term shall not include the Tribe with respect to any lien or claim it may have.

Sec. 20-103. EFFECT OF MORTGAGE OR INSTALLMENT CONTRACT.

  1. A mortgage or installment contract is a lien upon the real property used to secure the loan or debt, but does not create an estate, title, or other such interest in the real property for the mortgagee or seller. Such a lien does not entitle the mortgagee or seller to possession of the real property unless authorized by the express terms of the mortgage or installment contract or other provisions of this Chapter. In the case of the Tribe selling a household to a Tribal Member by an Installment Contract, in addition to the lien the Tribe shall retain the title to the household until all the conditions of that Agreement are satisfied.

  2. The mortgagee or seller receives as security the interest of the mortgagor or purchaser in the real property for which the mortgage or installment contract is given, including, but not limited to, the mortgagor's or purchaser's interest in the lease, land assignment, or other such instrument used to secure use and occupancy of the land, unless otherwise provided by agreement of the parties or limited by the laws of the Tribe. Such security shall not and may never include the title or ownership interest in any tribal, trust, or otherwise restricted land containing the real property used to secure the loan except when the Tribe is mortgagee or seller.

  3. A mortgagee or seller shall not receive as security more interest of the mortgagor or purchaser in such real property than is reasonably necessary, at the time of execution of the loan, to protect such loan in case of default. A mortgagee or seller may not foreclose upon any interest in real property not so reasonably necessary.

  4. A mortgage or installment contract shall specify the property or assets subject to the lien. A mortgagee or seller shall not receive a blanket mortgage or otherwise create a lien on all or a substantial portion of the property, real and personal, or assets of the mortgagor or purchaser. Any mortgage or installment contract which purports to create a lien on all or a substantial portion of the property, real and personal, or assets of the mortgagor or purchaser shall be unenforceable.

  5. The provisions of subsections (c) and (d) of this Section shall not apply to the Tribe as mortgagee or seller.

Sec. 20-104. PRIORITY.

  1. Except as otherwise provided by this Section, multiple liens on the same real property shall have priority in relation to one another according to the priority established by Section 20-13 of Article II of this Chapter.

  2. With the exception of any lien of the Tribe, any mortgage or installment contract which is secured for repayment by a guarantor shall be the first lien on the real property and all other liens on the real property not secured for repayment by a guarantor shall be subordinate to such mortgage or installment contract. If more than one lien on the real property is secured for repayment by a guarantor, they shall have priority in relation to one another according to the priority established by Section 20-13 of Article 11 of this Chapter.

Sec. 20-105. ACTION ON DEBT AND FORECLOSURE.

  1. A mortgagee or seller may elect between bringing an action on the debt or foreclosure of a mortgage or installment contract. If separate actions are brought on the debt and to foreclose the mortgage given to secure it, the mortgagee, seller, or other plaintiff shall elect which to pursue and the other shall be dismissed.

  2. A valid judgement entered by the Tribal Court in an action on the debt shall bar a subsequent foreclosure involving the same mortgage or installment contract to the extent the original action on the debt would bar a subsequent action on the debt. Likewise, a valid foreclosure of the Tribal Court shall bar a subsequent action on the debt involving the same mortgage or installment contract.

  3. Mortgages and installment contracts shall be foreclosed by action in the Tribal Court.
Such Tribal court judicial foreclosure shall be the only lawful and valid method of foreclosure.


Sec. 20-106. FORECLOSURE PROCEEDINGS.


Upon the default of the mortgagor or purchaser under a mortgage or installment contract, the mortgagee, seller, or other appropriate person or entity may commence a foreclosure proceeding by filing with the Tribal Court, in accordance with the laws of the Tribe, the following:
  1. A complaint, signed and verified by the mortgagee, seller, or other appropriate person or entity or their authorized agent or advocate:

    1. Naming the mortgagor or purchaser and each person or entity claiming through the mortgagor or purchaser subsequent to the recording of the mortgage or installment contract, including each subordinate lienholder, as a defendant;

    2. Containing a description of the household, land and real property so that it can be identified with reasonable certainty;

    3. Stating the facts concerning (i) the execution of the lease or land assignment and the mortgage or installment contract; (ii) the recording of the mortgage or installment contract; (iii) the alleged default of the mortgagor or purchaser; and (iv) such other facts as may be necessary to constitute a cause of action;

    4. Having appended as exhibits true and correct copies of each promissory note, lease or land assignment, mortgage or installment contract, or assignment thereof relating to the land and property; and

    5. Including an allegation that all relevant requirements and conditions prescribed in (i) any and all applicable laws, regulations, and policies, and (ii) the provisions of the mortgage or installment contract have been complied with by the mortgagee or seller.

  2. A summons issued as in other cases requiring the mortgagor or purchaser and each other defendant to appear for a trial upon the complaint.

Sec. 20-107. SERVICE OF PROCESS AND PROCEDURE.


The laws of the Tribe governing service of process and all other matters relating to the conduct of Tribal Court proceedings shall apply to any foreclosure proceeding under this Article.


Sec. 20-108. CERTIFIED MAILING TO TRIBE AND LESSOR.


In any foreclosure proceeding where the Tribe or the lessor is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribe and to the lessor by certified mail, return receipt requested, within five (5) days after the issuance of the summons, but not less than twenty (20) days prior to the date set for trial.


Sec. 20-109. INTERVENTION.


The Tribe or any lessor may petition the Tribal Court to intervene in any foreclosure proceeding under this Article. Neither the filing of a petition for intervention by the Tribe, nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe.


Sec. 20-110. CURE OF DEFAULT BY TRIBE OR SUBORDINATE LIENHOLDER.


Prior to the entry of a judgement of foreclosure, the Tribe, any mortgagor, any purchaser, or any subordinate lienholder may cure the default under the mortgage or installment contract. Any subordinate lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by such subordinate lienholder to cure the default plus interest on such amounts at the rate stated in the note, if any are so stated, for the mortgage or installment contract. If the Tribe shall cure the default, it shall thereafter have a lien on the real property for the amount of all payments made by the Tribe to cure the default plus interest on such amounts at the rate stated in the note, if any are so stated, for the mortgage or installment contract.


Sec. 20-111. POWER OF THE TRIBAL COURT.


After the commencement of a foreclosure proceeding under this Article, if the alleged default has not been cured and if the Tribal Court should find for the mortgagee or seller, the Tribal Court shall enter judgement:
  1. Foreclosing, as the case may be, the interest of the mortgagor or purchaser and each other defendant named in the complaint upon whom proper and timely service has been made, including each such subordinate lienholder, in the mortgage or installment contract subject of the proceeding and in the real property for which such mortgage or installment contract has been given; and

  2. In the case of a land assignment, canceling such land assignment pursuant to subsection (f) of Section 20-24 of Article III of this Chapter and temporarily transferring such land assignment to the mortgagee, seller, or other appropriate person or entity, including but not limited to, the guarantor, if any, for a specified period of time reasonably necessary for such prevailing party to enter into a new mortgage or installment contract for the real property foreclosed upon, but under no circumstances to exceed one year provided that if such mortgagee, seller, or other appropriate person is the Tribe, the land assignment shall be canceled and revert back to the Tribe. Such transfer of a land assignment shall operate to evict the assignee and all other occupants; and/or

  3. In the case of a lease and all other interests used to secure the mortgage or installment contract, transferring such lease and other interests to the mortgagee, seller, or other appropriate person or entity, including but not limited to, the guarantor, if any. Such transfer of a lease shall operate to evict the lessee and all other occupants.

Sec. 20-112. REASSIGNMENT.

  1. After a land assignment has been canceled and transferred to the mortgagee, seller, guarantor, or other appropriate person or entity not the Tribe in a foreclosure proceeding pursuant to subsection (b) of Section 20-111 of this Article, the land assignment shall be reassigned as follows:

    1. The mortgagee, seller, guarantor, or other transferee holding a land assignment pursuant to a judgement in a foreclosure proceeding may enter into a new mortgage or installment contract or reassign the mortgage or installment contract subject of the foreclosure proceeding with or to a Tribal Member. In such a case, the Tribe shall reassign the related land assignment to the new mortgagor or purchaser in accordance with Article III of this Chapter.

    2. If the mortgagee, seller, guarantor, or other transferee holding a land assignment pursuant to a judgement in a foreclosure proceeding fails to enter into a new mortgage or installment contract or fails to reassign the mortgage or installment contract subject of the foreclosure proceeding within one year from the final judgement entered by the Tribal Court in the foreclosure proceeding or a lesser time as provided in the judgement entered by the Tribal Court, then the related land assignment shall automatically revert back to the Tribe unless such mortgagee, seller, guarantor, or other transferee obtains an extension from the Tribal Council upon good cause shown.

  2. After a lease or other interest has been canceled and transferred to the mortgagee, seller, guarantor, or other appropriate person or entity, except for the Tribe, in a foreclosure proceeding pursuant to subsection (c) of Section 20-111 of this Article, the lease or other interest shall be transferred, sold, or assigned only to the Tribe or a member of the Tribe.

Sec. 20-113. NO REDEMPTION.


There shall be not right of redemption in any foreclosure proceeding.


Sec. 20-114. NO DEFICIENCY JUDGEMENT
.

No deficiency judgement shall be entered in any foreclosure proceeding.


Sec. 20-115. REMEDIES EXCLUSIVE.


The remedies provided under this Article are the exclusive remedies for default upon any mortgage, installment contract, or any other lien upon or loan secured by real property.


Sec. 20-116. NO MERGER.


There shall be no merger of interests in real property by reason of the execution of a lease, a land assignment, a mortgage, or an installment contract or the assignment or assumption of the same, including an assignment adjudged by the Tribal Court, or by operation of law, except as such merger may arise upon satisfaction of the mortgage or installment contract.


Sec. 20-117. APPEALS.


The laws of the Tribe governing appeals shall apply to any foreclosure proceeding under this Article.

(Sec. 20-117 - 20-130. Reserved.)



ARTICLE VIII. EMINENT DOMAIN

Sec. 20-131. DEFINITIONS.

As used in this Article:
  1. "Condemnation" means the process and actual taking of property or interest therein, temporarily or permanently, for public or quasi-public use through the power of eminent domain.

  2. "Condemnee" means the owner, assignee, lessee, tenant, authorized occupant, or other holder of property or interest therein taken by condemnation.

  3. "Eminent domain" means the power of the Tribe to condemn property for public or quasipublic use.

  4. "Property" means all lands, including improvements and fixtures thereon; lands under water; surface and subsurface rights; every estate, interest, and right, legal or equitable, in lands, water, or the subsurface; all rights, interests, privileges, easements, and encumbrances relating thereto, including tenancies and liens of judgement, mortgage, or otherwise; and any portion of these.

Sec. 20-132. PURPOSES FOR WHICH EMINENT DOMAIN MAY BE EXERCISED
.

Subject to the provisions of this Article and any other applicable law, the right of eminent domain may be exercised by the Tribe for the following uses:
  1. Buildings and grounds for any public or quasi-public use of the Tribe including, but not limited to, economic enterprises of the Tribe;

  2. Reservoirs, canals, aqueducts, flumes, ditches or pipes, whether public, quasi-public or private, for conducting water for the use of the Tribe or the inhabitants of the territory of the Tribe or for drainage of any area within the territory of the Tribe;

  3. Raising the banks of streams, removing obstructions therefrom, or widening, deepening, or straightening their channels;

  4. Highways, toll roads, byroads leading from highways to residences and farms and other byroads, plank and turnpike roads, streets, alleys, and any other roads or ways for the use or benefit of the Tribe or its inhabitants;

  5. Telegraph and telephone lines and conduits for public communication;

  6. Electric light and power transmission lines, pipe lines used for supplying gas or waste disposal, and all transportation, transmission and intercommunication facilities;

  7. Aviation fields; and

  8. All other public and quasi-public uses.

Sec. 20-133. PREREQUISITES TO TAKING PROPERTY BY CONDEMNATION.


Before property may be condemned, it shall appear that:
  1. The use to which the property is to be applied is a use authorized by the laws of the Tribe;

  2. The taking is necessary to such use, provided the word "necessary" as used in this subsection shall not be interpreted to mean the only possible option or alternative, but shall mean a viable solution to a problem or opportunity; and

  3. If the property is already appropriated to some public or quasi-public use, the public or quasi-public use to which it is to be applied is a more necessary public or quasi-public use.

Sec. 20-134. PROPERTY SUBJECT TO CONDEMNATION.


Property which may be taken includes:
  1. All property belonging to, assigned to, leased, or occupied by any person or entity;

  2. Property appropriated to public or quasi-public use;

  3. All easements and rights of way;

  4. All rights of use, entry upon, and occupation of property;

  5. The right to remove or take earth, gravel, stone, trees, and timber from property;

  6. A use in the water of a stream, river, or spring; and

  7. All types of and interests, estates, and rights in property, private or otherwise, not enumerated.

Sec. 20-135. RIGHT OF TRIBE TO ENTER AND SURVEY PROPERTY.

  1. Where property is required for public or quasi-public use, the Tribe, or its authorized agents in charge of such use, may survey and locate property most appropriate for such use.

  2. Upon at least ten (10) days notice, the property may be entered upon to make examinations, surveys, and maps thereof, and the entry constitutes no cause of action in favor of the condemnees of the property.

Sec. 20-136. PROCEDURES FOR CONDEMNATION.

  1. All condemnations shall be authorized by resolution of the Tribal Council approved by a majority vote of the council members present provided such present council members constitute a quorum as required by the Constitution of the Tribe.

  2. The Tribal Council, before taking any action in condemning any property or interest therein, shall post notice thirty (30) days before the proposed action is to be taken at the Tribal Office and on the property itself so that interested persons will have an opportunity to appear before the Tribal Council to support or oppose the proposed action.

  3. Before condemning any property or interest therein, the Tribal Council shall make specific findings that:

    1. The purpose for which the property is to be taken is authorized by this Article;

    2. The prerequisites to taking property by condemnation under this Article have been met; and

    3. The property is subject to condemnation under this Article.

  4. The final resolution of the Tribal Council condemning the property shall include at least:

    1. A description of the property to be condemned;

    2. The specifics of the findings required by subsection (c) of this Section; and

    3. If applicable, a specific amount of fair and just compensation to be paid any condemnees of the property.

Sec. 20-137. ENFORCEMENT.


Upon issuance of a valid resolution condemning property or any interest therein by the Tribal Council, tribal law enforcement officers shall enforce such resolution, as necessary, by removing the condemnees, if any, and their personal property from the condemned property.

(Sec. 20-138 - 20-140. Reserved.)



ARTICLE IX. REPOSSESSION OF PERSONAL PROPERTY.

Sec. 20-141. APPLICABILITY.

This Article shall apply to the repossession of personal property only and shall not apply in any manner to households, land, or other real property.


Sec. 20-142. DEFINITIONS.


As used in this Article:
  1. "Credit" means the right granted by a creditor to a purchaser or debtor to defer payment of debt or to incur debt and defer its payment.

  2. "Creditor" means the person or entity who extends to another credit secured by personal property or the successor in interest of any such person or entity.

  3. "Debtor" means the person or entity who owes payment or other performance of an obligation secured by personal property, whether or not the purchaser owns or has rights in the personal property or the heirs, successors, executors, administrators, or assigns of such person or entity.

  4. "Personal property" means all things which are movable at the time credit is given and secured by such things and which in fact serve as security for credit granted or otherwise for the payment or performance of an obligation, but does not include money, documents, instruments, accounts, chattel paper, general intangibles, contract rights, and other things in action. Such term shall include the unborn young of animals and growing crops.

  5. "Repossession proceeding" means a proceeding in the Tribal Court:

    1. To recover personal property sold on credit; and

    2. To receive authorization to remove such personal property from the territory of the Tribe.

Sec. 20-143. ACTION ON DEBT OR REPOSSESSION OF PERSONAL PROPERTY.

  1. A creditor may elect between bringing an action on the debt or repossession of personal property. If separate actions are brought on the debt and to repossess the personal property, the creditor shall elect between which to pursue and the other shall be dismissed.

  2. A valid judgement entered by the Tribal Court in an action on the debt shall bar a subsequent repossession proceeding involving the same debt on the same personal property to the extent the original action on the debt would bar a subsequent action on the debt. Likewise, a valid judgement entered by the Tribal Court in a repossession proceeding shall bar a subsequent action on the debt involving the same debt on the same personal property.

Sec. 20-144. REPOSSESSION OF PERSONAL PROPERTY.


A creditor shall not remove personal property within the jurisdiction or territory of the Tribe except in strict compliance with the following:
  1. When valid written consent to remove the personal property from the territory of the Tribe has been secured from the debtor at the time repossession is sought. Any language contained in a purchase agreement or other such agreement used to secure personal property purporting to authorize the removal of the personal property from the jurisdiction or territory of the Tribe shall be null and void and unenforceable. Such written consent shall be retained by the creditor and exhibited to the Tribal police or other Tribal official upon proper demand. The Tribal Council may consent to removal in an original agreement on behalf of the Tribe, but such authorization to remove must also be specifically stated in the duly authorizing resolution of the Tribal Council to be effective.

  2. When the debtor refuses to sign said written consent to permit removal of the property from the territory of the Tribe, the property shall be removed only by a valid repossession order of the Tribal Court obtained in a repossession proceeding and such order shall be exhibited to the Tribal police or other Tribal official upon proper demand.

Sec. 20-145. REPOSSESSION PROCEEDINGS.


Upon the default of a debtor, the creditor may commence a repossession proceeding in the Tribal Court by filing:
  1. A complaint, signed and verified by the creditor, authorized agent, or advocate:

    1. Naming the debtor and any other necessary persons as a defendant;

    2. Containing a description of the personal property so that it can be identified with reasonable certainty;

    3. Stating the facts concerning the alleged default of the debtor and such other facts as may be necessary to constitute a cause of action;

    4. Stating the desired relief, including the removal of the personal property from the territory of the Tribe;

    5. Having appended as exhibits true and correct copies of each promissory note or other agreement between the parties relating to the personal property; and

    6. Including an allegation that all relevant requirements and conditions prescribed in (i) any and all applicable taws, regulations, and policies, and (ii) the provisions of the promissory note or other agreement have been complied with by the creditor; and

  2. A summons issued as in other cases requiring the debtor and each other defendant to appear for a trial upon the complaint.

Sec. 20-146. SERVICE OF PROCESS AND PROCEDURE.


The laws of the Tribe governing service of process and all other matters relating to the conduct of Tribal Court proceedings shall apply to any repossession proceeding under this Article.


Sec. 20-147. CURE OF DEFAULT.


Prior to the entry of judgement and issuance of a repossession order, any debtor or other person or entity may cure the default of such debtor. If a person or entity other than the debtor cures the default, such person or entity shall thereafter have a lien on the personal property for the amount of all payments made by such person or entity to cure the default plus interest on such amounts at the rate stated in the note or other agreement between the creditor and debtor, if any are so stated.


Sec. 20-148. POWER OF THE TRIBAL COURT.


After the commencement of a repossession proceeding pursuant to this Article, if the alleged default has not been cured and if the Tribal Court should find for the creditor, the Tribal Court shall enter judgement and issue a repossession order:
  1. Terminating the interest in the personal property of the debtor and each other defendant named in the complaint upon whom proper and timely service has been made;

  2. Conveying such personal property to the creditor; and

  3. Permitting the creditor, if requested, to remove the personal property from the territory of the Tribe.

Sec. 20-149. NO DEFICIENCY JUDGEMENT.


No deficiency judgement shall be entered in any repossession proceeding.


Sec. 20-150. REMEDIES EXCLUSIVE.


The remedies provided under this Article are the exclusive remedies for the repossession of personal property and its removal from the territory of the Tribe.


Sec. 20-151. PENALTY FOR VIOLATION.

  1. Any nonmember of the Tribe found to be in willful violation of this Article may be excluded from the territory of the Tribe in accordance with the laws of the Tribe.

  2. Any business whose employees are found to be in willful violation of this Article may be denied the privilege of doing business within the territory of the Tribe and with the Tribe itself.

Sec. 20-152. CIVIL LIABILITY
.
  1. Any person who violates any provision of this Article and any business whose employee violates any provision of this Article is deemed to have breached the peace of the Tribe and shall be civilly liable to the debtor for any loss caused by the failure to comply with this Article. A debtor shall be entitled to actual damages and the statutory penalty as provided in subsection (b) of this Section.

  2. Any person who violates any provision of this Article shall be guilty of a civil offense, and a finding that this Article has been violated shall result in a fine or penalty of not less than five hundred dollars ($500) and no more than five thousand dollars ($5000).
(Sec. 20-153 - 20-160. Reserved.)








Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

Resolution No. Ft. McD 98-25


WHEREAS, the Tribal Council of the Fort McDowell Mohave-Apache Community desires to establish comprehensive procedures for recording of instruments affecting real property and homes; for the condemnation of property; for foreclosing upon mortgages, installment contracts, and other such loans secured by real property and homes; for the leasing of real property and homes and eviction therefrom; and for repossession of personal property; and

WHEREAS, the Fort McDowell Mohave-Apache Indian Community will be developing private ownership housing opportunities for its members and has prioritized the housing needs of the tribal members as one of the most important goals of the community; and

WHEREAS, the Tribal Council is aware that provisions for recording, eviction, foreclosure, and other provisions relating to property are necessary to aid in developing such private housing ownership opportunities; and

WHEREAS, the Tribal Council desires to codify the existing Land Ordinance and amend such ordinance for consistency with the new aforementioned comprehensive procedures and to aid in developing such private housing ownership opportunities.

NOW, THEREFORE, BE IT RESOLVED
that the Tribal Council hereby enacts the following Property Ordinance to be codified as Chapter 20, Property, of the Law and Order Code to:
  1. provide procedures for recording instruments affecting real property;

  2. establish procedures for and the lawful purposes of condemnation of property pursuant to the tribe's power of eminent domain;

  3. establish procedures for foreclosing upon leasehold mortgages, installment contracts, and other liens upon and loans secured by real property and homes;

  4. establish procedures for and define duties, responsibilities, and remedies regarding leasing and eviction;

  5. establish procedures for repossession of personal property and penalties for violation of such procedures; and

  6. assist in the development of private housing ownership opportunities.
CERTIFICATION
Pursuant to the authority contained in Article IV, Sections 1(a) and (i) and Sections 2(d) and (h) of the Constitution and Bylaws of the Fort McDowell Mohave-Apache Indian Community, ratified by the Tribe on October 3, 1936, and approved by the Secretary of the Interior of November 24, 1936, the foregoing Resolution No. Ft.McD 98-25 was adopted on this 27th day of April, 1998, at a Community Council Meeting held at the Fort McDowell Mohave-Apache Indian Community, at which a quorum of 5 members were present and 0 were absent by a vote of 4 for and 0 opposed and 0 abstained.

Clinton M. Pattea
President

Rozelda Duenas
Secretary
Tribal Council
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