A How-To Guide for Residential Landlords
Every residential landlord in Arizona needs to know the ins and outs of the Arizona Residential Landlord and Tenant Act, a series of laws designed primarily to protect residential tenants. Failing to comply with these laws can affect a landlord’s rights and, even worse, could leave a landlord defending a lawsuit if certain actions are taken that are deemed illegal by the law.
Create a Written Rental Agreement
Never enter into oral rental agreements. Your rental agreement should be in writing and establish the terms of the agreement, such as the amount of rent, number of occupants, length of occupancy, frequency of rent payments, a security deposit, etc. The rental agreement should also disclose the name and address of the person authorized to manage the premises, the name and address of the owner of the premises or the person authorized to act on behalf of the owner for receiving notices, and should also inform the tenant that a free copy of the Arizona Residential Landlord and Tenant Act is available through the Arizona Secretary of State’s office. A landlord should also regularly update this information for the tenant. A written rental agreement with all of the above information is very important to protecting your rights as a landlord.
A fully signed copy of the rental agreement should be completed before the tenancy begins. A landlord should make sure that all blanks have been filled in, and the rental agreement is complete. A fully signed copy of the rental agreement should be given to the tenant, and the landlord should maintain the original. It is very important to keep good records with the fully executed lease and all notices, should litigation ever be necessary.
Note: Any notice provisions in the lease that are longer than required by statute, must be followed by a landlord. For instance, if your lease provides for a 10-day notice of termination for non-payment of rent, the 10-day notice must be given even though the statute only requires 5 days’ notice. If lease terms are shorter than required by statute, the statutory provisions must be followed. All times noted below are the statutory minimums.
|Termination of the Rental Agreement|
If the tenant does any of the following, the rental agreement can be terminated immediately:
What to do:
Give the tenant written notice of the immediate termination of the rental agreement, state the reason for termination, and set a time period for the tenant to vacate the premises. Send the written notice by certified mail and post the notice on the door of the residence.
Note: If guests of the tenant were engaging in any of the listed activities, the tenant may nevertheless be responsible for the guests’ actions if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent the actions.
Note: It is very important for a landlord to obtain verifiable information before terminating a lease for these reasons. Copies of police reports, signed statements of witnesses, and any other information should be collected and maintained in the tenant file.
If the tenant omits or falsifies any of the following information on the rental agreement, the lease has been breached and the rental agreement can be terminated:
What to do:
Give the tenant written notice specifying what information was omitted or falsified, and write that if the tenant fails to fix the error within ten days, the lease will be terminated at the end of those ten days. Send the written notice by certified mail and post the notice on the door of the residence.
If the tenant’s omission or falsification materially affects health and/or safety, the tenant should be given five days to fix the error before termination.
If the tenant fixes the omitted or falsified statements within the time provided through modifying the rental agreement or paying the landlord damages, the rental agreement will not terminate. ONLY if the tenant fails to fix the omitted or falsified statements in a timely manner, will the rental agreement terminate.
Failure to Pay Rent
If the tenant fails to pay rent, the agreement may be terminated. However, the law provides a tenant a cure period for failure to make any rent payment, and there are certain procedures that must be strictly followed before a landlord can terminate a lease for the failure to pay rent.
What to do:
Give written notice stating an intent to terminate the rental agreement in five days, unless the rent is paid current with all late fees and penalties. Send the written notice by certified mail and post the notice on the door of the residence.
Special Detainer Actions:
For all of the above scenarios, the process is outlined for termination of a lease. Termination of a lease, however, does not end a residential landlord’s duties with regard to a tenant. Arizona law prevents forcible evictions of residential tenants in all circumstances. DO NOT LOCK-OUT THE TENANT! DO NOT TURN OFF UTILITIES!
Once a lease is terminated, a landlord may need to file a Special Detainer Action to complete the eviction process. Once a Special Detainer Action is filed, the court will issue a summons that informs the tenant when to appear in court for a hearing, and the hearing will be between three and six days from when the summons is issued. The tenant must be served with the summons at least two days before the hearing. The summons should be served by a process server who will attempt personal service and, if that fails, may post the summons conspicuously on the door of the tenant’s residence and send it by certified mail with return receipt to the tenant’s last known address.
Even if the tenant fails to show up in court, the court will hold the hearing and can enter judgment for possession, rent, damages, and attorney fees.
If the tenant pays the rent due or cures a default before a Special Detainer Action is filed, the rental agreement is generally reinstated. After filing a Special Detainer Action, the rental agreement can only be reinstated if all past-due rent, late fees, and court costs are paid by the tenant. Once judgment is entered, reinstating the rental agreement is solely at the landlord’s discretion.
Partial Rent Payments
The landlord is not required to accept a partial payment of rent. Often, a tenant who is having trouble paying rent offers to pay some of the rent due, but not all of it. If a landlord accepts a partial payment of rent, the landlord should prepare a contemporaneous written agreement specifying that the rent payment is a partial payment only, and it must provide the tenant a date to pay the balance in order to continue the tenancy. If a residential landlord accepts partial payment without a contemporaneous written agreement, the landlord gives up the right either to collect the rest of the rent at a later date or to begin any rent termination proceedings.
Abandonment of Property
The tenant is considered to “abandon” the rental property if:
- Rent is overdue for ten days, the tenant has been gone without notice for seven days, and there is no reason other than the presence of his personal property to believe that the tenant still lives there.
- The rent is overdue five days, the tenant has been gone for five days, and there is none of the tenant’s personal property left on the property.
In the event the tenant abandons the property, send a notice of abandonment by certified mail, return receipt to the tenant at his last known address and any other known addresses. Notice must also be posted on the door of the property for five days. After the notice time has passed, the landlord can re-rent the property at a fair rental value. Any security deposit is deemed forfeited by the tenant, and can be used by the landlord to pay for cleanup of the property as a result of the tenant’s abandonment.
If the tenant leaves personal property, the landlord may move and store the possessions in any storage space available on the premises, or off the premises if no such space is available. The landlord must hold the property for at least ten days after the abandonment notice. If the tenant does not claim the property, the landlord may sell the possessions and use the proceeds to pay any outstanding rent, legal costs, or any other costs incurred as a result of the abandonment. Any excess proceeds should be mailed to the tenant’s last known address.
It is very important that landlords keep all records of the sale and an accounting of any unpaid rent or other expenses that the sale proceeds were used to pay for at least 12 months after any such sale. If the excess proceeds are returned as undeliverable, the landlord must hold the proceeds for at least 12 months. Thereafter, the landlord may keep the proceeds.
After abandonment, the tenant cannot access abandoned property unless removal and storage costs are paid in full, except for any possessions required for trade, identification, medical care, etc. If the original lease allows, the landlord can destroy or dispose of any of the tenant’s abandoned property if the value of the property is so small to make sale or storage economically unfeasible. If the tenant reclaims the property in writing before the landlord sells or disposes of it, the tenant is responsible for physically reclaiming it within five days and must pay the landlord for the cost of moving or storing the property for that time.
|The Do Not’s for a Residential Landlord!|
|NEVER lock out or remove a tenant from the premises, unless as a result of an abandonment, as defined by the statute.|
|NEVER interrupt or cause interruption of electric, gas, water, or other utilities from the tenant.|
|NEVER forcibly remove a tenant or his possessions from the premises without a court order.Any of these acts provides the tenant grounds to sue a landlord. If a tenant is successful with the lawsuit, the tenant can recover damages in the greater amount of two months’ rent or twice the amount of damages caused by the landlord. Also, regardless of any unpaid rent or damage to the property, if the rental agreement ends up being terminated, the landlord must return any security deposit paid by the tenant at the outset of the rental term.|