Arizona Landlord's Deskbook (2nd edition)
Casler, Carlton C.
Selected Exerpts: Forward & Table of Contents
Table of Contents.
Intro Chapter.
Foreword
My sincerest thanks to the many loyal readers of the first edition of
the Arizona Landlord's Deskbook. Without your support, a second edition
would not be possible or necessary.
Arizona law clearly favors tenants, not landlords. I am a landlord --
just like you. You and I, as landlords, have a common bond; our interests
are in complete alignment. I have written the Arizona Landlord's Deskbook
(hereinafter Landlord's Deskbook) from a landlord's point of view. What
that means to you is that the recommendations contained herein are intended
to (and do) protect and benefit the landlord, not the tenant. After all,
it's us against them. Knowledge of the information revealed in this book
and implementation of the practices and procedures recommended in this book
will give you, the landlord, a distinct advantage. Most important,
however, the Landlord's Deskbook will help you own and/or manage
residential rental property profitably, with a minimum of problems, yet
remain well within the bounds of the law.
This book will tell you the law in Arizona as it applies to landlords
and tenants. It will tell you what you can do under the law and, more
importantly, what you cannot do under the law. But the Landlord's Deskbook
goes far beyond a mindless narration of Arizona law. I recognize, as do
you, that being a landlord is a business. As a businessman, I understand
that the law is only one element that a businessman will consider when
making a business decision. Therefore, in addition to the law, this book
will discuss some vitally important practical considerations that yield
desirable results. By way of illustration, consider the practical approach
to a "Real World" dilemma (Prologue).
This is the Second Edition of the Arizona Landlord's Deskbook. Changes
in the law and, especially, comments and requests from readers have
prompted a new and revised edition of the Landlord's Deskbook. My goal,
when writing this book, was to provide practical and useful answers for the
day-to-day problems that confront landlords. Toward that end, this edition
includes step-by-step instructions on how to evict a tenant, what notices
to send and when, how to fill out the forms, how to appeal if you lose, how
to collect your judgment, and, most important, how to avoid litigation in
the first place. Your continued comments, suggestions, requests, etc., are
appreciated and encouraged -- they let me know you are using this book and
help me to make subsequent editions more useful for you and others. See
Chapter 1, Section F, for information about submitting comments,
suggestions, etc.
PROLOGUE
Practical Approach to a "Real World" Dilemma
Most books and legal guides tell you what you can/cannot do under the
law. That is all well and good, but a mere recitation of the law does not
explain how to apply the law to the facts of the problem you have right
now. What most landlords want is a quick, inexpensive and practical answer
to their immediate problem. This book was written with those landlords in
mind and with an eye toward "real world" problems that actually happen
every day.
Consider this "hypothetical" situation. Your tenant tells you
that he has just lost his job, his car has broken down and he has one
dollar to his name. Assume that his rent is paid through the end of the
month (one week away). The only thing hypothetical about this situation is
the part about him voluntarily telling you this information before his rent
is overdue. As we both know, tenants never volunteer any information. In
truth, this is a very common "real world" scenario. Question - How do you
handle this all too common occurrence? Answer - There are two possible
solutions: (1) the legal solution and (2) the practical solution.
The Legal Solution: Give the appropriate notices and evict him when
he fails to pay next month's rent.
How long will this really take? You can't give him a notice to vacate
until his rent is overdue; rent is not yet overdue. Rent will again be
due on the first, but, let's face it, most rental agreements provide that
rent is not delinquent until after the fifth of the month (what does your
rental agreement say?). And most landlords won't do anything until rent
is delinquent. In truth, even if your rental agreement provides rent is
delinquent after the fifth of the month, rent is overdue (i.e., "unpaid and
due") on the second day of the month, and you may begin the eviction
process on that day. As a practical matter, however, most landlords won't
start the process until the sixth day of the month. Early on the day of
the sixth, you give him a Seven-Day Notice to Pay or Quit. Seven days
later (calendar days), not counting the day you served him with the
Seven-Day Notice, is the thirteenth day of the month. On the fourteenth
you file your forcible detainer action (actually called a "Special
Detainer" action). The justice court (most Special Detainer actions are
filed in justice court) gives you a court date not less than three days nor
more than six days away (not including the day you file the action), which
will inevitably include a weekend and possibly a holiday, which also are
not counted. That gives you a court date of the twenty-first. You go to
court on the twenty-first and receive a judgment for possession and past
due rent. The Writ of Restitution, which grants you the right of
possession of the premises, however, will not be issued until (you guessed
it) five business days later (not including the trial date and weekends).
You get your Writ of Restitution on the twenty-eighth. You immediately pay
the necessary fee to the Sheriff or constable to go out and "forcibly"
evict him. It is your lucky day and the Sheriff gets around to serving him
with the Writ the very next day (if you haven't already guessed, this is an
unlikely occurrence). It is now the twenty-ninth. But wait, the Sheriff
has learned through experience that once a tenant sees him at the door,
s/he will pack-up and leave. So the Sheriff goes to the door, the tenant sees
him and "swear" that he will be out tonight. The Sheriff will probably give the
tenant twenty-four hours to get out before actually executing the Writ. The
next day the tenant is either gone or the Sheriff forcibly removes him. It is
now the thirtieth day of the month. You are out thirty days rent, plus
whatever time it takes to make repairs and get the unit ready for the next
tenant. In addition, you are out the cost of filing the Special Detainer action,
the fee paid to the Sheriff and any administrative and legal fees. Incidentally,
you have made the last thirty days very unpleasant for this tenant; in return
you may anticipate that the amount of repairs that have become necessary
during the last thirty days will probably exceed "normal wear and tear."
The Practical Solution: Pay him to leave.
Remember, he is paid up through the end of the month. Tell the tenant
that if he is out at the end of this month and the unit is reasonably
clean, you will refund all his deposits (or, if he has no deposits, that
you will give him some amount of money, i.e., $100, $200, etc.). "Heresy,"
you exclaim! You are offended by the mere notion of paying this deadbeat
to get out. Remember, this is business. Take the course of least
resistance and the one that is most economical in terms of your time (which
I presume is worth something) and your money (don't forget the court costs,
process server, Sheriff's fee, etc.). Compare the two solutions:
o The legal solution gives you possession of the premises thirty days later
(maybe), a judgment against a deadbeat, the wonderful opportunity to spend
lots of time with those incredibly fast, efficient and courteous people down at
the courthouse and a month of headaches.
o The practical solution, on the other hand, gives you possession of the
premises on the first day of the month; with luck, the unit is even clean. In
any event, the deadbeat is gone and you can immediately put in a paying
tenant.
The decision is yours, as it should be. I will endeavor to give you
guidance as to what you may or must do under the law. But, I will also
tell you about other options available to you (which are also in accordance
with the law), that I have learned through time, practice and experience
that usually produce the best result. Nevertheless, you, as the landlord,
must make the ultimate decision.
The Author
Foreword
PROLOGUE: Practical Approach to a "Real World" Dilemma
CHAPTER
1. PRELIMINARY MATTERS
A. HOW TO GET THE MOST BENEFIT FROM THIS BOOK
B. WHAT THIS BOOK COVERS
C. WHAT THIS BOOK DOES NOT COVER
D. CONVENTIONS
E. CAVEAT FROM THE AUTHOR AND PUBLISHER
F. COMMENTS AND SUGGESTIONS; ERRORS
2. PREPARATION
A. GENERAL GUIDELINES FOR DOING BUSINESS
B. LEGAL ADVICE TO LANDLORDS
C. APPLICABILITY/SCOPE OF THE ARIZONA RESIDENTIAL
LANDLORD AND TENANT ACT
1. Exclusion #5 and the case of the on-site manager
2. Exclusion #7 - Public Housing
D. REVIEW/CREATE YOUR RENTAL AGREEMENT
1. Rental Agreement MUST's
(a) Disclosure of manager and owner or owner's agent
(b) Deliver a signed copy of the written rental agreement
(c) The written rental agreement must be complete
(d) Nonrefundable deposits must be stated in writing
(e) Rental agreements longer than one year must be written
2. Rental Agreement SHOULD's
(a) The rental agreement should be written
(b) The written rental agreement should be comprehensive
(c) The rental agreement should provide for abandonment
(d) The rental agreement should provide for payment of expenses
incurred to bring legal action
(e) The rental agreement should provide for payment of
"other expenses" incurred by the landlord
(f) The rental agreement should provide for the Tenant's
maintenance obligations
(g) The rental agreement should provide for inspections
(h) The rental agreement should address "reasonable"
modifications and alterations
(i) The rental agreement should provide how partial payments
are applied to amounts due
(j) The rental agreement should provide for a reasonable late
fee
3. Rental Agreement CANNOT's
(a) The landlord cannot require the tenant to waive the
tenant's rights, agree to pay attorneys' fees, or
agree to limit the landlord's liability
(b) The landlord cannot collect a security deposit equal
to more than one and one-half month's rent
4. Deposits
E. PREPARE YOUR OTHER FORMS
1. Tenant Applications
2. Tenant Information Sheet
3. Property Inspection Checklist
4. Personal Property Inspection Checklist
5. Notice to Terminate Tenancy
6. Disposition of Deposits
7. Seven-Day Notice to Pay or Quit
8. Complaint Form
9. Parking Violation
10. Miscellaneous notices
3. GETTING TENANTS
A. PREPARE UNIT FOR NEW TENANTS
1. Curb appeal
2. Interior appearance
3. Compliance with the law
4. Disclosure
B. ATTRACT APPLICANTS -- ADVERTISING
1. Free advertising
2. Paid advertising
C. SHOW THE PROSPECTIVE TENANTS THE UNIT
D. HAVE THE TENANTS FILL OUT THE APPLICATION
1. The First Application - Step 1 (The Form)
2. The First Application - Step 2 (Ask Questions)
3. The Second Application
E. SELECT THE BEST TENANT; REJECT ALL OTHERS
1. Discrimination
a. More about familial status
b. More about handicap
c. More about the Americans with Disabilities Act
d. Liability for the discrimination of others
2. Saying No
3. Saying Yes
F. TERM OF TENANCY
1. Exclusive, high dollar rental units
2. Low priced rental units
3. Mid-range units
4. MANAGING TENANTS EFFECTIVELY
A. THE ART OF EFFECTIVELY HANDLING TENANT PROBLEMS
1. Prevent tenant problems
2. Quickly and fairly resolve tenant problems
3. Tenant survey
B. COMMONLY RECURRING TENANT PROBLEMS
1. Continually late rent payments
2. "One time" or occasional past due rent
3. Noisy tenants
4. Neighbor conflicts
5. Parking problems
6. Security
7. Accidents and incidents
C. PROBLEM TENANTS
5. TERMINATING TENANTS AND EVICTIONS
A. NORMAL TERMINATIONS
1. Adequate notice
2. Damage to the unit
B. EVICTIONS
1. What CAN'T I do to evict a tenant?
2. What MAY I do, under the Act, to evict a tenant?
3. What notice must I prepare?
(a) Material noncompliance with rental agreement
(b) Noncompliance with the rental agreement materially
affecting health and safety
(c) Material and irreparable noncompliance
(d) Nonpayment of rent
4. How do I serve the notice?
5. Where do I file the Special Detainer action?
6. How do I actually file the Special Detainer action?
7. FINAL STEPS -- What to do AFTER the eviction process
a. Inspection
b. Security deposit
c. Lawsuit for damages
d. Obtain a Judgment
8. APPEALS
a. Appeal by the landlord
b. Appeal by the tenant and how to oppose the appeal
6. COLLECTING
A. LAWSUIT FOR DAMAGES
1. Which court?
(a) Special Detainer actions
(b) Other civil lawsuits
(c) Distinctions between the three courts
2. File the lawsuit
3. Service of the Summons and Complaint
4. Answer or default
5. Counterclaim
6. Disclosure statement
7. Trial date
8. Judgment
B. COLLECTION OF JUDGMENTS
1. Writs of Garnishment
2. Writs of Execution
3. Other states -- "full faith and credit"
QUICK REFERENCE SECTION
I. QUESTIONS AND ANSWERS
A. THE ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT
o Does the Act apply to me?
o Where does the Act apply?
o Does the Act apply to my on-site manager?
o Can I call all my tenants "on-site managers" and have the Act not
apply?
B. THE APPLICATION
o How do I get good tenants?
o May I discriminate against certain people when evaluating whether
or not to accept an applicant as a tenant?
C. FORMS
o What are the most important forms?
o Where do I get forms?
D. THE RENTAL AGREEMENT
o Is an oral rental agreement binding?
o What must, should and cannot be in a written rental agreement?
o Should I insist on a long-term lease or is month-to-month better?
E. DEPOSITS
o What is the maximum security deposit I can collect?
o Must I pay the tenant interest on his/her security deposit during
the time that I hold it?
F. COMMON TENANT PROBLEMS
o What legal advice can you offer landlords?
o What business advice can you offer landlords?
o How do I handle a noisy tenant?
o What are some other common problems and how do I handle them?
G. NONPAYMENT OF RENT
o What do I do when rent is late?
o How do I handle a tenant that repeatedly pays rent late?
o May I shut off the tenant's utilities for non-payment of rent?
o May I lock a tenant out of his/her unit and/or seize his/her
personal property for non-payment of rent?
o Can a tenant legally make repairs and deduct the cost of repairs
from his/her rent?
H. EVICTION
o How do I serve a notice to the tenant?
o When can I serve the Seven-Day Notice to Pay or Quit?
o What must be contained in the Seven-Day Notice to Pay or Quit for
the notice to be legally sufficient?
o Other than nonpayment of rent, what other basis is there for
evicting a tenant?
o How do I know whether a noncompliance is: a material noncompliance,
a noncompliance that materially affects health and safety, or an
immediate and irreparable breach?
o How do I evict a tenant?
o In which court do I file my Special Detainer action: small claims,
justice or superior court?
o How do I know which court has personal jurisdiction over the
tenants/defendants?
II. PROCEDURES
o What are the procedural steps for evicting a tenant?
1. Eviction Process for: Nonpayment of Rent
2. Eviction Process for: (1) Material Noncompliance with the
Rental Agreement; (2) Noncompliance with the Rental Agreement
that Materially Affects Health and Safety; and (3) Material and
Irreparable Breach of the Rental Agreement
o What do I do AFTER the eviction process?
o What are the procedural steps for issuing 7, 10, and 14-Day Notices
to tenants?
o What are the procedural steps for reclaiming an abandoned rental
unit?
o What are the procedural steps for conducting a public sale of
abandoned personal property?
o What are the procedural steps for collecting money from tenants?
o What if the tenant files bankruptcy?
APPENDICES
APPENDIX A - CHECKLISTS
1 - What to do when you have finished reading this book and are ready
to rent your units
2 - Review your rental agreement
3 - "Quick Start" for new landlords and "Checklist" for existing
landlords
4 - Getting Tenants
APPENDIX B - FORMS
FORM 1 - Tenant Application
FORM 2 - Tenant Information Sheet
FORM 3 - Property Inspection Checklist
FORM 4 - Notice (friendly reminder to tenant to pay rent on time)
FORM 5 - Agreement to Tender and Accept Partial Rent Payment
FORM 6 - Notice of Complaint/Violation
FORM 7 - Parking Violation
FORM 8 - Notice of Immediate Termination of Rental Agreement for
Material and Irreparable Breach
FORM 9 - Seven-Day Notice to Pay or Quit
FORM 10 - Ten-Day Notice of Termination of Rental Agreement for
Noncompliance with Rental Agreement Materially
Affecting Health and Safety
FORM 11 - Fourteen-Day Notice of Termination of Rental Agreement
for Material Noncompliance with Rental Agreement
FORM 12 - Notice of Termination of Rental Agreement or Intent Not
to Renew Periodic Tenancy (by landlord)
FORM 13 - Notice to Terminate Tenancy (by tenant)
FORM 14 - Disposition of Deposits
FORM 15 - Post Judgment Notice to Tenant
FORM 16 - Notice of Abandonment
APPENDIX C - STATUTES
Arizona Residential Landlord and Tenant Act
Landlord and Tenant Statutes
Forcible Entry and Detainer Statutes
APPENDIX D - JUSTICE COURTS OF ARIZONA
GLOSSARY
INDEX