If you have rental properties in Arizona and you are a do it your selfer, then listen up. If you haven't had problems with your tenants yet, then lucky you! If you have, then you’re the one that has had to deal with them when they go south, and I don't mean Mexico. I mean they stop paying rent, stop answering their phone and stop answering the door. I recently had the pleasure of dealing with this situation, and I can tell you there is a way to get your life and property back! I recently came across this article that I will post in sections. It is written by Arizona real estate attorney Norm Keyt titled How to Evict an Arizona Residential Tenant with a Special Detainer Lawsuit .
This article is for owners and property managers of residential real estate property, located in Arizona, who want to evict tenants themselves without hiring an Arizona attorney.
Investing in Arizona residential property can be a prudent strategy to increase your net worth. It can also generate monthly income, as long as your tenant pays the rent. When your tenant won't pay rent, you may need to take legal action to evict the tenant by filing a type of lawsuit called a special detainer.
This article explains the special detainer (eviction) process step by step. After we cover the eviction process, I will address a list of actions Arizona law prohibits landlords from taking against tenants when they stop paying rent. Then the article will describe a number of issues of special concern for Arizona residential real estate investors.
The Arizona Residential Landlord and Tenant Act
Arizona residential property owners' rights and obligations with respect to tenants are governed by the Arizona Residential Landlord and Tenant Act found in Arizona Revised Statues, Title 33, beginning at A.R.S. § 33-1301. The laws governing forcible detainer actions are found beginning at A.R.S. § 12-1171. The landlord tenant act calls an eviction a special detainer and says the process is the same as the forcible detainer laws found in Title 12 of the Arizona Statutes. The terms forcible detainer and eviction are often used interchangeably when referring to residential evictions.
The Forcible Detainer
If the tenant is late paying rent, landlords start the Arizona residential eviction process by providing the tenant with a written notice of default called a five day notice letter. At a minimum, the five day notice must tell the tenant that they are behind in the rent and state the amount of money the tenant must pay to cure the default. The notice must also tell the tenant, in clear language, that the lease will terminate unless the tenant pays the entire amount due on or before the expiration of five days from the date the tenant receives the five day notice. See my sample five day notice letter.
The landlord may demand payment of an amount of money in the five day notice letter that includes the past due rent and any penalties or late charges that are authorized in the lease between the landlord and the tenant. If the tenant pays the landlord all of the money demanded in the five day notice on or before the deadline for payment, the landlord must accept the money and continue to honor the lease. Remember, a lease is a contract to allow the tenant to occupy the leased premises as long as the tenant pays the agreed to rent and is not in default under any provisions of the lease.
If the tenant has committed some other type of material breach of the lease agreement, the landlord can give the tenant a “ten day notice letter.” This type of notice letter should clearly identify the breach of the lease and tell the tenant they must cure the material breach within ten days or the lease will terminate. If the tenant fails to cure the breach the landlord may file an Special Detainer lawsuit to evict the tenant.
How to Deliver the Notice to the Tenant
The landlord should take care to deliver the five day, or ten day, notice properly because if a lawsuit must be filed to evict the tenant, the landlord must be able to prove to the court that the tenant received the notice as required by law.
The best way to deliver the notice is to hand it directly to the tenant. You may also deliver the notice to a person of suitable age residing at or in charge of the leased premises. Handing the five day notice to the tenant's five year old daughter would not be acceptable, but handing it to his twelve year old daughter might be. Sometimes tenants won't come to the door when you knock. It is acceptable to post the notice conspicuously on the front door of the residence if you also send the notice by certified mail to the tenant the same day you post the notice.
Whoever delivers the five day notice should prepare a written statement that states, that the five day notice in the form of Exhibit A was personally delivered by the undersigned to [name of tenant or describe to whom the notice was given to] at [street address of leased premises] on [date of delivery] at [time am/pm]. Modify the text as necessary to describe exactly how and to whom the notice was delivered. The person who delivered the five day notice should sign and the document. It would help to have the signature notarized, but it is not necessary.
The landlord or the landlord's agent could deliver the notice, but also consider having the five day notice delivered by an independent third party or process server. The advantage in using a professional process server is that he or she will prepare an affidavit of service that you can present to the court and the affidavit will be difficult for the tenant to challenge.
Registered or Certified Mail
Arizona residential landlord tenant law also allows the landlord to deliver the five day notice by registered or certified mail. The law does not require that the certified mail be sent with a return receipt requested, but the best practice is to send the tenant certified mail, return receipt requested. If the tenant signs for the letter, the five day period begins to run the day of the signature. However, tenants frequently have creditors chasing them or routinely refuse to sign for a registered or certified letter. When the landlord sends the five day notice via registered or certified mail, the Arizona residential landlord tenant law provides that the tenant is deemed to have received the notice five days after the notice was mailed. So, when the five day notice is mailed to the tenant via registered or certified mail, the tenant who refuses to sign actually gets ten days to cure the default before the landlord can file a forcible detainer. The tenant is deemed to have received the notice five days after mailing, which means that the five day notice period begins on that date.
Proof of Mailing
A landlord who elects to send the five day notice via registered or certified mail must be able to prove to the court that the notice was, in fact, sent to the tenant via a registered or certified notice letter to the tenant. It is sufficient to prove receipt if you can show the court the Domestic Return Receipt (USPS form 3811), signed by the tenant or some other person of suitable age at the premises. The landlord will not have the Domestic Return Receipt when a tenant refuses to sign for the letter.
The landlord should always assume that the tenant will not sign the Domestic Return Receipt and be prepared to prove the date the landlord mailed the registered or certified letter to the tenant. The way to prove that five day notice was mailed registered or certified mail is to obtain a Receipt for Certified Mail (USPS form 3800) postmarked (stamped) by the United States Postal Service. It is possible to send a registered or certified letter without completing a form 3800, but do not do so. The landlord must present the Receipt for Certified Mail to the court to prove the date of mailing. The landlord or the landlord's agent must go to the U.S. Post Office, present the five day notice letter to the postal clerk at the service window and ask for and obtain a postmark on the Receipt for Certified Mail (USPS form 3800).
Tenant Fails to Cure the Default During the Cure Period
If the tenant does not pay all money due after receiving the five day notice, or cure a material breach within ten days of the notice, the landlord may file a forcible detainer lawsuit in the appropriate court to evict the tenant and get a judgment for the amount owed. Before filing a forcible detainer lawsuit, the landlord must make sure the tenant does not have a valid defense to the eviction lawsuit.
The forcible detainer action is limited in scope. The only issue that the court will decide is who has the right to possession of the premises. Generally, if the landlord has a written lease requiring rent payments or an established month-to-month tenancy and the tenant has not timely paid the rent, the landlord has the right to possess the leased premises. There are some exceptions set out in the law that can be a defense to a forcible detainer action for the tenant. A landlord should not file a forcible detainer lawsuit if the tenant has a valid defense.
Tenant's Possible Defenses to Eviction
A tenant may have a valid defense to a forcible detainer action if the landlord has not complied with the landlord's duties under the Arizona Residential Landlord and Tenant Act. Arizona law requires that a landlord maintain the premises in a fit and habitable condition. The landlord must comply with applicable health and safety codes, make repairs necessary to keep the premises in a fit and habitable condition, and maintain in safe working order electrical, plumbing, sanitation and any supplied air-conditioning or appliances.
Some residential rental property such as a single family home may allow the tenant to have exclusive control water and electricity supplied to the premises. A lease can specify that the tenant is responsible for obtaining and paying for water and electricity. If a lease does not specifically provide that the tenant is responsible for providing water and electricity to the premises, the landlord is obligated to provide it.
If the landlord fails to meet the obligations imposed on residential landlords by the Arizona Residential Landlord and Tenant Act, the tenant may undertake self-help for minor defects under three hundred dollars or one half of the monthly rent, whichever is greater. A self-help procedure is set out in the law and if the tenant follows it, the tenant can deduct the cost of the self-help repairs from the rent.
A special situation arises if a landlord is obligated to provide running water, hot water, gas or electrical service, but does not do so. If the tenant provides the landlord with reasonable notice of the problem and the landlord does not fix the problem, the tenant may move out until the problem is fixed. During this move out period the tenant is not obligated to pay rent and the landlord is liable to the tenant for the tenant's rent expense in excess of the rent payable to the landlord.