Jan 23, 2019

30 Day Notice to Vacate Rental Property

In Arizona, a month-to-month lease exists if there is not a written lease agreement or the written lease agreement has expired. Per A.R.S. § 33-1375(B) a landlord or tenant can terminate the month-to-month lease with a 30 day written notice.

It can be somewhat confusing as to when the 30 days starts running. It would be logical if the 30 days started from the time it was mailed or the time it was received. However, it's a little more confusing than that.

The 30 days start at the beginning of the next billing cycle. So if rent is due on the 1st of the month then the tenants will have until the end of the month to stay in the property. For example, if a landlord sends the 30 day notice on the 5th of August. The tenants can stay until September 30th! Make sure you factor this unusual system of counting into your plans. Lastly, make sure the 30 day notice is sent via certified mail!


Furthermore, a tenant who does not vacate by the end of the 30 days may be liable to the landlord for additional damages. A.R.S. § 33-1375(C) states:
"If the tenant remains in possession [of the property] without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is willful and not in good faith the landlord, in addition, may recover an amount equal to not more than two months' periodic rent or twice the actual damages sustained by the landlord, whichever is greater."
So Arizona tenants who do not leave by the end of the 30th day face the risk of having additional fees added onto the judgment obtained by the landlord. If you have a tenant who will not voluntarily leave your property then call us at: 480-389-6529.

Jan 1, 2019

Real Estate Agent's Non-Disclosure of Known Defects

Arizona real estate agents are required to "disclose in writing to all other parties any information the licensee possesses that materially or adversely affects the consideration to be paid by any party to the transaction". A real estate agents failure to disclose a known defect about the property could put their license and jeopardy and expose themselves to financial sanctions.

R4-28-1101 of the Arizona Administrative Code of Professional Conduct: states that real estate agents owe a fiduciary duty to the client and shall protect and promote the client's interest. However, it also states that they are to deal fairly with all parties to the transaction--even the buyer.

What if a Complaint is made to the AZDRE?
If a complaint is made by a party to a real estate purchase that an Arizona real estate agent hid material information from the buyer than a notice will be sent to that real estate agent. The AZDRE will begin a thorough review of the complaint to make a finding of their own. As part of this review process it is highly likely that the AZDRE will ask the real estate agent for all documents pertinent to this situation. For instance, they may ask for all emails, text messages, contracts, addenda to the contract, etc.  

Do Not Simply Ignore the Department's Requests
If you are a real estate agent who has received a request from the AZDRE for documentation do not ignore them! Ignoring the problem will not make it go away. Don't think that by sticking your head in the sand the AZDRE will forget about the alleged violation. In fact, simply ignoring the Department's request for documents can cause you to lose your real estate license AND prevent your from renewing or reapplying for a license!

A.R.S. 32-2153(B)(11): States that "The commissioner may suspend or revoke a license, deny the issuance of a licese, issue a letter of concern to a licensee, issue a provisional license failure "to respond in the course of an investigation or audit by providing documents or written statements."




Don't be this type of an Arizona real estate agent! If you have found yourself in trouble with the Arizona Department of Real Estate then give me a call at 480-389-6529 or email at cdunaway@davismiles.com. 

Sep 24, 2018

Builder's Risk Insurance


What is Builder’s Risk Insurance?

Builder's risk insurance is a type of insurance policy which covers residential and commercial structures while they are under construction or being remodeled, or renovated. Builder's risk insurance is "coverage that protects a person's or organization's insurable interest in materials, fixtures and/or equipment being used in the construction or renovation of a building or structure should those items sustain physical loss or damage from a covered cause."

Builder’s risk policies are typically available for three types of construction; ground-up new construction, remodeling and renovation..

What is Covered?

Builder’s risk is intended to protect construction sites from loss due to certain types of damage. The exact coverage and limitations varies between providers and policies but generally builder’s insurance will cover against loss from:
     theft,
     vandalism,
     fire,
     damage to equipment,

Additional coverage can be purchased to include protection from loss due to:
     flood,
     windstorm,
     earthquake,
     mudslides,
     construction materials,
     temporary structures,
     fencing,
     scaffolding,
     and landscaping. 

What is NOT Covered by Builder’s Risk Coverage?

     terrorism,
     acts of war,
     government seizure,
     nuclear hazards,
     Injuries or accidents on the job site,
     damage to materials while they are in transit.

If you are thinking about building a custom home in Arizona and have questions about whether builder’s risk insurance is right for you then call Arizona real estate attorney Clint Dunaway at 480-389-6529 or email at cdunaway@davismiles.com

Sep 11, 2018

Appealing an Arbitrator's Ruling


Received an Unfavorable Ruling from an Arbitrator? What Can be Done?

There are two basic options available you can either appeal the arbitrator’s decision or you can appeal it. If you do not appeal the award then it will  then  become a final judgment. However, if we appeal the arbitration award then your case will continue moving forward in the Superior Court as if the arbitration hearing and arbitrator’s award had never happened.

I.                   LET THE DECISION STAND
A.    Decision Becomes Final- If you do not appeal the arbitrator’s decision within 20 days then that decision will become a judgment against you and in essence the case will be over.

II.                APPEALING THE DECISION
A.    Notice of Appeal- Within 20 days of the Arbitrator’s decision you must file a notice with the Court that states: “Notice from Arbitration and Motion for Trial Setting”. This is extremely important, this is a firm cutoff and we cannot miss this date.

B.     Deposit for Appeal- At the time of filing the notice of appeal of arbitrator's decision, you must deposit with the Clerk $140. If you are ultimately deemed to be the prevailing party then the deposit will be returned to you. However, if you are the losing party then the court will give your deposit to the opposing party.

C.     Downside to Appeal- Downside to Appealing the Arbitrator’s Award:
The case will continue moving forward and with that comes the cost, stress, and time associated with litigating the case. Additionally, as their attorneys’ fees continue to mount it increases your risk exposure if you were to take this case to trial and lose.

Ultimately, the decision whether to appeal the arbitrator’s award can only be made by you. If you are looking for an Arizona attorney to help you appeal an Arizona arbitrator's ruling then call us at 480-344-4035 or email at cdunaway@davismiles.com.

Aug 28, 2018

How to Remove a Wrongfully Recorded Lien?

How Can you Remove an Invalid Lien Recorded Against Your Home?

Occasionally, I am approached by clients who believe someone has recorded an invalid lien against their Property and want to know what they can do to remove it.

A.R.S. 33-420: Discusses the issues of remove groundless or fraudulent liens that have been filed.

A.R.S. 33-420(A): Provides a property owner at least $5000, or treble the actual damages caused by the recording of forged, groundless, misstated, or contains false claims. 

A.R.S. 33-420(C): Provides the property owner $1000, or treble actual damages, whichever is greater, and attorney fees and costs, if he willfully refuses to release or correct such document of record within 20-days from the date of a written request from the owner or beneficial title holder of the real property.

Removing the invalid lien can be someone complex depending upon the unique facts of your situation. So if you believe that a lien have been wrongfully recorded against one of your Arizona properties then contact real estate attorney Clint Dunaway at: 480-344-4035 or email cdunaway@davismiles.com.