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Jul 12, 2018

Recovering Future Rents from Tenant

If a tenant that is under a current lease agreement who is evicted or abandons the property; can that landlord sue for all future rents thru the end of the lease? The answer is; "yes", "no" and "maybe".

Let me answer this question by using an example. Landlord and Tenant sign a 24 month lease agreement. Tenant promises to pay $1,000 each month for rent. However, 6 months into the lease term the tenant does not pay rent and so the landlord evicts him. Tenant still has 18 months left on his 2 year lease. Can landlord sue tenant for the remaining 18 months? Maybe, I will answer the question in greater detail below.

"No", a Landlord may not sue for future rents.

Hypothetically, if the landlord finds a new tenant who begins paying rent the very next month then landlord may not sue the initial previous tenants for the future rent he should have paid. A landlord may not sue a tenant for future unpaid rents at an eviction hearing. Because the landlord won't know how long the property will sit empty and therefore the courts award would be based off of speculation. But a landlord can sue for all past rents owed during an eviction lawsuit.

A landlord has a duty to "mitigate" his losses. A landlord mitigates his losses after an eviction by doing everything possible to re-rent the property. Landlord must take the same actions they would if re-renting the property under normal circumstances. The Arizona landlord cannot simply let the property sit empty for 18 months and then sue the tenant because the property sat empty. He must take all reasonable actions to re-rent the property as soon as possible. Again, a landlord may not sue a tenant for future rent through an eviction lawsuit. However, there is another option a landlord may take to recoup losses from a breaching tenant.

Yes, a Landlord MAY sue a former tenant for unpaid rents.

Yes, a landlord may sue a former tenant for unpaid rents after they were evicted from the Property. However, the landlord must first market and re-rent the Property before suing the former tenant. The law doesn't allow for double-dipping, meaning you cannot sue a former tenant for terminating a lease 16 months earlier while collecting rent each month from a new tenant.

However, you can sue a previous tenant for all the months the Property sat vacant until it was re-leased to a new person. Using the example from above, let's assume the landlord re-rented the Property one month after evicting the previous tenant. In this situation the Property only sat empty for one month and so the previous tenant is only liable to one months rent to the Landlord. Regardless of how many more months or years were left on a previous tenants lease, a landlord can only sue for the months the Property actually sat empty.

For this, and other reasons it rarely makes sense to sue a tenant for the months a Property sat vacant before you re-rented it. Call experienced real estate attorney Clint Dunaway at 480-344-4035 or send me an email at cdunaway@davismiles.com. 

Jul 11, 2018

Possessions of Evicted Tenants

Often tenants will leave personal property on the premises after they have been evicted. As a landlord you cannot simply keep or throw away the former tenant's belongings. The Arizona Landlord-Tenant Act requires to you maintain their possessions for 14 days.
Per A.R.S. § 33-1368(E) a landlord, must hold the evicted tenant's possessions for a minimum of 14 days from the day the Writ of Restitution was issued. As the landlord, you may;
  • Keep the tenant's belongings that the rental property for the 14 days,
  • Move the tenant's belongings to an off-site storage facility,
  • Require the tenant to reimburse you for the actual cost of moving and storing their belongings during the 14 day period,
  • Prohibit the tenants from ever returning to the property without your explicit permission.
As a landlord you may NOT;
  • Require the tenant pay for the judgment you obtained against them prior to releasing the belongings to them. Meaning you cannot require a tenant pay you for all back rent, late fees, attorneys' fees, and court costs prior to returning their belongings. (Again, you can only demand payment for the actual cost of storing and moving the belongings.)
  • Dispose of the tenant's property prior to the expiration of the 14 days.  
If you do choose to remove the tenant's belongings from the rental property use considerable care, you will be responsible for any damage to their belongings. It is a good idea to photograph, or video the premises, so that you have an inventory of what was left behind. Make sure the date can be verified through the images and video. This will also give you the opportunity to catalog any damage to the rental unit itself. Take the inventory prior to moving any of the personal property from the rental unit.

After the 14 day period, if there has been no contact from the evicted party, and they have not claimed, or made and agreement to claim their property, a landlord may sell the items or dispose of the items that were left behind.

Questions regarding the eviction of your Arizona tenant?  Contact Arizona Real Estate Attorney Clint Dunaway at 480-344-4035 or cdunaway@davismiles.com 

Jul 2, 2018

Davis Miles- Business of the Year!

I always say that I work with the greatest group of people and it shows. Last week our law firm was named the Large Business of the Year by the Tempe City of Chamber! It is a real honor and one that we don't take lightly.






May 31, 2018

A.R.S. 33-420: Fraudulently Recorded Documents

In Arizona, there are no real protections that prevent a person from fraudulently recording documents with the county recorder. I could literally quit claim deed the Arizona State Capital building to myself and the county will record it. The recorder’s office does not have the ability or duty to confirm that the documents are legitimate and so this can cause real problems. There are multiple occasions where I’ve had a client come into my office panicked because some type of fraudulent document had been recorded involving one of their properties. I’ve seen cases where easements were added without the owner’s knowledge or permission. Plus I’ve seen parcels split or property completely transferred to another person!!!

WHAT CAN YOU DO IF SOMEONE RECORDS A FRAUDULENT DOCUMENT?

Arizona law won’t prevent someone from wrongfully recording documents against your property. However, Arizona provides strict punishment for those who wrongfully record documents with the county recorder. A.R.S. § 33-420(C) provides for damages against the person who wrongly recorded the document. It allows for a minimum penalty of $1,000, or for treble the actual damage suffered, and attorney's fees.

A.R.S. § 33-420 states:

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.

B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if he prevails.

C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he wilfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.

D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.

E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.
If someone has recorded a fraudulent document on one of your Arizona pieces of real estate then you need to contact Arizona Real Estate Attorney Clint Dunaway at: 480-344-4035 or email at cdunaway@davismiles.com.





May 11, 2018

Lake Havasu City Justice Court

Yesterday I attended a hearing at the Lake Havasu City Justice Court in Lake Havasu City, Arizona. The Court's address is: 2001 College Dr., Suite # 148 Lake Havasu City, Arizona 86403.

As you can see below it's not the most beautiful court house in Arizona but I guess it gets the job done!

 

Lake Havasu City Justice Court's phone number is: 928-453-0705.