Nov 20, 2015

Who is a Tenant at Sufferance? A.R.S. 12-1173

A Tenant -at-Sufferance is a tenant who remains in a property without permission after a lease ends. At this point, under Arizona law, the tenant does not have a tenancy because you do not agree for them to have possession of the property. The law, however, does not consider these tenants to be trespassers because, at one point in time, the landlord agreed to rent to them.

An Arizona tenant is a Tenant-at-Sufferance if:
  • The written lease expires (it is not self-extending or the landlord does not renew it for another term) and you protest to your tenant remaining;
  • Landlord sends the tenant a valid notice to quit, terminating his or her tenancy for breaking the lease;
  • Landlord sends the tenant a valid 5-Day Notice to Pay or Quit for non-payment of rent;
  • Landlord had a Tenant-at-Will who is still in the unit after receiving a valid notice to quit; OR
  • Landlord has a subtenant who is holding-over after the original tenant's lease ended.
Unfortunately, an Arizona landlord must still go through the formal eviction process to get the tenant out of the property. These Tenants-at-Sufferance are still protected by the Arizona Residential Landlord and Tenant Act, so you must still treat them in the same manner that you did prior to the expiration of their lease.

Call us at 480-344-4035 if you need help evicting your Tenant-at-Sufferance.

Nov 18, 2015

Who is a Tenant at Will?

Tenants-at-Will live in a property with the landlord's permission but without a lease agreement. This is also referred to as a month-to-month tenancy because tenants pay rent once a month, in advance.

A person is a Tenant-at-Will if:
  • There is an oral agreement to rent;
  • There is a written agreement that either says the tenant has a month-to-month tenancy or the writing does not specify when the tenancy ends;
  • The written lease has ended, a new lease has not been signed and the landlord continues to accept rent at the beginning of each month without objection; OR
  • A valid notice to quit is served on the tenant and then later decide to allow him to stay in the property without a new lease.
If you have questions about a tenant who may be a tenant-at-will then call Arizona real estate attorney Clint S. Dunaway at 480-344-4035 or by email at cdunaway@davismiles.com.

Aug 28, 2015

ARS Statutes Regarding State Leases

There are a huge amount of Arizona statute that apply to leases and purchases of state lands.

Title 37 - Arizona Public Lands

Chapter 2- Article 4:

Section 37-282: Duty of lessees to cooperate with state in making classifications and appraisals.

Section 37-283: Subleases by grazing lessee; limitation upon grazing use; sublease surcharge.

Section 37-285:

Section 37-286:

Section 37-287:

Section 37-287.01:

Section 37-288:

Section 37-288.01:

Section 37-288.01:

Section 37-290:

Section 37-291:

Section 37-294:

Section 37-295:

Jul 10, 2015

Dismiss Lawsuit

What Does it Mean to Dismiss a Lawsuit?
To dismiss a lawsuit is to terminate a lawsuit. The Plaintiff can unilaterally file a Motion/Notice to dismiss the lawsuit or the two parties can agree to "Stipulate" to dismiss the lawsuit. Simply speaking dismissing a lawsuit makes it as if it had never been filed.

Dismissing With or Without Prejudice:
When a case is dismissed with prejudice the court the Plaintiff is prevented from filing the same lawsuit again. If the case is dismissed without prejudice then the Plaintiff is free to file the same lawsuit at a future date.

If you have questions regarding your Arizona eviction trial then call us at: 480-415-0982 or email: cdunaway@davismiles.com. 

Jun 24, 2015

Marriott Hotel Construction...or Lack Thereof...



Below are pics from the Phoenix, Arizona Marriott hotel. 


The above picture was taken in December 2014.


The above picture was taken in April 2015.


The above picture was taken in May 2015.


 The above picture was taken in June 2015.

Jun 19, 2015

Collecting on a Judgment

Judgments are a very powerful tool that dramatically increases the odds of a creditor collecting against the debtor. In evictions cases a judgment will require the tenant to pay all back rents, late fees, court costs, attorney's fees, and any other relevant damage.

The eviction judgment is basically mandating the tenant to pay the landlord the sum of these damages. After making a written demand for the awarded damages most people will not voluntarily pay. However,this is where the judgment itself can help you recover your money.

A judgment can give you the power to garnish wages, levy bank accounts, or place liens on certain assets. Without the judgment all you can do is beg for your money. But with the judgment you can get people to pay you whether they want to or not.

If you would like an Arizona Real Estate Attorney to help you collect on a judgment then call us at: 480-344-4035 or email me at cdunaway@davismiles.com.

Apr 23, 2015

Big News for AZ Landlords!

A law was passed earlier this month giving Arizona landlords the power to evict anyone not named on the lease without going through the courts - that means they can call up the police and have them escorted from the property without the usual process of serving notice, filing a lawsuit, serving the lawsuit, attending the hearing, getting a judgment, and having the Constable evict them. The law was meant to protect both tenants and landlords from "unwanted houseguests," but it seems the consequences may be more far-reaching than that.

Potential problems with this new law: Are police officers now responsible to determine whether someone is on a lease or not before throwing them out? This itself could lead to a host of problems. (As per the previous law, if you called a police officer to come kick someone out of your house, they would have told you to go through the courts, and that there was nothing they could do.) Another potential problem: What about verbal agreements? Many landlords don't have written leases with tenants.

To read the full story, click here.

Apr 21, 2015

Does an eviction judgment appear on a tenant's credit report?

It is a common misconception that when you get an eviction judgment against your tenant, it automatically appears on their credit report. However, this is not the case. The judgment is public record, and a diligent background checker will find it, but the only way to ensure the judgment appears on someone’s credit report is to record it with the county. Once this happens, it will appear on their credit report as a monetary judgment, but there won’t be any indication that it was also an eviction judgment.

Ideally, a background check will reveal the eviction judgment even without it being recorded with the county. If you are a landlord, you should always perform background checks on prospective tenants. If you would like to be referred to a company who can help you with this, contact our firm and we will give you their contact information.

However, for more everyday occurrences that don’t require a full-blown background check (like applying for a credit card or loan), having a blighted credit report can make life difficult, even if it doesn’t specify that it is an eviction judgment. The judgment will be valid for five years, and if you file an Affidavit of Renewal with the court/recorder before the end of that time, it will be valid for another next five years as well. The defendant can get the judgment removed from his credit report at any time – all he has to do is contact the plaintiff and pay off the judgment.*


*If your former tenant has paid off the judgment, it is your responsibility to get that judgment satisfied, both with the court and the recorder’s office. The judgment should be satisfied immediately after payment in full is received.

Apr 13, 2015

Arizona Landlords Should Provide Receipts

I once heard a news story on the radio about some doctors living in a tiny village in Africa, studying the effects of consuming dirty water. The village had a little well that everybody used. Once the doctors got there, they set up a little station by the well with water purification tablets. After you dropped a tablet in your water, you had to wait a few minutes and then the water would be safe to drink. The doctor being interviewed said that not all of the villagers took advantage of these tablets, even though they were free and available to everybody. “Sometimes I don’t even take the time to use a tablet,” the doctor admitted.

                Why would someone not do something that takes less than five minutes, and will save him an immeasurable amount of stress and inconvenience down the line? As a real estate law firm who handles evictions all day every day, our “water tablets” are receipts.

                If you are a landlord, you should be keeping track of all payments from your tenant, and providing a receipt for each payment received.

If you are a tenant, you should be keeping track of all payments to your landlord, and asking for a receipt for each payment tendered.

                Receipts keep everyone on the same page. If you end up having to evict a tenant for non-payment of rent, and you have kept an accurate ledger, you will have a much easier time evicting your tenant than a landlord who is giving it his best guess, and doesn’t have any documentation to back up his claim.


                Don’t be the doctor who isn’t using his own water tablets. Receipts are your friend. 

Apr 10, 2015

Highland Justice Court

Highland Justice Court is located at: 
55 E. Civic Center Dr. Gilbert, AZ 85296.
Phone number: 602-372-8300



The Honorable Steven Urie is the presiding judge.

Apr 9, 2015

Free: Eviction Notices & Landlord Forms

The first step in virtually any eviction is to send a notice to your tenant, letting them know there is an issue with their tenancy. This can be nonpayment of rent, a breach of lease (e.g., letting someone live there who isn't on the lease, or dumping garbage in the front yard), or terminating a month-to-month lease.

Our firm provides form notices for all of the above, and more. We don't charge any extra to send them when doing an eviction, but some landlords prefer to send the notice themselves. Click below to view the forms we offer.

Serving a notice on your tenant theoretically gives them a chance to fix the problem before it escalates into a lawsuit. The Arizona Landlord-Tenant Act requires a notice to be served before a lawsuit can be filed. The notice needs to be served one of two ways: a) sent via certified mail or b) hand-delivered with signature upon receipt (see A.R.S. § 33-1313). If the notice is not served one of these two ways, the judge can dismiss the case.

Apr 8, 2015

See the New Pima County Consolidated Justice Court

Earlier this year Tucson, Arizona opened the doors of its new courthouse complex. I visited the Pima County Consolidated Justice Court this morning for the first time. I was extremely impressed with the craftsmanship, layout, and . The courtrooms themselves have a classic appearance and thoughtfully planned-out (FYI, eviction hearings are held on the fourth floor).

Kudos to Tucson for taking the time, money, and energy necessary to build such a great complex. I give the city extra points for locating the new courthouse downtown with convenient access to public transportation.  


View of the entrance to the new Pima County Consolidated Justice Court in downtown Tucson, AZ.




The 240 N. Stone Avenue marqui.




Looking out the front doors of the new Pima County Consolidated Justice Court you can see downtown Tucson's skyline.


Above is a pictures of what the old Pima County Consolidated Justice Court looked like. It was old, outdated, and poorly designed. Like I said, a major improvement!

Feb 6, 2015

Settlement Offers and Attorney's Fees

Arizona courts are extremely backlogged with cases and so they have created many rules of civil procedure attempting to persuade parties to settle their cases without having to go to trial. One such rule is A.R.S. § 12-341, it states:
The successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law.
This means that under the Arizona statute if you lose your case you must reimburse the opposing party for the cost of their attorney and court costs. The risk of paying your own attorney and also the other attorney is a huge risk that motivates many people to settle their case.

A.R.S. § 12-341.01(A) states:
If a written settlement offer is rejected and the judgment finally obtained is equal to or more favorable to the offer...the offeror is deemed to be the successful party from the date of the offer and the court may award the successful party reasonable attorney fees. 
This means that if the opposing party provides you a written settlement offer of $10,000 and you reject it. If you end up winning less than $10,000 from the opposing party you will have to pay for their attorney's fees!

These are just a few example of Arizona statutes and rules designed to help facilitate settlements instead of protracted litigation. If you need help from an experienced Arizona real estate lawyer then call Clint Dunaway at 480-344-4035 or email at cdunaway@davismiles.com. 

Jan 22, 2015

48 Hour Notice to Enter Rental Property

Arizona landlords have the legal right to periodically enter their property. The law does not place limitations on why landlords want to enter the property. However, entering a rental property is a right with limitations and should not be used as a form of harassment or intimidation.

Proper Notice to Tenant

A.R.S. § 33-1343(D) states that, “the landlord shall give the tenant at least two days’ notice of the landlord’s intent to enter and enter only at reasonable times.” Although the law does not specify that the notice must be written (as opposed to verbal), it is a good idea to post written notice of intent to enter, or send via mail, so that you as a landlord have proof that you followed the proper procedure.

A.R.S. § 33-1343(A) states in part that “the tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements…” or show the property to potential buyers. If the tenant won’t allow you to enter the property, it is grounds for eviction.

Emergencies

Per, A.R.S. § 33-1343(C) a landlord may enter the dwelling unit without consent of the tenant in case of emergency. So, for example, if there is smoke billowing out of the windows or water is pouring out from under the doors, a landlord does not have to provide a 48-hour notice before entering.

Landlord Harassment

Don’t use the ability to enter the property as a way of harassing or intimidating a tenant. According to A.R.S. § 33-1343(D) “the landlord shall not abuse the right to access or use it to harass the tenant.” One of the most common defenses a tenant brings up in court is that their landlord was harassing them. Avoid anything that even resembles harassment so your tenant can’t use that as a defense if you end up having to evict them.

Conclusion
Landlords, don't enter without giving the tenants a 48-hour written notice of your intent to enter! Tenants, don't unreasonably deny your landlord access to their property!.

If you have questions regarding a 48 hour notices to enter rental properties then call Arizona attorney Clint Dunaway at: cdunaway@davismiles.com or call: 480-344-4035. 

Jan 8, 2015

Tenants Withholding Rent

Arizona does not permit "rent-striking". This means that before a tenant can legally withhold any rent they must follow a very strict set of procedures.

Section 33-1363(A) and (B) of the Arizona Residential Landlord and Tenant Act specifically address what a tenant must do prior to withholding rent from the landlord.

Section 33-1363(A) states in part: A tenant "may notify the landlord of the tenant's intention to correct the condition at the landlord's expense. After being notified by the tenant in writing, if the landlord fails to comply within ten days or as promptly thereafter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and after submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work, not exceeding"...an amount less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater.

Additionally Section 33-1363(B) states in part; "A tenant may not repair at the landlord's expense if...the condition repaired does not constitute a breach of the fit and habitable condition of the premises."

So to put this into plain English, before a tenant can legally withhold rent they must:

  1. Write the landlord and notify him of their intention to correct the condition at the landlord's expense;
  2. The tenant must give the landlord ten days to fix the problems outlined in the written notice;
  3. Give the landlord ten days to fix the problem before seeking any self-help solutions;
  4. Have the repairs completed by a licensed contractor;
  5. Submit the landlord with an itemized statement;
  6. Provide the landlord a waiver of lien;
  7. Deduct from their rent the actual and reasonable cost of the work;
  8. Not to exceed three hundred dollars, or half of the month rent, whichever is greater; and
  9. The repairs must constitute a breach of the fit and habitable condition of the premises.
Unless, and until a tenant has completed each of the steps noted above they cannot withhold rent from their landlord.