My favorite client, “J.R.,” came to my office the other day. I always call him J.R. because he thinks he is as clever and suave as J.R. Ewing from his favorite TV show, “Dallas.” A few months ago, J.R. rented his newly remodeled house. He refers to his home as “Southfork,” after the famous Ewing Ranch. To me, it is more comparable to a home on Wisteria Lane from “Desperate Housewives.”
Apparently J.R.’s tenant hasn’t paid rent for over two months. Plus, the tenant’s pit bull has torn up Southfork’s newly installed landscaping. J.R.’s repeated telephone calls to the tenant have remained unanswered.
I asked J.R. if he ran a tenant background check employment/credit check before he rented Southfork. J.R.’s silence and blank stare answers my question. At least he retained a security deposit, a pet deposit and a non-refundable cleaning fee from the tenant. J.R. must comply with the Arizona Residential Landlord and Tenant Act, which sets forth certain rights and responsibilities for both landlords and tenants of residential dwellings. Pursuant to the Act, J.R. first must hand deliver to the tenant a written “Five Day Notice,” which must state the amount of the unpaid rent and J.R.’s intention to terminate the lease if the amount is not paid within five days after the tenant’s receipt of the notice. J.R. could send the notice by certified mail, but this would provide the tenant up to an additional five days to pay the unpaid rent.
If rent is not paid within the five-day period, then J.R. can initiate a “special detainer action” with the proper Justice Court. If the disputed amount is over $10,000, then J.R. must file in Superior Court. J.R. must fill out and file a complaint with the court clerk, and the clerk will then issue a summons. J.R. must have a process server deliver the complaint and summons to the tenant as required under the Act. The complaint and summons will instruct the tenant to appear in court within three to six days.
J.R. grins and feels relief. When I tell him “not so fast,” he stops pouring his bourbon and branch, and his grin slowly fades. You see, the Act requires J.R. to reinstate the lease and allow the tenant to remain at Southfork if the tenant pays all past due rent and any applicable late fees, attorney fees and court costs prior to the court issuing a judgment. Only when a judgment is entered against the tenant is the lease effectively terminated, even if the tenant pays all amounts due under the judgment. After judgment is entered, J.R. is only required to reinstate the lease in his sole and absolute discretion, even if the tenant pays the judgment.
As part of the judgment, the judge may include the unpaid rent, costs to repair Southfork’s landscaping damages (provided that J.R. proves such damages at the court hearing with credible evidence, such as providing photographs and estimates for repair), reasonable late fees, attorney fees, court costs and other remedies set forth in the lease.
After the hearing, the tenant has the next five days to vacate the premises. At any time after the fifth day, J.R. can go back to court and obtain a “writ of restitution,” which will permit a law-enforcement deputy to cause the eviction of the tenant.
At the court hearing, J.R.’s tenant may raise defenses for not paying rent. For example, the tenant can offset the cost of certain repairs that J.R. failed to make (as permitted under the Act). Other tenant defenses may include that:
• Rent was not due at the time J.R. sent the initial Five-Day Notice.
• The complaint was not filed within the prescribed time frames and/or was not properly served.
• J.R. filed the action in the wrong court.
• The action is in retaliation for the tenant’s lawful conduct.
• J.R. inconsistently enforced certain lease provisions.
The judge will decide the merits of such defenses.
J.R. was smart in allowing me to draft the initial lease agreement. The Act prescribes and prohibits certain lease provisions. Many pre-printed “form leases” may not comply with the Act and frequently do not adequately address all material issues and legal requirements. For example, if the house was built before a certain date and/or has a pool, then the lease should include disclosures regarding lead-based paint and/or pool safety. An inadequate lease may prevent a landlord from enforcing certain remedies.
Although J.R. asked me to handle this matter, many landlords initiate special detainer actions on their own. For an excellent packet of forms for Maricopa County special detainer actions, go to: www.superiorcourt.maricopa.gov/justiceCourts/docs/FD_Complaint_Summons_packet.pdf.
Published on May 30, 2009 in The Arizona Republic.
http://www.azcentral.com/business/realestate/articles/2009/05/29/20090529biz-re-hyder0530.html