Arizona Landlord Tenant Blog

How to serve a notice on a residential tenant

This applies to both commercial and residential.

You may serve any tenant notice in person (i.e., hand-deliver) yourself or have someone serve it on your behalf (i.e., manager, friend, etc.). If you have someone else deliver the notice, it should be someone who will be available and willing to go to court to testify that they hand-delivered the notice, if that becomes necessary.  Ideally, you should have the tenant acknowledge receipt of the notice by having the tenant sign your file copy (but this is not a legal requirement); give him/her the original. 

Putting a copy under the windshield wiper of the tenant’s vehicle is not lawful service.  Service by regular first class mail is also not lawful service.  Nevertheless, without regard to the method of service (i.e., lawful service or not), if the tenant actually receives the notice and admits to receiving the notice in court, then service of the notice is lawful and effective under the Act.

Alternatively, you may serve a tenant notice by having a private process server or the Sheriff serve it.  The latter method has the benefit of leaving a more lasting impression on your tenant to pay the rent when it is due, but is costly and may take several days before service is actually made.

Finally (for residential), you may serve any tenant notice by sending it certified mail, return receipt requested, but the time specified in the notice (i.e., 5-Day Notice, 10-Day Notice, etc.) does not start until the earlier of: (1) actual receipt of the letter or (2) five business days after it is mailed.  This may have the effect of extending the notice period by up to five days.

REMINDER: Personal service of the notice and sending it by certified mail, return receipt requested, are two methods of service that are expressly permitted by the Act.  Posting (i.e., taping or otherwise affixing a notice to the door) is not lawful service of a notice by the landlord. (Note: "Posting" is permitted for service of process {i.e., a Summons and Complaint} when done by a process server after personal service has been attempted). 

What type of notice must I serve (for a residential tenant)?

The type of default determines the notice you must serve.

5-Day Notice to Pay or Quit.  Use this notice when the tenant has failed to pay rent.  If the tenant wants to make a partial payment (either before or after you serve this notice) AND you wish to accept a partial rent payment (which the landlord IS NOT required to do), then you should use a "partial payment agreement."  (See the blog post on this topic for further information).  If you fail to use a "partial payment agreement" and the tenant fails to pay the remaining amount due, then you must wait until the next time the tenant fails to pay rent to commence eviction for nonpayment of rent.  A "partial payment agreement," as defined by A.R.S. Section 33-1371, is a "contemporaneous writing" of the terms and conditions of the partial payment.  A "contemporaneous writing" is a written agreement between the landlord and tenant that is signed by both parties at the time the partial payment is accepted by the landlord.  The language in the agreement may be as simple as: "I, landlord, agree to accept from tenant a partial payment  of $___.  The remaining amount due of $___ shall be paid by tenant on or before _____."  (Signed by both parties).

5-Day Notice of Noncompliance Materially Affecting Healty & Safety.  This type of noncompliance must first be a noncompliance with A.R.S. Section 33-1341 and then MUST ALSO materially affect healty & safety.  In other words, it must meet both tests: (1) it must be a violation of Section 33-1341 and (2) it must materially affect health and safety.  If it does not satisfy both tests, then you must use a 10-Day Notice of Material Noncompliance (below).

Notice of Immediate Termination - Material and Irreparable Breach.  Where the noncompliance is the result of egregious conduct or serious actual or potential harm, then the Act provides for immediate termination of the rental agreement and an expedited issuance of the Writ of Restitution.  In this case, the statute (A.R.S. Section 33-1368(A)(2)) even provides several examples of what constitutes a “material and irreparable breach.”   If you proceed under this Section of the Act, serve the tenant with the Notice of Immediate Termination and, simultaneously (i.e., the same day), file the Special Detainer action in court.

10-Day Notice of Material Noncompliance.  This notice is used for everything else (i.e., when the none of the foregoing apply).  By definition, a “material noncompliance” is a noncompliance with a particular term in the rental agreement which is “material” (i.e., an important or key element of the agreement).  Not every noncompliance with the rental agreement is a material noncompliance.  For example, if the rental agreement states "no pets," but the tenant gets a goldfish, this may technically be a noncompliance with the rental agreement but most judges will not find this to be a "material noncompliance."  Common uses for this form include: unauthorized pets, unauthorized occupants, noise, failure to maintain the property, damage (not severe) to the property, etc.

Welcome to the Arizona landlord and tenant BLOG

Welcome to the Arizona Landlord and Tenant Blog - a blog with FREE information for both landlords and tenants.

This is where you can get FREE information about Arizona landlord and tenant law (both residential and commercial).  You will also learn about helpful products and services that are available for purchase.

What is a "short sale"?

A "short sale" is the term for a sale of real property for less than the amount of the loan(s) that presently secure the real property.  For example, if a residence has a first lien of $100,000, but similar homes in that neighborhood are only selling for $80,000, then the lender (in this case, also known as the first lienholder) may consider allowing the property to be sold for $80,000.  The remaining $20,000 (i.e., the difference between what the house sells for and the amount that is owed on the first lien) may be written off by the lender, or the lender may require that the seller sign a separate promissory note and/or secure the remaining $20,000 with some other real or personal property.

FREE Landlord/Tenant Seminar

I have received approval from the Arizona Department of Real Estate to present a seminar entitled: Landlord/Tenant Law.  This seminar is approved for one hour of continuing education credit for Arizona real estate agents and brokers in the category "Real Estate Legal Issues."  This seminar reviews recent changes in landlord/tenant law, explores the important distinctions between a lease/purchase agreement and a lease with an option, discusses where landlords and property managers should spend their time and money, explains how and when to send tenant notices, and reviews other fundamentals of Arizona landlord/tenant law.  

I offer this seminar FREE OF CHARGE to boards/associations of Realtors and other groups of thirty (30+) or more.  This seminar may be presented at your location in conjunction with a meeting, training or some other function. 

Presenting this seminar gives me a chance to inform the public about recent and existing landlord/tenant law and also allows me to learn about current issues from people “in the field” and hear about the day-to-day experiences of landlords and property managers.  

If your organization or group is interested, please contact me on my direct line (602-255-0101) to make the necessary arrangements.

Writer's block when blogging

Dave had a great article about writer's block when starting a new blog.

When may a landlord serve a notice upon a tenant?

This applies to both commercial and residential.

You may serve the Five-Day Notice to Pay or Quit on the first day after rent is due and remains unpaid.  For example, if rent is due on the first day of the month, you may serve the Five-Day Notice on the second day of the month, even though your rental agreement provides that rent is not delinquent until the fifth day of the month.

You may serve the notice for any other type of noncompliance on the day of the noncompliance.  For example, if you discover unauthorized occupants, unauthorized pets, excessive noise, etc., all of which constitute a material noncompliance, then you may serve the 10-Day Notice of Material Noncompliance on that same day.  The same applies to a 5-Day Notice Materially Affecting Health and Safety, a Notice of Immediate Termination (for Material and Irreparable Breach) or any of the other types of notices.  Commercial non-monetary notices may also be served on the day of the breach/noncompliance.

Definitions - for words/terms/phrases used in posts

The following are definitions of important real estate and landlord/tenant terms; listed alphabetically.

A, B
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Abandonment - As defined in the Act, "means either the absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent for the dwelling unit is outstanding and unpaid for ten days and there is no reasonable evidence other than the presence of the tenant's personal property that the tenant is occupying the residence or the absence of the tenant for at least five days, if the rent for the dwelling unit is outstanding and unpaid for five days and none of the tenant’s personal property is in the dwelling unit.”  See A.R.S. § 33-1370(H) (West 2007).

Act - Refers to the Arizona Residential Landlord and Tenant Act.  The Act is contained in Chapter 10 of Title 33 of the Arizona Revised Statutes, A.R.S. §§ 33-1301 to 33-1381 (West 2007 & Supp. 2007).

Action - As defined in the Act, "includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including an action for possession."  See A.R.S. § 33-1310(1) (West 2007).

Adequate notice - Should be defined in the rental agreement or, if not addressed in the rental agreement, is defined by statute.  In short, it is the amount of notice required (by the rental agreement or statute) necessary to be given by a party before certain action is taken (i.e., increase in rent, vacating rental unit, terminating the rental agreement).  See, e.g., A.R.S. § 33-1375 (West 2007).

Answer - A pleading filed by a defendant in response to a Complaint or by cross-defendant in response to a cross-claim.

Arizona Attorney General - State governmental office responsible for enforcing state law, including state housing discrimination laws.

Arizona Reports - A legal publication containing written opinions of Arizona courts.

A.R.S. § ##-#### - Refers to Arizona Revised Statutes Annotated, which is properly cited as: Ariz. Rev. Stat. Ann. § ##-#### (West 2007), but for brevity is cited herein as A.R.S. § ##-####, where "##-####" is the specific statute title and section number.

Asset protection - A plan or strategy that shields some, most or all of your assets from liability. 

Asset search - A search of public records and records that are not readily available to the public, for the purpose of discovering the location and/or extent of assets and holdings of a person or entity.  An asset search is typically ordered from some type of investigative service; the cost ranges from $50 to $250 (more if you want to expand the search to include other counties and/or states).

Building and housing codes - As defined in the Act, "include any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises, or dwelling unit."  See A.R.S. § 33-1310(2) (West 2007).

C
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Case - A general term for an action, cause, suit, or controversy at law or in equity.  A judicial proceeding for the determination of a controversy between parties, wherein rights are enforced or protected, or wrongs are prevented or redressed.

Citations - Reference to legal authorities and precedents, such as constitutions, statutes, reported cases and treatises.  Used in arguments to courts, in legal text-books, law review articles, legal briefs, or the like, to establish or fortify the proposition(s) advanced.

Cite - See Citation.

Cleaning deposit - Money belonging to the tenant and held by the landlord to pay for cleaning of the rental unit in the event the tenant does not leave it clean when the tenant vacates the unit at the end of the tenancy.

Complaint - A pleading filed by a plaintiff to initiate a lawsuit (i.e., the document filed by the landlord to initiate a Special Detainer action).  See Answer for related reference.

Counterclaim - A pleading filed by a defendant against the plaintiff, asserting a cause of action against the plaintiff that may or may not be related to the factual situation giving rise to the plaintiff's cause of action against the defendant.  The counterclaim is filed with the answer.

D
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Deposits - See Security, cleaning deposit, or redecorating deposit.

Distraint for rent - Seizure; the act of distraining or making a distress.  Normally referring to a landlord seizing the property of a tenant for failure of the tenant to pay rent when due.  Distraint for rent is not permitted for residential property subject to the Act.

Dwelling unit - As defined in the Act, "means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.  `Dwelling unit' excludes real property used to accommodate a mobile home, unless the mobile home is rented or leased by the landlord."  See A.R.S. § 33-1310(4) (West 2007).

E
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Et seq. - An abbreviation for et sequentes or et sequentia; means, "and the following."  Thus a reference to A.R.S. § 33-1301, et seq., means Section 33-1301 and the following sections.

Eviction - Dispossession by process of law; the act of depriving a person of the possession of land or rental property which he has held or leased.  See Special Detainer action.

Exclusions
- As used in A.R.S. § 33-1308, means particular circumstances under which the rental of residential rental property is not subject to the Act.
- As used in connection with an insurance policy, refers to certain conditions or circumstances that are not covered by the policy.

Execution - See Writ of Execution.

F, G, H
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Familial Status -
The federal law definition is: “Familial status” mans one or more individuals (who have not attained the age of 18 years) being domiciled with - (1) a parent or another person having legal custody of such individuals or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.  The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.  42 U.S.C.A. § 3602 (West 1995).

The state law definition is:  In this article, a discriminatory act is committed because of familial status if the act is committed because the person who is the subject of discrimination is: (1) Pregnant, (2) Domiciled with an individual younger than eighteen years of age in regard to whom the person either: (a) Is the parent or legal custodian, (b) Has the written permission of the parent or legal custodian for domicile with that person, (3) In the process of obtaining legal custody of an individual younger than eighteen years of age.  A.R.S. § 41-1491.01 (West 2004).

Federal Fair Credit Report Act (FCRA) - Federal law that requires the landlord provide the applicant with an “adverse action notice” if “adverse action” is taken by the landlord against the applicant based on information in the applicant’s “consumer report.”  “Adverse action” includes rejection of a tenant application, but “adverse action” also includes requiring a co-signer (or guarantor), payment of a deposit when a deposit is not normally collected, collection of a deposit that is larger than normally collected and/or charging a higher rate of rent because of the information discovered in the “consumer report.”  A “consumer report” is a report from any of the major credit bureaus and also includes a report from a tenant screening service or reference checking service.  See 15 U.S.C.A. § 1681, et seq. (West 2003 & Supp. 2007).

Federal Fair Debt Collection Practices Act (FDCPA) - Federal law that says a “debt collector” may not harass, oppress, or abuse any person in connection with collecting a debt.  A “debt collector” is broadly defined by the FDCPA, but does not include a landlord collecting on the landlord’s own account, but does include an agent (i.e., a collection agent or service or a property manager) acting on behalf of the landlord to collect a debt.  A debt collector may not contact any third party regarding a tenant’s failure to pay rent except as necessary to find out the tenant’s current home, telephone number, or place of employment.  In communication with any third party, the debt collector may not indicate in any way that the tenant owes a debt (such as past-due rent).  The debt collector may not communicate with the tenant at an unusual or inconvenient time or place, or contact the tenant at the tenant’s place of employment.  If the debt collector knows the tenant is represented by an attorney, the debt collector may only contact the attorney, unless the attorney gives express permission for the debt collector to contact the tenant directly.  A debt collector may not use unfair or unconscionable means in collecting or attempting to collect a debt, including the collection of any amount (such as interest, fees, or expenses) not authorized by the lease agreement or other law.  §1692f.  Failure to comply with this law may result in a court awarding the tenant damages and reasonable attorney’s fees.  See 15  U.S.C. 1692 et seq. (2000).

Five-Day Notice to Pay or Quit - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(B), informing the tenant that if s/he does not pay rent that is due within five days, the landlord may terminate the rental agreement and file a Special Detainer action.  See A.R.S. § 33-1368(A).

Forcible detainer - Properly called a Special Detainer action when used in connection with an eviction from residential real property.  See Special Detainer action.

Garnishment - See Writ of Garnishment.

Guarantee or Guaranty - Refers to a promise by one or more persons to pay or answer for the debt or obligation of another person.

Good faith - As defined in the Act, "means honesty in fact" in the conduct or transaction concerned.  See A.R.S. § 33-1310(5) (West 2007).

Homestead - A legal mechanism, creating an artificial estate in land, devised to protect the possession and enjoyment of the owner of the land against the claims of his/her creditors by exempting the property from execution and forced sale, so long as the property is occupied as a home.  The Arizona homestead exemption is now automatic and no filing is required.  See A.R.S. § 33-1101 (West 2007).

Housing codes - Building and housing codes, as defined in the Act, "include any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises, or dwelling unit."  See A.R.S. § 33-1310(2) (West 2007).

HUD - Housing and Urban Development department of the federal government.

I, J, K
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Judgment - The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.

Judgment creditor - One who has obtained a money judgment against his debtor (or defendant), under which he may enforce execution.

Judgment debtor - One against whom a money judgment has been entered by a court of law.

L
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Landlord - As defined in the Act, "means the owner, lessor or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by § 33-1322."  See A.R.S. § 33-1310(6) (West 2007).

Lease - Any agreement that gives rise to a relationship of landlord and tenant (in the case of real property).  See rental agreement.

Litigation - A lawsuit; legal action, including all proceedings therein.  A contest in a court of law for the purpose of enforcing a right or seeking a remedy.

M, N
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Noncompliance - As used in the Act, refers to a failure of the landlord or the tenant to comply with the terms and conditions of the rental agreement, rules and regulations, and/or the Act.  See A.R.S. §§ 33-1361, 33-1368 (West 2007).

Nonrefundable fee or charge - A fee paid by a tenant to the landlord, normally at the commencement of the tenancy, that both parties understand will be retained by the landlord at the end of the tenancy.  Pursuant to A.R.S. § 33-1321(B), nonrefundable cleaning and redecorating fees or charges must be stated in writing and the purpose thereof disclosed.

Notice
  - See Five-Day Notice to Pay or Quit.
  - See Five-Day Notice of Termination of Rental Agreement for Noncompliance with Rental Agreement Materially Affecting Health and Safety.
  - See Ten-Day Notice of Termination of Rental Agreement for Material Noncompliance with Rental Agreement.

Notice of Immediate Termination of Rental Agreement for Material and Irreparable Breach - Written notice given by landlord to tenant, pursuant to A.R.S. § 33-1368(A), to immediately terminate a tenant's rental agreement if a breach occurs that is both material and irreparable, such as a discharge of a weapon on the premises or infliction of bodily harm on the landlord, his agent or another tenant or involving imminent serious property damage.

Notice Reinstating Time of the Essence - Written notice given by landlord to tenant to inform the tenant that, although the landlord may have waived certain violations and noncompliance in the past, the landlord will require strict compliance with the terms and conditions of the rental agreement and/or the rules and regulations.

Notice to Terminate Tenancy - Written notice given by tenant or landlord to inform the other party that s/he wishes to terminate his/her tenancy.

O
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Opinion - When used in connection with a judge’s decision in a case, means the written opinion of the judge outlining the facts and law pertinent to the case and (normally) the judge's reason(s) for deciding the case the way s/he did.

Organization - As defined in the Act, “includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest and any other legal or commercial entity which is a landlord, owner, manager or constructive agent pursuant to § 33-1322.”  See A.R.S. § 33-1310(7) (West 2007).

Owner - As defined in the Act, “means one or more persons, jointly or severally, in whom is vested all or part of the legal title to property or all or part of the beneficial ownership and a right to present use and enjoyment of the premises.  The term includes a mortgagee in possession.”  See A.R.S. § 33-1310(8) (West 2007).

P
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Pacific Reporter - A legal publication that contains written opinions of courts from Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington and Wyoming.

Pay or Quit - See Seven-Day Notice to Pay or Quit.

Person - As defined in the Act, “means an individual or organization.”  See A.R.S. § 33-1310(9) (West 2007).

Personal Jurisdiction - The power of a court over the person of a defendant (in personam jurisdiction), in contrast to the jurisdiction of a court over a defendant’s property or his interest therein (in rem jurisdiction).

Post and Mail - A form of service of process, when other forms of service are unavailing, consisting of displaying the documents in a prominent place (i.e., upon the door) and mailing a copy of the notice or pleading (i.e., a Summons and Complaint) to the tenant’s last known address, by certified mail, return receipt requested.  See, e.g., A.R.S. § 33-1377(B) (West 2007).

Posting - See Post and Mail.

Precedent - An adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law.  A rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.

Pre-empted - Pre-emption is a doctrine adopted by the United States Supreme Court holding that certain matters are of such a national, as opposed to local, character that federal laws Pre-empt or take precedence over state laws.  As such, a state may not pass a law that is inconsistent with a federal law.  As applied to landlord/tenant law, federal laws addressing Section 8 housing and Indian Reservations pre-empt the Act.

Premises - As defined in the Act, “means a dwelling unit and the structure of which it is a part and existing facilities and appurtenances therein, including furniture and utilities where applicable, and grounds, areas and existing facilities held out for the use of tenants generally or whose use is promised to the tenant.”  See A.R.S. § 33-1310(10) (West 2007).

Process server - One authorized by the court to deliver service of process.

Promulgated - To publish or proclaim formally (i.e., a law, decree of court, etc.) or to put into operation.

Protected class - refers to a class of persons who are protected from housing discrimination.  Protected classes include: race, color, religion, national origin, sex, handicap, or familial status (i.e., because the applicant has children under the age of eighteen).

Public housing - Is more specifically defined in Chapter 12 of Title 36 of the Arizona Revised Statutes Annotated, A.R.S. §§ 36-1401 to -1501 (West 2003 & Supp. 2006), but generally refers to housing that is owned and operated by the government for low income families.

Q, R
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Redecorating fee - Money paid by the tenant to the landlord at the commencement of the tenancy (or thereafter) to pay for redecorating of the rental unit (i.e., new paint, new carpet, new drapes, etc.) at the end of the tenancy, to prepare the unit for occupancy by the next tenant.

Remediation - Means action taken to address a contaminant by reducing the level of the contaminant in the environment or preventing or reducing exposure to the contaminant.

Rent - As defined in the Act, “means payments to be made to the landlord in full consideration for the rented premises.”  See A.R.S. § 33-1310(11) (West 2007).

Rental agreement - As defined in the Act, “means all agreements, written, oral or implied by law, and valid rules and regulations adopted under § 33-1342 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.”  See A.R.S. § 33-1310(12) (West 2007).

Roomer - As defined in the Act, “means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the dwelling unit and other dwelling units.  Major facility in the case of a bathroom means toilet, or either a bath or shower, and in the case of a kitchen means refrigerator, stove or sink.”  See A.R.S. § 33-1310(13) (West 2007).

Rules and regulations - Guidelines established by the landlord that govern the use and occupancy of the leased premises.  See A.R.S. § 33-1342 (West 2007).

S, T
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Section 8 Housing - The federal housing assistance program that provides rent subsidies for low income families.  See Tax Exemption of Obligations of Public Housing Agencies and Related Amendments, 24 C.F.R. §§ 811.101 to -811.110 (1997).

Security - As defined in the Act, “means money or property given to assure payment or performance under a rental agreement.  "Security" does not include a reasonable charge for redecorating or cleaning.”  See A.R.S. § 33-1310(14) (West 2007).  Generally means money or property held by the landlord as security for unpaid rent or damages to the rental unit.

Security deposit - See Security.

Service of Process - Delivery of Summons, Complaint, writ, etc.; signifies delivery to or leaving them with the party to whom or with whom they ought to be delivered or left.  The mode of delivery (i.e., personal service, service by mail, service by publication, etc.) may be prescribed by statute or by rule of procedure.

Seven-Day Notice to Pay or Quit - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(B), informing the tenant that if s/he does not pay rent that is due within seven days, the landlord may terminate the rental agreement and file a Special Detainer action.  Replaced in July 1995 by a Five-Day Notice to Pay or Quit.

Single family residence - As defined in the Act, “means a structure maintained and used as a single dwelling unit.  Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment nor any other essential facility or service with any other dwelling unit.”  See A.R.S. § 33-1310(15) (West 2007).

Special Detainer action - Legal process, brought pursuant to A.R.S. § 33-1377, to evict a tenant from residential rental property.

Statute - An act of the legislature declaring, commanding or prohibiting something; a particular law enacted and established by the will of the legislative department of government.

Summons - Document used to commence a civil action and requiring person named to appear and answer allegations in a pleading (i.e., a Complaint).

Tenant - As defined in the Act, “means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.”  See A.R.S. § 33-1310(16) (West 2007).

Term of Lease - As defined in the Act, “means the initial term or any renewal or extension of the written rental agreement currently in effect not including any wrongful holdover period.”  See A.R.S. § 33-1310(17) (West 2007).

U, V, W, X, Y, Z
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With prejudice - As applied to a judgment of dismissal, means that the dismissal has the same conclusive effect as does an adjudication of the case on the merits; the action cannot be refiled against the same adversary, based on the same facts.

Writ of Execution - An order of the court empowering the Sheriff to seize property of a judgment debtor to satisfy a money judgment.

Writ of Garnishment - An order of the court whereby a person’s property, money or credits, that are in the possession or control of another party, are applied to payment of a debt to a judgment creditor.

Writ of Restitution - When used herein, refers to an order of the court, after judgment is entered in the landlord’s favor in a Special Detainer action, restoring the right to possess residential real property to the landlord.

1 - 14
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5-Day Notice of Termination of Rental Agreement for Noncompliance with Rental Agreement Materially Affecting Health and Safety - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(A), informing the tenant that there is a noncompliance with the rental agreement that material affects health and safety and that if not remedied by the tenant within five days of the notice, the rental agreement will terminate in five days.

5-Day Notice to Pay or Quit - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(B), informing the tenant that if s/he does not pay rent that is due within five days, the landlord may terminate the rental agreement and file a Special Detainer action.

7-Day Notice to Pay or Quit - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(B), informing the tenant that if s/he does not pay rent that is due within seven days, the landlord may terminate the rental agreement and file a Special Detainer action.  Replaced in July 1995 by a Five-Day Notice to Pay or Quit.

10-Day Notice of Termination of Rental Agreement for Noncompliance with Rental Agreement Materially Affecting Health and Safety - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(A), informing the tenant that there is a noncompliance with the rental agreement that material affects health and safety and that if not remedied by the tenant within five days of the notice, the rental agreement will terminate in ten days.  Replaced in July 1995 by a 5-Day Notice.

10-Day Notice of Termination of Rental Agreement for Material Noncompliance with Rental Agreement - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(A), informing the tenant that there is a material noncompliance with the rental agreement and that if not remedied by the tenant within ten days of the notice, the rental agreement will terminate in ten days.

14-Day Notice of Termination of Rental Agreement for Material Noncompliance with Rental Agreement - Written notice given by the landlord to the tenant, pursuant to A.R.S. § 33-1368(A), informing the tenant that there is a material noncompliance with the rental agreement and that if not remedied by the tenant within ten days of the notice, the rental agreement will terminate in fourteen days.  Replaced in July 1995 by a 10-Day Notice.

Why a short sale?

The answer depends on your point of view.

Seller/Borrower's point of view.  The seller is the borrower under the existing loan.  The reason the seller/borrower would want a short sale is because the seller MUST sell for some reason (i.e., job transfer, divorce, etc.).  The problem (normally) is that the subject property is presently worth less than the amount that is currently owed on the property.  Typically, this is the result of a decline in the real estate market.  Consequently, the only way the seller/borrower can sell the property is if the lender agrees to allow transfer of the property (which is presently the collateral for the lender's loan) without receiving full payment of the current loan balance.  By doing a short sale, the seller/borrower is able to transfer the property and avoid a foreclosure.

Lender's point of view.  Lenders are in the business of making money.  Sometimes that means making decisions that reduce the loss a lender will take on a particular transaction.  If the lender agrees to a short sale, the subject property is sold to a buyer and the lender receives some amount of the current loan balance.  The remaining loan balance may be written off by the lender, or the seller/borrower may agree to make separate payment arrangements for the remaining loan balance and/or to secure the remaining loan balance with other real or personal property.  If the lender does not agree to a short sale, the seller/borrower may "walk away" from the property and/or the seller/borrower may stop making payments and lender may be forced to foreclose (i.e., either a judicial foreclosure or a trustee's sale) on the property.  Foreclosure is time consuming and sometimes expensive.  During the foreclosure process, the subject property may be neglected or damaged.  When ultimately sold, the lender may end up with less than if lender had agreed to a short sale.  In some situations, a lender can get a "deficiency judgment" against the seller/borrower.  In Arizona, however, under certain circumstances (i.e., residential property, 2.5 acres or less), the lender may not be able to get a deficiency judgment. 

What is "debt foregiveness"?

When a lender allows a short sale (i.e., the lender allows secured real property to be sold for less than the amount presently owed by the borrower on the property), then the lender may have to "write off" the shortage.  This is typically true if the lender knows that a "deficiency judgment" against the seller/borrower is not possible.  In that case, the lender merely "foregives" or "writes off" the shortage.  For example, if the borrower owes $100,000 on a property and the lender agrees to a short sale for $80,000, then the amount of "debt foregiveness" will be $20,000 ($100,000 minus the $80,000 received on the short sale).  A lender can, and typically will, report this "debt foregiveness" to the I.R.S., because "debt foregiveness" qualifies as "income" under the I.R.S. Code.  Recent legislation, however, allows certain borrowers (i.e., owner occupants of residential property) to not pay income taxes on that amount, but those sellers/borrowers who are not covered by that legislation must pay federal income tax on the amount of "debt foregiveness."

What is a "deficiency judgment"?

If a lender forecloses on real property, either via judicial foreclosure of a mortgage or via a trustee's sale under a deed of trust, and the subject property is sold at auction for less than the amount that the owner/borrower owes on the promissory note, then the lender can go to court to get a "deficiency judgment."  For example, if the owner/borrower owes $100,000 on a property but the property is sold at a trustee's sale for $80,000, then the lender can go to court to get a "deficiency judgment" against the owner/borrower for the remaining $20,000 ($100,000 minus the $80,000 received at the trustee's sale). 

But there are some restrictions on deficiency judgments.  If the subject property is a residential dwelling of 2.5 acres or less, then the lender cannot get deficiency judgment after conducting a trustee's sale.

Difference between mortgage and deed of trust

When you borrow money to purchase real property, you sign a "promissory note" (typically just called the "Note").  The Note is the document that creates the debt.  The debt is usually then secured by the real property that is the subject of the purchase.  The documents used to secure the collateral (i.e., the subject real property) is a mortgage or a deed of trust.  Almost all lenders currently use a deed of trust; it would be difficult to find a lender who still uses a mortgage.

A mortgage must be foreclosed "judicially," which means the lender must file a lawsuit in court.  The judicial foreclosure process can take three to nine months, depending on a variety of factors.

A deed of trust may be foreclosed "non-judicially," which means that the lender does not have to go to court.  Instead, the lender merely records a document with the county recorder and sends out some notices.  Ninety days later, the lender can conduct a trustee's sale.  A trustee's sale is almost always faster and cheaper for the lender than a mortgage.  Moreover, if, for some reason, a lender wanted to do a judicial foreclosure, a lender with a deed of trust can elect to foreclose a deed of trust as a mortgage, but a lender holding a mortgage cannot elect to foreclosure a mortgage as a deed of trust.  Consequently, almost all lenders use a deed of trust.

What MUST be in writing (for residential tenant)?

Under the Act, the landlord is NOT required to have a written lease or rental agreement with the tenant.  Nevertheless, both parties are much better off if a written lease or rental agreement is used.

If a landlord elects NOT to use a lease or rental agreement, the landlord still MUST provide the following written notices to the tenant:

1.  The landlord must disclose to the tenant, in writing, at or before the commencement of the tenancy, the name and address of: (1) the property manager (if applicable) and (2) the owner or the owner’s agent (such agent must be authorized to accept notices, demands, and service of process).  This information must be kept current and refurnished to the tenant upon request.

2.  Out-of-state landlords must have an in-state statutory agent and must provide the name, address and telephone number of the statutory agent to the county assessor and the tenant.

3.  The purpose of all nonrefundable fees and charges must be stated in writing.  For example, if a cleaning fee is nonrefundable, then the purpose for this nonrefundable fee must be stated in writing.  If the landlord does not have/use a written lease or rental agreement, then this information must be in writing and given to the tenant.

4.  The landlord must give the tenant a notice that the tenant may obtain a copy of the Arizona Residential Landlord and Tenant Act from the Office of the Arizona Secretary of State free of charge.

5.  The landlord must give the tenant a move-in inspection form, so that the tenant may document any property defects that existed before tenancy commenced.

6.  The landlord must give the tenant a notice that the tenant may be present for the move-out inspection.

7.  If the rental property has a pool or spa, the landlord must give the tenant a pool safety notice.

8.  If the rental property was build before 1978 or is known to have lead-based paint or lead-based paint hazards, then the landlord must give the tenant a lead-based paint disclosure and comply with other requirement.

9.  If the landlord has a real estate license, the landlord must disclose in writing that the landlord is an Arizona real estate licensee.

10.  If the lease or rental agreement is for a period of time that is MORE than ONE YEAR (i.e., January 1 to December 31 is for one year; January 1 to January 1 of the following year is for MORE than ONE YEAR), then the lease or rental agreement MUST be in writing because of the statute of frauds.

11.  If there is a written lease or rental agreement, all blank spaces must be completed.  Any blank lines may render the agreement invalid or unenforceable.

12.  If there is a written lease or rental agreement, the landlord must provide the tenant with a signed copy thereof.

13.  If the landlord wishes to assess and collect late fees, then the amount of the late fees must be stated in a written lease or rental agreement.

As you can see from the foregoing, even if a landlord does not want to use a written lease or rental agreement, the landlord nevertheless MUST provide various written notices to the tenant.  Inasmuch as the landlord is required by law to provide some written information, the landlord may as well use a written lease or rental agreement and merely include all the required written notices in the lease or rental agreement.

What is the "Act"? (residential)

The "Act" is a term used by "practitioners" (i.e., landlords, property managers, lawyers, etc.) to refer to a collection of statutes (i.e., laws) called the Arizona Residential Landlord and Tenant Act, which are found in Arizona Revised Statutes, Sections 33-1301 to Section 33-1381.

View statutes online OR Download .PDF of the Act.

When/Where does the Act apply? (residential)

Where does the Act apply?  The Act is state law and is applicable statewide. The only exceptions are instances where state law is preempted by federal law (i.e., on Indian reservations,
Section 8 housing, etc.).

Does the Act apply to my rental units?  The Act applies to the rental of dwelling units.  Therefore, generally speaking, if you rent a residential dwelling, the Act applies to you, but there are some exclusions.  The specific exclusions from the Act are found in A.R.S. Section 33-1308. 

Does the Act apply to a landlord's on-site manager?  Maybe. On-site managers are specifically excluded from the scope of the Act. 

Forms - What forms do I need and where to I get them (residential)?

What are the most important forms?  The rental agreement is the single most important form. It is the source of all your legal rights and remedies, except the meager rights and remedies provided by the Act. The rental agreement forms available from the local stationery store do not favor the landlord, are too generic, contain too many blank
spaces and, as a general rule, will not do an adequate job of protecting your rights and property and most do not even comply with Arizona law (i.e., inclusion of required notices to the tenant).  Spend a few dollars; have a good rental agreement drafted specifically
for you, the landlord, by an attorney who is experienced in this area.

The Tenant Application, Property Inspection Checklist and Tenant
Information Sheet are also important forms because they are used every time you sign up a new tenant and because of the information they capture.

Because of the potential consequences to children, the pool safety notice and the lead-based paint disclosure form are also very important.

Where do I get forms?  Your rental agreement should be drafted by your own attorney. Your attorney should also be able to provide you with the other forms that you will need. Alternatively, you may obtain virtually all other forms (except for the rental agreement) from a local stationery store (these forms {but not the rental agreement} are normally adequate).  Paper forms and electronic forms are also available for purchase at another site: Forms

What is the maximum amount of deposit a landlord can collect?

RESIDENTIAL.  A landlord cannot collect a security deposit equal to more than one and one-half month’s rent.  A security deposit does not include nonrefundable cleaning or redecorating fees, but does include refundable cleaning and redecorating deposits (or any other type of refundable deposit, i.e., refundable pet deposit).  Therefore, in addition to a security deposit equal to one and one-half month’s rent, the landlord may also require the tenant to pay a “reasonable” charge or fee (i.e., nonrefundable) for cleaning and/or redecorating, but the landlord cannot collect one more dollar for any type of refundable deposit (i.e., cleaning deposit, redecorating deposit, pet deposit, key deposit, etc.).

COMMERCIAL.  There are no laws limiting the amount of deposit(s) that a commercial landlord may charge a commercial tenant.  There is also no requirement that the landlord return the deposit within a certain amount of days after termination of tenancy.  Nevertheless, wrongful failure of the commercial landlord to return the deposit(s) would be a breach of contract by the commercial landlord.

How to get "good tenants" (residential)

To get good tenants, you must do many things simultaneously.  Some steps are more important than others.  You must: properly prepare your business, properly prepare the rental unit, properly prepare the surrounding area (i.e., the apartment complex), effectively attract large numbers of qualified applicants, gather and evaluate the applications submitted, and then select the best and most qualified applicant.  Toward that end, you should use a good application form AND a good and "uniform" application process.   By "uniform," I mean that the application process must be the same for all applicants or you may find yourself defending a claim of discrimination.

The basic process should be as follows: Collect only basic information before the applicant sees the rental unit (i.e., a registration form, a copy of their I.D., etc.).  The purpose of this basic information is merely to track the number of tenant applicants AND for the security of the person showing the unit (i.e., the I.D. should be kept back in the main office or immediately sent to another location). 

If the applicant does not like the available unit, then the landlord need not waste time (the landlord's and the applicant's time) by having the tenant fill out an application form.

If the applicant does like the available unit, then the tenant is more likely to give complete and accurate information on the application; now is the time to have the applicant complete the tenant application form.

Use a good tenant application form.  This type of form is widely available and most tenant applications do a good job of capturing the information you need to make an informed decision about this applicant.  If you don't have a tenant application form, you may use this form. Download tenant_application.pdf

If these questions do not appear on the tenant application you are using, either add them or ask them of every tenant applicant:

• How is your credit?
• Have you ever been evicted?
• Have you ever filed bankruptcy?
• Have you ever been convicted of a crime?
• Can I call your last landlord?

Must the landlord pay interest on deposits?

Commercial and Residentil.  No. There is no requirement in the Act or elsewhere in the law that compels a residential or commercial landlord to pay interest on any deposits held by the landlord, but a landlord could elect to pay interest on deposits, if desired.

May a landlord lock a tenant out?

Residential. Absolutely not! There are only three ways for a residential landlord to recover possession of the rental unit: (1) the tenant voluntarily returns possession of the rental unit to the landlord (i.e., at the end of tenancy or for any other reason), (2) by court order (i.e., after the landlord has filed and succeeded in an eviction action against the tenant) or (3) after abandonment of the rental unit (as "abandonment" is defined under the Act) by the tenant. At no time and under no circumstances may the landlord lock the tenant out out of the rental unit while the tenant is still occupying the rental unit (a landlord may change the locks after the court has issued a "Writ of Restitution" and the "Writ of Restitution" has been executed/served upon the tenant by the Sheriff or Constable, but that right is conferred upon the landlord by court order and, technically, the locks are being changed by the Sheriff or Constable).

Commercial. Yes, under certain circumstances, and provided the written lease agreement does not state otherwise, then a commercial landlord may lock a commercial tenant out of the rental unit after a default by the commercial tenant.

May a landlord seize a tenant's personal property?

Residential. No. No. "Distraint" (seizing a tenant's personal property) by a residential landlord of a residential tenant's personal property is prohibited under the Act.

Commercial. Yes, under certain circumstances, and provided the written lease agreement does not state otherwise, then a commercial landlord may seize a commercial tenant's personal property after a default by the commercial tenant.

Can a tenant make repairs and deduct the cost from the rent?

Residential.  Under certain circumstances, a tenant may legally make repairs to the rental unit and then deduct the cost of those repairs from the next month's rent.  The precise steps that a tenant must follow are found in A.R.S. Section 33-1363.  In short, these are the steps: (1) the item to be repaired must constitute a noncompliance with A.R.S. Section 33-1324 by the landlord, (2) the tenant must then provide the landlord with a written notice that specifies the need repairs, gives the landlord the statutory time to make repairs, and must also notify the landlord of the tenant's intent to effect such repairs if the landlord fails to make the repairs, (3) the repairs must be done by a licensed contractor, the tenant must pay the contractor for the cost of repairs and the contractor must provide the landlord with a lien release for the repairs performed, and (4) the amount of the deduction may not exceed the greater of $300 or one-half month’s rent (Example 1: if rent is $500, the maximum amount of repairs is $300; Example 2: if rent is $1,000, the maximum amount of repairs is $500).

Commercial.  The commercial landlord/tenant statutes do not give a commercial tenant a "self-help" remedy.  Moreover, almost all commercial leases prohibit a commercial tenant from deducting any amounts for any purpose from the rent.

How does a landlord evict a tenant?

Commercial and Residential.  The complete answer to this question is long and complicated.  Moreover, each situation is different and/or has specific facts that may require one or more steps to be done differently.  Nevertheless, in short, this is the process: (1) the landlord must know what the landlord can and cannot do under the law and under the lease, (2) the landlord must "properly" (i.e., the right notice, served at the right time, served via the right method) serve a written notice, (3) the landlord must file an eviction action (i.e., a special detainer action for residential tenants, a forcible detainer action for commercial tenants) in court, (4) the eviction action must be properly drafted, so that all of the relief that the landlord desires is included, (5) the eviction action must be filed in the "right" court (i.e., the court of law that has both personal and subject matter jurisdiction), (6) the landlord must go to court and present evidence to the court regarding the tenant's default, (7) if successful at trial, the landlord must wait the statutory amount of time and then may apply to the court for a "writ of restitution," which is the court order that directs the Sheriff or Constable to physically remove the tenant (commercial or residential) from the rental unit.

If you, as a landlord, have never been through this process, you should consult with your attorney.

Out-of-state landlord (residential)

Is a landlord required by law to have a property manager and/or statutory agent?

Neither in-state nor out-of-state landlords (i.e., landlord who own residential rental property in Arizona, but who live outside of Arizona) are required to have an in-state property manager.  Both the in-state landlord and the out-of-state manager may manage their own rental property.  Whether or not that is a good idea, is a different question, but the law does not require a property manager.

However, an out-of-state landlord MUST have an in-state statutory agent.  To be clear, a property manager manages the property, collects rent, etc., whereas a statutory agent merely receives notices and legal service of process on behalf of the owner.  The landlord's in-state statutory agent must be registered with the county assessor for the county in which the rental property is located.  If an out-of-state owner/landlord fails to have a statutory agent, the owner/landlord is subject to substantial statutory fines.

As a practical matter, for both in-state and out-of-state landlords, it generally makes sense to have a local property manager because s/he can be more responsive to complaints, etc.  Also, if there is an eviction, the local manager can provide testimony about the
relevant facts, otherwise the owner (whether they live in-state or out-of-state) may need to personally appear in court to give testimony.

If you are an out-of-state landlord and need an in-state statutory agent: Click here.

The "ACT" - view the Act or Download the Act NOW! (residential)

The "Act" is a term used by "practitioners" (i.e., landlords, property managers, lawyers, etc.) to refer to a collection of statutes (i.e., laws) called the Arizona Residential Landlord and Tenant Act, which are found in Arizona Revised Statutes, Sections 33-1301 to Section 33-1381.

You can view those statutes online here.  View statutes online.

Or you can Download a .PDF file of the Act.

Lease/Rental Agreement - What MUST, SHOULD and CANNOT be included (residential)?

A written rental agreement MUST: Disclose the name of the manager and the owner or owner’s agent; disclose that the owner has Arizona real estate license (if true); inform the tenant that a copy of the Act is available free of charge from the Arizona Secretary of State’s Office; inform the tenant that s/he may be present during the move-out inspection; be completely filled out; state which deposits are nonrefundable and state the purpose for each nonrefundable deposit, charge or fee; be in writing if longer than one year; give notice about lead-based paint and pool safety (if applicable); and a signed copy must be delivered to the tenant. In addition, the landlord must
provide the tenant with a move-in inspection form when tenancy begins and an out-of-state residential landlord must have an in-state statutory agent.

The rental agreement SHOULD: be written; be comprehensive; provide for abandonment; describe the tenant’s maintenance obligations; explain limitations on alterations/modifications; provide for regular inspections; provide for payment of expenses incurred to bring legal action, late fees, notice fees and how partial payments are to be applied; include a liquidated damages provision, a jury waiver provision, allow for rental tax increases and include other provisions.

The rental agreement CANNOT: require the tenant to waive his/her rights, include any provision contrary to the Act, agree to pay attorney’s fees (with an exception), agree to limit the landlord’s liability, and/or require a security deposit greater than one and one-half month’s rent.

Lease/Rental Agreement - What is the difference?

There is no real difference.  Some practitioners refer to a "lease" when referring to a rental agreement for a specified period (i.e., six months, one year, etc.) and refer to a "rental agreement" when tenancy is month-to-month and/or when a written agreement does not exist (i.e., an oral "rental agreement").  Both terms (i.e., a lease or rental agreement) refer to an agreement between a landlord and a tenant to rent a piece of real property.  An oral one-year "lease" is just as enforceable as a written month-to-month "rental agreement," the distinctions may merely be the length of the term that the parties are bound by the agreement.  Naturally, the problem with any oral agreement, including an oral "lease" or "rental agreement," is when the parties disagree as to the terms of the oral agreement, which is why it is always best to have a written agreement.  And that is true whether you call it a "lease" or a "rental agreement."

Legal advice for landlords

Commercial and Residential.  The best legal advice you will ever receive as a landlord is advice that helps to prevent and/or avoid problems and litigation.  Toward that end, as an attorney, I can give you the following legal advice; I strongly recommend that you: (1) get a lawyer, (2) get the right lawyer, and (3) have this lawyer prepare or review your rental agreement and other forms. A few dollars spent to properly prepare your forms and establish your procedures will avoid many problems and oftentimes help to avoid litigation.  Avoiding problems and litigation will save you more time and money than anything else you do.  Moreover, in the event litigation cannot be avoided, properly drafted forms will dramatically increase your odds of winning at trial.

Looking even further ahead (not to be pessimistic, but to be realistic), in the event you litigate and lose, you should discuss "asset protection" with an attorney who practices in that area (who may or may not be the same attorney that helped you with your forms). You should also review your insurance needs with your insurance agent/broker.

Partial payment of rent (residential)

If the tenant wants to make a partial payment (either before or after you serve a 5-Day Notice to Pay or Quit) AND you wish to accept a partial rent payment (which the landlord IS NOT required to do), then you should use a "partial payment agreement."  A "partial payment agreement," as defined by A.R.S. Section 33-1371, is a "contemporaneous writing" of the terms and conditions of the partial payment.  A "contemporaneous writing" is a written agreement between the landlord and tenant that is signed by both parties at the time the partial payment is accepted by the landlord.  The language in he agreement may be as simple as: "I, landlord, agree to accept from tenant a partial payment  of $___.  The remaining amount due of $___ shall be paid by tenant on or before _____.

Failure of the landlord to have a tenant sign a "partial payment agreement" will prevent the landlord from evicting the tenant for nonpayment of the balance that the tenant agreed to pay.  That does not mean that the landlord has waived for forfeited the balance due, it merely means that the landlord must wait until the next default (i.e., nonpayment of the next month's rent or some non-monetary default) before the landlord may evict the tenant.