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.
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