Real Estate Investing 101

How to Reduce and Deal With Criminal Acts By Tenants

Crime and criminal acts by tenants is a growing problem for landlords. Meth labs, distribution of drugs, and other unsavory activities cause damage and can create a myriad of problems for a landlord or property manager.

One of the full-time property managers in our brokerage, Martha Zabala, gave me a copy of an addendum she uses with her rental agreements. Martha has a reputation for being a tough, yet fair property manager who likes to cross all the "t's" and dot all the "i's". Thus, it comes as no surprise she is ahead of the curve on a problem that is likely to get worse until the economy heals a bit.

Martha says this document has helped execute quick evictions on tenants who violate its conditions and makes those who have evil plans think twice before renting your property.

Below is a link to the "Crime Free Addendum to the Rental Agreement" she uses. You'll want to run it by your attorney to adjust it to conform with laws and code in your state and city. This particular document was drawn up for use in Arizona and the language and references are those of Arizona.

Download CRIME FREE ADDENDUM TQ RENTAL AGREEMENT.doc (19.5K)

We hope this information helps keep your real estate investments safe and happy.

Ron Urban & Gene Urban
The Urban Team at Realty Executives
602-234-5777

Rent Concessions & Broken Leases

Many landlords offers rental concessions as a way to attract new tenants. The signs are everywhere… “Free Rent”, “1/2 Off First 3 Months” and even “Free Plasma TV with 1 Year Lease.” When the market is saturated, like the current Phoenix market, landlords get creative.

We gotten some emails asking what damages a landlord can ask the court to consider regarding concessions and evictions.

As with all things legal, we turn to people with the “JD” thing behind their name and that person is most often Phoenix landlord/tenant attorney Andy Hull.  Regarding concessions and evictions, Andy says:

The normal lease agreement usually will have a provision for rental concessions that were given to the tenant as an inducement in signing the lease. These rental concessions then would be repayable as unpaid rent in the event the tenant does not fulfill the lease agreement.

The courts have seemed to be consistent in allowing rental concessions in evictions. The lease must specifically state that the concessions must be repaid as additional rent if the contract is not fulfilled. Most of the courts will also prorate the concessions for those used as of the date of the eviction.

We hope this info has been of help. If you need a knowledgeable landlord/tenant attorney in the Greater Phoenix Market, Andy Hull is a well known quantity. Just go to his web site for contact info and such.

Best to you,

Gene Urban & Ron Urban
The Urban Team at Realty Executives
602-234-5777

How to Evict a Tenant in Arizona: A guide to initiating a forcible detainer action

Many people ask us about the process for evicting a tenant in Arizona. Eviction is not difficult in Arizona provided you follow the procedures carefully and completely. As always with legal questions we turn to the professionals. Our good friend, landlord/tenant attorney,Andy Hull has graciously provided a some great advice for landlords faced with having to file a forcible detainer action and evict a tenant.

If you have never filed a forcible detainer action, we strongly advise you to consult with a knowledgeable attorney. The Arizona Bar Association can help you find someone or the people at Andy Hull's office will be glad to help. 

If you are proceeding without legal representation, the Arizona Superior Court web site has a guide designed to help you.

Below is information Andy Hull provides to his client's needing to begin a forcible detainer action.

PROCEDURES FOR INITIATING A FORCIBLE DETAINER ACTION

A. Type of Forcible Detainer

Please notify your attorney prior to filing as to the type of eviction you are filing the following:

1. Immediate Termination (Eviction for criminal activity, severe property damage, etc.)

a. You must speak with an attorney prior to serving the notice. Certain activities may not be grounds for an immediate eviction. Our office can also prepare and serve the notice for you, as can your process server.

b. The notice must specify the conduct which is grounds for immediate eviction in detail, including dates, times and the nature of the incident.

c. You must have witnesses with personal knowledge of the incident who are willing to appear in court and testify on behalf of management. Written statements from witnesses are not usable in court.

d. Security guard logs and police reports may also not be acceptable as evidence. Be prepared with names, addresses and/or badge numbers if subpoenas are necessary.

e. Do not make comments to tenant such as “I will have you out in a few days” or “You better leave or I will take you to court”. These statements could be used against you at the court hearing. Simply serve the notice and wait for your day in court.

f. If rent is owed when the immediate eviction is in process, and tenant attempts to tender rent, DO NOT ACCEPT IT. Acceptance of rent during this time could jeopardize the eviction and allow the tenant to remain in the property.

2. Non-Compliance Eviction (10-day or 5-day Health and Safety)

a. As with an Immediate Termination, you must have witnesses with personal knowledge of the problems appears and testify at court. Before and after pictures, if applicable, may also be necessary to make your case.

b. Once the noncompliance notice has been served, if rent is offered DO NOT ACCEPT IT unless the non-compliance breach has been cured. Acceptance of rent could jeopardize your eviction should the tenant not cure the breach of lease.

c. Make sure your notice clearly details the alleged violation – dates, what happened, etc. The notice must tell the tenant what violation they are being accused of.

3. Non-Payment of Rent

a. Your notice must be dated and signed by the individual serving the notice. If the notice was mailed, eviction cannot be started until ten days after date mailed, or five days after the tenant signed for the mail.

b. Notice should include all amounts owed by the tenant, including any balance (or credit balance), utilities or damages, where applicable, and any late charges and rent concessions that have been given. Fees for service of the notice or other charges such as deposits, etc. cannot be charged unless it is part of your lease agreement.

c. If the tenant attempts to tender a partial payment of the rent that is due, DO NOT ACCEPT IT without having the tenant sign a Partial Payment Waiver agreement. Failure to have the tenant sign this waiver could cause you to lose your right to the remaining rent owed by the tenant for that rental period and your right to proceed with an eviction.

d. After the court date is set, a copy of your five-day notice must be given to our office, either by mail or fax, for your court file. If we do not have a copy of the notice at the hearing, the court may dismiss your eviction. The courts also require a complete copy of your lease agreement in order to award all late charges and attorney fees.

4. Attached are various other notices that may need to be used during your tenancy. Please call with any questions.

B. Cancellations before court

You must call your attorney as soon as a tenant pays in order to cancel the court hearing. If we do not hear from you, we assume that we are to proceed with the eviction. You can cancel with our office up to the date and time of court; however, we may not be able to cancel with the attorney if you wait until the last minute to call. If for some reason, a court hearing is not canceled, we can file a Motion to Set Aside the Judgment, if necessary. Remember, the tenant has until the court date to pay all monies due and owing, including all late charges, attorney fees and court costs. LANDLORDS CANNOT REQUIRE PAYMENT OF FUTURE RENTS. If payment in full is made, it is necessary for the landlord to cancel the court hearing immediately.

C. Judgments

1. At the hearing date, a Judgment will be entered if your tenant does not appear or if your tenant does appear and stipulates the Judgment. The attorneys who appear on your behalf do not make deals with your tenants without your approval, nor do the attorneys assure your tenants that if they pay the Judgment, they will be able to remain in the premises. Any payment arrangements are referred back to you. You do not have to reinstate the lease and accept payment, despite what the tenant tells. It is your choice. Any acceptance of money must accompany a written agreement signed by the tenant indicating whether you are reinstating the lease or just paying on the judgment.

2. Should your tenant appear and plead not guilty, a trial will be held. This may occur at a different date and time, but increasingly the Judges are hearing trials at the same time as the initial hearing. Therefore, if you think that your tenant may come to court and attempt to raise ANY issues regarding their nonpayment, you should plan to be at court. Please remember that we can not win a trial if there are no witnesses at court. This includes the management as a witness to the amount owed and the delivery of the notice.

3. The Judgment will require your tenant to vacate five days after court (or 12 – 24 hours in the case of an immediate eviction). If the tenant pays, or makes suitable arrangements to stay, you must notify our office to file a Satisfaction of the Judgment. If the tenant does not make arrangements and does not vacate, you will need to have our office file a Writ of Restitution so the Constable may come and remove the tenant for you. Writs are not filed automatically.

4. After the tenant vacates, apply the deposits to the tenant’s account, including the Judgment where necessary. This must be done within fourteen (14) business days after tenant vacates the premises. If the deposits are applied to the Judgment, you must file a full or partial Satisfaction of the Judgment as soon as the amounts are applied. You may charge the tenant for the rest of the lease until you get it re-rented, any lease break fees in the contract, damages to the unit (include a copy of the receipts for the repairs), and any other costs you incur (including utilities, pool or yard service but only if the lease provides that the tenant is liable for these sums. You must return all sums you are not entitled to prior to the fourteen business days or you risk being liable for three times the amount. Send the itemization and/or the funds certified mail to the last known address.

D. Miscellaneous Issues

1. Discrimination issues continue to be a hot topic. Be careful about statements made upon refusal to leave—do not mention number of children, number of residents, or how many to a bedroom unless you seek legal advice first.

2. If you receive money from your tenant after court and you do not wish to have the tenant continue to reside at your rental property, DO NOT GIVE A RENT RECEIPT. Give or send the tenant a letter stating the money is being applied to the debt owed you, you are not reinstating tenant’s lease agreement, and the tenant must vacate per the court order.

3. REMEMBER, you can only legally serve written notices one of two ways: 1) personally give the notice to the tenant or 2) send the notice by certified or registered mail. The notice is legally served five (5) days after mailing or when the tenant signs for his notice, whichever occurs first. If you deliver the notice to the door, you may risk having the eviction dismissed if the tenant denies receiving the notice.

We hope this info has been of help. Special thanks to Andy Hull for keeping our readers well informed.

Gene Urban & Ron Urban
The Urban Team at Realty Executives
602-234-5777

What To Do With Personal Property Abandoned By a Tenant... ARS 33-1370

The question of what to do with property left behind by a tenant comes up pretty often. ARS 33-1370 of the Arizona Residential Landlord Tenant Law is quite specific. A wise landlord should know this legislation and follow it fully. We've provided the step by step procedures outlined in this legislation for your review.

If you have specific questions, we advise you contact an attorney who specialized in landlord/tenant law or send us an email and we'll have it reviewed by one of our legal friends.  Happy reading.

ARS 33-1370
D. After the landlord has retaken possession of the dwelling unit, the landlord may store the tenant's personal possessions in the unoccupied dwelling unit that was abandoned by the tenant, in any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available. The landlord shall notify the tenant of the location of the personal property in the same manner prescribed in subsection A of this section. E. The landlord shall hold the tenant's personal property for a period of ten days after the landlord's declaration of abandonment. The landlord shall use reasonable care in holding the tenant's personal property. If the landlord holds the property for this period and the tenant makes no reasonable effort to recover it, the landlord may sell the property, retain the proceeds and apply them toward the tenant's outstanding rent or other costs which are covered in the lease agreement or otherwise provided for in title 33, chapter 10 or title 12, chapter 8 and have been incurred by the landlord due to the tenant's abandonment. Any excess proceeds shall be mailed to the tenant at the tenant's last known address. A tenant does not have any right of access to that property until the actual removal and storage costs have been paid in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including all those related to the tenant's immigration status, employment status, public assistance or medical care. If provided by a written rental agreement, the landlord may destroy or otherwise dispose of some or all of the property if the landlord reasonably determines that the value of the property is so low that the cost of moving, storage and conducting a public sale exceeds the amount that would be realized from the sale. F. For a period of twelve months after the sale the landlord shall: 1. Keep adequate records of the outstanding and unpaid rent and the sale of the tenant's personal property. 2. Hold any excess proceeds which have been returned as undeliverable for the benefit of the tenant. G. If the tenant notifies the landlord in writing on or before the date the landlord sells or otherwise disposes of the personal property that the tenant intends to remove the personal property from the dwelling unit or the place of safekeeping, the tenant has five days to reclaim the personal property. To reclaim the personal property the tenant must only pay the landlord for the cost of removal and storage for the period the tenant's personal property remained in the landlord's safekeeping.

H. In this section "abandonment" 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.

Once again, we hope this helps you be a more successful landlord.

Ron Urban & Gene Urban
The Urban Team at Realty Executives

Funny and Sometimes Strange Landlord Tenant Stories

It’s been a little while since we’ve posted some of the strange but true landlord & tenant stories. These are courtesy of Andy Hull’s office. If you have a good story of your own, send it to us so we can put it on Real Estate Investing 101. Below are today’s tales.

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The tenant alleged that she should not be evicted from her apartment because the landlord breached the contract. When the Judge asked the tenant what the landlord had done to breach the contract, the tenant informed the Judge that the landlord was renting apartments to illegal immigrants and that the tenant was under indictment for illegal alien smuggling into the country and, as part of her release orders pending her criminal trial, she could not be anywhere near illegal immigrants.

In one case, the tenant came in front of the Judge and looked at the attorney and the Judge and said, “Don’t worry, I’m on my medication which prevents me from killing people”.

In another situation, the tenant filed a written Motion to Dismiss the eviction case stating that she did not get the 5-day Notice. The tenant cited the Arizona Residential Landlord and Tenant Act and the proper ways to serve a 5-day Notice. The tenant, however, attached as an exhibit to her Motion to Dismiss, a copy of the 5-day Notice that she claims she had not gotten.

Best of days to you,

Ron Urban & Gene Urban
The Urban Team at Realty Exeuctives
602-234-5777

HOW TO REMOVE EVITED TENANTS... the role of the constable in Arizona

Our attorney friend Andy Hull continues to amaze us with great legal content for our readers. Yeah Andy!!

Today’s topic will be the role and use of a constable to remove tenants who just don’t want to leave despite having lost the battle and have an eviction judgment filed against them. Below are some thoughts from the man they call Dr. Evictor, landlord/tenant attorney extraordinaire, or simply Andy Hull.

As you read this I wonder if you will be surprised at the various options constables have while performing their job… quite insightful stuff here.

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One area that clients always have questions about is Constables. As you know, once you have obtained an eviction Judgment against a tenant and they have refused to move, you must order a Writ of Restitution.

A Writ of Restitution is an order to the Court Constable to come and remove the tenants from the property. If you wish to avoid having to pay the Constable (approximately $150.00) to come out and remove the tenant, the only other legal way would be to do a Notice of Abandonment. If you believe the tenants have vacated, you can post the Notice of Abandonment conspicuously on the door and send a copy certified mail to a last known address (usually the residence). You cannot simply go in to the property and change locks. The only exception to this is if the tenant has returned the keys to you and/or provided you with written notification that they no longer live in the premises, then you may go in.

Absent the tenant returning the keys or doing the Notice of Abandonment, if the tenant appears to be gone you do need to file the Writ of Restitution for the Constable. Even if a tenant verbally tells you over the phone they have moved, you do not want to enter the property other than to possibly check for occupancy. The problem you run into is that if you do enter the property without following the legal means available to you, the tenants can claim an illegal entry and also then sue for all of the “alleged” valuable property that they left behind in the rental unit, and for an “alleged” wrongful ouster.

The Constables do have total discretion in how expeditiously they serve the Writ of Restitution. There is currently no one you can really complain to if a Constable does not timely serve the Writ. You may certainly call our office and we will attempt to get hold of the Constable if there are delays in serving the Writs. Also, because of the court consolidation and Judges sharing a court building and also sharing their staff, Writs of Restitution do get misplaced and sometimes are delayed in being signed by the Judge. It is not unusual for a Constable to take up to a week or longer to come out and remove a tenant from the property.

The Constables also have full discretion on how they wish to remove the tenant. For instance, they can give the tenant overnight or through the weekend to move out before being locked out. Generally, if you believe the tenants have moved and you cancel the Constable and you find out subsequently that the tenants have not moved, the Constables will require another fee to be paid before they will come back out.

If the Constable is not doing their job as the law currently is, unfortunately, you must sue the County as well as the Constable in a civil lawsuit. Of course, the best advise is to build up a reporé with your Constable, find out how he likes to have the lock-outs done, and cooperate fully with the procedure that that particular Constable is comfortable with. As a reminder, the Courts will not reimburse your Writ fee if you later cancel the Writ, and the Writ is only valid for 30 days after the Judgment.

Lots to think about in this post. Once again we thank Andy Hull for providing our readers with great information. You can call Mr. Hull and his team at 602-230-0088.

Be mindful that Andy Hull practices law in the State of Arizona and his commentary may not apply to other states and countries.

Best to all our loyal and faithful readers… you make our work here at Real Estate Investing 101 worth every minute. Please pass our URL to others who may benefit.

Gene Urban & Ron Urban
The Urban Team at Realty Executives
602-234-5777

What to do if Tenant Leaves Behind Rented Furniture, TV's and Such.

Today’s post involves tenants who rent their furniture and then default in their payments. This most commonly occurs when the tenants are also being evicted for nonpayment of rent. The Judgment is entered and the tenants are locked out of the apartment or the rental house. The landlord then finds out that some or all of the furniture inside the rental property was rented by the tenant and the rental company is looking to retrieve their property.

According to our eviction guru and attorney, Andy Hull, the rental company would have the right to have access to remove their property but you should request a copy of the contract as well as identification numbers linking the furniture to the contract. Upon receipt of that proof, you can safely allow the rental company access to remove their furniture. However, you should not allow them to enter until after the tenant has been legally removed.

Best of times to you,

Ron Urban & Gene Urban
The Urban Team at Realty Executives
602-234-5777

legal opinions are those of Andy Hull, a Phoenix, AZ based attorney.