Common Mistakes of Landlords In Forcible Detainer Actions
This guide is designed to address general drafting errors seen, common problems seen, and how a special detainer/forcible detainer actions for retaking possession transpire and how to avoid them. This guide is designed primarily for Landlords in the State of Arizona or other Landlord attorneys.
General DraftingThis first portion should go without saying, but have a lease. An oral lease is incredibly difficult to prove, and without certain provisions it can cause an incredible amount of issues. Plus, if there is an oral lease, it causes the eviction of the tenant to take much longer costing both time and money. Second, make sure the lease is "fair." While most landlords can and should contact an attorney to draft their lease for them in the first place, courts often find that Landlords are the party with the "upper hand." This makes sense as typically Landlords have much more money than tenants. Therefore, follow the Landlord Tenant Act of your State. In fact it isn't a bad idea to reference this in your lease what the tenants' duties are and what your duties are. This keeps everything much more clear.
Third, you are required by the act to provide a copy of the lease to the tenant, make sure you do. Fourth, make sure the description of the premises is clear. That means if you are renting a house and each person is being rented their own individual room, expressly label which person has what room and what the common areas are.
Five, clearly state what the rental amounts are, what type of late fee provisions there may be, etc.
Six, clearly describe whom will pay for utilities, water, sewage or any other miscellaneous items like internet.
Seven, make clear whom is and is not a tenant. Additionally, list how guests should be dealt with in the lease agreement, use statute to supplement this. Specifically refer to any rules or regulations or indicate there may be an addendum to add to the lease (this is usually good to include the bed bug or marijuana addendums).
Eight, clearly define right of entry and make sure you are in compliance with statute.
Nine, describe whether pets or animals would be allowed or what the size restrictions are. If there is an issue or a Service Animal or Emotional Support Animal document these items and contact an attorney to make sure you are in compliance with the Federal Fair Housing Act.
Ten, describe who is liable for the lease (joint and severable is recommended).
Eleven, clearly describe the security deposit including what is and is not refundable. Make sure you take an accurate accounting of this and it is provided upon move out to the tenant as described by statute.
Twelve, include a military personnel clause.
Thirteen, make sure there are signatures on the lease and there is a leasing manager who will be able to testify as to the lease signing.
Fourteen, generally I would recommend putting in the lease agreement somewhere towards the end to encourage the tenant to realize that they are signing a legally binding document and that they should be encouraged to seek the help of an attorney in reviewing the document before proceeding forward.
Fifteen, Landlords may consider adding an interest fee provision to unpaid rent, this can be as high as 20%. If you do not have a specific interest fee provision you can request this pursuant to statute.
Common Problems Landlords FaceFailure to Pay: This is the most common issue that Landlords face. This is where clear late fees and proper accounting are paramount to describe. If you are forced to evict based upon non-payment (see next section) be sure to include proper notice.
Criminal Activity: Landlords can evict for criminal activity for events that occur on their property. In addition this can be an immediate eviction, shortening the time considerable for what it would usually need for an eviction to be heard. However, the types of criminal activity for which a landlord can evict for are limited pursuant to statute. In addition to this the police report and subpoenaing the officer are often necessary for the landlord to prove their case.
Failure to Comply with Notices: Notices have different lengths of time to comply and number of notice requirements dependent upon what type of premises the Landlord is operating. These must be given proper delivery.
Domestic Violence: Domestic Violence is a terrible occurrence and can cause an early termination of the lease. These are written pursuant to statute. If a tenant claims they are a victim of domestic violence you should contact a local attorney to make sure the tenancy is properly terminated.
Proper Notice: Landlords must provide proper notice pursuant to statute to ensure that a proper summons and complaint can be filed. Typically in Arizona notice is done one of two ways, first is to hand deliver the 5 day notice or immediate notice in hand. It is paramount that if a Landlord does this that they appear in court to testify as to the service. Second is to issue a certified mail and post the item to the door of the tenant. Sending via certified mail does add five days for mail receipt. However, at this point the tenant is "deemed" to receive it pursuant to statute.