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Continued from Eviction and Post-Eviction Myths – Part 1
By guest blogger Denise Holliday, Esq., Hull, Holliday & Holliday, PLC

  1.  I don’t have any actual proof of the alleged criminal activity, but I have do have several letters from other residents that I can show to the judge.Answer:  All evidence rules-of-litigation apply to eviction actions. You must bring in an actual person who observed the illegal activity. Letters from anyone are hearsay and not admissible, unless that person is in court to testify. Even a police report is not admissible without the police officer being present in court.
  2.  I haven’t received rent for five (5) days and neighbors told me they saw the tenants move last weekend. There were a lot of possessions still in the home, so I posted a Notice of Abandonment and changed the locks that same day. I gave all the possessions to Goodwill the next day because it looked like junk.

    Answer:  You just committed a wrongful ouster and illegal access. ARS 33-1370 defines abandonment as:

    “…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.”

    In this case, there were items left behind, so the rent had to be outstanding for 10 days. Additionally, you are required to post the notice on the dwelling unit AND send it certified mail, return receipt requested, to the tenant’s last known address and any alternative address known to the landlord.

    You are are required to store those items for 10 days, notify the tenant where you are storing the items, and how much you are charging to move and store the items. There is also a list of exempt property that you must allow them to retrieve without payment.

  3.  I don’t have to send a Statement of Deposit Accounting (SODA) because the tenant was evicted and they owe more money in the judgment than their deposit.Answer:  ARS 33-1321 requires you to do the itemization within 14 business days, regardless of whether the tenant skipped, was evicted, or moved voluntarily. That means, if you had to do the eviction and the Writ of Restitution, you must send the SODA within 14 business days even if the home is full of furniture and you can’t determine if there are damages.

    If you fail to issue the SODA in a timely fashion, the tenant is entitled to three times the amount wrongfully withheld.

  4.  My tenant promised to pay me this week so I cancelled the court date.Answer:  Do not prematurely cancel the court date, even if the tenant signs a Partial Payment Agreement before your court date. If they don’t pay you, you have to start from scratch and refile the entire case costing your owner more money.
  5.  I cannot charge the tenant rent after the judgment was entered because I terminated their lease.

    Answer:  Eviction actions are limited to specific damage awards. However, ARS 33-1373 states:

    “If the rental agreement is terminated, the landlord may have a claim for possession and for rent and a separate claim for actual damages for breach of the rental agreement.”

    The most obvious charges are rent, utilities, yard work, pool services, cleaning, pest services and any other items the lease makes the tenant’s obligation. Additionally, a landlord can charge for the duplicate commissions they incur when they re-rent the premises.

    A word of caution is appropriate however. If the landlord fails to immediately put it back up for rent at the same price, they may lose some rights that they may otherwise have.

    This article is of a general nature and reflects only the opinion of the author at the time it was drafted. It is not intended as definitive legal advice, and you should not act upon it without seeking independent legal counsel.

    Denise Holliday, Esq., is an attorney and partner at Hull, Holliday & Holliday, PLC. She has expertise in the areas of landlord and tenant, fair housing, subsidizing housing, commercial and residential real estate, and will teach the continuing education course Property Management: Name That Form (3-Contract Law) on Tuesday morning, March 28 at the 2017 Arizona REALTOR® Convention in Prescott.