Eviction and Post-Eviction Myths – Part 1
By guest blogger Denise Holliday, Esq., Hull, Holliday & Holliday, PLC
- I can evict the tenant because I am the property manager and the Property Management Agreement (PMA) says I am the legal agent for the owner.
Answer: The Rules of Procedures for Eviction Actions (RPEA), Rule 11 (a)(1) specifically prohibits property managers from representing the owner in an eviction action.
- My tenant allowed his girlfriend to move in and now he wants her to move out because she isn’t paying him her share. The owner is the only one who can do the eviction and doesn’t want to get involved.
Answer: The RPEA, Rule 11 (a)(1) allows the property owner, or the sub lessor entitled to possession, to file the eviction so the tenant is able to file the eviction on his own. Additionally, ARS 33-1368(A) permits the landlord to issue a 10 day non-compliance notice to the tenant for having an unauthorized occupant and to evict the tenant if that issue is not cured within the ten days.
- Other tenants are complaining about the smell of marijuana so I spoke to the tenant. He has a medical marijuana card so I can’t evict him.
Answer: ARS 33-1368(A) permits a landlord to evict for any criminal activity. The federal government still classifies marijuana as an illegal substance. Additionally, HUD and the Arizona Attorney General’s office have both issued opinions that clearly state that you can evict someone for using marijuana, even if they hold a medical marijuana card. You need to know that a landlord cannot discriminate against a potential tenant solely because they hold a medical marijuana card.
That means, a landlord cannot prohibit a tenant from using medical marijuana elsewhere, but they can refuse to allow them to use, grow, possess, etc., it on the premises since that is the only area within the landlord’s control.
- I can dispose of the tenant’s possessions after a Writ of Restitution without holding the items for 21 days or sending the tenant the 21 day letter because my lease states that if I determine the value of the stuff left behind is so low that it would not cover the cost to move and store the possessions I don’t have to hold the items.
Answer: ARS 33-1368(E) requires the landlord to hold the tenant’s person property for 21 days and requires the landlord to send the notice certified mail, return receipt requested, to the tenant’s last known address and any alternative address known to the landlord. The special provision that allows a landlord to not have to hold the items if they have that language in their lease is under the Abandonment statute (ARS 33-1370) and does apply when a Writ of Restitution has been executed. BEWARE!!! This is one of the top reasons that tenants sue landlords and win. You must send the 21 day notice, notify the tenant where the stuff is being stored and what they have to pay to recover their possessions. There is a special list of items that are exempt and do not require the payment of any money to retrieve those items.
- The time frame for me to send the security deposit letter does not begin to run until after the lease is over or whenever I get it re-rented.
Answer: ARS 33-1321 states that the 14 business days begins after the lease is terminated, possession is delivered, and receipt of demand by the tenant. An eviction or an abandonment of the home terminates the tenancy so you need to send the itemization as soon as you get possession back. Additionally most courts ignore the requirement that the tenant is required to give you written demand for the accounting. You can accelerate the rent and the other costs associated with the property (utilities, pool and yard maintenance, etc for the remaining period of the lease) and send that estimated Statement of Deposit Accounting (SODA) to the tenant within the 14 business days.
Eviction and Post-Eviction Myths – Part 2 will be published in an upcoming edition of the VOICE
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.