November 2011

Happy Thanksgiving, Merry Christmas, Happy Holidays to all of our clients.  May 2011 end on a high note for you and 2012 be even better.  We appreciate the opportunity to be your attorney and the loyalty you have shown us.

For this month and year end questions we have the following;

We did a walk through move out inspection after a tenant left and found illegal drugs in the apartment.  What should we do?  I would call the local police authorities and see if they wanted to seize the drugs.  They may simply just tell you to dispose of them since it may be difficult to prosecute without any personal knowledge that they were actually the tenant’s.

We had an accidental gun discharge in our apartments.  How should we handle that?  The Arizona Landlord and Tenant Act indicates that if there is an illegal discharge of a weapon, or anything that jeopardizes the health, safety and welfare of the other tenants, vendors and you the landlord, then you can evict the tenant on an immediate eviction.  Even if this was a negligent discharge of the weapon, it endangered your community and you can do the immediate eviction.

We had tenants that used our clubhouse for a particular function and we subsequently learned that they made phone calls to Iran.  How can we charge for these?  Whatever tenant reserved the clubhouse would be responsible for the conduct of their guests and a copy of the phone invoice charges should be submitted to them with a notice to pay with the next month’s rent.  Failure to pay would result in the rent being refused and a potential eviction action taking place.

We served the tenants five day notice.  They paid by check and the check subsequently was returned for insufficient funds.  Do we have to issue another Five Day Notice?  No, the original five day is sufficient because you have not actually converted any funds to you from the resident.

A golf ball was hit from the golf course next door to the property and went through a tenant’s window.  Who is responsible for the repair?  The landlord would be responsible because the tenant did nothing to cause the repair.  However, the golfer would be liable to the owner for the cost.  The problem would be of course, locating the golfer and notifying them of the cost of the repair.  You could call the golf course and see if they have information on who might have been at that particular spot, on that particular day and time.

In our lease agreement, if the tenant breaks the lease and moves out early, they are responsible for all of the rent due, for the remainder of the lease whether we re-rent it or not.  Is this legal?  Probably not, you can not generally collect double rents on a property.  The Judge would have to determine that charging them the remainder of the lease was a reasonable fee for breaching the contract, and this would be very difficult to do if you re-rented it to a tenant for the same amount.

The tenant mailed us an email stating that they had moved and we could take possession of the property.  Is this good enough to reclaim possession of the rental property?  Yes it is.  I would send an email back confirming this with the tenant and then inspect the property.  If the keys are there and possessions are all gone, go ahead and take possession.  You can not do an eviction once you determine that the tenants are no longer in possession.

We have a tenant that paid a pet deposit for there pet when they moved in and have now brought us a prescription from their doctor that the animal is an assistive pet.  Do we have to refund their deposit?  Yes, you can not charge a deposit, pet rent or any fees for an assistive animal.

We had a tenant come into the office that in my opinion was high on drugs.  I asked her if she was using illegal drugs and she admitted it.  Can I now move for an immediate eviction?  Yes you can, but keep in mind that it will be your word against the resident’s when you go to court.  If the resident now changes their story and denies they were using illegal drugs, you would have 50/50 chance of success in court.

A tenant deposited directly into our bank account, a partial payment of rent.  We never agreed to receive a partial payment of rent.  Can we send them a five day notice?  Yes you can, but you should return the money that they paid.  Keep in mind also, that under the partial payment statute, you must have knowledge of the payment and of the breach.  In this case, you did not have knowledge of the payment until after it was done.

We recently realized that we had not been charging the correct sales tax.  We have been charging 1.8%, when the current rate is 2%.  Can we increase the sales tax to match current rates on our current leases?  Yes, but you must give a 30 day notice of the increase.  

We always try and end with something humorous.  The following email came into our office and we call it the “Go hire Jerry Springer email”.  The individual stated he needed assistance because he had mistakenly entered into a renewal lease with his roommate/ex-girlfriend.  The roommate/ex-girlfriend had been unemployed since Christmas 2010, and was fired after she was arrested for theft (coupon fraud/$1200).  She pays her rent by having her ex-boyfriend/father of her child pay her portion of the rent.  She moved in with three children and two pet cats.  I have helped her as long as I can.  She uses her food stamps to pay for groceries, which I usually eat at work.  But to be fair I probably am responsible for eating $110 to $150 in her groceries.  While I pay my share of the rent, I also have been paying all the utilities and the insurance.  I am also currently using her vehicle to get back and forth to work until my vehicle becomes legal.  Her father, who is not on the lease, has been staying with us for over 30 days straight.  I have asked him to leave, but he will not.  He uses the downstairs bathroom to smoke marijuana.  Neither my roommate nor myself smoke pot anymore.  I have asked him to stop as the smell travels through the house.  Now my roommate/ex-girlfriend has brought in a total of 6 cats, when none are allowed.  

I’m tired of being a nice guy, and I am extremely tired of being argued with or being the target of her temper.  I have sought counseling through the VA for my temper and I am also scheduled to appear in court in regards to hitting the wall inside the home in a fit of anger, which I have repaired.  My girlfriend is extremely volatile and is constantly arguing with me.  Please help me. I have had enough of her threats.  I can’t even get to my court appearance because she agreed to let me use her car, but at the last minute cancelled, because she needs it to pick up her ex, who she is going to let stay with us for a couple of days.  I don’t have any money but I need her to leave before things get worse