News
Mr. Hull has been writing articles for Real Estate publications in the valley since 1989. Additionally, he writes a monthly newsletter to his clients that deals with current questions or problems in the Landlord/Tenant field. His articles include such topics as damage by tenants, breaking leases, immedediate evictions, bankruptcy and evictions, and his monthly newsletter is both amusing and informative. Some of his articles are attached here, and if you are looking for some particular information, please feel free to call.
MONTHLY MEMORANDUM
TO: All Clients
FROM: Andrew M. Hull
DATE: November 10, 2009
Some recent questions that have come up regarding what damages we can and cannot ask the court to award us in evictions.
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. Many other leases also have a lease break fee or early termination fee for not fulfilling the contract. The courts have seemed to be consistent in allowing rental concessions in evictions but not allowing lease break fees. 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. Lease break fees on the other hand are really a penalty for not fulfilling the contract and must be reasonable. The reason they do not allow these to be collected in evictions is that you may re-lease the property relatively quickly and then, in effect, you would be charging double rent against the prior tenant rather than a reasonable lease termination fee. Once the tenant has been evicted and you are calculating future charges, you can include the lease break fee in those.
You may wish to use the following language also in your lease agreement regarding the lease break fees so that there is no confusion as to what the tenant potentially can be charged for not fulfilling the lease. A proposed lease break fee provided me by one of my clients stated as follows:
"LEASE BREAK FEE
In the event that the tenant desires to vacate the property prior to its expiration or fails to fulfill the terms of the lease agreement in full, the tenant shall be responsible for the actual costs the owner will suffer which include but are not limited to the following costs: reasonable administrative fee ($400.00), marketing/advertising fees in an exact cost, vacancy rent due until re-leased or until lease agreement expiration date, utilities actually incurred, general upkeep of the property (landscape, pool, etc.) in their exact costs, real estate co-broker fees/referral fee in an exact amount, shortage in rental rate between current rental rate and re-let rental rate; tenant shall pay any shortages for balance of this lease agreement. Tenant shall reimburse owner if owner paid a real estate co-broker/referral fee to tenant’s agent, any reasonable attorney’s fees incurred. Tenant acknowledges these fees listed above as reasonable costs. Tenant agrees to prepay $______________ to owner payable to owner’s management company to be applied towards the total of any and all lease break fees listed above along with a written Notice to Vacate if tenant wishes to terminate early. An accounting of all fees to be itemized for the tenant on the Move-Out Summary Sheet will be provided to tenant according to A.R.S. § 33-1321. Upon receipt of both monies and written Notice to Vacate, the owner/property will begin marketing the property for re-lease.”
For this month’s humorous section we have the following.
While this did not occur in Arizona, there was a tenant who was sitting in his lawn chair on his patio in front of his apartment. Unbeknownst to the general public he had apparently been shot in the head and had been dead for three days. Other tenants and their children thought he was a Halloween prop and would stop and have their pictures taken with him in the background. No one realized he was actually deceased until approximately three days later.
In another situation, the tenant has installed a stripper pole in her rental house and claimed that she did not illegally alter the premises because she needed this as a work preparation prop.
In another case, the tenant appeared in court and invoked the Soldiers and Sailors Relief Act because her husband was allegedly in the military with covert operations in the Middle East and requested that she not have to pay rent during his absence. The manager had seen the husband coming and going from the apartment, and a quick call to the military revealed that he had gone AWOL instead of reporting for active duty, and the military police were actively looking for him.
In another matter, the Judge asked the tenant if he had paid his rent and tenant said no. The Judge said, “Is there any reason?” The tenant said, “Yes, the Arizona Diamonds are responsible because they are so bad no one goes to the games anymore and I am employed as a vendor and I can’t work as much as I used to. The Judge’s comment was, “Sue the Diamondback.”
Past Memos
May 1, 2009
December 15, 2008
November 26, 2008
October 7, 2008
August 28, 2008
August 5, 2008
June 2008
April 2008
December 2007
September 2007
August 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
October 2006
September 2006
July 2006
June 2006
May 2006
April 2006
March 2006
