When our nation got shut down, lots of folks lost their jobs. And as a result, many were unable to pay their rent. A number of my friends and associates are landlords or property managers, and they were all lamenting the situation. Some states, like Arizona, were hit harder, because the governor ordered a moratorium on evictions. Later, the CDC added their own. Evictions became more interesting, shall we say, but still possible. This is a tale of one of my recent experiences in that area.
Most of my rentals are rented to tenants who need housing assistance. I did this on purpose, after watching other friends have payment issues with their rentals. When you decide to lease your home to a Section 8 qualified tenant, the State pays most, if not all, of their rent. And if they are paying a portion of their rent, and then they lose their job, the State will usually step up and pay all of it.
Because of the standards used by the various agencies, a rental to a typical tenant who is not taking advantage of a Section 8 program will often be for a higher monthly rent than housing assistance can authorize. So landlords do take a hit on the rental income, but in my experience it isn’t much. And I personally prefer to rent to Section 8 qualified tenants, because they need the help, and I think it is a good thing to do.
But this tale is about a tenant who was not using housing assistance, and how they took advantage of the landlord.
Typically, rentals end in a few ways. The tenant can give notice to terminate at the end of the lease period, or the landlord can give notice. Or, you might drive by your property one day and find that the power is off, the doors are open, and all the furniture is out on the lawn. This is called abandonment, and we will talk about it a bit more a little later. Other ways the lease can end involve the tenant not making payments, or by them violating the lease terms. Usually in these last two cases, the tenant really wants to stay, and they will pull out the stops to avoid eviction.
This particular tenant had been a decent one for many years, but recently due to some familial circumstances, the responsible party in the household changed. When it did, the rent started being late, when it had previously never been late. On the second occasion that it was late (or was it the 3rd?) I stopped by to see what was up, as I generally have good relations with my tenants.
And this time, I noted a few things: There was a car in the garage which was not operable, and actually had no engine (not allowed in the lease). And there was a car in the driveway, which seemed to never move. And there were holes in the walls from fists or slamming doors, the bedroom closet doors were missing, and the bedroom doors had holes in them.
On top of this, the house situation could best be described as squalor, and there were young children in the home. I saw roaches and other insects, and the tenant complained about scorpions. There was no free counter space, there were heaps of dirty dishes and random items everywhere. So it became clear that they were destroying the property, and an eviction was likely.
Per the ALTA, I prepared a 10 day notice citing some, but not all, of the issues that were visible, and sent the notice via certified mail. I timed it so that my 10 day inspection would occur on or just before the last day of the month, so that I could provide a month’s termination notice if they had actually fixed everything. But of course, at the 10 day inspection, they had not fixed much. Still the car in the garage, still the holes in the drywall (although they had covered some with large round disks made to keep doorknobs from denting the wall; I wonder what happened to all the spring door stops I had on every door?) And of course, the squalor was worse. I was tempted to call child protective services, but I figured the eviction would result in a better (or at least temporarily cleaner) place for them.
When we got the court date for the hearing, it was done virtually by phone, and of course the tenants claimed they had made all the changes I required in the 10 day notice. So the judge scheduled a trial a few days later, and I immediately drove to the property to take more photos to show what shape the property was in, at least from the outside. It was easy to see many things that were not corrected — still.
And of course at the trial, the tenant insisted that everything was fixed, even while looking at the photos of the same specific complaints that were not addressed, even after the hearing. The trial was also virtual, and everyone appeared by phone.
And of course, the judge ruled in my favor. The interesting part of the hearing and trial, for me, was listening to the other cases, and how the judge handled them. Because of the Governor’s order, and the more recent CDC order about the pandemic and evictions, the judge worked hard to make sure the tenants knew their rights and had the opportunity to exercise them. This is a problem for landlords, and I hope the behavior is limited to few judges. It is a little like getting a speeding ticket, going to court, and then the judge tells you that if you bring a get out of jail free card with you when you come back, she will let you off. Yep, that really happened. I know which judge to vote against now!
So once the eviction is ordered, the judge gives the landlord a writ of restitution. But because tenants have appeal rights, the writ does not actually issue until 5 days later, at which point you can hire the constable to forcibly remove the tenant from the property. This whole process is lengthy.
Let me lay it out for you: Day 1, send the 10 day lease violation notice via certified mail. Day 6, the 10 day clock starts (5 days for certified mail to be deemed service.) Day 17, conduct the inspection to see if the items have been corrected. Day 17 file papers with the court for the eviction. Day 20 (it varies depending on the court schedule), eviction hearing. If they no-show or plead guilty, you can get the writ then. If they plead not guilty, then a trial is scheduled. Day 22, trial (might be sooner or later depending on the court schedule and when tenants say they can appear). Day 28, writ issues. Day 29, you can hire the constable. Day 30-31, the constable schedules the eviction. Day 32+, the constable performs the eviction and control of the property is returned to the landlord.
When the constable shows up at the door, the tenants will have excuses – and one of them might be the CDC rule about evictions during the pandemic. However, all the eviction rules related to the pandemic involve non payment of rent, and not lease violations. So when the tenant tries to plead against eviction with a pandemic related argument, if they were evicted for breaking the lease, they will still have to go. The moral of this story is to make sure you have strong wording in your lease so you can support a lease violation if it becomes necessary.
If you think the tenant has abandoned the property, it is faster – if the landlord can reasonably say the property has been empty for a week, then they can post a 5 day abandonment notice on the door, and if no one calls you and it is still empty 5 days later, the landlord can change the locks.
So you have them out, and you are all set right? No … Pursuant to ARS 33-1370, you get to inventory and store their property. I recommend taking thorough videos in addition to making a list of the major items left in each room. Then you send the inventory along with where the property is stored, and the moving (if you moved it) and storage costs (pro-rated rent is what I charge, so for a 900 a month rental it is $30 a day storage.) You get to keep their stuff for 14 days before you can dispose of it, which means selling it and offsetting what they owe with what you get from the sale. Also, if the tenant informs the landlord in writing before the 14 days are up, that they want to get their property and are willing to pay the storage fees, then the landlord needs to give them access to get the property. So in the worst case we are at an additional 14 days so Day 45, more or less.
One landlord friend had a car left in their driveway which was not registered to anyone in the rental, and when performing a title search noticed that there was a lien on the car, and the lien holder repossessed the car. This absolves the landlord for any responsibility for the car.
The tenant has to notify the landlord in writing, of their intent to retrieve their property. Without this notice, the landlord is not obligated to do anything; but most of them will want the tenant to haul off as much of their property as possible!
Please note, I am a landlord, not a lawyer, and so this is not legal advice. If you are contemplating an eviction or writing a lease, I STRONGLY urge you to use the services of an attorney who is in the trenches and deals with this sort of thing every day.