Partial Rent Payments

accepting partial rent payments

Accepting a partial rent payment will prevent an Arizona landlord from evicting a tenant for non-payment of rent during that calendar month. If an Arizona landlord accepts any money from a tenant–even one dollar–that tenant cannot be evicted during that month for non-payment of rent.

A.R.S. 33-1371(A) states in part:

“acceptance of rent, or any portion thereof,..by the landlord constitutes a waiver of the right to terminate the rental agreement for that breach.”

A.R.S. 33-1371(A)

The above statute makes it impossible for an Arizona landlord to accept a partial payment and then evict that tenant during that same month for non-payment of rent. As a landlord, if you accept even $1 from your Arizona tenant then you must wait until the next month to begin the eviction process.

On the flipside, Arizona landlords have no obligation to accept partial rent payments. See the following statute.

A.R.S. 33-1371(A) states in part:

“A landlord is not required to accept a partial payment of rent or other charges.”

A.R.S. 33-1371(A)

What Should You do if a Tenant makes a Partial Payment?

An Arizona landlord should formally reject any partial payments made by a tenant. You need to return the payment along with a Notice of Formal Rejection of Partial Payment. Many tenants will submit partial payments hoping their landlord will accept it.

tenants receiving government subsidies

A.R.S. 33-1371 makes it clear that the acceptance of a housing assistance payment by a landlord does not constitute an acceptance of partial payment of rent or waive the landlord’s right to terminate a rental agreement for any breach by the tenant.

B. For the purposes of this section, a landlord’s acceptance of a housing assistance payment does not constitute an acceptance of a partial payment of rent or a waiver of a landlord’s right to terminate the rental agreement for any breach by the tenant.

A.R.S. 33-1371(B)

Specifies that acceptance of a housing assistance payment by a landlord does not constitute an acceptance of partial payment of rent or waive the landlord’s right to terminate a rental agreement for any breach by the tenant.

“Housing assistance payment” means any payment made to the landlord by a government agency, a public housing authority or any third party on behalf of a government agency, a public housing authority or any for-profit entity pursuant to a separate written rental assistance or subsidy contract between the landlord and the government agency, public housing authority or third party on behalf of a government agency, public housing authority or for-profit entity.  Housing assistance payment does not include any payment made by a faith-based organization, a community action agency program or a nonprofit entity.

A.R.S. 33-1310(6)
  • A.R.S. 33-1310(6) Defines housing assistance payment to include any payment made to a landlord pursuant to a separate written rental assistance or subsidy contract by a:
    • government agency;
    • public housing authority;
    • third party on behalf of a government agency, public housing authority; or
    • for-profit entity.
      • Examples include (but are not limited to): A city or county public housing authority providing “Housing Choice Vouchers” or “Section 8” vouchers or a for-profit entity such as HOM, Inc., providing Rapid Rehousing or Permanent Supportive Housing vouchers.
  • A housing assistance payment does not include any payment made by a:
    • faith-based organization;
    • community action agency program; or
    • non-profit entity.
    • Acceptance of a partial payment of rent or any housing subsidy from a faith-based organization, community action agency or non-profit entity (absent of a contemporaneous written agreement) will waive the landlord’s right to terminate a rental agreement for any previous breach of the rental agreement by the tenant.
    • If a landlord wishes to accept a partial payment of rent or any housing subsidy from a faith-based organization, community action agency or non-profit entity and not waive their right to terminate the rental agreement, then the landlord and tenant must enter into a contemporaneous written agreement at the time that the partial payment of rent or housing subsidy is made.

If you are an Arizona landlord and have questions about a tent making partial rent payments, then contact the Dunaway Law Group by messaging us HERE or calling our offices at 480-702-1608.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

What is a Writ of Restitution?

Once an eviction judgment in obtained, an Arizona tenant has 5 calendar days to vacate the property. If the tenants do not voluntarily vacate within the 5 days, then an Arizona landlord can file a Writ of Restitution. The Writ of Restitution orders a constable–similar to a sheriff–to remove the tenants from the Property.

Upon arriving to the rental property, the Constable will let the tenants know that they have, anywhere from a few minutes to a few hours to vacate the Property. The tenants will have enough time to pack a bag of their essentials and leave. Whether it’s by reason or force, the tenants will be leaving when the constable orders.

Once the tenants have been removed from the rental property, it becomes a Class C misdemeanor if they ever return without the landlord’s permission.

When Will the Constable Execute the Writ?

When will the constable visit the rental property and actually remove the tenants? It’s impossible to give a precise estimate and the timeframe can vary wildly. When the Writ of Restitution is initially filed with the court the filing clerk must take the paperwork to the judge for his/her signature. Once signed by the judge it is delivered to the Constable. Sometimes, a judge may be busy or out of town and the Writ sits on their desk for days before it is signed.

Once the Writ is signed then it is delivered to the Constable for execution, and this can be another delay in the process. Most justice courts in Arizona, only have one Constable. So, if the Constable is on vacation, sick or receives a large number of Writs at the same time then it can take as long as two weeks before he is knocking on the property door! Though it usually takes 6 to 9 days for the Constable to actually show up to the rental property.

changing the doorlocks

It is strongly advised that the locks to the property are changed once the tenants have been removed by the constable. Ideally, a locksmith can go to the property at the same time as the constable and immediately change the locks. Sometimes, a constable is not able to communicate with the landlord prior to executing the writ of restitution. In these situations, send the locksmith to the rental property just as soon as possible.

In the picture below, you can see the constable, locksmith, and property owner all present during the execution of the writ.

Maricopa County constable serving a Writ of Restitution

How will i know if the tenants have already vacated the rental property?

There is no “scientific” way of knowing whether or not the tenants have left. Typically, by this point the tenants are not contacting the landlord and so they are not going to send an email or text informing the landlord they have left the property.

If a landlord lives near the rental property, then I recommend driving by–but do not make contact with the tenants–and look to see if there are signs that they are moving. For example, is there a moving truck in the driveway? Are people carrying out boxes? If you drive by at night are the cars gone and lights turned off?

Or, conversely, when you drive by the rental property are cars in the driveway and lights on in the house? If so, this is a good indication that the tenants have not left and have no intentions of leaving.

what if the tenants leave their belongings?

If the tenants leave behind their belongings, then an Arizona landlord must maintain the tenant’s belongings for a minimum of 14 days from the date the Writ of Restitution is executed. Click HERE to learn more about the 14-day process.

If you are an Arizona landlord and would like to know more about Writs of Restitution, then call the Dunaway Law Group by phone at 480-702-1610 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

Mailing Notice to Tenants

In Arizona, every eviction begins with the landlord mailing some type of a notice to the tenant, i.e., 30-day, 10-day, 5-day, etc. Once the tenant has received the notice–or 5 days from the date of mailing has passed at which time it is considered to have been legally received–the tenant has a certain number of days to take action.

timing of notice

When a tenant has legally received a notice can be a little confusing. Proper calculation of time is explained in A.R.S. § 33-1313(B).

If notice is mailed by certified mail, the tenant is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first.

A.R.S. 33-1313(B)

For example, if a 5 day notice is sent to the Arizona tenant via certified mail and the tenant does NOT sign for the notice then we must wait 11 days before filing the eviction. Because it is legally received 5 days after mailing, plus they have the 5 days to make their rent payment.

However, if the Arizona tenant actually signs for the certified letter then the counting begins on that day. For example, if we sent the letter on Monday and the tenant signs for the letter on Tuesday then the 5 days to pay begins on Wednesday.

mailing the 5 day notice

In Arizona, the process of evicting a tenant for non-payment of rent begins with mailing a 5 day notice. If the tenant never signs for the 5 day notice it is still legally considered having been received 5 days after it was mailed.

A 5 day notice demands that the tenant pay ALL past due rent, late fees, and other outstanding fees in full within 5 days. If, the tenant attempts to tender the full amount owed within the 5 day period then it must be accepted. A landlord cannot reject the full outstanding balance owed and then turn-around and try to evict them for non-payment of rent.

It is important to note that if an Arizona landlord accepts a partial payment, even one dollar from a tenant then they cannot be evicted in that same calendar month for non-payment of rent.

If rent is not tendered within 5 days then an eviction lawsuit can be filed with the appropriate Arizona justice court. Within 6 days of filing the Complaint an eviction hearing should be held.

process of service on arizona tenants

Once an eviction lawsuit has been filed against an Arizona tenant then they must be served complaint and summons by a licensed process server.

The rules for serving tenants in an eviction case are found in the Rules of Civil Procedure for Eviction Actions.

A.R.S. Rules Proc. Evic. Act., Rule 5(e) Service of Process. Service of the summons and complaint shall be accomplished by either personal service or post and mail service for a special detainer action

If you are an Arizona landlord and need help evicting a tenant then contact the Dunaway Law Group at 480-702-1608 or by messaging us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

Refund a Security Deposit

Properly Refunding a Security Deposit

Per A.R.S. § 33-1321(D) of the Arizona Residential Landlord and Tenant Act, a landlord must send a disposition of deposit letter to the former tenant within 14 (fourteen) business days. If the cost of the damage doesn’t exceed the deposit, the remainder of the deposit should be included. On the other hand, if the cost of the damage exceeds the deposit, this is your chance to state how much they owe you.

This letter needs to be sent within fourteen business days from the date your tenant vacated the property or the landlord may be subject to civil penalties.

If lawsuit arises in which a tenant claims their security deposit was kept unlawfully, and you didn’t send this letter, you could be at risk for “treble damages” – that is, three times what you kept unlawfully A.R.S. § 33-1321(E). Sending this letter goes a long way towards making sure all your bases are covered.

If you need a disposition of security deposit letter then download our free form letter. Click here to download the letter.

In instances where an Arizona tenant was evicted for nonpayment of rent, the landlord can keep the deposit to cover the judgment amount, but should still send a disposition of deposit letter informing the tenant what happened to their deposit.

Additionally, if you have a judgment for unpaid rent, and there are a lot of damages to the property, you don’t have to put the deposit towards the judgment – you can still use it to cover the damages.

If you are a landlord and need help from an Arizona real estate attorney then contact the Dunaway Law Group by phone at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. The law changes quickly and varies from jurisdiction to jurisdiction. As such, readers should not act upon this information without seeking advice from professional advisers. Additionally, this Firm limits its practice to the states of Arizona and New York.

Eviction Statistics in Arizona

There is a distinct pattern or cycle to the volume of residential evictions that occur throughout the year in Arizona. For instance, each year there is a spike of evictions in January, why is this?

landlords DELAY EVICTIONS DURING HOLIDAYS

Contrary to popular believe most landlords are actually nice people who have feelings too. Many landlords will not evict tenants during the holiday season. Beginning with Thanksgiving and going through New Year’s Day, landlords will often say, “I don’t want to evict someone during the holiday season and so I’ll just wait until the new year to begin the eviction process.”

justice COURTS WILL DELAY THE EVICTIONS

Experienced Arizona landlord – tenant attorneys and property managers know that the justice court judges and constables will do whatever they can to not evict an Arizona resident during the holiday season. After an eviction judgment has been granted by the court the tenants have just five (5) calendar days to vacate! If the Arizona tenant does not vacate within those five (5) calendar days, then we can go back into court and file for a Writ of Restitution. Writs must first be signed by the judge and then delivered to the constable for service.

Judges know that evictions are time sensitive and so they typically sign the order granting the Writ of Restitution almost immediately upon receiving it. However, during the holidays judges are often out of town which means there is no one to sign the writ. Additionally, even when the judges are in the office they are very slow to sign the writs. This is done in an attempt to slow down the actual eviction. Judges “misplace” them or are “too busy” working on other matters to sign the writs immediately. So it can take days before a judge will sign the writ.

Once the writ gets to the Arizona constables there is another big slow down in the eviction process. Similar to judges many constables leave town during the holiday season and so they are not physically able to execute the Writs of Restitution. Furthermore, I have had constables tell me to my face that they will not execute writs near Thanksgiving or Christmas.

For the reasons mentioned above there has been a build-up of delayed evictions that are then started in January.

arizona EVICTIONS AND TAX REFUNDS

I believe the decreased number of Arizona evictions in February, March, and April are directly correlated to tax refunds. Many people receive large tax refunds that they can use to pay their rent. I remember the first time I passed through those months as an eviction attorney. Sure enough each year when the tax refund season is over then the evictions increase. 

One of the highest months for evictions each year is June. I think the spike during the beginning of summer has something to do with kids getting out of school and families wanting to move. When families are struggling economically and they want to move and they may stop paying rent at their current home and use that would-be rent money and use it as rent and security deposit, etc. at the new property.

pima county eviction statistics

The Pima County Consolidated Justice Court has a webpage with very detailed eviction statistics for its precinct. Click HERE.

If you are an Arizona landlord and need help resolving a dispute with a tenant, then please contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.