Bill Text: AZ SB1038 | 2021 | Fifty-fifth Legislature 1st Regular | Introduced


Bill Title: Landlord tenant; rent; fifteen days

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-01-12 - Senate read second time [SB1038 Detail]

Download: Arizona-2021-SB1038-Introduced.html

 

 

 

REFERENCE TITLE: landlord tenant; rent; fifteen days

 

 

 

 

State of Arizona

Senate

Fifty-fifth Legislature

First Regular Session

2021

 

 

 

SB 1038

 

Introduced by

Senator Engel

 

 

AN ACT

 

amending sections 33‑1314, 33-1368, 33‑1370, 33‑1371, 33‑1377 and 33-1476, Arizona Revised Statutes; relating to landlord and tenant.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 33-1314, Arizona Revised Statutes, is amended to read:

START_STATUTE33-1314.  Terms and conditions of rental agreement

A.  The landlord and tenant may include in a rental agreement terms and conditions not prohibited by this chapter or any other rule of law including rent, term of the agreement and other provisions governing the rights and obligations of the parties.

B.  In the absence of a rental agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.

C.  Rent shall be payable without demand or notice at the time and place agreed upon on by the parties.  Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month.  Unless otherwise agreed, rent shall be uniformly apportionable from day‑to‑day.

D.  Unless the rental agreement fixes a definite term, the tenancy shall be week‑to‑week in case of a roomer who pays weekly rent, and in all other cases month‑to‑month.

E.  If a municipality that levies a transaction privilege tax on residential rent changes the percentage of that tax, the landlord on thirty days' written notice to the tenant may adjust the amount of rent due to equal the difference caused by the new percentage amount of the tax.  The adjustment to rent shall not occur before the date upon on which the new tax is effective.  In order for a landlord to adjust rent pursuant to this subsection, the landlord's right to adjust rent pursuant to this subsection shall be disclosed in the rental agreement.

F.  Notwithstanding section 14‑3911, the landlord may request and the tenant may provide and routinely update the name and contact information of a person who is authorized by the tenant to enter the tenant's dwelling unit to retrieve and store the tenant's property if the tenant dies.  If the landlord is unable to contact the authorized person at the address and telephone number provided to the landlord by the tenant or the authorized person fails to respond to the landlord's request within ten days of after initial written contact, the landlord may dispose of the property as prescribed in section 33‑1370. Before removing any of the tenant's personal property, the authorized person shall present to the landlord a valid government issued identification that confirms the identity of the authorized person.  The authorized person shall have twenty days from after the date of initial written contact by the landlord or the last date for which rent is paid, whichever is longer, to remove items from the rental property and return keys to the landlord during regular business hours.  If the landlord allows an authorized person to enter the property to remove the tenant's personal possessions as prescribed by this subsection, the landlord has no further liability to the tenant, the tenant's estate or the tenant's heirs for lost, damaged or stolen items.  If the tenant's personal property is not entirely removed from the rental unit by an authorized person, the landlord may dispose of the property as prescribed in section 33‑1370.  This subsection shall only apply if the periodic rent is unpaid and outstanding for at least five fifteen days. END_STATUTE

Sec. 2.  Section 33-1368, Arizona Revised Statutes, is amended to read:

START_STATUTE33-1368.  Noncompliance with rental agreement by tenant; failure to pay rent; utility discontinuation; liability for guests; definition

A.  Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement, including material falsification of the information provided on the rental application, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than ten days after receipt of the notice if the breach is not remedied in ten days.  For the purposes of this section, material falsification includes the following untrue or misleading information about the:

1.  Number of occupants in the dwelling unit, pets, income of the prospective tenant, social security number and current employment listed on the application or lease agreement.

2.  Tenant's criminal records, prior eviction record and current criminal activity.  Material falsification of information in this paragraph is not curable under this section.

B.  If there is a noncompliance by the tenant with section 33‑1341 materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate on a date not less than five days after receipt of the notice if the breach is not remedied in five days.  However, If the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate.  If there is an additional act of these types of noncompliance of the same or a similar nature during the term of the lease after the previous remedy of noncompliance, the landlord may institute a special detainer action pursuant to section 33‑1377 ten days after delivery of a written notice advising the tenant that a second noncompliance of the same or a similar nature has occurred.  If there is a breach that is both material and irreparable and that occurs on the premises, which may include an illegal discharge of a weapon, homicide as prescribed in sections 13‑1102, 13‑1103, 13‑1104 and 13‑1105, prostitution as defined in section 13‑3211, criminal street gang activity as prescribed in section 13‑105, activity as prohibited in section 13‑2308, the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in section 13‑3451, threatening or intimidating as prohibited in section 13‑1202, assault as prohibited in section 13‑1203, acts that have been found to constitute a nuisance pursuant to section 12‑991 or a breach of the lease agreement that otherwise jeopardizes the health, safety and welfare of the landlord, the landlord's agent or another tenant or involving imminent or actual serious property damage, the landlord may deliver a written notice for immediate termination of the rental agreement and shall proceed under section 33‑1377.  The foregoing list of actions which that may constitute a material and irreparable breach of a tenant's lease is not exhaustive.

B.  C.  A tenant may not withhold rent for any reason not authorized by this chapter.  If rent is unpaid when due and the tenant fails to pay rent within five fifteen days after written notice by the landlord of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement by filing a special detainer action pursuant to section 33‑1377.  Before the filing of a special detainer action the rental agreement shall be reinstated if the tenant tenders all past due and unpaid periodic rent and a reasonable late fee set forth in a written rental agreement.  After a special detainer action is filed the rental agreement is reinstated only if the tenant pays all past due rent, reasonable late fees set forth in a written rental agreement, attorney fees and court costs.  After a judgment has been entered in a special detainer action in favor of the landlord, any reinstatement of the rental agreement is solely in the discretion of the landlord.

C.  D.  The landlord may recover all reasonable damages resulting from noncompliance by the tenant with the rental agreement or section 33‑1341 or occupancy of the dwelling unit, court costs, reasonable attorney fees and all quantifiable damage caused by the tenant to the premises.

D.  E.  The landlord may discontinue utility services provided by the landlord on the day following the day that a writ of restitution or execution is executed pursuant to section 12‑1181.  Disconnections shall be performed only by a person authorized by the utility whose service is being discontinued.  This section does not supersede standard tariff and operational procedures that apply to any public service corporation, municipal corporation or special districts providing utility services in this state.

E.  F.  On the day following the day that a writ of restitution or execution is executed pursuant to section 12‑1181, the landlord shall comply with section 33‑1370, subsections D, E, F, G, H and I regarding the tenant's personal property.

F.  G.  For the purposes of this chapter, the tenant shall be held responsible for the actions of the tenant's guests that violate the lease agreement or rules or regulations of the landlord if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent those actions to the best of the tenant's ability.

G.  H.  For the purposes of this section, "days" means calendar days. END_STATUTE

Sec. 3.  Section 33-1370, Arizona Revised Statutes, is amended to read:

START_STATUTE33-1370.  Abandonment; notice; remedies; personal property; definition

A.  If a dwelling unit is abandoned after the time prescribed in subsection J of this section, the landlord shall send the tenant a notice of abandonment by certified mail, return receipt requested, addressed to the tenant's last known address and to any of the tenant's alternate addresses known to the landlord.  The landlord shall also post a notice of abandonment on the door to the dwelling unit or any other conspicuous place on the property for five days.

B.  Five days after the notice of abandonment has been both posted and mailed, the landlord may retake the dwelling unit and rerent the dwelling unit at a fair rental value if no personal property remains in the dwelling unit.  After the landlord retakes the dwelling unit, money held by the landlord as a security deposit is forfeited and shall be applied to the payment of any accrued rent and other reasonable costs incurred by the landlord by reason of the tenant's abandonment.

C.  If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent the dwelling unit at a fair rental.  If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement is deemed to be terminated as of the date the new tenancy begins.  If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.  If the tenancy is from month to month month‑to‑month or week to week week-to-week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.

D.  After the landlord retakes possession of the dwelling unit, and if the tenant's personal property remains in the dwelling unit, the landlord shall prepare an inventory and notify the tenant of the location and cost of storage of the personal property in the same manner prescribed in subsection A of this section.

E.  After the landlord retakes possession of the dwelling unit, the landlord may store the tenant's personal possessions in the unoccupied dwelling unit that was abandoned by the tenant, any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available.  The landlord is not required to store the tenant's perishable items, plants and animals on behalf of the tenant.  The landlord may remove or dispose of, as appropriate, the perishable items, including plants.  At the landlord's discretion, the landlord may remove and dispose of any personal property in the dwelling unit that is contaminated, or may be considered a biohazard or poses a health and safety risk.  At the landlord's discretion, the tenant's abandoned animals may be immediately removed and released to a shelter or boarding facility.  The landlord shall keep a record of the name and location of the shelter or boarding facility to which the animal was released.  If the landlord does not immediately remove and release the abandoned animals to a shelter or boarding facility, the landlord shall provide reasonable care for the abandoned animals for the period prescribed by subsection F of this section.  If the landlord is unable or unwilling to provide reasonable care to the abandoned animals, the landlord shall notify the county enforcement agent as defined in section 11‑1001 or an animal control officer as prescribed in section 9‑499.04 of the presence of the tenant's abandoned animals on the property to be seized pursuant to section 13‑4281.  The landlord is not liable for any actions taken in good faith related to the removal, release, seizure or care of the abandoned animals pursuant to this section.

F.  The landlord shall hold the tenant's personal property for a period of fourteen calendar days after the landlord retakes possession of the dwelling unit.  The landlord shall use reasonable care in moving and holding the tenant's personal property.  If the landlord holds the property for this period and the tenant makes no reasonable effort to recover it, the landlord may donate the personal property to a qualifying charitable organization as defined in section 43‑1088 or otherwise recognized charity or sell the property.  If the landlords landlord sells the property, the landlord shall retain the proceeds and apply them toward the tenant's outstanding rent or other costs that are covered in the lease agreement or otherwise provided for in this chapter or title 12, chapter 8 and that have been incurred by the landlord, and excess proceeds shall be mailed to the tenant at the tenant's last known address.  A tenant does not have any right of access to that property until the actual removal and storage costs have been paid in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including all those related to the tenant's immigration status, employment status, public assistance or medical care.  The landlord may destroy or otherwise dispose of some or all of the property if the landlord reasonably determines that the value of the property is so low that the cost of moving, storage and storing the property and conducting a public sale exceeds the amount that would be realized from the sale.  Any tax benefit associated with the donation of the personal property belongs to the tenant.  A landlord that complies with this section is not liable for any loss to the tenant or any third party that results from moving, storing or donating any personal property left in the dwelling unit.

G.  For a period of twelve months after the sale, the landlord shall:

1.  Keep adequate records of the outstanding and unpaid rent and the sale of the tenant's personal property.

2.  Hold for the benefit of the tenant any excess proceeds that have been returned as undeliverable.

H.  If the tenant notifies the landlord in writing on or before the date the landlord sells or otherwise disposes of the personal property that the tenant intends to remove the personal property from the dwelling unit or the place of safekeeping, the tenant has five days to reclaim the personal property.  To reclaim the personal property the tenant must only pay for the costs associated with removal and storage for the period the tenant's personal property was stored.  Except as provided in subsections subsection E or I of this section for personal property exempt from storage requirements, within five days after a written offer by the tenant to pay the applicable storage or removal costs the landlord must surrender possession of the personal property in the landlord's possession to the tenant upon on the tenant's tender of payment.  If the landlord fails to surrender possession of the personal property to the tenant, the tenant may recover the possessions or an amount equal to the damages determined by the court if the landlord has destroyed or disposed of the possessions before the fourteen days specified in this section or after the tenant's offer to pay.

I.  Notwithstanding subsections D, E, F and G of this section, if the tenant returns to the landlord the keys to the dwelling unit and there is personal property remaining in the dwelling unit, the landlord may immediately remove and dispose of the personal property without liability to the tenant or a third party unless the landlord and tenant have agreed in writing to some other treatment of the property.

J.  For the purposes of this section, "abandonment" means either of the following:

1.  The absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent for the dwelling unit is outstanding and unpaid for ten fifteen days and there is no reasonable evidence other than the presence of the tenant's personal property that the tenant is occupying the residence. or

2.  The absence of the tenant for at least five days, if the rent for the dwelling unit is outstanding and unpaid for five fifteen days and none of the tenant's personal property is in the dwelling unit. END_STATUTE

Sec. 4.  Section 33-1371, Arizona Revised Statutes, is amended to read:

START_STATUTE33-1371.  Acceptance of partial payments; waiver of right to terminate; exception

A.  A landlord is not required to accept a partial payment of rent or other charges.  A landlord accepting a partial payment of rent or other charges retains the right to proceed against a tenant only if the tenant agrees in a contemporaneous writing to the terms and conditions of the partial payment with regard to continuation of the tenancy.  The written agreement shall contain a date on which the balance of the rent is due. The landlord may proceed as provided in this article and in title 12, chapter 8 against a tenant in breach of this agreement or any other breach of the original rental agreement.  If the landlord has provided the tenant with a notice of failure to pay rent as specified in section 33‑1368, subsection c before the completion of the agreement for partial payment, no additional notice under section 33‑1368, subsection c is required in case of a breach of the partial payment agreement.

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.

C.  Except as specified in subsections A and B of this section, acceptance of rent, or any portion of rent, with knowledge of a default by the tenant or acceptance of performance by the tenant that varied from the terms of the rental agreement or rules or regulations subsequently adopted by the landlord constitutes a waiver of the right to terminate the rental agreement for that breach. END_STATUTE

Sec. 5.  Section 33-1377, Arizona Revised Statutes, is amended to read:

START_STATUTE33-1377.  Special detainer actions; service; trial postponement

A.  Special detainer actions shall be instituted for remedies prescribed in section 33‑1368.  Except as provided in this section, the procedure and appeal rights prescribed in title 12, chapter 8, article 4 apply to special detainer actions.

B.  The summons shall be issued on the day the complaint is filed and shall command the person against whom the complaint is made to appear and answer the complaint at the time and place named, which shall be not more than six nor or less than three days from the date of the summons.  The tenant is deemed to have received the summons three days after the summons is mailed if personal service is attempted and within one day of after issuance of the summons a copy of the summons is conspicuously posted on the main entrance of the tenant's residence and on the same day the summons is sent by certified mail, return receipt requested, to the tenant's last known address.  The summons in a special detainer action shall be served at least two days before the return day and the return day made on the day assigned for trial.  Service of process in this manner shall be deemed the equivalent of having served the tenant in person for the purposes of awarding a money judgment for all rent, damages, costs and attorney fees due.

C.  For good cause shown supported by an affidavit, the trial may be postponed for not more than three days in a justice court or five days in the superior court.

D.  In addition to determining the right to actual possession, the court may assess damages, attorney fees and costs as prescribed by law.

E.  If a complaint is filed alleging a material and irreparable breach pursuant to section 33‑1368, subsection b, the summons shall be issued as provided in subsection B of this section, except that the trial date and return date shall be set no not later than the third day following the filing of the complaint.  If, after the hearing, the court finds by a preponderance of the evidence that the material and irreparable breach did occur, the court shall order restitution in favor of the plaintiff not less than twelve nor or more than twenty‑four hours later.

F.  If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for late charges stated in the rental agreement, for costs and, at the plaintiff's option, for all rent found to be due and unpaid through the periodic rental period provided for in the rental agreement as described in section 33‑1314, subsection C and shall grant a writ of restitution.

G.  If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for costs, and if it appears that the plaintiff has acquired possession of the premises since commencement of the action, a writ of restitution shall issue in favor of the defendant. END_STATUTE

Sec. 6.  Section 33-1476, Arizona Revised Statutes, is amended to read:

START_STATUTE33-1476.  Termination or nonrenewal of rental agreement by landlord; noncompliance with rental agreement by tenant; failure to pay rent

A.  The landlord shall specify the reason or reasons for the termination or nonrenewal of any tenancy in the mobile home park.  The reason or reasons relied on for the termination or nonrenewal shall be stated in writing with specific facts, so that the date, place and circumstances concerning the reason or reasons for termination or nonrenewal can be determined.  Reference to or recital of the language of this chapter, or both, is not sufficient compliance with this subsection.

B.  The landlord may not terminate or refuse to renew a tenancy without good cause.  For the purposes of this subsection, "good cause" means:

1.  Noncompliance with any provision of the rental agreement.

2.  Nonpayment of rent.

3.  Change in use of land.

4.  Clear and convincing evidence that a tenant has repeatedly violated any provision of this chapter and established a pattern of noncompliance with such provisions.

C.  The landlord's right to terminate or to refuse to renew a tenancy pursuant to subsection B of this section does not arise until the landlord has complied with subsection D, E or H of this section.

D.  Except as otherwise prohibited by law:

1.  If there is a material noncompliance by the tenant with the rental agreement, the landlord shall deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon on a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days.  If the tenant remedies the situation within the time specified in the notice, the landlord shall issue a notice to the tenant releasing the tenant from the termination of rental agreement notice.

2.  If there is a noncompliance by the tenant with section 33‑1451 materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon on a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days.  However, If the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate. If the tenant remedies the situation within the time specified in the notice, the landlord shall issue a notice to the tenant releasing the tenant from the termination of rental agreement notice.

3.  If there is a noncompliance that is both material and irreparable and that occurs on the premises, including an illegal discharge of a weapon, homicide as prescribed in sections 13‑1102 through 13‑1105, criminal street gang activity as prescribed in section 13‑105, activity as prohibited in section 13‑2308, prostitution as defined in section 13‑3211, the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in section 13‑3451, threatening or intimidating as prohibited in section 13‑1202, infliction of serious bodily harm, assault as prohibited in section 13‑1203, criminal activity involving serious property damage or acts that have been found to constitute a nuisance pursuant to section 12‑991, the landlord may deliver a written notice for immediate termination of the rental agreement and proceed pursuant to section 33‑1485.

4.  If a tenant engages in repetitive conduct that is the subject of notices under this subsection, after two incidents of the same type documented by the landlord within a twelve month twelve‑month period or after receipt by the landlord of two written complaints from other tenants about the repetitive conduct within a twelve month twelve‑month period, the landlord may deliver a written notice to the tenant specifying the repetitive conduct and the documentation and advising the tenant that on documentation of the next incident of the same type final notice will be given and the rental agreement or tenancy will be terminated thirty days after the date of the notice.

5.  If a tenant has been involved in three or more documented incidents of conduct of any type described in this section within a twelve month twelve‑month period, the landlord may deliver a written notice to the tenant specifying the conduct and the documentation and advising the tenant that on documentation of the next incident final notice will be given and the rental agreement or tenancy will be terminated thirty days after the date of the notice.

E.  If rent is unpaid when due and the tenant fails to pay rent within seven fifteen days after written notice by the landlord of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement.  Before judgment in an action brought by the landlord under this subsection, the tenant may have the rental agreement reinstated by tendering the past due but unpaid periodic rent, reasonable attorney's fees incurred by the landlord and court costs, if any.

F.  Except as provided in this chapter, the landlord may recover actual damages, obtain injunctive relief or recover possession of the premises pursuant to an action in forcible detainer for repeated noncompliance by the tenant with the rental agreement or section 33‑1451.

G.  The remedy provided in subsection F of this section is in addition to any right of the landlord arising under subsection D of this section.

H.  If a change in use is intended for the land on which a mobile home park or a portion of a mobile home park is located and the landlord intends eviction of a mobile home tenant due to a change in use, the landlord shall notify all tenants in the park in writing that:

1.  The change in use may subsequently result in the termination of a rental agreement.

2.  The tenant being terminated due to the change in use will receive a one hundred eighty day eighty‑day notice before the actual termination of the rental agreement. END_STATUTE

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