When a lease is about to end, what type of notice, if any, is required by either landlord or resident to end the agreement? What can management do if a renter gives a proper notice to vacate and then changes his or her mind and decides to stay? This article will examine the above questions and the remedies and repercussions that arise under the Arizona Landlord and Tenant Act (ARLTA).
Normally, the lease language itself governs a termination. If there is no written lease, then the term is month-to-month under A.R.S. § 33-1314(D):
Unless the rental agreement fixes a definite term, the tenancy shall be week-to-week in a case of a roomer who pays weekly rent, and in all other cases month-to-month.
Under a month-to-month residency, either party can give the other a 30-day notice to not renew at least 30 days prior to the periodic rental date. For example, if rent is due on the first day of the month, the renter would have to receive the 30-day notice before then to cancel the lease at the end of the month.
A.R.S. § 33-1375(B) states:
The landlord or the tenant my terminate a month-to-month tenancy by written notice given to the other at least thirty days prior to the periodic rental date specified in the notice.
When terminating a fixed-term lease, such-as a six-month or one-year agreement, landlords should first look at the lease to see what notice is necessary. If the lease is silent as to notice and does not automatically become a month-to-month residency, then no notice is necessary. For instance, if the lease begins Jan. 1, 2009 and expires Oct. 31, 2009, does not roll over into a month-to-month tenancy, and says nothing about a notice to renew or vacate, then it ends on Oct. 31, 2009. In this scenario, the resident could move Oct. 31, 2009 and not be responsible for any future rent, or the landlord could inform him or her on Oct. 31, 2009 that they must vacate that day.
Most leases do require some type of notice to move or renew the lease, which normally is 30 days. Also, most leases become month-to-month residencies if either the landlord or the renter fails to give the required notice. Arizona law states that if a resident remains after the expiration of his or her written lease, the individual does so under the same terms and conditions of the original lease. Therefore, if management wishes to give a rent increase, it should do so with a written notice at least 30 days prior to the lease expiring and becoming a month-to-month residency. For example, if on April 10 the landlord decides he or she wants the resident to vacate, and the lease expires at the end of April, the landlord must give a 30-day notice sometime in April that the renter needs to vacate by May 31. If the landlord wanted the resident to vacate by the end of that original lease date (April 30), he or she should have delivered a 30-day notice in March.
What happens if a renter gave notice to vacate and, in reliance of that notice, the landlord has re-rented his or her apartment? Or conversely, what if the landlord gave the resident proper notice to move, re-rents the apartment, and the renter does not leave? If the resident unlawfully holds over, management must remove them with a forcible detainer action, and he or she may be responsible for actual damages or two months’ rent.
A.R.S. § 33-1375(C) states
If the tenant remains in possession without the landlord’s consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant’s holdover is willful and not in good faith, the landlord, in addition, may recover an amount equal to not more than two months’ periodic rent or twice the actual damages sustained by him, whichever is greater. If the landlord consents to the tenant’s continued occupancy § 33-1314, Subsection D applies.
Actual damages could be any expenses associated with not having the apartment ready for the new renter, such as putting the individual up in a motel or another apartment and paying moving expenses.
As always, remember that management must properly deliver the notice to the renter or posted and sent certified mail. If posted and sent certified mail, add five days for mailing. In that scenario, a landlord would need to give the notice by the 25th day of the month to be effective as to the first day of that rental period.
Consider the following example:
On March 25, Manager I. M. Flakey gave his two most troublesome renters—Bull Bull Dozier and Jack Hammer—a 30-day notice that the Breaking Wind Apartments will not renew their lease, which expires on April 30. I. M. Flakey then pre-leases the apartment to the Bill brothers—Otto and Mo—for a May 5 move-in, five days after Bull and Jack are to vacate. Bull Dozier and Jack Hammer refuse to move at the end of the 30 days, so on the 31st day, I. M. Flakey files a forcible detainer action to remove them. When Otto and Mo Bill find out they can’t move in on the fifth day of the month, they put their property in storage, move into a hotel, and bring forcible detainer actions against the apartment community and Bull Dozier and Jack Hammer. When the smoke clears, Judge I Ain’t Lyon awards the community two months’ rent as damages and awards the Bill brothers their out-of-pocket expenses against both the property and Jack Hammer and Bull Dozier. AMA
Andy M. Hull
Attorney at Law
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