TRYING TO EVICT THE DISORDERLY TENANT

Here are some of the important points to know if you are either a landlord trying to evict a tenant whom you consider to be a threat or a disruption to the neighbors, or you are a tenant who is accused of those things by a landlord trying to evict him.

            The extreme case

The most extreme case is that where the tenant is alleged to be engaging in conduct involving actual or imminent danger of serious damage to persons or property.  In ARS 33-1368, the Residential Landlord-Tenant Act identifies several specific acts: illegal use of a weapon, homicide, prostitution, gang activity, drug making/selling/possessing, threatening or intimidating, assault, and nuisance.  But the protection is not limited to these specific activities.

In one of these instances, the landlord can give notice for immediate termination of the lease (as opposed to 5 or 10 days).  He does that by filing a complaint and having it served on the tenant.  The court will set the hearing for three business days from the filing of the complaint.  If the landlord prevails, the tenant will be ousted in 12-24 hours.  The landlord will get his attorney’s fees and costs as well.  Even though the landlord does not have to give notice before filing the complaint, he must attach to the complaint a notice informing the tenant just which of the acts stated above he is accused of committing.

The less extreme case

The lower level involves violations of ARS 33-1341, which states the general requirements for tenants under any lease.   It covers such things as keeping the premises safe and clean, not destroying or defacing any of the property, and refraining (and preventing the tenant’s guests) from disturbing the neighbors’ peaceful enjoyment of the premises.

Unlike in the extreme case, the landlord who claims a violation of ARS 33-1341 must give five days written notice to the tenant before filing a complaint.  If the tenant remedies the problem within those five days, the five day notice is voided, and no complaint may be filed.  However, if the tenant survives that first 5-day notice but thereafter commits the “same or similar” act, the landlord may give a 10-day notice of the filing of the complaint.  The statute does not provide for the tenant to escape this second notice by attempting to correct the situation.

What issues are likely to arise at the trial?

More often than not, the matter is decided by the tenant’s failure to show up in court, either because the landlord’s charges are accurate or because the tenant cannot afford a lawyer.  The tenant who tries to represent himself will invariably lose, even when he has facts on his side.

Recently, I had a case involving many of the issues discussed above. In this case, I represented the tenant.

The complaint against my client claimed she had engaged in assault, disturbing the neighbors, intimidating the neighbors and the manager, and driving recklessly in the parking lot with a child.

According to my client, there were two incidents.  In the first one, my client, returning from taking out the garbage, was confronted by a neighbor who apparently had never liked my client.  There were only words exchanged.

The second incident, however, was more involved.  My client had had a male friend staying with her for a few days.  At the end of the stay, the two got in some sort of argument.  The man became enraged, grabbed my client’s 3-year-old daughter, got into my client’s truck, and threatened to go to the airport, leaving the child there as he flew away.  My client went to the truck and managed to wrestle the child away.  She and the child locked themselves in the apartment while the man yelled and banged on the door.  At this point, the manager walked up, and she and the man exchanged words, though my client could not tell what they were saying.  Once the manager left, my client calmed the man down, got the two of them and the child into the truck, and drove the man to the airport.

The case settled before trial, which is almost always the best result for everyone.  But had we gone to trial, I would have made the following arguments, which might or might not be relevant to other tenant-landlord litigation, depending on the particular facts.  First, the requirement that tenants are responsible for controlling their guests must be read reasonably.  In this case, just how far can a woman with a small child go in controlling an enraged man?  I think she handled the situation, by getting him off the premises, about as well as anyone could.  Second, for the landlord’s action to succeed, the violation of 33-1341 must actually endanger someone’s health and safety.  Where is the evidence of that?  Third, under the language of the statute authorizing the eviction, the landlord only prevails if the tenant should reasonably have expected the incident and, despite that knowledge, did nothing to prevent it.  Where is the evidence that she knew the man’s tantrum was coming?