Okay, you have evicted the tenant. You are done, right? Wrong. Whether you have evicted a tenant for nonpayment of rent or for any type of noncompliance, you need to observe the following procedures. These steps are critical. If not done or done improperly, you may lose the right to recover certain damages from the tenant. In some cases, you may even become liable to the tenant for failure to fulfill your obligations.
The Act was amended in 1995 and requires that you notify the tenant of the date/time of your move-out inspection if the tenant has requested this information. 282 Schedule your move-out inspection during your normal business hours or, if you desire, at a time that is convenient for the tenant. Conduct your post-eviction inspection of the rental unit. Take copious notes and photographs. If you observe damage to the premises, excessive wear and tear, etc., then photographs and/or video tape of the rental unit are highly recommended. If possible, use a digital video recorder because you can show the entire video in court, if necessary, but you can also print out a single frame (i.e., of notable damage) on 8.5” x 11” photo quality paper, which makes a great trial exhibit.
If utilities are in the tenant’s name, check with the utility company to see if the utility (i.e., electric, gas, water, etc.) will allow a “temporary transfer” into your name, until the next tenant moves in, with either no transfer fee or a reduced fee.
- Security deposit.
Within fourteen (14) days (business days), send the tenant a statement disclosing the disposition of his/her deposits. Do not wait for the tenant to demand return of his/her deposit. If you are shaking your head in amazement that a tenant who has been evicted and put you through all this nonsense would have the audacity to request return of his deposit, you are not alone, but it happens frequently. If the tenant has left a forwarding address (an unlikely event), send the Disposition of Deposit statement to that address; otherwise, address it to the last known address (i.e., your rental unit). The statute only requires that you send this via first-class mail, 283 but I recommend that you send it certified mail, return receipt requested, so that you can prove when you mailed it and the date the tenant received it, if s/he signs for it. If/when the letter is returned because no forwarding address was left (a common occurrence), place this letter in your file so that if it becomes necessary, at some future date, you can prove that you complied with the statutory requirements and that any failure of the tenant to receive the Disposition of Deposit statement is due to his / her own failure to leave a forwarding address with to leave a forwarding address with the landlord or to notify the post office.
Fill out the Disposition of Deposit form with the information you have as of the date you fill it out. Typically, the Disposition of Deposit form is files out ten to fourteen days (which is the day it must be mailed) after the tenant has vacated. By that time, the landlord has either repaired the various damages or has estimates, use the estimates. When using estimates, you may need to send an amended Disposition of Deposits later if the actual cost to repair differs from the estimates (s) and the new calculations result in a refund to the tenant.
As to due and unpaid rent, the judgment (if one was entered) may have awarded you rent for some period of time. There is a place on the Disposition of Deposit form to account for any monetary award against the tenant. But what if the court did not rent (for some reason) and rent was lawfully due or additional rent has accrued that was not included in the judgment? Add that amount to the Disposition of Deposit form.
In addition, and this perhaps the most important, if the tenant had specific term lease (i.e., six months, one year, etc.) and time remains on the lease term, then the tenant is responsible for all rent that would accrue through the end of the lease term. You are legally required to mitigate your damages and therefore, if you re-rent the property before the end of the lease term, then the amount due from the tenant must be reduced by that amount. But that has not happened yet (unless you have already re-rented the property as of the time you fill out the Disposition of Deposit form). Consequently, as of the date the Disposition of Deposit is completed, the tenant owes rent to the end of the lease term — all the rent. Add that amount to the Disposition of Deposit form.
If your tenant was a month-to-month tenant, if the tenant did not provide you with a thirty-day notice of his/her intent to vacate, then the tenant owes you for another month of rent. Add that to the Disposition of Deposit form.
Include any other amount on the Disposition of Deposit form that the tenant legitimately owes you. If the amount of deductions is less than the deposits you are holding, send the tenant a refund for the difference. If the amount of deductions exceeds the tenant’s deposits, check the box that indicates the tenant owes money to you (i.e., “Due to Landlord”).
- Lawsuit for damages.
File a lawsuit against the tenant for:
- Past due rent (if judgment for past due rent was not obtained in the Special Detainer action or if the judge only awarded a portion of the past due rent);
- Rent that accrued after entry of the Special Detainer judgment through the last date s/he occupied the rental unit (if not already included in the Special Detainer judgment);
- damages to the rental unit; and
- Any other amounts to which you are entitled under the law.
Be sure to check with the utility companies to see if the landlord is responsible for any unpaid balance on the account. For example, in Scottsdale and Glendale, the owner is responsible for a tenant’s unpaid water bill and the water company will not turn on the water for a new tenant until the full outstanding balance, including late penalties, is paid.
If the tenant has intentionally caused severe damage, you may wish to consider filing a criminal complaint with the police. Intentional property damage by a tenant may be prosecuted as a felony or a misdemeanor, depending on the severity of the damage. If charges are filed against a tenant for criminal damage, you, as the victim, may request that restitution (i.e., reimbursement for the damage) be made a condition of the sentence or any plea agreement. In that way, you may be completely reimbursed without having to spend any money on a private attorney. If that does not work, you may wish to contact your property insurance company. Criminal damage may be covered as vandalism or under some other provision of your insurance policy.
If you don’t recover from your insurance company and a complaint for criminal damage is not appropriate or the prosecutor either loses the case or refuses to file charges, you may still file a civil lawsuit to recover your damages. Depending on the amount in controversy, the lawsuit may be filed in small claims court (small claims court jurisdiction is limited to cases involving claims of not more than ($2,500) or in civil court (justice court jurisdiction is $ 10,000 or less; for claim exceeding $10,000, the superior court has jurisdiction; for amounts over $5,000 and less than $10,000, the justice courts and the superior court have concurrent jurisdiction, which merely means that you may file in either court). Depending upon the complexity of the issues involved, you may be able to do this yourself, without the assistance of a lawyer. If you have any questions, however, consult your lawyer. Normally, while it may not be economically feasible for your lawyer to try the case for you, s/he will help you with the steps you must take, the strategy you should pursue, etc.
Obtain a Judgment.
Get a judgment against the tenant. While you may not be able to collect this judgment for some time, if ever, it will follow your tenant around for a very long time. Moreover, judgments show up on credit reports. Do yourself and your fellow landlords a favor: record the judgment with the county recorder’s office and send a copy to local and/or national credit reporting agencies.