by Richard Keyt, Arizona Real Estate Lawyer

There are several points in time when a prospective or an actual Arizona residential tenant should consult with an experienced Arizona tenant’s attorney to determine the tenant’s rights and possibly to take action to enforce the tenant’s rights.  I recommend consulting with an tenant’s rights attorney at each of the following times:

  1. Before signing a lease.
  2. Before extending the term of an existing lease.
  3. The tenant anticipates that the tenant will default under a lease.
  4. The tenant actually defaults on a lease.
  5. Pre-foreclosure:  The landlord contemplates defaulting on a debt that is secured by a lien on the residence and the default will cause the lender to foreclose on the property.
  6. During Foreclosure:  The landlord defaulted on a debt that is secured by a lien on the residence and the lender is in the process of foreclosing.
  7. Post-foreclosure:  The residential property was sold at a trustee’s sale or at an auction following a judicial foreclosure.

Before Signing or Extending a Lease

As you probably know, most residential leases are one sided in favor of the landlord.  The most commonly used residential lease in Arizona is the residential lease prepared by the Arizona Association of Realtors.  Don’t you think it makes sense to try to include some tenant favorable provisions in your lease before you sign it?  Every lease is negotiable before it is signed.  You could blindly sign the form the landlord offers you or you can ask the landlord to include some additional provisions in the lease that will make the lease less one sided in favor of the landlord.

Here are a few examples of tenant favorable lease provisions:

  1. Nondisturbance Agreement:  As a condition to the tenant’s obligation to pay rent, require the landlord to obtain a written Nondisturbance Agreement with all lenders that have liens on the property.  This is an agreement given by a lender to a tenant in which the lender agrees that if the lender forecloses on the property, the lender and any purchaser at the foreclosure sale will honor the tenant’s lease as long as the tenant does not default.  Translation:  Its a contract with the lender that the tenant cannot be evicted after a foreclosure unless the tenant defaults under the lease.
  2. Early Termination Clause:  Include a clause that gives you the option to cancel and terminate the lease if your company transfers you to another location, you or your spouse loses your job, you or your spouse dies or becomes disabled or any other reason that is important to you.
  3. All Liens Current Clause:  Require the landlord to represent and warrant that the landlord is current on all debts that are secured by liens on the property and that the landlord will notify the tenant in writing within ten days of defaulting on any debt secured by a lien on the premises.  Include a liquidated damages clause that provides the landlord will pay the tenant a specified amount every month during which the landlord is in default or the premises is in foreclosure.  The tenant should have the option to apply the liquidated damage amount to the next rent due or demand that the landlord pay the tenant cash.
  4. Utility Penalty Clause:  Include a clause that if the landlord is paying for any utility such as water or electrical and the service stops, the landlord will pay the tenant a fixed daily penalty amount (e.g. $20/day), which amount, at tenant’s option, can be credited against the next rent due or paid by the landlord to the tenant.  Also give the tenant the option to arrange to acquire the utility in the tenant’s name and have the amount, at tenant’s option, can be credited against the next rent due or paid by the landlord to the tenant.
  5. Condition of the Premises & HVAC System:  Include a clause by which the landlord represents and warrants that all systems in the home are in good condition and working as of the move in date and that the landlord will maintain the systems at the landlord’s expense during the term of the lease.
  6. Self Help Clause:  This clause gives the tenant the right to fix the premises if the landlord is obligated to maintain something and fails to maintain that item.  The amount spent by the tenant is credited against future rent.
  7. Right of First Refusal to Buy:  This provision gives the tenant the right to match an offer made by the landlord to sell the residence.  If the landlord enters into a contract to sell the home, the tenant has a period of time to match the offer and purchase on the same terms and conditions in the contract between the landlord and the prospective purchaser.
  8. Right of First Refusal to Lease:  This provision gives the tenant the right to match an offer made by the landlord to lease the residence.  If the landlord enters into a lease form the premises, the tenant has a period of time to match the offer and lease the premises on the same terms and conditions in the lease between the landlord and the prospective tenant.
  9. Indemnity Provision:  A provision that says the landlord will hold the tenant harmless and indemnify the tenant if the tenant is named in a lawsuit resulting from the landlord’s acts or omissions.
  10. Option to Extend the Term:  This provision gives the tenant one or more options to extend the term of the lease.
  11. Specified Reserve Parking Space:  If it is important that you have the exclusive use of a specific parking space, you need a clause in your lease that gives you that right.

Whether you can convince a landlord to accept your clauses depends the landlord and your negotiation skills.  Keep this important fact in mind:  If you don’t ask, you don’t get.