As the blog I wrote (David Arenberg) two years ago entitled Illegal Lease Provisions discusses, Arizona landlords use leases that are far out of compliance with the landlord/tenant act.  They do so for many reasons and the foregoing link sets forth these reasons and is very interesting — read it!  Here is an analysis of one of the leases discussed which is commonly used by landlords all over Arizona: leases published by the Arizona Multihousing Association lease, this one dated March, 2013.

SAMPLE ILLEGAL LEASE PROVISIONS

ARIZONA MULTI-HOUSING ASSOCIATION LEASE, MARCH, 2013

Paragraph 6 of the lease suggests that the landlord has remedies for tenant’s nonpayment of rent that go beyond those set forth in the Arizona Residential Landlord and Tenant Act, in violation of A.R.S. § 33-1315(A) under which a rental agreement may not provide that the tenant waives any of his rights under the law.

Paragraph 7 of the lease, which provides that the landlord can disconnect utilities not in a tenant’s name after a ten day notice violates A.R.S. §§ 33-1367, which provides that a landlord may not interrupt essential services, and 33-1368, which provides that a landlord must initiate a forcible detainer action to remedy a tenant who is in violation of his lease.

Paragraph 8 of the lease, which provides that the landlord is indemnified against damages a tenant sustains including by reason of the landlord’s own negligence, contradicts A.R.S. § 33-1361 which provides that a tenant can recover damages sustained by him for the landlord’s noncompliance with 33-1324 (requirement to maintain premises), among other sections.

Paragraph 6 of the lease, which provides that a tenant’s failure to carry renter’s insurance is a material breach of the lease, contradicts A.R.S. § 33-1368 which provides that a landlord must give a tenant a chance to cure a violation except under exceptional circumstances.

Paragraph 9 of the lease, which provides that in some instances a tenant must pay for a repair in advance of the repair, contradicts A.R.S. § 33-1361 which sets forth time schedules under which landlords are required to make repairs.

Paragraph 10 of the lease, which provides that a tenant must pay for certain repairs for reasons other than those caused by the landlord’s negligence, contradicts A.R.S. § 33-1324 which requires the landlord to maintain the premises.

Paragraph 13 of the lease, which provides that a landlord may accelerate the due date of all future rent under the lease if the first month’s rent is unpaid, contradicts A.R.S. § 33-1305(A) which requires an aggrieved party to mitigate damages.

Paragraph 15 of the lease, which provides that if a landlord is unable to deliver possession of the rental unit the lease contract will remain in effect, contradicts A.R.S. § 33-1362 which allows a tenant to terminate his lease under that circumstance.

Paragraph 18 of the lease, which provides that the landlord has the right to exclude guests at his discretion, is unconscionable, in violation of A.R.S. § 33-1312.

Paragraph 21 of the lease, which provides only limited circumstances under which a tenant can be released from the lease, contradicts various provisions of the Arizona Residential Landlord and Tenant Act, including but not limited to A.R.S. § 33-1361, which sets forth a process by which a tenant can terminate a lease if a landlord is in material noncompliance with the lease or the law.

Paragraph 23 of the lease, under the “Smoke Detector” section, provides that tampering with or failing to replace a battery may subject a tenant to a fine of $100.00 plus one month’s rent, contradicts A.R.S. § 33-1368 which provides that a landlord must give a tenant a chance to cure a violation except under exceptional circumstances.

Paragraph 24 of the lease, which provides that a tenant accepts the premises “as is,” contradicts A.R.S. § 33-1324 which requires the landlord to maintain the premises.

Paragraph 25, of the lease, which provides that all requests for repairs must be made in writing and served by certified mail, and that any notes the landlord writes in response to the tenant’s oral request for repairs do not constitute acknowledgement of a request from the tenant, contradicts A.R.S. § 33-1313 which provides that a party has notice of a fact if he has actual knowledge of it.

Paragraph 25 of the lease, which provides that rent will not abate if there is a problem with electricity, air conditioning, etc., contradicts A.R.S. §§ 33-1364 and 33-1366, which provide that rent may abate in circumstances of lack of essential services or casualty damages respectively.

Paragraph 26 of the lease, which provides that the lease will terminate in 24 hours from notice by the landlord that there is an unauthorized animal in the premises, contradicts A.R.S. § 33-1368 which provides that a landlord must give a tenant a chance to cure a violation except under exceptional circumstances.

Paragraph 27 of the lease, which provides a host of reasons a landlord may enter the premises, contradicts A.R.S. § 33-1343 which only allows the landlord to enter to inspect the premises, make repairs, supply services or exhibit the premises to potential purchasers, tenants, etc.

Paragraph 29 of the lease, which provides that the security deposit is credited to that of a replacement tenant (e.g., subletter), even if that replacement tenant signs a new lease, contradicts A.R.S. § 33-1321 which provides that a landlord shall return a tenant’s security deposit upon conclusion of his tenancy.

Paragraph 31 of the lease, under “Nonpayment of Rent,” which provides that acceptance of a partial rent payment does not waive the right of the landlord to maintain eviction proceedings, contradicts A.R.S. § 33-1371 which provides that such a waiver is valid only if the tenant signs an agreement to this effect contemporaneously with the acceptance of the partial payment.

Paragraph 31 of the lease, under “Acceleration”, which provides that default under the lease automatically accelerates the balance of the rent owed under the lease, contradicts A.R.S. § 33-1305 which requires an aggrieved party to mitigate damages.

Paragraph 31 of the lease, under “Other Remedies,” which provides that a tenant must repay concessions if he moves out early, contradicts numerous sections of the Arizona Residential Landlord and Tenant Act which allow a tenant to terminate his lease for a variety of circumstances without penalty from the landlord.

Paragraph 32 of the lease, which provides that a landlord does not waive his right to belatedly enforce a lease provision even if he allowed the tenant to conduct the prohibited action (e.g., owning a pet) contradicts common law principles that acceptance of such a default constitutes a waiver.

Paragraph 32 of the lease, which provides that an invalid clause does not make the lease invalid, contradicts A.R.S. § 3-1315, which provides that the landlord may not tender to the tenant a lease which is out of compliance with the Arizona Residential Landlord and Tenant Act.

Paragraph 32 of the lease, in which the tenant waives his right to a jury trial, contradicts A.R.S. § 12-1176 which specifically gives the tenant that right.

Paragraph 32 of the lease, under the heading “Force Majeure,” which provides that the landlord may terminate the lease as a result of casualty damage, contradicts A.R.S. § 33-1366, which confers that option on the tenant but not the landlord.

Paragraph 33 of the lease, which provides that all payments are first applied to various outstanding balances, violates laches and other equitable principles of common law.

Paragraph 36 of the rental agreement, which provides that with the exception of the military clause for early termination, a tenant will not terminate the lease early, violates numerous sections of the Arizona Residential Landlord and Tenant Act which provides a variety of grounds for legally terminating a lease.

Paragraph 37 of the lease, which provides that default under the lease automatically accelerates the balance of the rent owed under the lease, contradicts A.R.S. § 33-1305 which requires an aggrieved party to mitigate damages.

Paragraph 37 of the lease, which provides that security deposit refunds are subject to a 30-day hold, contradicts A.R.S. § 33-1321 which provides that a landlord must return the security deposit within 14 business days after the tenant requests it.

Paragraph 40 of the lease, which provides that default under the lease automatically accelerates the balance of the rent owed under the lease, contradicts A.R.S. § 33-1305 which requires an aggrieved party to mitigate damages.

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