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Very detailed story, but to be brief: on 7/24, we were sent

a 30 day notice to...
Very detailed story, but to be brief: on 7/24, we were sent a 30 day notice to vacate the home we were renting. It was a surprise because on 7/20, we reported we had no a/c, and had been in constant contact with the landlord all that week. It was never mentioned until I received the certified letter, and she stated that it wasn't anything to do with us--she needed to move back into the house herself to "get her hands around everything". We were month to month as of June, and in June, my husband requested that we be able to pay our rent later in the month, to correspond with his payroll dates, and she had no issue with that (that we were made aware of) So June and July were paid on the 20th of the month.
But when she gave us the notice to vacate, it said she wanted the full rent on the 1st, which was a week later. It was a boilerplate form, and we had literally just discussed it two days before I got the notice, so I thought that our agreement to pay by the 20th was still in effect. We were also already approved for a new place and were making arrangements to be out before the notice stated. The landlord texted on the 6th and said if the rent wasn't in her account by end of day, she was going to file court papers. I offered to pay half by end of day, and that we could either discuss the remaining balance, requesting a credit for the 6 days we had no air conditioning, and pay the balance due on 8/20. She refused this as a reasonable resolution. I asked if we could pay half and have the rest taken out of our security. She refused that as well, said if the full amount wasn't in the account by the 15th, she was filing. I didn't have much of a choice at that point: if she wasn't willing to work with us, the choice was either move by the date of the original notice, or pay her, and not be able to move by that date.

We moved out on the 18th, cleaned on the 19th and notified her on the morning of the 20th that we were out of the house, and how would she like to handle getting the keys back. She said she was out of town and would let us know. Sometime between Tuesday around 2 pm and yesterday, a notice was placed on our gate. My neighbor called me late last night to tell me, and I had him snap a picture: it's a notice from justice court to appear monday in a forcible detainer hearing. I did pick up the paperwork, and she's not mentioning the 30 day notice that was already in effect, it was filed the day before we notified her we were out--but it wasn't placed there until after we were out and she was notified.
I'm just not sure what I need to do at this point. Do I have to file an answer or just appear? I'm not denying we owe her Aug rent, but she's also requesting late fees, and since we had a 2 month history of paying on the 20th per agreement, are we really going to be responsible for the late fees? And also, what happens now with the security deposit, and the request to be credited for 6 full days without a/c? I've never been in this position, so I really don't know what the next steps should be.
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Answered in 22 minutes by:
8/23/2013
Seattlescott
Seattlescott, Licensed attorney
Category: Landlord-Tenant
Satisfied Customers: 984
Experience: 25 plus years experience as a practicing attorney
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I am going to check something in AZ law and get back to you in half an hour. By the way, you have not been served - papers left on the gate is not process service.
Ask Your Own Landlord-Tenant Question
I checked AZ law and papers left on the front gate with a follow up of certified mail to your new address, is good process service for forcible detainer.

I recommend that you appear on Monday and also file an Answer to the Complaint at that time and have a copy to give to the judge. In your answer you should state that you vacated on August 20th, pursuant to a notice to vacate received on July 24. Recite that the vacate notice was not timely pursuant to A.R.S. Title 33, Chapter 10, at 33-1375 which requires a notice 30 days before the periodic rental period. Your rental period was the first of the month, so to effectively terminate by August 31, required a notice 30 days before August 1, not July 24. If the Complaint doesn't say anything about a 5 day notice to pay or vacate, then in your Answer say that the Complaint should be dismissed for failure to comply with 33-1377, since no 5 day notice to pay or vacate was received. You should also request that the Complaint be dismissed since you vacated before you were served and there is no forcible detainer so Plaintiff should refile as a normal "monies owed" claim. If there was no 5 day notice to "Pay or Vacate" and a text message doesn't count, the judge will dismiss the case. In other words if the only "notice" you received was the 30 day vacate notice you should be fine on Monday.

There is a requirement that the landlord either send you an accounting of how your security deposit has been used or send it all back to you and this needs to be done within 14 day from you moving out. see 33-1321 of the AZ Residential Landlord Tenant Act. If the landlord doesn't do this, then you are entitled to all of your deposit back PLUS double your deposit back as damages for violating the law. Meaning the landlord may end up owing you 3 times your deposit, which amount would exceed anything you might owe. Don't mention this to the landlord or the judge on Monday. No matter what happens on Monday, such as owing August rent, you may luck out and be able to claim 3 times the security deposit vs. the landlord later.

If the judge dismisses the case on Monday for failure of the 5 day notice, the landlord will be able to refile and start over but it won't be refiled as a forcible detainer, since she can't allege you are still in possession. If she refiles and hasn't complied with the 14 notice on the security deposit you can assert that in a counter claim.
Seattlescott
Seattlescott, Licensed attorney
Category: Landlord-Tenant
Satisfied Customers: 984
Experience: 25 plus years experience as a practicing attorney
Verified
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Seattlescott, Licensed attorney
Category: Landlord-Tenant
Satisfied Customers: 984
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