Question: I just learned that my tenant was arrested and is in jail.  What are my options?  What happens if he pays the rent? 

 Answer: You may proceed in one of two main ways depending upon why he was arrested.  If the tenant was arrested for something being done in the unit (drugs, shooting, etc) then you can serve an Immediate and Irreparable Notice (A.R.S. § 33-1368(A)(2)) and file the eviction.  The tenant’s actions would probably be a violation of the Crime Free Lease addendum, if there is one, and A.R.S. § 33-1368 (A)(2).  You must note that the standard of proof for you to win the eviction is less than the standard applied in criminal cases. (Preponderance of the evidence v. beyond a reasonable doubt.)  Therefore, it is not necessary that the tenant be found guilty in a criminal case of the charges against him. 

             The circumstances are more difficult, however, if the arrest was not associated with the property.  For example, judges are hesitant to grant evictions for arrests that resulted from a traffic accident.  Therefore, an Immediate and Irreparable Notice may not be effective. 

 Also, if the tenant continues to pay the rent, you can not proceed through abandonment because nonpayment is an essential element of abandonment.  See A.R.S. § 33-1370.  (I provided a brief analysis of abandonment in the April 2011 Q&A section.).  Therefore, if the tenant is current on the rent, and the arrest was unassociated with the rental property, you are likely prohibited from filing an eviction for that reason.  You could proceed, however, with an eviction if the tenant is having unauthorized people stay in the unit while he is incarcerated.  Remember, if you are proceeding with an eviction, you cannot accept the rent payment from the tenant as you may be waiving your right to proceed based upon the default.  You have to return such rental payments to the tenant.  Your final remedy would be to review when the lease expires and send a termination notice if they are month-to-month.

Information contained in this post is for informational purposes only and should not be considered legal advice. You should always contact an attnorney for legal advice and not rely on information published here.