Often when we are handling a non-payment of rent eviction, our clients will call claiming that the tenant is offering to pay the rent, and the landlord doesn’t know what to do. In many of these cases, the landlord may not want to accept the rent because the tenant has caused other problems, or the landlord may want to accept the rent but the tenant doesn’t have the full amount. Whether or not to accept the rent is often a business decision, but in many cases, there is no decision to make and by law you have to accept the rent. A landlord must know where they are in the eviction process, to determine what their rights are.
It is often said that Arizona is a “cure” state in terms of non-payment of rent. This means that if the tenant offers the full amount of monies owed, then the landlord has to accept the funds, until the judgment has been signed. This language is codified in A.R.S. § 33-1368(B). It provides that if, before an eviction is filed, the tenant may reinstate the lease by paying all past due rent and a reasonable late fee provided by contract. After the eviction is filed, the tenant may still reinstate the lease by paying all the past due rent, a reasonable late fee, court costs and attorneys’ fees as provided in the written lease. If the full amount owing is offered to the landlord, then the landlord has no choice and MUST accept the payment of the rent and allow the tenant to reinstate their lease. Once the payment is made, the eviction must be dismissed, and the tenant is allowed to continue as if no breach ever occurred.
Often, tenants will come to court with certified funds or cash and present this to the Court. If the full amount is offered, including court cost and attorneys’ fees, then the Court will order the attorney or representative to accept the funds and dismiss the case. Even if the landlord no longer wants this tenant in the property because they are late every month, the landlord will have to accept the funds and dismiss. In my practice, I regularly file evictions against a handful of tenants, who always pay rent late but will “cure” the breach and get the case dismissed by paying at court.
A landlord does not have to accept an offer of a partial payment from their tenant. Under A.R.S. § 33-1371, a landlord that accepts a partial payment is prohibited from proceeding with an eviction in that month unless they obtained a written payment plan signed by the tenant. This does not mean that a landlord has to accept a partial payment. A landlord always has the right to refuse money unless it is the full amount. This statute simply states that if a landlord chooses to accept a partial payment, they must get a written payment plan outlining the parties’ rights.
After a judgment has been entered, however, the landlord’s rights change significantly. A.R.S. § 33-1368(B) provides that after a judgment in a special detainer has been entered for the landlord, “any reinstatement of the rental agreement is solely in the discretion of the landlord.” Once judgment is signed, the lease is terminated and the landlord has the choice to allow the tenant to stay or to evict the tenant even if the tenant pays. We strongly suggest, however, that if a landlord is going to accept the rent and still evict the tenant, that they get the tenant to sign a document acknowledging that the tenant is paying the money only to satisfy the monetary portion of the judgment, and that they still have to vacate. This will ensure that the landlord doesn’t have any problems when the constable goes to execute the writ, and the tenant can show a payment to the landlord. If the tenant refuses to sign acknowledging they are to vacate, then do not accept the money until after the writ has been executed.