LEGAL CASE OF THE MONTH: "Just Say Not Applicable"
When litigating evictions and other landlord-tenant lawsuits, the issues usually focus on what has happened since the tenant moved in - e.g. incidents on property, whether the tenant has paid the rent, etc. The evictions should not be a fight over the terms of the lease, especially when the landlord is using a standard lease form. However, when a tenant got creative and a little too proactive, his eviction focused almost exclusively on what was in the lease.
We filed an eviction for noncompliance with the lease. The noncompliance dealt with the tenant's responsibility to maintain the unit and the patio. We had pictures of the unit and the patio, showing that the unit wasn't being cleaned and the resident was storing thousands of personal items (think hoarding).
At the initial hearing, the resident appeared, denied the allegations and asked for a jury trial. Knowing this client's lease, the attorney objected to the jury trial as the lease has a provision where both parties waive their right to a jury-trial (side note to the reader - if your lease doesn't have a jury trial waiver, it should). The resident quickly argued that HIS lease didn't have a jury trial waiver and pulled out his lease. Next to the printed lease provision regarding the waiver to a jury trial, in hand-writing it was written "not-applicable." The tenant then was quick to note that "not-applicable" or "N/A" was in hand-writing in numerous provisions of the lease, including the provision addressing maintenance of the patio and the section on late fees. In total, there were 6 paragraphs, all dealing with obligations, which were allegedly not applicable.
The attorney looked at the lease the manager had provided and it had the same language throughout. Therefore, the matter was set for a trial to allow us time to understand what happened. We contacted the manager who was surprised to learn about the language in the lease, but not surprised by the resident playing the games. The manager remembered printing out the lease and signing it with the resident - even the part where the resident took time to review the lease while the manager did other work. The manager presumed that the resident made the changes while the manager was doing other things, and that when it was signed, the manager didn't notice the changes.
While that type of underhandedness may get words written onto a piece of paper, they won't necessarily get enforced by a court of law. We had the manager come to court to testify about the signing of the lease and that she would never agree to waive such lease terms as all other residents were bound by the standard lease. We argued that it was either fraudulent or there was no meeting of the minds on what the agreement entailed. In the legal world, if you don't have a "meeting of the minds" there is no contract and under the Arizona Residential Landlord and Tenant Act, a resident has a duty to keep and maintain the premises in a clean and safe condition. Interestingly, the resident didn't deny the condition of the patio or the unit, nor did he deny the images in the pictures; he merely argued the hand-written language on the lease.
The judge was not impressed by the resident's hand-written additions to the lease.
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