Q&A with Denise M. Holliday
The attorneys at Hull, Holliday and Holliday, PLC can be reached at 602-230-0088.
Q: I’m on a lease for an apartment. I informed management that I was looking for a house to buy and may have to break the lease if I found one before the lease end. They informed me that I was getting a $136/month discount and if I broke my lease, they would charge me $136 more per month for the entire length of the lease, plus another $1,230 for an early termination fee.
I’ve always paid my rent early and wondered if these charges are unreasonable because of my being a good renter. It seems pretty high to me.
A: The $136 monthly discount is considered a rental concession. Both rental concessions and early termination fees are recoverable as damages should you prematurely terminate your lease. These fees should be in writing in order to be enforceable. Arizona case law holds that these early termination damages are enforceable only in an amount that is reasonable in light of anticipated or actual loss caused by the breach. The law also requires a landlord a reasonable effort to mitigate its damages.
Landlords can bring a civil lawsuit after a resident prematurely vacates the apartment under A.R.S. § 33-1373. The suit is for all rents owed until the lease expires or management re-rents the unit. Included in this are any concessions, lease break fees and property damages beyond normal wear and tear.
As long as the apartment is not re-rented, you remain liable for the term of the lease.
Q: I am a 72-year old senior living in an apartment complex. I cannot afford an assisted living facility. What are my options for asking this complex for any concessions for senior renters? Rents continue to go up every year, but our Social Security income and some pensions don’t. I am aware of the LITHC (Low-Income Housing Tax Credit) benefit and would like a better understanding of it. Can I request that benefit with the complex that I am currently in?
A: Many people find that a change in their personal circumstances makes their current living situation no longer feasible. Unfortunately, most of those circumstances do not constitute legal grounds to terminate or modify the lease. A landlord is not required to provide a rental discount to some of the residents based upon their finances. Additionally, to treat some residents differently simply based on their financial issues may violate fair housing laws. If a tenant finds themselves in a position where they can’t afford their rent, they may want to investigate the affordable housing options in their community. Certain properties offer or accept affordable housing programs; but there are substantial requirements involved and the traditional apartment community does not qualify for certain programs like the LIHTC tax credit program.
The views expressed here are generalized advice or information. Fact-specific questions should always be referred to legal counsel. Statements and opinions expressed in these legal columns are solely those of the author or authors. This advice does not necessarily represent the views or opinions of the Arizona Multihousing Association.
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