Utilities - To Shut Off or Not to Shut Off

Almost every landlord has wanted to shut off a tenant's utilities for one reason or another.  Unlawfully shutting off utilities can result in severe consequences to the landlord except for a few unusual circumstances.

Normally utilities cannot be shut off and Arizona State Statute allows the tenant to sue for damages and/or terminate their rental agreement.

Here is the statute that protects the tenant:

A.R.S. 33-1374  Recovery of possession limited

A landlord may not recover or take possession of the dwelling unit by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, except in the case of abandonment, surrender or as permitted in this Chapter.

Could you Be Prevented from Renting Your Home?

In Arizona many people buy residential property as an investment and then rent out the the home full time or at least some portion of the year.  Additionally with the current declining market and the inability to sell a home, renting it until the market improves has become increasingly popular and necessary.  But, WAIT A MINUTE....could your Homeowner's Association Covenants Conditions & Restrictions (commonly known as CC&R's) prohibit you from leasing your home??? Maybe so. CC&R's regulate the homeowner's use of their property restricting everything from the color of the home, awnings, holiday decorations, pets, outdoor basketball hoops and landscaping.


During the recent housing boom builders included restrictions prohibiting homeowner's from renting their properties to limit the number of rental units in a community.  These builders/developers and their lenders believed that the number of rentals in a community affected the value of the property because of crime that often occurs in rental property.  Now many Homeowner's Associations are seeking to amend their CC&R's to include a restriction preventing rentals. While these associations might find this to be a difficult process as there have been no case law that addresses this issue...but you never know what can happen. 



The law in Arizona clearly states that if you choose to live in a HOA (Homeowner's Association) that has CC&R's you have a binding contract with the HOA and are accepting the restrictions associated with your property.  There is a contingency in the Arizona Associations of Realtor's resale purchase contract that allows the Buyer a period of time to review, accept or reject the CC&R's after their offer has been accepted.  ALWAYS carefully review the CCR's (provided by the Title company) to determine whether or not you must occupy the home and not rent it out.  REMEMBER CC&R's can be amended.  A HOA that doesn't have a rental restriction today may have it arise as an issue at a later date.


Linda Shank is a Broker/Owner & Certified Residential Specialist in the Southeast Phoenix Valley who has been selling real estate since 1978.  She is experiencing her third down market cycle.

NEW Community-Owned or Privately Maintained Streets FNMA Requirements

In our ever-tightening environment appraisers are doing their research more carefully and lenders are finding that many streets thought to be publicly maintained are actually private roads.  This triggers an underwriting requirement to provide the recorded road maintenance agreement---which often does not exist.

If the property is not situated on a publicly dedicated and maintained street, then it must be situated on a street that is community owned and maintained or privately owned and maintained. There must be adequate vehicular access and there must be an adequate and legally enforceable agreement for vehicular access and maintenance.  

 

Community-Owned or Privately Maintained Streets

If the property is located on a community-owned or privately-owned and maintained street, an adequate, legally enforceable agreement or covenant for maintenance of the street is required. The agreement or covenant should include the following provisions and be recorded in the land records of the appropriate jurisdiction:

•	responsibility for payment of repairs, including each party’s representative share,

•	default remedies in the event a party to the agreement or covenant fails to comply with his or her obligations, and

•	The effective term of the agreement or covenant, which in most cases should be perpetual and binding on any future owners.

Note: If the property is located within a state that has statutory provisions that define the responsibilities of property owners for the maintenance and repair of a private street, no separate agreement or covenant is required.

If the property is not located in a state that imposes statutory requirements for maintenance, and either there is no agreement or covenant for maintenance of the street, or an agreement or covenant exists but does not meet the requirements listed above, the lender must indemnify Fannie Mae for any losses or expenses it may incur due to the physical condition of the street or in order to establish and/or retain access thereto.

HOME INSPECTIONS ARE A MUST! DEMAND ONE!

As a buyer you have the right to know what you are buying...especially in today's foreclosure market where homes are being purchased in AS IS condition with no guarantees or warranties.  A professional home inspection is something you MUST do regardless whether or not it is a new or pre-owned home.  This inspection is an opportunity to have an expert look closely at the home you are considering purchasing.  It is best to have all the inspectors findings in a written report and not rely on an oral opinion as they are easily misinterpreted.

Make sure your inspector is Stated licensed and a member of ASHI (American Society of Home Inspection).  Accompany the inspector to the inspection if possible and ask questions.  If you can't be present ask a family member or close friend to represent you.

Most real estate contracts provide for an inspection to be done within a certain time period.  This inspection clause is considered a contingency to your purchasing the home.  If you don't approve the inspection, you don't have to buy.  Many times the seller will make the necessary repairs found in the Inspection
Report but sometimes they won't (as in FHA and Bank Owned Foreclosures).  If you do not approve the inspection report and wish to cancel the contract, ALWAYS put your cancellation in writing within the time period specified in the purchase contract.

WHAT IS A HOMEOWNER'S ASSOCIATION (HOA) ASSESSMENT LIEN?

Once a homeowner becomes delinquent on their monthly fees (assessments), the HOA attaches an assessment lien to the homeowner's property for the benefit of the HOA.  This assessment lien allows the HOA to sell the homeowner's property to repay delinquent fees owed to the HOA.  Arizona law defines that an HOA assessment lien may only be imposed for past due assessments, late fees, collection fees and attorney's fees relating to the past due HOA assessments. An assessment lien foreclosure lawsuit can only be filed if the homeowner is delinquent by at least $1,200 in overdue assessments or it is a least one year past due.   If the HOA begins its foreclosure lawsuit too soon, the lawsuit can be dismissed.

An HOA assessment lien also operates as a cloud on the title which prohibits the seller from selling or refinancing the property until the HOA assessment lien is paid off.    Most assessment liens are automatically extinguished if collection proceedings are not brought within 3 years.  Furthermore, once a property is foreclosed upon, the HOA assessment is extinguished and the HOA essentially loses whatever monies they are owed.