guarantor's responsibility if lease is completed, but tenants refuse to leave

Question

We signed a lease guaranteeing the rent for our son. He was expected to pay when he got on his feet, but has made no payments. We have paid all monthly payments and there are 2 months left on the lease.

We put in our notice of not intending to reup the lease or continue to guarantee the rent beyond the end of the lease. Our son indicates he will not leave - won't provide the notice of vacating the apartment. The apartment staff say that if all people on the lease don't put in a notice of not staying that all of us will be put on a month to month agreement, with us still responsible for the rent.

We cosigned for the lease duration, not indefinitely. If we gave notice as required and pay to the end of the lease, how can we be held responsible beyond that? This is just a matter of giving them proper notice. My son is not able to meet the income requirements, so how can they force all lease holders to continue if another (who can't pay) decides to hold out?

We live in Arizona. What can we do?

Answer 1

We cosigned for the lease duration, not indefinitely.

You cosigned the contract, and you're on the hook for the duration of the contract. The contract is in force for as long as the property is held by your son, and as the contract states - once the original term is over, the term renews monthly unless a new lease is made or the property is vacated one way or another.

If we gave notice as required and pay to the end of the lease, how can we be held responsible beyond that?

You didn't give the notice that you're vacating the property, you gave the notice that you don't want to remain guarantors. But the lease, I'm sure, doesn't allow you to withdraw from being guarantors. You'll remain guarantors for as long as the lease is in force, i.e.: for as long as your son lives there.

My son is not able to meet the income requirements, so how can they force all lease holders to continue if another (who can't pay) decides to hold out?

They can sue you, and demand payment. They'll likely prevail. If you have significant assets - it will be worth their while to go after you, including demanding their legal fees, late fees, penalties and expenses.

We live in Arizona. What can we do?

The most obvious thing is to talk to your son and either have him sign a new lease without your guarantee or move out.

Bottom line - as long as your son holds the property, you'll pay his rent. That's what you signed up for. The landlord has no reason to evict your son, and if you stop paying the landlord will in all likelihood come after you.

I'm not a lawyer, so you should obviously try and find a lawyer who may be able to find some loophole in the lease and get you out of it. However that may end up being difficult.

You may end up having to sue your own son.

Answer 2

The end of the lease is always a confusing time. In some cases the lease automatically extends for another year, unless either party files notice to not renew. In other cases the lease converts to month-to-month. It is also possible that the landlord can change the rates at the moment of conversion based on the notice they give.

I went to the state of Arizona to see what their Tenant's Rights and Responsibilities Handbook says,

Notice of Non-Renewal (For more information, see A.R.S. § 33-1375)

A. You or your landlord may decide not to renew the rental agreement; no reason is necessary.

B. If you have a written rental agreement, you should look through it to see how and when to give your landlord notice that you do not plan to renew the rental agreement. Some rental agreements may automatically renew or become month-to month rental agreements if you fail to give this notice. If you do not have a written rental agreement, or if your rental agreement does not tell you what to do, it is best to provide at least 30 days’ notice as described below.

C. If your rental agreement is month-to-month, to terminate your rental agreement, you or the landlord must give the other written notice at least thirty (30) days before the end of the last month you plan to live in the home. This means you must give notice in the month before the month you want to leave.

• This means that you cannot plan to move out in the same month you give notice. For example, if you normally pay rent the first of the month and you want to move out by the end of May, you should give the landlord your 30-day notice before May 1. If you don’t give your notice until May 1 or after, then your rental agreement will not terminate until the end of June and you will be responsible for June’s rent

So it does allow for conversion to month-to-month or another year.

You should be happy it went to month-to-month.

Pulling from several sections of the handbook this is what will happen:

I. Violations of the Rental Agreement (For more information see A.R.S. § 33-1368) A. Not paying rent. (For more information see A.R.S. § 33-1368(B))

1. If you do not pay your rent when it is due, your landlord may give you written notice explaining how much rent and late fees you owe, and that your rental agreement will end if not paid within five days.
2. You have a right to reinstate your rental agreement any time before the landlord files in court by paying the unpaid rent and any late fees. a. Your landlord can only charge late fees if they are included in your rental agreement. b. If you settle with your landlord, be sure to get a receipt of your payment showing that you do not owe any additional money.
3. If you fail to pay the full amount of rent and late fees owed within five days, your landlord may file in court to have you evicted

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C. If the landlord files an eviction complaint against you, you will receive court papers that tell you when you have to go to court. The court date will generally be between three and six days unless the eviction is based upon a material and irreparable breach of the rental agreement in which case the court date will be under three days

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V. Landlord Has a Right to the Rental Unit.

A. If you lose in court, the judge will give you five calendar days to move out. But, if you are evicted because of a material and irreparable breach, the judge will only give you twelve (12) to twenty-four (24) hours to move.

B. If you have not moved out at the end of the time the judge sets, the landlord may obtain a Writ of Restitution from the court. This is an order for the sheriff or constable to change the locks on the rental unit. Returning to the rental unit without the landlord’s permission is trespassing.

C. If you leave personal property in the home after you have been locked out following a writ of restitution, your landlord must store your possessions for fourteen (14) days. The landlord does not have to store your perishable items, plants, and animals. The landlord may throw away perishable items. Animals have to be taken to a shelter, boarding facility, be cared for by the landlord, or the landlord can call animal control. The landlord must tell you where your property is being held. After 14 days, the landlord may donate your personal property to a charitable organization or sell your property. Your landlord may dispose of any of your personal property if he reasonably determines that the value is so low that the cost of moving, storing, and selling the property is more that the amount that would be received at a sale. If the landlord sells your property, the landlord can apply the money received to any rent or monies owed. He must then mail any extra funds to you at your last known address.

D. Reclaiming Property (see ARS §33-1370(F))

1. You may immediately obtain clothing, tools, or books of your trade or profession, along with any identification or financial documents, including all those related to your immigration status, employment status, public assistance, or medical care.
2. To get the rest of your property, you have to pay the landlord only for the cost of removal and storage for the time the property is held by the landlord. You do not have to pay the judgment amount. You will have to contact the landlord in writing to arrange for a time to pick up your property and pay those fees and then pick up your property and pay the fees within five (5) days of the written offer

It sounds like the timeline to eviction could be quick. It could be worse because the landlord could have gone after 12 months of rent if the lease had converted to a year lease. Of course if there are delays getting a court date, and the writ the amount owed could grow.

You may need to explain this to son to make sure he knows that in a short time his stuff could be gone.

Answer 3

If push comes to shove, you should be able to go to court right now, and file suit to be released from guarantor duties and/or evict your son.

That would only be your casus belli of course; the true effect (and worthy intent) would be to place the entire matter in front of the court. The landlord will answer, of course; and the child may or may not. The court certainly won't unhitch you from your guarantor duties, but it would layout the roles and consequences for all parties.

Your child will appreciate that a great deal less than the landlord will... but it may ultimately be a kindness since then the child would have a roadmap of what happens next. (they will also be reality-checked out of any magical thinking they may be suffering under). If they want to keep the place that badly, they can redirect their funds accordingly, or they can make other plans for an orderly move-out.

Answer 4

Others have covered the legal and lease issues. You likely don't have a way out of the lease on your own but it is probably worth talking to a lawyer to be confident.

Assuming those answers are accurate an option I didn't see other folks make is coming to a payment for keys type agreement with your son. Effectively you are the landlord with a deadbeat tenant. Paying him 1-3 month rent to move out might be a better financial choice than a lawsuit or eviction, both of which are going to cost a fair bit of money. You would want to make sure he is out before paying him and where he goes from here could be complicated.

Answer 5

Your exit path, if neither you nor your kid are willing or able to pay the rest of the duration of this lease, is to talk to the landlord about whether they will let you sublet the place (which will reduce your losses but still require you find somewhere else to live), or try to find roommates whom you trust to pay their share of the rent (which will require giving up some space and freedom).

The landlord may also let you out of the lease if you can find them a new tenant, as an alternative to subletting, though there may be a fee for doing so. There may also be a fee/increased security deposit with the other solutions. This is something you have to work out with the landlord; they can insist on the letter of the contract, so you need to convince that these are good alternatives.

What you can't do is walk away from an active lease. You can choose not to renew next year, but then you need to vacate the premises before the current term ends; you missed that window this year. (And see above re finding other living arrangements.)