Strict Standards: Declaration of Walker_Page::start_lvl() should be compatible with Walker::start_lvl(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Page::end_lvl() should be compatible with Walker::end_lvl(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Page::start_el() should be compatible with Walker::start_el(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Page::end_el() should be compatible with Walker::end_el(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_PageDropdown::start_el() should be compatible with Walker::start_el(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Category::start_lvl() should be compatible with Walker::start_lvl(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Category::end_lvl() should be compatible with Walker::end_lvl(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Category::start_el() should be compatible with Walker::start_el(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_Category::end_el() should be compatible with Walker::end_el(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204

Strict Standards: Declaration of Walker_CategoryDropdown::start_el() should be compatible with Walker::start_el(&$output) in /home/io7auewh452rb/public_html/blog/wp-settings.php on line 204
Arizona Tenants Advocates » Illegal landlord actions

Archive for the ‘Illegal landlord actions’ Category

LANDLORD’S GREED VERSUS DUTY TO MITIGATE

Tuesday, July 7th, 2015

The play book of landlords is to run up damage claims against tenants. From the beginning, they fabricate claims in the lease by, for instance, offering a monthly rent supposedly discounted down from a fictitious, unrealistically high market rate. Then, when the tenant breaches the contract, perhaps by leaving before the full term has concluded, the landlord bills the tenant for the so-called concession which was predicated upon the contract’s completion. It is a blame game designed to line the pockets of landlords.

I believe these inducements, concessions, free rent or discounts - all these terms are used - should be illegal because they are almost invariably fraudulent in nature. They are, by design, intended to augment the damages suffered, based on falsehoods. In reality, landlords only get away with charging the real market rent, because they would never find takers willing to pay the inflated rate.

Another scam is charging a flat rate for utilities. It is illegal. The is because, under A.R.S. § 33-1314.01(E) a tenant may be held liable for utility charges ONLY by way of

(1) contracting directly with the utility provider,
(2) direct metering for the charges incurred,
(3) sub-metering as a means of assigning a portion of the aggregate charges in an apartment community, or
(4) allocating a portion of the aggregate charges by some reasonable means of calculation, called a ratio utility billing system, aka RUBS.

For any assessment of charges other than by way of direct utility contracting between the tenant and the utility provider, a landlord must provide a bill for the period showing opening and closing meter readings, and the dates for the meter readings. Since this statute was enacted I have yet to see a landlord submit a utility bill that contains all these elements. Landlords write the laws but do not abide by them, at the literal expense of tenants. They line their pockets with ill-gotten gains each and every billing period, paid by each and every tenant. It adds up to millions of dollars every year.

Getting back to the subject of a flat rate billing paid each month, it is even more egregious than an inadequate billing submission because there is no justification whatsoever breaking down the charges; it is unabashed theft. For a detailed analysis about utilities and essential services, see our website article, Utility of the Landlord-Tenant Act.

The other side of the coin of this realm is for landlords to maneuver circumstances to augment damages claims, which is contrary to their duty to mitigate (read: reduce, minimize or eliminate) the damages suffered. The legal doctrine of mitigation of damages is specifically incorporated into the Arizona Residential Landlord & Tenant Act in:

A.R.S. § 33-1305(A), which generally establishes that an aggrieved party has a “duty to mitigate damages;”

A.R.S. § 33-1321(D), which restates the duty in the context of applying the security deposit after the conclusion of tenancy;

A.R.S. § 33-1369, which mandates that a landlord, prior to effecting a repair himself at his tenant’s expense, must give the tenant notice of an alleged health/safety concern in the rental dwelling, allowing the tenant the opportunity to cure the violation; and

A.R.S. § 33-1370(C), which requires a landlord must use reasonable efforts to re-rent a dwelling that has been abandoned.

Each of these statutes obliges the landlord to minimize the effects and losses resulting from the injury. For example, under A.R.S. § 33-1321(D) if the landlord accuses the tenant of damaging the carpet, it must be brought to the tenant’s attention at the joint-move out inspection. This would allow him to mitigate the landlord’s damages by making the repair using the least expensive method he can. Or, pursuant to A.R.S. § 33-1369 if during the tenancy a landlord wants to charge his tenant for repairing a stove range burner damaged by the tenant and that poses a safety risk, he must first allow the tenant 14 days to repair it. Or, under A.R.S. § 33-1370(C) if a tenant gives his landlord a notice of abandonment and leaves before the expiration of his lease, the landlord has a duty to attempt to re-rent the dwelling unit at a fair price, and, failing to do so, the lease is deemed terminated as of the date the landlord received the tenant’s notice.

In each of this instances it can be argued that a landlord who fails to comply with these requirements has lost the right to hold the tenant liable, irrespective of the fact that the tenant may have caused the circumstance or condition. Under the doctrine of mitigation of damages, the landlord would be unable to recover those expenses. This is a very important principle that generally favors tenants, and in our casework at Arizona Tenants Advocates we constantly help tenants exercise this right. By so doing, we help tenants reduce their financial exposure, often reducing or totally eliminating landlords’ claims.

Sometimes the concept of mitigation of damages can be employed in a back-door manner, where its application is implied by virtue of landlord overreach, and/or when the landlord’s duties are not fulfilled. For example, a tenant can give notice of intent to vacate early, as if to abandon, leaving the dwelling spotlessly clean and rent-ready, with possession delivered to the landlord as a “turn-key” scenario. Of course, the landlord has a duty to try to relet the premises whereby, on the one hand, intentional or negligent failure to so so violates the duty to mitigate damages. Conversely, many landlords can’t resist illicitly doubling their revenues by renting to a new tenant whilst retaining the old tenant’s deposit (or prepaid rent) as compensation for the ostensibly lost rent. Collecting simultaneous rents is a big no-no, and also violates the duty to mitigate damages.

I would take this one step further. In my opinion, many non-refundable fees and specified-purpose deposits are nothing more than a scheme to evade the security deposit limitation of one and one-half times the value of the monthly rent. See A.R.S. § 33-1321(A). Despite that this statutory section establishes the limitation imposed on deposits “however denominated,” landlords routinely charge non-refundable fees/charges or excess deposits for pets, administrative fees, wear & tear, move-in, et cetera ad nauseum, invariably exceeding 150% of the rent amount. It is also quite common for landlords to assess fees (both refundable and nonrefundable) for redecorating and cleaning, despite that these are specifically prohibited by A.R.S. § 33-1310(14). If all this does not constitute an augmentation of damages, then the world is far more screwed up than my normal cynicism takes into account. Landlord charges are like π. . . never ending and unfathomable (legally).

But one thing you can definitively count on - they want to keep your money, if not to simply line their pockets, then to have you underwrite renovation of the dwelling unit. There are many arguments you can make why a certain so-called damage condition is unwarranted, and we have an article on this subject the Tenants Library, entitled How To Refute Landlord Monetary Claims. While it is the standard practice of landlords to assess the entire cost for replacing the item (such as a carpet), even if you actually caused the deficient condition the landlord must take into account its depreciated value. As with an automobile, the carpet value is reduced in proportion to its age, based on its normal lifespan. So you could argue that the a carpet that is fully depreciated in seven years would, as of the sixth year, only have a value that is one-seventh of its original cost. And that would be your maximum liability for its replacement. Anything more is unjustified and, again, would constitute an augmentation of the charge. Learn those terms: mitigation versus augmentation.

Landlords sometimes attempt a work-around the duty to mitigate by assignment of a “liquidated” worth of the damage, in substitution of what the actual damage might be. For example, $5.00 to replace each stove range drip pan. This may be a reasonable approach, so long as the amount reasonably approximates the actual damage. If not, the argument could be made that it violates contract law because it is excessively high, rendering the charge void as a penalty. For example, a $100.00 charge for each drip pan is unenforceable. Also, landlords occasionally try to collect the liquidated value in addition to the actual charge. This, too, will not fly, as the whole purpose of an assigned liquidated charge is to designate a predetermined sum in replacement of damages that would otherwise be uncertain or difficult to quantify. For this reason, collection of liquidated on top of actual charges constitutes an augmentation, rather than mitigation, of the damages.

The argument of mitigation of damages is powerful, and Arizona Tenants Advocates can assist you in presenting it. Benefit by using our knowledge for free. Join us and we can directly help you enforce your rights.

- Ken Volk -
July 7, 2015

LEASE RENEWAL AND RENT INCREASES

Thursday, June 11th, 2015

How much can a landlord raise your rent with a new lease or new rental?  There is effectively no limit on rental increases, as this authority is preempted by the state under A.R.S. § 33-1329.   Therefore, cities and towns are precluded from the imposition of rent control.  And of course, being that the State of Arizona has no interest in helping tenants by regulating rent, this means that at the end of your tenancy the landlord may raise your rent sky high (with the sole possible exceptions that it contradicts either an advertised rate or what is charged to others having identical circumstances).

Ah, but WHEN a landlord can raise the rent or decree other changes is another matter entirely.

One of the most frequent complaint topics on the Arizona Tenants Advocates (ATA) hotline is of landlords attempting to increase rents or terminate during the lease term, or during a month-to-month tenancy with inadequate notice.

When you are in a lease, having dates certain for its commencement and expiration, the lease terms and conditions (if legal) are of a contractual, binding nature.  The contract would govern the rent amount, the amount of taxes, any increases in the rent and taxes, when those increases would take effect, and what happens at the lease’s conclusion.

There is no law regulating what kind of advance notice, if any, is required to stay on or vacate when the lease ends.  On occasion a lease will state that it automatically renews unless either party gives notice otherwise.  More frequently, a 30-day or 60-day notice must be provided by one party to the other.  But leases can well be silent on the issue.  In this situation, the lease just ends; the landlord and tenant part ways without any notice given.

To understand what you must do, carefully examine the details of your lease.  Sure, leases are written with lots of legalese and are designed to give the landlord a leg-up, but there is no end run around knowing what your lease requires.  Knowledge is the first step towards having power.

What happens if you neglected to give the requisite 30-day or 60-day notice?  Again, that may depend on the lease’s language.  However, if a tenant stays on and continues to pay rent after the lease has expired, its terms and conditions would hold over, except that the duration would be on a month-to-month basis.  Month-to-month rentals are defined under A.R.S. § 33-1314.  So it may be financially advantageous to give notice of terminating a month-to-month tenancy rather than paying for rent 60 days after the lease expired.

In terms of its requirements, a month-to-month tenancy, unless following a lease holdover, generally would be governed by the Arizona Residential Landlord and Tenant Act.  Fair enough.  Adjustments could be construed to be changes in rules and regulations per A.R.S. § 33-1342, but they cannot constitute a substantial modification of the tenancy, and require 30 calendar days’ advance notice to the tenant.

Significant changes, such as the amounts of rent or late fees, would effectively create a new tenancy.  In that circumstance, a minimum 30-day notice must be given to not renew the month-to-month tenancy under A.R.S. § 33-1375(B), with the changes taking effect on the next rental payment date, which by default is the first day of the month.  The same applies to just ending the tenancy (as compared to instituting changes).

But what if the notice is given less than 30 days prior to the next rent payment date?  Because the rental period is monthly, the rule of thumb is that such a notice becomes effective as of the next succeeding rental payment date.  So, for instance, should the landlord notify you on June 2 that you must be out on July 1, he missed the boat by a single day.  Your month-to-month tenancy would therefore conclude on the August 1 periodic rental date, meaning you can stay throughout July.   Likewise, your notice to the landlord terminating a month-to-month tenancy must follow the same procedures.  Either way, count your days carefully, because many months have 31 days, and February has 28 or 29 days.   Accordingly, a notice to terminate on, for example, the March 1 rental date, must be submitted during the last several days of January.

Sometimes it seems like you are totally screwed because you missed the deadline for notices, and it is impractical to go the lease-break scenario, and you have already committed to move and pay rent elsewhere, and you can’t afford to pay two rents in one month, and you didn’t eat breakfast today so it is just a bad bad bad hair day.  We actually had a call like that today.

Don’t despair - there may yet be a solution.  While you could argue that the landlord has the duty to mitigate damages (see A.R.S. § 33-1305) by re-renting the property, maybe it is not in your interest to let him know that.  Perhaps we at ATA can suggest a strategy to avoid eviction and possibly apply the deposit.  Perhaps you could entice him to re-rent the premises because he is just a greedy sonuvabitch who wants to hold you liable whilst simultaneously receiving rent from a new tenant.  Well, guess what?  If he re-rents, there may be no damages suffered and an argument could be made for your deposit, or even some of your prepaid rent, to come back to you.

I just love tricking landlords.  But remember, they usually have the upper hand, so don’t think you are so smart.  You must make sure your hand is stronger.  ATA can help you compose the best case scenario.

How?  Let us recount the ways, dearie.

For ATA members, we have free forms that you can use to give the proper notices in the proper sequence.  Or, you can individually purchase the forms for a very small charge.  Read about our notices at this link http://arizonatenants.com/simple-notice.htm.  Particularly, we have a notice form for responding to a landlord’s untimely notice of rent increase or vacating.  It’s a really good form, so you may want to use it.  You should also consider picking up the vacating and security deposits forms.

Alternatively, we can help you create custom letters addressing the issue, whereby we would actually sit down with you to determine and implement the best strategy.  Information on this service can be found at this link http://arizonatenants.com/letter.htm.

While we are not lawyers, and cannot represent you in court, we can help you build a case that gives you the best chance of success in court.  Been doing this in Arizona for over 22 years.

- Ken Volk -
May 9, 2015

REPAIR AND DEDUCT

Sunday, June 7th, 2015

Now that spring is turning into summer, a swimming pool may some days seem like an essential service.  However, many apartment communities tend to ignore their upkeep, with faulty gates that may not keep children out, debris in the water, growth of algae and scum, and even attracting pests such as mosquitoes.  On the topic of mosquitoes, they can also breed in any standing water, such as from excess lawn irrigation.

If your dwelling is adjacent to such a source, you may find quite a few mosquitoes entering your dwelling.  So despite the fact that the pests are in your dwelling, they also infest the common areas.  Under A.R.S. § 33-1324 a landlord must not only abide by building (read: health) codes, but also maintain the common areas clean and safe.

Therefore, the issue becomes manifold, taking into consideration factors such as the issue itself (the mosquitoes) , the source or cause of the problem (pool or standing water), or the points of pest ingress into the dwelling (defective window screens or decayed bug sweep).   The landlord has a duty to address all of these elements, and you can hold the landlord accountable in numerous ways.  For example, if it is a health issue, the city or county may issue a citation in response to your complaint. Or, under A.R.S. § 33-1361 you can secure injunctive relief whereby the court would order the matter corrected – but initiating a court action is usually impractical, costly and risky.   Finally, it is possible to lawfully terminate your lease due to a landlord’s breaches, but we do not recommend doing so on the basis of a single complaint.  Rather, we would suggest compiling the maximum number of complaints, including physical violations inside and outside your dwelling, as well as common areas.  Of course, were the landlord to remedy these, you could not lawfully terminate.  If we were doing the case, we would also throw in contractual and legal issues, although it is understandable that this approach might well be beyond your comprehension and capability.  ATA has a Break Lease program whereby we handle just about all of the details for you, but of course we must charge for these time-consuming services.

Then there is Arizona’s “self-help” remedy, A.R.S. § 33-1363, designed to allow a tenant to perform a small repair costing no more than half the monthly rent or $299.99, whichever amount is greater, to himself make the repair and deduct the cost from next month’s rent.  Sounds simple, but there are rules that apply.  A 10-day notice containing specific language must be delivered to the landlord.  A licensed contractor must be used.  The amount paid would be deducted from the next month’s rent, along with an invoice from the contractor.  The contractor must provide a Waiver of Lien that releases the landlord from liability for the cost of the repairs, and this document must be provided along with the reduced rent payment.  Typically, tenants who attempt to do this on their own mess it up, and then have spent their own money making repairs for the landlord, essentially as a donation.

Don’t eat the cost due to some oversight.  ATA can help you do it right.

First, we have an article in the Tenants Library explaining details about the self-help remedy, entitled Making Repairs To Your Dwelling, at this link http://arizonatenants.com/library_repair.htm.  Read it.  For ATA members, we have free forms that you can use to give the proper notices in the proper sequence.  Or, you can individually purchase the forms for a very small charge.  Read about our notices at this link http://arizonatenants.com/simple-notice.htm.  Finally, we can help you create custom letters addressing the issue, whereby we would actually sit down with you to address and implement the best strategy.  Information on this service can be found at this link http://arizonatenants.com/letter.htm.

Although the landlord-tenant act is designed to help tenants remedy their issues without having to take the landlord to court, it would be wise to use our expertise to level the playing field.  Arizona Tenants Advocates is a membership-driven, Arizona nonprofit organization that is here to go to bat for tenants.  If you are having repair problems in your rental house or apartment, visit us on our website, www.arizonatenants.com, or call us at 480-557-8905.

- Ken Volk -
June 6, 2015

TENANT REMEDIES FOR VERY SERIOUS CONDITIONS

Wednesday, June 3rd, 2015

The Arizona Residential Landlord & Tenant Act provides a number of remedies for tenants who are having repair issues. Many repairs can be effectuated simply by a tenant giving proper notice to the landlord and then using his rent money to make repairs. But there are two types of conditions which are so bad the landlord/tenant act puts them into their own categories.

The first category involves failure to deliver essential services. A.R.S. § 33-1324 generally requires a landlord to maintain the premises. But if he fails to provide heat, air conditioning, cooling, water, hot water or other essential services, the landlord-tenant act provides tenants with special rights.

Under A.R.S. § 33-1364 the tenant may do the following: (1) Procure the essential service and deduct the cost from the rent. This could mean, for example, renting an air conditioner throughout the duration of the problem; (2) With cooperation by the utility provider, pay a bill that is in arrears; (3) Recover damages based on the diminution of the value of the dwelling. It is important to note that the tenant may not withhold rent to do so; he must start a lawsuit in court asking for a rebate; and (4) Procure substitute housing during the period of the landlord’s noncompliance, during which time he is excused from paying rent. If the cost of the substitute housing is greater than the rent, the tenant may recover 125% of the daily rent.  Additionally, the landlord-tenant act punishes a malicious landlord whose noncompliance is deliberate by holding him liable for the cost of the substitute housing.

It is important to note that, for remedies under A.R.S. § 33-1364, before he invokes his remedies the tenant must only give prior notice of the deficiency, but it is NOT necessary to advise the landlord of which specific remedy is to be employed.

The other special category of damages anticipated by the landlord-tenant act is “casualty damage.”  Casualty damage is essentially a calamity:  a fire, a flood, a structural collapse, or some problem that substantially impairs the tenant’s enjoyment of the dwelling and comes about suddenly and/or is persisting.  In the case of casualty damage, A.R.S. § 33-1366 gives tenants two options: (1) Immediately vacate the apartment, in which case the lease terminates.  In this case, the tenant must terminate by way of notice within 14-day from the incident having occurred; or (2) Vacate the unusable portion of the dwelling unit and pay a reduced rent commensurate with the “diminution of the fair rental value of the dwelling unit.”

All of the above merely touches on the available remedies.  For more details, we highly recommend you read these articles in the Tenants Library section of the ATA website: (1) Utility of the Landlord-Tenant Act; (2) Stop the Rent Cycle - I Want to Disembark; and (3) Tenants Self-Help Repair aka Making Repairs to Your Dwelling.

- Ken Volk -

June 3, 2015

SECURITY DEPOSITS

Wednesday, June 3rd, 2015

The biggest complaint Arizona Tenants Advocates gets from tenants, by far, is that landlords do not properly refund their security deposits. Sometimes landlords simply don’t give any of it back without explanation; more often, they give a list of deductions that encompasses most of the security deposit. It seems like they consciously try to figure out the balance of how little money they can return to the tenant to ameliorate him and prevent him from going after the rest of it in court, and then coming up with a list justifying the withholding of the balance.

Here is the general rule of security deposits. Under A.R.S. § 33-1321, a landlord may withhold from the security deposit: (1) unpaid rent; (2) actual damages caused by the tenant beyond normal wear and tear for which the landlord can demonstrate he incurred an expense in correcting; and (3) charges specified in the rental contract.  He cannot simply arbitrarily allocate a dollar amount to damages. . . say, $20.00 for a nail hole in the wall; or $50.00 for a dirty sink.  The landlord must demonstrate that the charges were actually incurred.  So, if the landlord did not, for example, perform the actual work of replacing the carpet, then the landlord has not incurred any carpet related expense and he may not withhold anything from the security deposit on that basis.

Moreover, subsection (D) of the above referenced statute (and other parts of the landlord/tenant act as well) requires the landlord to mitigate damages. This means that even if the tenant is responsible for a defective condition in the apartment, the landlord has a duty to correct it in such a way as to minimize the tenant’s exposure and expenses.  That is where the obligation to perform a joint move-out inspection comes into play, because part of the duty to mitigate involves the landlord providing the tenant an opportunity to reduce the damages suffered by, for example, performing repairs and cleaning using his or her own elbow grease.

It is also important to understand that even if you do damage an item, the landlord is only allowed to collect the depreciated value of that item. This means that if your dog urinated on the carpet but the carpet was three years old, it was substantially depreciated and the landlord arguably would only be entitled to recover a percentage of its replacement value in accordance with the reduced value. Landlords regularly charge tenants for new carpeting, new painting, etc., and that is wrong.  By doing so, they are, in effect, leaning on the tenants to underwrite the cost of improvements.

A.R.S. § 33-1321(D) also provides that the landlord must return the security deposit within 14 business days after you move. However, that 14 day period does not start until you serve him with a demand. Therefore, as soon as you get a new address you should immediately deliver a letter to the landlord demanding return of the security deposit. There are numerous ways to deliver the notice, be it by hand at a joint move-out inspection, by certified mail, or even by a process server.  If, within those 14 business days (hich is approximately three weeks), the landlord then does not return it or returns some of it but wrongly withholds a portion, then you can sue him for three times the wrongfully withheld amount. Join the Arizona Tenants Advocates and we will guide you through the process.

All of the above merely touches on the pertinent factors.  For more details, we highly recommend you read two articles in the Tenants Library section of our website: (1) Feeling Secure About Your Security Deposit; and (2) How To Refute Landlord Monetary Claims.

- Ken Volk -

June 3, 2015

IS A TENANT WHO JUST MOVED IN ENTITLED TO AUTOMATICALLY BREAK HER LEASE CONTRACT?

Tuesday, June 2nd, 2015

A fairly common question we get is, if a tenant moves into an apartment and within a day  realizes she made a mistake, or perhaps finds that the apartment is overrun with cockroaches or has some other problem, does she have a window within which she can cancel the contract.   The general answer to this question is no.  There’s no “grace period” under landlord/tenant law within which you can back out of a lease.

However, this does not mean she’s stuck.  The Arizona Residential Landlord and Tenant Act is very weak in comparison with tenants’ rights laws in other states, mainly because it does not allow you to hold back the rent under most circumstances or use more than a minimal amount of rent (half a month’s) to make repairs.  However, it does give tenants the right to terminate their leases for a variety of landlord misconduct, both substantive, such as cockroach infestation (A.R.S. §§ 33-1324(A); 33-1361(A)), or technical, for example, failure to register with the County Assessor (A.R.S. § 33-1902).  Therefore, even though the tenant cannot simply break her contract based on some window of time, she can invoke one of the many sections of the landlord/tenant act to get out of her lease.

One of the interesting aspects of this is that very often the grounds the tenant cites for terminating her lease are not the actual reason she wants to do so.  Sometimes there isn’t a remedy for the tenant’s particular problem, but there are demands she can make which, if the landlord does not comply, she can terminate her lease based on his noncompliance.  In the case above, the tenant might be able to get out of the lease by claiming constructive failure to deliver  possession if there is a particularly bad cockroach problem (A.R.S. § 33-1362), or maybe the landlord didn’t register his apartment with the County Assessor and he lives in one of the cities where termination on this basis is immediate rather than tied to a ten day notice period.  The process of terminating a lease is very technical and is not something you should try without getting professional help.  I actually pioneered this process in Arizona in 1999, performing over 6,000 such cases since then.  I’ve been refining the actual practice of helping tenants terminate their leases for over 16 years.

- Ken Volk -

April 2, 2015

LANDLORD’S RIGHT OF ACCESS

Wednesday, May 6th, 2015

Under A.R.S. § 33-1343, a landlord may enter your rental house or apartment for a host of purposes, including to:

  • Inspect the premises
  • Make necessary or agreed repairs, decorations, alterations or improvements
  • Supply necessary or agreed services
  • Exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors

Typically, entry must be with two days’ advance notice so long as the time of day is reasonable.  Exceptions are when it is impracticable to do so, for emergencies, or after you lodge a maintenance or service request.  If you withhold consent, you may well be evicted.

Do not confuse two days with 48 hours; a landlord could, for example, give you notice to enter on Monday night, and then come into your dwelling Wednesday morning.  This would be less than 48 hours, but still meet the two-day requirement.

You may well ask what is a reasonable time for entry.  The Arizona Residential Landlord & Tenant Act does not define this.  My thinking is that entry before 8 a.m. and after 7 p.m. is unreasonable.  I also think it is unreasonable to enter on special holidays, such as Thanksgiving or Christmas Days.  Ultimately the bottom line rests with what a judge would rule.  Given the bias of the courts, it is risky to block a landlord’s access unless you have an unassailable position.  Don’t press your luck.

But there is a time for standing firm and saying No.  And that time is when you have first made a written record of warning the landlord to stay out unless proper advance notice is given.  Usually such a warning, sent by certified mail or hand-delivered by process server, clearly gets the message across and modifies an abusive landlord’s conduct.  The reason for this is because, following such notice, there can be no question that a landlord’s entry without proper notice violates the tenant’s right to privacy and security.  Once you have so notified your landlord, in the event your landlord appears without warning not only are you well positioned to stand your ground and deny entry without notice, but also you would have built a strong case to seek remedy for abuse of access under A.R.S. § 33-1376 .

There are several remedies for abuse of access.  You can ask to court to halt the landlord’s abusive entries, by way of injunctive relief.  You can recover through court action monetary damages that you have suffered, with a minimum value of at least one month’s rent.  And you can terminate the rental agreement, which can be self-enforced without court action.

ATA can help you do it right.

First, we have an article in the Tenants Library explaining details about landlord access, entitled Hey Landlord: My Home is My Castle, at this link http://arizonatenants.com/castle.htm.  Read it.  For ATA members, we have a free form that you can serve upon a landlord who enters without proper notice.  Or, you can individually purchase the form for a very small charge.  Read about our notices at this link http://arizonatenants.com/simple-notice.htm.  Finally, we can help you create custom letters addressing the issue, whereby we would actually sit down with you to address and implement the best strategy.  Information on this service can be found at this link http://arizonatenants.com/letter.htm.

For well over a decade, Arizona Tenants Advocates has been advising tenants about landlord abuse of access.  Join ATA and become a part of the solution – for yourself and for other tenants.

- Ken Volk -

May 2, 2015

BEDBUGS AND OTHER CREATURES FROM HELL

Wednesday, April 15th, 2015

Bedbug infestation has become very prominent on the Arizona landlord-tenant landscape.  Due their pernicious nature, causing harm to both body and property, the Arizona Residential Landlord and Tenant Act affords special consideration to this 21st century pestilence.  Under A.R.S. § 33-1319, which applies to all rentals except single family homes,  a landlord is prohibited from renting premises known to be infested with bedbugs, and a tenant may not move into a rental with personal property harboring these pests.   Also under A.R.S. § 33-1319 residential landlords are required to provide educational materials about bedbugs to existing and new tenants.

The foregoing notwithstanding, landlords regularly violate this law, leasing out infested premises.  And from a short tour of the apartment  it is all but impossible for a tenant to determine if there are bedbugs present.  They could be in the walls.  They could be dormant.

From a tenant’s perspective, the presence of bedbugs at the commencement of tenancy, or soon thereafter, could be argued to be prima facie evidence that the landlord knew, or should have known, about the infestation.

Because bedbugs cannot be eliminated from a single dwelling unit without fumigating the entire building, and such treatment is very expensive, landlords invariably try to shift the blame onto the tenants in order to have them foot the bill.  They will even try to evict the tenants for causing the infestation, when in fact the tenants are truly victims.

So it is important to establish the source of the bedbugs, if possible.  Numerous factors can come into play.  Are there prior infestations in neighboring dwellings, meaning that the bedbugs probably travelled through the walls?  Have you observed property, such as beddings, furnishings and even electronics, frequently sitting at disposal sites such as in or near dumpsters?  This would be indicative of a widespread pestilence in the apartment community.  Did you suffer from a bedbug infestation where you previously lived?  Did you bring in used furnishings that conceivably could have harbored the pests?  Were you exposed to bedbugs elsewhere, such as at work?  Did you have any visitors that had been exposed to bedbugs and could have conveyed them into your dwelling?

How you answer these questions can help determine who is responsible for the infestation.

Additionally, at some point you should bring your own professional exterminator to provide an evaluation, which could support your contention that the bedbugs have been there long term.  Be advised that the landlord’s exterminating company should not be trusted to be truthful and supportive of your position.  He who pays the piper calls the tune.

The mere presence of bedbugs, whether right away or some period of time after move-in, is unlikely to be remedied.  Again, the whole building must be treated at one time, which landlords almost never do.  So you would be well advised to not give the landlord the opportunity to exterminate.  It just won’t work.  Why prolong your suffering?

But if you are determined to give your landlord the chance to cure, a 5-day notice and/or a 10-day notice(s) of noncompliance can be given under A.R.S. § 33-1361.  The remedies under this law would be to terminate or seek injunctive relief (which means the court would order the landlord to remove the infestation).  Given the egregious nature of bedbugs, it is conceivable a judge would be sympathetic to you.  But I would not hold my breath on that, and, moreover, justice courts generally doesn’t have jurisdiction over injunctive relief, which must be sought through superior court.  No easy task for a layman.

Beyond the terms of A.R.S. § 33-1319, because bedbugs are so horrendous, such an infestation equates to an irreparable circumstance in the same sense as a fire or flood.  Thus, pursuant to A.R.S. § 33-1366 bedbug infestation is considered “casualty damage,” which requires that you to immediately vacate and shortly thereafter terminate.

Is this overwhelming and confusing?  Are you in dire straits, having lost your furniture and being tormented by biting bedbugs?  Welcome to Arizona.  But you are not alone.  Arizona Tenants Advocates has pioneered approaches to dealing with bedbugs.  We can help you evaluate the best options.  We can help you draft the proper documents, walk you through the notice process, and refer you to exterminators who are on the side of tenants, not landlords, and will give you an realistic extermination report.

Your victimization stops at our door.  We are Arizona Tenants Advocates, and we are here to advocate for you.

- Ken Volk -

April 13, 2015

The Envelope, please

Saturday, August 30th, 2008

When you throw away your envelope, you might be throwing away your case.

Time and again, we tell renters to keep the envelopes in which the landlord’s correspondence was sent. All too often we hear, “Oh, I threw it away. I didn’t know it was important.”

That could not be more wrong.

Remember, landlord-tenant relations are based in the legal arena. Notices are required. There are deadlines for responses.

So, when landlords evade or neglect their duties, it is important to catch them in the act. You need proof. Many times, landlords who miss deadlines try to hide that fact by back-dating the correspondence. But, a tenant can prove otherwise with evidence the document was actually mailed at a different time.

Bear in mind, there may not only be a postmark to observe. If the letter was sent by certified or registered mail, then you also can track the associated number at the post office website, which is www.usps.com.

For example, under A.R.S. § 33-1321(D), a landlord must refund the amount of security deposit due, less an itemized list of deductions, within fourteen business days from termination of tenancy, delivery of possession, and demand (typically, that is about twenty calendar days, depending on weekends and holidays - count to be sure). Oftentimes, landlords miss the deadline, but in order to cover their tracks they backdate the response document notwithstanding that it was mailed way too late.

The key arguments are waiver of claim, and statutory damages due. If the landlord failed to respond within the fourteen days, then it is too late to do so afterwards. At that point, the landlord will be liable for not only returning the amount wrongfully withheld, but also statutory damages of twice that amount. For some tenants, this could amount to thousands of dollars.

That envelope could be worth quite a pretty penny. Don’t let a landlord get away with scamming the courts and stealing from you.

- Ken Volk -

Digging for Gold, or less

Friday, August 29th, 2008

An interesting, and humorous, call recently came in. The tenant was “dumpster diving,” and the landlord didn’t like it. The landlord issued a notice of violation.

There are a number of factors here. They can be considered from two perspectives: first, what was actually alleged; and second, what did the landlord have the right to allege (or, conversely, what did the tenant have a right to do).

THE ALLEGATION NOTICE

The tenant said the paperwork purported to be a second, i.e. non-curable, notice of breach. Upon further query, it turned out that the first notice was about the tenant not having utilities on. Obviously, these are two very different issues. In order to issue such a “second” notice of violation, bereft of opportunity to cure, under A.R.S. § 33-1368(A) it would have to be “an additional act of these types of noncompliance of the same or a similar nature during the term of the lease after the previous remedy of noncompliance.”

Also, the notice demanded that the tenant leave right away. This is problematic, because any breach is subject to being remedied, with the exceptions of: (a) material & irreparable breaches, such as assault, illegal drug use, prostitution, etc.; and (b) giving untrue or misleading information on a rental application regarding criminal records, prior eviction record, and current criminal activity. And even if it were to have been a “second” non-curable notice of breach, still the tenant would have ten days to vacate before the landlord could proceed to file action to evict.

THE CIRCUMSTANCES

We asked the tenant if this type of conduct was prohibited in the lease. He said no. We asked if the landlord had issued rules or regulations prohibiting this type of conduct. He said no. So it appeared that landlord was making up rules on the fly.

Okay, next one looks to the law, to see if it specifically regulates such conduct.

The generic description of tenant duties to maintain are covered in A.R.S. § 33-1341. These deal with keeping the premises clean, using facilities and appliances in a reasonable manner, eschewing property destruction, not disturbing neighbors, and so on. On its face, dumpster diving seems to pass this smell test.

As mentioned above, a more stringent landlord-tenant governance of conduct relates to material and irreparable acts, which are covered by A.R.S. § 33-1368(A). Right off the bat, one can rule out most of the referenced types of conduct (here we go again!), including illegal discharge of a weapon, homicide, prostitution, criminal street gang activity, illegal drug activities, assault, and lease breaches that jeopardize health, safety and welfare or involve imminent or actual serious property damage.

What remains in the list of material and irreparable acts?

Activity as prohibited in section 13-2308. Yeah, like that tells renters a lot. So I looked it up, and this section of law deals with assisting or participating in a criminal syndicate. Well, I doubt most criminal syndicates hold meetings in refuse containers.

The last definition of material and irreparable conduct is acts that are nuisances pursuant to section 12-991. Wow, these legislators sure know how to explicitly communicate, don’t you think? Upon research, it turns out that the definition means regularly using a residential property in the commission of a crime. Now, finally, we are getting close.

DIVERS BEWARE

I telephoned the Tempe police, and, lo and behold, was told that dumpster diving is illegal, because once items are placed in the refuse container they are public property. But the lady had never heard of anyone being arrested for it, as a warning invariably halts the conduct. In the tenant’s particular case, the police were not even summoned to address the conduct. The allegation of illegality was not raised. And even if it had, looking back at section 12-991, there is a qualifying phrase that must be considered: regular use – that is, not just one offensive act.

So, for all you reuse-and-recycle folks, keep an eye out for the fuzz before you enter such enticing receptacles. The city has the option of vigorously defending its right to fill landfills. And if you are caught and given notice by management, cease. Because the second entry could provide a basis for alleging a pattern of conduct, which means it would then rise to the level of being a nuisance.

A FINE POINT, AND THEN A FINAL POINT

Upon considering the types of acts that indeed constitute material and irreparable breaches, on its face it seems that a minor criminal charge, such as for dumpster diving, does not. Therefore, it could not, in and of itself, serve as a basis for immediate termination. Yet, being a “nuisance” as defined under A.R.S. § 12-991, i.e. repetitious conduct, does.

There is one caveat. Some apartment complexes have what is called a Crime Free Lease Addendum, or a similar name. Such addenda contain very broad language as to what conduct warrants immediate eviction. That could seal the deal, although one might argue that, bereft of actual criminal charges, the allegations are unsubstantiated and moot.

As to this tenant, my staff suggested that he reply to the notices, via certified mail, explaining how and why the specific allegations were baseless. I opined that perhaps the complex’s management staff were jealous of his findings, which included a functional iPod. Under my breath, I suggested that, next time his forages exhume fruit or veggies, he should present them to the apartment office as a peace gesture.

. . . in lieu of an officer of the peace gesture.

- Ken Volk -