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Arizona Tenants Advocates » Stategies

Archive for the ‘Stategies’ Category

WE NEED YOUR HELP

Monday, July 20th, 2015

A recent news article has announced $100 million to track down alien life. According to Donald Trump it is already here and unwelcome. While Arizona Tenants Advocates (ATA) assists all in-state residential renters without regard to national identity, we have traditionally been limited to earthly abodes.

In order to transcend this, ATA is initiating a program to discover extraterrestrial life forms and claim the $100 million reward. We really don’t care if they are intelligent or stupid, because landlords will doubtlessly abuse them either way. If we succeed, ATA can expand to become the first inter-planetary tenants rights movement.

But we are stymied in our efforts. The Russians, the Trumps of the world (and beyond), and those who have previously been abducted are blocking our efforts to expose the truth. We are having a hard time reaching this new target population, and can’t do it alone. Your participation is sought to get the message out that alien rental life really exists. Please join our search by donating $1,000 or $1 million, or whatever you can afford. We can also accept payments in gold or moon dust, remitted in monthly or lifetime installments. Payment can even be wired - or ethereally conveyed wirelessly - from the bardo.

Additionally, ATA wishes to engage the help of all Arizona renters to search the skies. For each off-planet union member recruited and/or apprehended we are offering 1% of our share of the reward, collectible through our partnerships with NASA and the NSA and the American Psychotic Associations & Sons, Ltd.

Please help us protect Martians from unscrupulous landlords. With your active assistance we could even reach Pluto, Ceres and beyond. The truth is out there, and so are we. Join us.

Arizona Tenants Advocates is an equal opportunity offender of landlords. We will not discriminate and will take affirmative action measures to ensure against membership discrimination and other conditions of incognizance or incontinence on the bases of race, color, gender, national origin, age, religion, creed, disability, veteran’s status, sexual orientation, gender identity, gender expression, species classification or evolving dimensionality. Sweet Transvestites from Transsexual Transylvania are welcomed.

- Ken Volk -
July 20, 2015

A.R.S. § 33-1378 ALLOWS LANDLORDS TO EVICT WITHOUT GOING TO COURT

Thursday, July 9th, 2015

On April 13th of this year Gov. Doug Ducey signed a bill, SB 1185, that allows a landlord to evict a tenant’s roommate who is not on the lease without any due process whatsoever, just by calling the police and having the roommate removed. That law is effective in July 2015, enacted as A.R.S. § 33-1378. It allows a landlord to bypass A.R.S. § 33-1368, which requires him to give his tenant who is violating his lease a 10-day opportunity to cure the breach, and if the tenant doesn’t do so, to take the tenant to court. Instead, a landlord can now simply call the police and have the roommate removed even if the roommate is paying rent! Under A.R.S. § 33-1378 landlords are not required to give any notice whatsoever for removing roommates who are not named on the lease, or for calling law enforcement to remove such roommates.

Even worse, the new law also applies to guests. It doesn’t give any length of time for which a guest is allowed to stay. Thus, it could effectively permit your landlord to call the police on anyone he sees walking into your apartment whom he doesn’t like. You should warn any guests stopping over for a cup of tea that they may be hauled off in Ducey bracelets by the police.

A.R.S. § 33-1378 codifies the impermissibility of having guests, allowing the cops to abruptly swoop down and remove them. No more warnings, no more declaration of trespass. And under A.R.S. § 33-1378 any roommate who is not listed on the lease is afforded the same “courtesy,” even if he has been paying rent for many months, receives mail at the property, and has contracted for utilities at the dwelling. This horrible new law, allowing dispossession bereft of a court hearing, is an end run around affording occupants, or their guests, due process protections.

Moreover, arbitrary police removal of a tenant’s guests, merely on the landlord’s say-so, deprives bona fide renters of their constitutional rights of association. Then, supposing the cops spot something in the dwelling of questionable legality, suddenly the tenant or occupant or guest could face criminal charges based on evidence seized without a warrant and without the tenant’s permission to enter. This clearly is a violation of due process rights under the guise of landlord empowerment, giving new meaning to the term “police state.”

Notwithstanding the preceding, the terms of the lease can offer protection. If a tenant has a lease that allows an additional, identified occupant, then the previous rules remain in effect: the prime tenant is essentially in a landlord/tenant relationship with the subtenant (roommate), and the prime tenant, as well as the landlord, are required to use due process and go through the court system to evict the roommate.

The law definitely applies to all tenancies under a lease, but it is not so clear if it applies to other tenancies. Although it appears that A.R.S. § 33-1378 should be interpreted to exclude applicability to month-to-month tenancies, the language is a little vague and I could easily envision a Justice of the Peace concluding that the law allows ANY residential landlord to pull out a guest or (non-identified) resident using the police. I would like to be wrong, and certainly it is worth arguing that in an oral month-to-month tenancy the landlord has no say in how many tenants can be in the rental dwelling — that he gave up that right when he accepted rent without a contract.

What is so sad about this legislation is that it passed without the tenants’ rights community being brought into the law development process. Unfortunately, the Arizona state legislators and their landlord allies make a point of keeping tenants in the dark about pending legislation.

In the 2011-2012 legislative session, Representative Steve Urie, himself a landlord, sponsored a bill (written by landlord attorneys Matthew Koglmeier and Denise Holliday) that penalized renters for lodging maintenance or service requests, by depriving them of advance notice of the landlord’s entry. By the time I learned of the bill it had already passed the Arizona House of Representatives and was heading over to the Arizona Senate for review and votes. So I actually went and met Mr. Urie, face-to-face, who told me that he knew full well who I am and what ATA does. I then asked him: If that was the case, why did he not advise me of the legislation so I could provide input from the tenants’ perspective, about this matter of statewide concern? He replied that he had intentionally failed to notify me or Arizona Tenants Advocates about the pending bill because he knew we would have opposed the bill. Thereupon, I and many other tenants made a valiant effort to derail the law’s passage during hearings at the Arizona Senate, but we failed. The language is now enshrined in A.R.S. § 33-1343. When considered alongside A.R.S. § 33-1341(8), which requires a tenant to notify a landlord about maintenance or repair needs, A.R.S. § 33-1343 constitutes a punishment for doing just that, by depriving the tenant of privacy and security once such matters are brought to the landlord’s attention. Damned if you do and damned if you don’t.

By the way, following Mr. Urie’s retirement from the House, his grateful landlord compatriots rewarded (read: campaign donations and support) his efforts by electing him as Justice of the Peace for the Highland Justice Court (Gilbert area). So now there is a landlord, who by his own admission does not need to take tenant concerns into consideration, regularly presiding over landlord-tenant disputes. It is despicable.

But not hopeless.

In point of fact, my efforts in the Arizona tenants movement arose from a successful blockage of virulent anti-tenant legislation in 1993. We blindsided and foiled the landlord lobbyists; and with varying degrees of success, have been doing so ever since. Arizona Tenants Advocates, in various incarnations, was responsible for the creation of the Tempe Rental Code, and later played a role in formulating Glendale’s rental ordinance. Other municipal ordinances followed in Tucson, South Tucson, Youngtown and Surprise. Tenants, when active and organized, can make a difference. We have helped prevent enactment of other negative laws (HB 2128 from the 2011-2012 session), and been the impetus for new laws (modifications to A.R.S. § 33-1902, subsection C).

When I came to Arizona in 1988 after participating in social movements in New York State, there was no government or social service infrastructure to help tenants (except legal services organizations, limited to those whose incomes fall within poverty guidelines). When neighboring tenants knocked on my door and sought my help, it was the progenitor of the current incarnation of tenants rights and activism for Arizona. That movement is Arizona Tenants Advocates. We are an Arizona non-profit tenants union that is 100% membership-driven and funded. Join Arizona Tenants Advocates today and help keep tenants’ rights at the forefront of struggles for social justice in Arizona.

- Ken Volk -
July 9, 2015

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

GIVING AND RECEIVING NOTICES

Monday, June 22nd, 2015

When does a landlord know something, and when has a landlord been notified about an issue? The answer to this question is fundamental to exercising your rights and remedies under the Arizona Residential Landlord & Tenant Act.

First and foremost, enforcement of remedies by landlords and tenants must usually, but not always, be in writing. Options that are not statutorily required to be in writing are referenced in A.R.S. §§ 33-1313, 33-1321, 33-1343, 33-1362(A)(2), 33-1364, 33-1366(A)(2), and 33-1381. While you can make an argument that your verbal notice was given and received, in all practicality that won’t fly, given the court system’s bias in favor of landlords. For this reason, we recommend that you always make a written record of your notices, along with proof of delivery. The same applies to general communications that may not be notices, e.g. your response to a landlord’s notice or letter.

On the other hand, while A.R.S. § 33-1313(A) provides that a person has notice of a fact if he has actual knowledge of it, most landlords are not going to admit such knowledge if that admission works against them. What’s worse, if a landlord avers to having communicated something, most often a court will ascribe it as truthful. Is this fair? Of course not. Can you argue against that? Yes. Will you succeed? Sometimes. It just depends on whom the court finds most believable, which may fall back on factors such as the quantity and quality of witnesses.

But really, you don’t even want to get to that point. Instead, be proactive by giving notices and responses in an unassailable manner, and always keep a copy record of your notices. I remember a Tucson case we had several years ago. The tenant mailed out the letters we had prepared for her but failed to make photocopies, so she had no evidence of what she had sent, and neither did we. Her notices may as well not have been sent, and I instructed her to start over, this time using a process server due to time constraints. When she refused, her case went down the toilet. So, as President Obama said, don’t do stupid shit.

There are several ways you can assure notices are given to a landlord or agent. In order of reliability and practicality these include certified (or registered) mail, process server, express mail, facsimile, hand-delivery with witnesses, email and text. Following this paragraph is a break-down of when to use which options. Arizona Tenants Advocates primarily relies upon certified mail or process server, with occasional use of express mail.

CERTIFIED MAIL: Relatively inexpensive. Very reliable because under A.R.S. § 33-1313(B) although it is received when it is actually delivered, even if it’s not physically delivered it is nevertheless deemed received at most five days after being mailed. . . despite that the post office may have lost it, or that it is returned to you as refused or unclaimed, or, for that matter, its delivery ends up being delayed beyond the five days. The slogan is, “Five Days or Bust.” Can be tracked online. Combine with a return receipt postcard for signature verification. Certified can be dependably used for payment of rent, so long as you send it five or more days before rent is due.

REGISTERED MAIL: Is essentially redundant to Certified, except adds more delivery restrictions. Is more expensive than Certified. Don’t use Registered. Except that you will have no other choice for Canadian destinations, because Certified is unavailable. Damn those Canadians.

PROCESS SERVER: Can be quite expensive, but is the most reliable and prompt delivery method because a process server is an accredited officer of the Superior Court. Therefore, the courts will invariably find a process server certification of delivery to be credible. These guys are paid to be trustworthy, and so they are trusted. We list some process server companies in the Links and Resources section of our website, http://www.arizonatenants.com/links.htm. If a landlord is refusing your rent, you can effectively compel its receipt by using a process server to deliver it. One caveat: essentially you are using a process server as a glorified messenger, and when this is the case there is no documentation filed with a court. Let the process server know this.

EXPRESS MAIL: About twice the cost of certified/return receipt, but in some circumstances will not effectuate proper delivery of notice due to statutory limitations, e.g. cannot be used to give notice under A.R.S. § 33-1902. Also, because I have seen express deliveries not proceed as promised by the post office, if you need unquestionable delivery using a process server is the way to go. However, the benefit of express mail is that it is usually a 1-day turnaround, it can be dropped off without a recipient signature required, and yet there will be a post office website record to prove the date and time of delivery. This can be very beneficial if nobody is available to sign, or when you anticipate that signature might be refused. That way, for example, if you must pay rent the next day and you have no other delivery alternatives (i.e. process server is too expensive), overnight mail with signature requirement waived may suffice.

FACSIMILE: Can be valuable for emergencies, so long as you have proof of the delivery. A professional fax should be sent so there is a record of the send and receipt. In general, faxing is an unreliable technology, and may be cut off midstream without all the pages delivered, and also the recipient print quality may be inadequate. Inappropriate for letters containing many pages, as the likelihood of delivery failure increases.

HAND-DELIVERY: If you are dropping off paperwork the landlord/agent may deny receiving it. So, either have a witness come along with you, and/or prepare an extra copy of the documents for the landlord/agent to sign in acknowledgment of receipt. The problem with a witness is that the landlord may have his own witnesses to counter yours, so ultimately it could be a matter of dueling witnesses and whom the court finds more credible. Plus, if the matter went to court your witness would have to show up and testify. How reliable are your friends and associates? Would they risk losing their jobs or ignore personal matters in order to help you?

EMAIL: This becomes an issue of delivery proof. Without an electronic email return receipt (which you probably won’t secure), either the email thread must substantiate your communications, or the landlord/agent must reference or quote what you communicated. This evidence is needed to substantiate your contention of having given notice. For these reasons, as a general rule avoid reliance upon email except as to communications you receive from the landlord/agent.

TEXT: Similar to email, except that having a text thread is pretty much a negligible factor because text messages do not have the communication trail integrated into each message. For these reasons, as a general rule avoid reliance upon text communication except as to messages you receive from the landlord/agent. Even then, a court may find a text message not credible.

Sometimes you can use a landlord’s delivery methods to your benefit. For example, you can withhold response to an email or text message, and assert it never arrived. Or, if you are behind in paying rent, you can delay your receipt of the landlord’s certified letter until five days after it was originally mailed (which is when you are deemed to have received the letter pursuant to A.R.S. § 33-1313, subsection B), and that way commence tolling of the five-day notice of nonpayment (or other noncompliance) five days after it was mailed. Effectively, this buys you extra time; the landlord’s five-day notice of nonpayment or some other breach essentially becomes a ten-day notice, while a ten-day notice essentially becomes a fifteen-day notice. Cool.

Timing is of the essence; when notice is delivered can be extremely significant. If you were not properly served a five- or ten-day notice, or if the notice was back-dated, and if you can prove the landlord jumped the gun by filing prematurely, you may well be able to get the case dismissed. If your paper trail is conclusive, you may possible prevail despite the courts routinely believing landlords. Similarly, a landlord’s tardy notice to terminate a month-to-month tenancy could buy you an entire extra month of tenancy. See our website blog entitled, LEASE RENEWAL AND RENT INCREASES.

Plus, you can play the game the other way. The landlord-tenant act is designed to be self-enforcing, meaning that you can invoke remedies without going to court. If the landlord has a lease clause which states that notice is deemed properly served (or received, or delivered, or other similar language) when it is certified postal mailed, you could mail it Friday night of a holiday weekend despite the fact that it will not be physically delivered until Tuesday. That’s four days to your benefit, and in all likelihood the landlord won’t have a clue. So, under A.R.S. § 33-1361, for example, your ten-day noncompliance notice would actually provide the landlord only six days to cure. It is so lovely because under this scenario you are using the landlord’s own language against him, hoist with his own petard.

Further, if the landlord then refuses the letter, you can conclude termination before he knows what hit him. As I write this, we have a current case proceeding in this manner. For the landlord to later cry foul will only boomerang, because he acted in bad faith by refusing the notices.

Finally, through the ATA website we have a video class about how to give notice. Check it out. Here’s the link: http://arizonatenants.com/TenUversity.htm

- Ken Volk -
June 13, 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

JUSTICE COURT PROCEDURES

Friday, June 5th, 2015

Justice courts are the jurisdiction in which most landlord/tenant issues are resolved, and they are not nice places for tenants to be in.  Certainly any tenant who has been behind in his rent and has gone to justice court has no doubt observed the quick, summary nature of the proceedings.  Most cases last barely a few minutes before the gavel comes down.

Justice courts are particularly problematic for tenants who have legitimately invoked their rights under the Arizona Residential Landlord and Tenant Act.  Despite giving proper notice to invoke tenant remedies, if a tenant does not know how to present his case in justice court, he can (and probably will) find himself evicted despite his having followed the law.   Getting evidence into the record is often an exercise in futility.  So, even if you want to:  make repairs and deduct the cost of them from the rent under A.R.S. § 33-1363; or be excused under A.R.S.  § 33-1364 from paying daily rent while securing substitute housing due to lack of essential services; or pay a reduced rent due to a casualty damage, as permitted under A.R.S. § 33-1366. . . most times the justice court will cut your arguments off at the pass.  Sometimes a justice of the peace (JP) will allow a tenant to present an argument, knowing he does not know how to present evidence on the record, and then rule against the tenant anyway.

If you are attempting to legally withhold rent, be sure you are entitled to do so, and have followed the proper steps.  In the Tenants Library section of the ATA website, we have an article entitled, Stop the Rent Cycle - I Want to Disembark.  Read it.

Presuming you have prepared a solid basis for not paying the full rent, should the landlord challenge your actions in court, NEVER admit you did not pay the rent.  Instead, assert you have and, for example, then elaborate by explaining the full amount due was tendered.  Otherwise, the JP will stop you right then and there, rule to evict you, and usually you will find yourself locked out by a court constable (sometimes a sheriff’s deputy) after five calendar days - this is the execution of what is called a Writ of Restitution.

But if you assert the rent due was paid, the JP may hear the case right away, so you had better be prepared to proceed.  Alternatively, the JP will set the case for a hearing, perhaps several days or a week later.  If that happens, you have to AGAIN bring with you every witness, every shred of evidence.  Unless you have built a strong case with both testimony and evidence made part of the record, an appeal will be throwing good money after bad.  That is why we highly recommend securing attorney representation – first, to evaluate whether your underlying case has sufficient merit to warrant defending it, and second, to make sure you have created a good trial record that will hold up on appeal.

If you are unable to retain legal representation, and are defending the case yourself , it is called pro per, which is short for propria persona.  So have your case and legal factors clearly understood and at your fingertips ready for submission.  At trial the plaintiff (in an eviction case, the landlord) presents his position first, saying why you allegedly owe the amount of rent he claims.

Then the JP will give you the opportunity, and you can prove what notices were delivered to the landlord, evidencing establishing proof that your notices were delivered, the basis for why you paid a reduced rent (e.g. contractor receipts for a self-help repair, or hotel receipts document the amount of your hotel bill that entitles you to deduction of daily rent plus 25%), and evidence the remaining rent due was actually paid.   You will need to have at least four copies of every piece of evidence to be placed on the record - that is, a copy for the court record, a copy for the judge to peruse, a copy of the opposing side, and a copy on hand for your reference.  You may also need original records available, to prove the copies are valid.

Never believe your friends or anyone else who assures you that you should be able to prevail.  All you can do is improve the odds by having cogent legal and factual arguments.

To that end, Arizona Tenants Advocates (ATA) can assist you in preparing your initial custom notices to the landlord.   Alternatively, at the very least ATA members should use our free notice forms, available for a range of purposes.  That way, you will get the verbiage right, with proper legal citations, and be able to prove delivery of the notices.  If you are not an ATA member, the forms can be individually purchased for a very low price.

Finally, in this Blog you may with to peruse earlier articles regarding court matters, entitled Signing Your Life Away; Small Claims: for Small Minds with Slim Pickin’s; and The Arrogance of Confidence.

-Ken Volk -
June 5, 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