Archive for the ‘Stategies’ Category

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

Signing Your Life Away

Friday, September 5th, 2008

On the telephone, Shawna (not her real name) was sure she had a case. She had appeared in court, patiently awaiting her turn to plead her case. The landlord’s attorney did not show up, which should have meant a default judgment in Shawna’s favor. Yet, as she explained, the JP evicted her anyway.

On top of that, she had paid $5,000 to the landlady as a refundable deposit to prospectively purchase the property, but now was being told she would get none of it back. Shawna was breathing fire and brimstone, and was prepared to pursue legal options.

Although the court judgment was beyond the appeal time frame, I thought the egregious nature of the illegalities might provide a basis for a Special Action. As the prospects sounded intriguing for an attorney referral, we set an appointment.

Turns out, Shawna’s case was without merit, because whatever legal rights she might have had, she waived.

On the subject of the deposit, the paperwork contradicted what the landlady verbally stated. The lease clearly designated the payment as non-refundable. Shawna told me she would not have handed over the funds if she had known the money was non-refundable. But she trusted the landlady, and failed to read what was presented to her.

As to the court case, yes the landlady’s attorney did not appear. What happened next, however, was truly unethical. Shawna explained that a court clerk pulled her out of the courtroom where she had been awaiting her hearing, and presented her with a stipulation agreement prepared by the landlady’s attorney. The court clerk merely instructed her to sign it; Shawna complied, again failing to read through and understand what she was signing: it was an acknowledgment of her breach of contract and law, waiving any right to seek a new hearing or appeal, and that she would vacate.

The only remaining issue was that the landlady did not store Shawna’s personal property for the requisite 21 days following lock out, but instead promptly put it out on the street. I asked Shawna if, despite this, she had recovered most or all of her property. She replied that she had. I asked her if she had any significant monetary damages related to her personal property. She replied that she did not. So, she had nothing to claim as actual damages suffered relative to her personal property. Not much of a case to pursue.

Shawna expressed that the landlady and court clerk had seemed so nice. They were out to work with her, to help her — or so it seemed. Instead, she was conned. The landlady, who apparently owns many properties, has her scam down to a science. . . reel them in, verbally deceive them, get huge non-refundable down payments, then claim breach of contract/law and evict them so as to keep every penny.

People like Shawna are ready marks for unscrupulous landlords. Tenants should always be represented by counsel in court. Tenants should never sign documents prepared by the landlord’s attorney. In fact, I would never even privately meet with the landlord’s attorney, because the attorney is professionally astute at manipulating tenants, who generally are naive and readily manipulated. Remember, the landlord’s attorney, no matter how reasonable, calm and collected he or she appears, is there to represent the opposition’s interest at the expense of the tenant – you! The same generally goes with the judge or justice of the peace, who is prone to be favorably inclined for landlords. Obviously, as evidenced in Shawna’s situation, the same applies with the court clerks. Definitely a stacked deck.

So, always, always, read and understand what you are signing. Do not accept the interpretation of someone whose interest is likely to run counter to yours.

If you are reckless with your signature, then you, yourself, are primarily to blame.

As John McCain is reported to have said, it’s all a fucking scam. Watch your backside.

- Ken Volk -

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 -