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Arizona Tenants Advocates » 2015» July

Archive for July, 2015

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