Digging for Gold, or less

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 -

3 Responses to “Digging for Gold, or less”

  1. Could this be discrimination? Says:

    Could this have been an act of social discrimination on the landlords part?
    Due to finacial reasons?

  2. admin Says:

    As it so happens, the tenant called back today. Apparently, the landlord is proceeding to evict, even though the tenant says he never “dived” again since the first landlord notice. So I may have a better picture after meeting him and reviewing everything. If his paperwork and the course of events support a prospective attorney referral, then it will be interesting to see how this plays out in court.

    There is no telling what could motivate a landlord or manager. Sometimes you just go on gut instinct, making a best guess.

    Interestingly, after I wrote the article, I spoke with the Tempe Crime Free coordinator in the police department, who told me that there had never been a prosecution for apartment dumpster diving in the City of Tempe. Anyone else heard of prosecution or conviction for such an act?

    Ken

  3. s. anderson Says:

    Ken,

    I live in Mesa, AZ and was actually told by management, “they didn’t care if I Dumpster dived. They just wanted to make me aware of a bedbug outbreak on the 2nd Ave side of the complex.” I smiled and replied honestly, “I don’t dumpster dive. Occasionally, I may collect cans if they are out in the open and on top but I never get into any dumpster.” So I and everyone else went about our business and then less than three weeks later I receive a 10-day material breach eviction notice because a couple of people who happened to stop by my apartment along with about six others were dumpster diving!” There were a total of ten (10) different allegations on the notice. I actually used your first response as part of my defense. I replied and/or acknowledged/denied, etc each offense. I used “Click 2 Mail” (don’t ever recommend this service it took 5 days to get the certified/return receipt letter mailed and another 3 days to get it delivered—no holidays only a weekend) and hadn’t heard another word since then until 8-22-2011. We found a rolled up paper stuck between our door knob and door jam. It was another 10-day material breach eviction notice that states; “you are not allowed to dumpster dive. you are not allowed to pull stuff out of the dumpster. these are grounds for eviction. for your safety and those around you stay out of my dumpsters. Last month your husband was seen in dumpster.”

    Our lease doesn’t say anything about dumpster diving nor are there any signs posted anywhere. Since it’s private property, Mesa the finest :-(> police department can’t site you unless security or management calls it in and you actually get caught in the dumpster. There are no regulations about being near a dumpster (after all how would anyone be able to toss their junk in the first place). There are four people that have lived in the complex a little longer than I have (4 1/2 years + never been late in rent + never had any neighbors complain + have never been accused of any wrong doings other than non-provable allegations, i.e.; not cleaning up my canine’s droppings (another lie)). Did you catch the part of the notice that states, “last month?”
    Isn’t there some sort of limitation of when a tenant must be notified? Shouldn’t the same “rules” apply to all tenants? Another really stupid question but I gotta ask, “how is a class 1 misdemeanor that carries a maximum $500.00 fine and a maximum of 10 days incarcerated grounds for material breach under the Arizona landlord tenant act?” Whether the locale is a “crime free prevention area” or not dumpster diving is the same as running a stop sign at 3 a.m. and the only other awake soul on the road happens to be a cop!

    In Mesa, I do know of three people that have actually been found guilty and fined for dumpster diving but they were serious repeat offenders and MPD knew them just by the way they walked (homeless too!)

    There’s a whole lot more to this tale but I’ll keep it to the topic.

Leave a Reply