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Arizona Tenants Advocates

LANDLORD’S RIGHT OF ACCESS

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

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

Trigild Blocking Bethany Purchases

March 19th, 2009

Arizona Tenants Advocates (ATA) has learned that Trigild, Inc., which is the receiver for the Phoenix area Bethany Group apartment complexes, is said to be intentionally dragging its feet at finding a purchaser for the properties.

A confidential source has told ATA that Trigild’s president, William Hoffman, is blocking purchase of the entire inventory of properties, numbering about 58 nationwide, in an effort to optimize the selling price by way of locking in contractual obligations to staff at the complexes and recruiting as many new lessees as possible. Any bidder would be beholden to honor the obligations, and thus underwrite them by way of an increased bid. Also, the ante would be raised by supposedly better prospects for rental income.

Instead, Hoffman’s actions are actually degrading the rental communities further, due to the lack of closure about who the owner will ultimately be, and absence of capital infusion to right the sinking Bethany ship. ATA has over the past several days noticed an increasing stream of renters calling our office who just want out. They are fed up with these shenanigans.

The source has conveyed that Hoffman’s office is playing games with parties interested in purchasing the Bethany package, and is not even returning telephone calls to serious players. ATA was told that anyone expecting to make real progress towards purchasing the properties is going to have to bypass negotiations with Trigild, which is not acting in good faith.

This bad faith is further evidenced by the fact that apartment complexes under Trigild’s umbrella are continuing efforts to sign up new tenants. Generally, that would be a positive. But in this case, it is doubtful that prospective tenants are being told the whole story about the bankruptcy and possible foreclosures of the Bethany properties. ATA would be interested in hearing from tenants who have experienced such deception.

Further, Trigild has said it will not honor the law by returning security deposits to Bethany Group tenants. First, on March 6, 2009, its agent at The Coves at Newport, Cameo Dawn, publicly acknowledged that tenants would not be getting their security deposits back. Next, this was corroborated in a March 16, 2009 article on MSNBC.com, entitled “Corporate meltdown leaves renters in limbo,” http://www.msnbc.msn.com/id/29697413/ wherein Hoffman is quoted, “There is no obligation for the receiver or the lender to give (tenants) deposits that they don’t have.” If the deposits had been handed over to Trigild it would be different, he said, “but that owner (Bethany) has obviously spent that money or done something with it.”

This is in blatant violation of the statute governing return of security deposits and prepaid rent, A.R.S. § 33-1321(H), whereby “The holder of the landlord’s interest in the premises at the time of the termination of the tenancy is bound by this section.”

Clearly, Hoffman wants to operate his little Phoenix kingdom as a petty dictator, but refuses to accept fiscal responsibility for it. The course of events indicates that Hoffman is merely out to line his pockets at the expense of the same tenants who have already been fleeced by Bethany Group’s Greg Garmon.

At this rate, the former Bethany properties look increasingly likely to be emptied out and boarded up. Repeatedly, at meetings at The Coves at Newport, Riviera at 7th, and Alante at the Islands, tenants have voiced to me that they do not trust the prior managers, and that they will not stay if prior managers are kept on.

Yet, instead of listening to the tenants, Hoffman has sought to muzzle them. The result? They continue to express themselves by walking away from the properties. One tenant at Alante at the Islands today told me that the entire complex is now like a ghost town.

Verily, who in his or her right mind would want to live in places like these? The acrid stench of ego and corruption underlies the structural decomposition.

Selfishness and self-aggrandizement is what got us into this mess, and now perpetuates it. Trigild’s Hoffman should be booted out as receiver, because he is only a taker. And the tenants who have inhabited the former Bethany Group properties have already been taken to the cleaners. They deserve better.

- Ken Volk -
March 19, 2009

Bethany Under Water - And Without Water

March 8th, 2009

The foreclosure contagion is spreading.  This morning, Arizona Tenants Advocates (ATA) was exposed to the wrath of innocent tenants who have been infected.

The Bethany Group, one of the nation’s largest multi-family rental real estate companies, has flat lined.  Based in California, its CEO, Greg Garmon, has fled the scene, leaving behind tens of thousands of tenants living in shambles.  All local Bethany Group properties are in court receivership under the auspices of bankruptcy, with foreclosure a likelihood for those communities unable to be sold in the interim.

Tela Verde Apartments, in Glendale, faces a water shutoff March 11, 2009.  The pool at Alante at the Islands, in Chandler, is pea green, and weeds everywhere are overgrown.  Office staff at all complexes have not been paid in over a month.  The offices are closed.

Multiply this by thirteen apartment complexes in the Valley, and you have a fair idea of how around 20,000 individuals may find themselves facing a Phoenix summer out in the hot, looking for new housing.

Today’s meeting, at The Coves at Newport, 5205 W. Thunderbird Rd., Glendale, drew about 200 concerned and irate residents.  Several television stations were present.  Tenants asked about utilities and repairs, rental payments, whether they would have to leave soon, and if they could leave soon.  Many were just fed up.  They had all paid rent, but Bethany Group skipped out on its fiduciary duty to transmit the monies for its mortgage, taxes, utilities, wages and upkeep.

One website posting charges that Garmon had risked tenant monies investing in Russian oil.  Apparently, at this juncture he is nowhere to be found.  I suggest searching in Crawford.

Repeatedly, tenants voiced frustration at having to go through legal procedures to terminate, when clearly Bethany had failed to fulfill its legal obligations.  Ken Volk, ATA’s president, explained that any new owners could choose to enforce the lease, or if the property is foreclosed, to void the lease on very short notice.  In order for tenants to terminate, it would be necessary for them to issue noncompliance demand notices, and then await whether management would comply.  Volk cautioned that everything must be documented, at each step of the way, including vacating and delivery of possession.  Other tenants asked about security deposits, which are likely lost to the wind.  But Volk stated that it would be essential for every tenant to demand the deposits, anyway, because it puts management on a 14-day time constraint to reply with any deductions or claims.

Suddenly, up chirped manager Cameo Dawn, announcing that 707 Management, out of Las Vegas, was now running The Coves at Newport.  She said that the office would be open hereafter, that the water would not be turned off, and that repairs and maintenance would be brought current.  The existing staff had been hired by new management.

Thank you, Cameo, for that performance.  Now we can all go home, knowing that we can trust you to perform all the repairs that have been so neglected for so many months.  You have turned a new leaf, or at least we saw the face you chirpingly presented.  She even welcomed Arizona Tenants Advocates to the complex, but as she turned away tenants conveyed that her other face was dissing.  Quite the diss and tell.

Most tenants were very skeptical that anything good would come about.  They complained about the mold and leaks that have been consistently ignored, constituting a health hazard.

At least some matters were clarified.  Contrary to news reports, Cameo acknowledged 707 Management is not purchasing the property.  She stated that the property would likely be in receivership for years to come.

So what else is new?  Perhaps the other high-heeled shoe is about to drop.  Is 707 Management just another Las Vegas gamble about to hit the skids row?

- Ken Volk -
March 8, 2009

The Arrogance of Confidence

September 19th, 2008

It is frustrating when renters ignore advice about their precarious positions, and then waltz into court thinking that the facts and their righteousness will carry the day. Let me tell you, dumb ass, I told you so.

When he said he had tendered the rent, but the landlord just sat on it instead of depositing it, I asked: Do you have a receipt? No, he did not.

When he said he mailed it, I asked: Did you use a cover letter? No, he replied. I asked: Did you mail it certified, or even with a certificate of mailing? No, he said, just regular mail. But, he insisted, he had a history of always mailing rents by regular mail on the first of the month, so no doubt the court would accept his version.

The court hearing was set right in the midst of his imminent, pre-planned, overseas vacation. I suggested that he retain an attorney to pay to the landlord’s attorney the base rent, late fees, court costs and attorney fees in accordance with A.R.S. § 33-1368(B). That way, the whole situation would go bye-bye, and he could do the holiday. He called the referral attorney, but opted to proceed on his own. Mr. Tenant cancelled his vacation, showed up in court wearing a suit and tie and carrying a huge swath of documentation, at which point the opposing attorney was supposedly blind sided and sought a continuance, which was granted. Great, I said, you got lucky. Go pay the rent and/or hire the attorney to represent you.

But now the guy was breathing fire and brimstone. He was irate that the other side was adding to its claims, seeking back rent that was not due. HE HAD THE EVIDENCE, he declared, and so his case was invincible. He thought the landlord’s attorney was a dope. No, I told him, this guy is a bulldog. The courts are biased.

He did not call my attorney referral back. Last time we spoke, he had his hearing without attorney representation, and the court had just granted the landlord judgment for over $7,000. The tenant was determined to appeal by posting a bond of over $9,000. He had the money, believed his case had merit, and he was sure he would ultimately prevail.

Yeah, likes pigs wear lipstick.

If this guy had just paid the $2,000 or so rent he legitimately owed, plus swallowed the late fees and, later, court costs and attorney fees, that would have been the end of it. But some people are determined to fight, when instead they should take their lumps and fold, awaiting a more propitious battle.

Listen, people, stop cruising for a bruising. There are no brownie points gained by proclaiming your case to someone, i.e. a justice of the peace, who doesn’t give a damn. The system has power and authority over you, so you need to finesse it, using a professional. Let your ego go. You, Mr. Tenant, may have won a court battle in the past, and may be a very capable businessman or whatever, and you may even have nice clothes and cologne, but you need to realize the deck is stacked on this one. Your performance will fall on deaf ears.

Sheriff Joe has 24 square inches of space where you can sit your dumb ass, just like everyone else he chooses to target.

- Ken Volk -

Small Claims: for Small Minds with Slim Pickin’s

September 17th, 2008

Don’t. Just don’t.

If you think you’re going to get a fair trial in Small Claims, think again. There is no appeal from a Small Claims case. So, this leaves the justice of the peace (JP) or hearing officer free to act out his/her inclination.

Now, what do you think a typical JP or hearing officer, left unaccountable for his or her actions, is going to do? Answer: screw the tenant, big time.

This is not hyperbole. Even in the civil division of justice court, where at least the JPs are subject to the accountability of the appeals process, tenants are still treated horribly.

In 2005, the William E. Morris Institute for Justice published “Injustice In No Time,” a study of how tenants fare in the civil division (not Small Claims) of Maricopa County justice courts. A few of the findings:

*When evictions cases are before the courts, in a single hour between 30 and 60 cases are heard.

* Approximately 40% of the cases lack crucial documentation on how tenants are served the summons and complaint.

* Most court files do not contain copies of the leases, yet judgments are given for lease terms regarding payments in amounts more than originally sought by landlords in their notices, and often even more than is requested in the complaint – far in excess of rent owed.

* Factual disputes between landlords and tenants invariably are ruled in the landlord’s favor.

* Many times, immediate (also known as, material and irreparable) evictions are granted without any evidence presented.

*Of 626 court cases observed, only three tenants who appeared before the court were successful and had their evictions dismissed. Not one tenant was awarded a monetary judgment.

In my opinion, the only way that a renter has any chance of succeeding in court is by having attorney representation. But attorneys are prohibited in Small Claims.

Recently, I was exposed to a Small Claims case where the landlord did not appear, but instead just used his manager, who had no ownership interest in the business. This was contrary to court rules. The tenant raised this issue to the hearing officer, who disregarded that essential fact. In fact, the property was illegal to occupy as a rental, but that, too, was rebuffed.

JPs are not attorneys, but depend on landlord attorneys for their on-the-spot legal education. So the JP or hearing officer has an inherent bias, taught by landlords. From a JP’s molded perspective, renters are less than human. Think of it as akin to racism. But, like any competent con-artist, it will be cloaked in all sorts of pomposity, highfalutin self-serving mumbo jumbo and, at times, hints of deference or compassion.

Conversely, tenants are generally clueless about the law and court procedure. Even the rare tenant who raises an intelligible defense will be given short shrift.

Then the ax falls. The justice court system is a slaughterhouse of tenants, institutionalized under the imprimatur of law and government. Its purpose is to maintain the power of, and enrich, the ruling elite landlords and their proxy attorney guardians. Small Claims is the worst of it.

Court is always an uphill battle for any tenant. Why make the odds even more overwhelming? Whether you have a Small Claims case filed against you, or if you are the plaintiff who initiated the action, immediately remove it to the civil division of the justice court. Then, retain an attorney or you will regret it.

- Ken Volk -

Signing Your Life Away

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

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

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 -

Illegal Lock Out! Getting back in and getting your property.

June 9th, 2008

Our office has recently noticed a spike to landlords illegally locking tenants out of their rental units. This can be a terrifying experience, especially when one is separated from personal property and pets.

Except for surrender of the dwelling by the tenant, there are only two circumstances when a landlord can take back the property: (1) abandonment; and (2) eviction through court action.

Abandonment is a very specific circumstance, and requires a five-day notice by the landlord to the tenant. Rent must have been not paid, the tenant must not be around, and there are two factors regarding time frames of absence depending on whether or not there is any personal property remaining in the dwelling. Check out A.R.S. § 33-1370.

Assuming there has not been any abandonment, or allegation of abandonment, the first thing one should do, in this circumstance, is check with the local justice court to see if the landlord had filed an eviction action, and if there has been a judgment in favor of the landlord. If so, then the landlord is entitled to execute a “writ of restitution” whereby the constable changes the locks. There are a whole series of steps in the eviction process, including notice of violation, issuance of a court summons and complaint, service of the summons and complaint, a court hearing, and then a time frame to vacate prior to the writ be executed. Check out A.R.S. §§ 33-1368, 33-1377, and 12-1178.

If you have been evicted through court action behind your back, without legal notice, contact an attorney.

Okay, say your research finds there was no court action, and you did not abandon the premises, but you are locked out anyway. Then the landlord violated the law, specifically A.R.S. § 33-1374. It is called an illegal ouster. In fact, an illegal ouster may include a landlord turning off services, such as electrical or water, even though the tenant is still living in the place.

Your job, then, is to document what the SOB has done. You need a witness. I like using cops as witnesses, because they are presumed to be more truthful than the average Joe (of course, we all know that cops lie just like everyone else, all the damned time). So see if you can entice the cops to come over and observe that you are locked out. You might need a good story, such as hearing sounds in your place and being fearful of intruders. Then, the cops might even contact your landlord to confirm that the lock-out occurred. Bingo, you got that bastard landlord right where you want him. Get the cop’s name and badge number, and report number if there is one, and then file a lawsuit for illegal ouster. Check out A.R.S. § 33-1367.

If pets are involved, the humane society might be a good ally and witness. The courts may hate tenants, but animals are often treated better.

What next? Maybe you got the “cojones” to actually go back into the dwelling, though a window or whatever. If my ex weren’t on my case all the time for every little thing she can find, I would do that. After all, if the landlord has not taken the proper legal steps to secure possession, then the tenant legally still has possession. Now, if you have to actually break in, just be sure to immediately fix whatever you broke in the process.

Should a tenant continue living in the place after going back? That’s a topic for another day. One thing to consider, though: If a landlord tells you to leave, without cause, absent any kind of mutually agreed document signed by all parties, you would likely be held liable if you complied.

In other words, rarely in landlord-tenant is anything what it seems. Conventional wisdom is out the window.

I would like to hear what others have actually experienced in these type of circumstances. Did you ever sue your landlord after an illegal ouster? What were the results? Were you able to get witnesses, such as cops, to take the stand on your behalf? Were you able to recover your personal property?

- Ken Volk -