Tenants Advocates & Association
by Ken Volk
So you have a lease, or rent on a month-to-month basis. You think it protects you from the landlord entering whenever he wants. The landlord thinks he can enter whenever he wants because he owns the place. Who is right?
Both of you. But never forget the third-party gorilla who implicitly is always looking over your shoulder: the justice of the peace (JP).
In accordance with A.R.S. § 33-1343, a landlord may enter a rental premises for a host of purposes, so long as he gives you two days' advance notice (except when it is impracticable to do so, or for emergencies), and so long as the time of day is reasonable. If you withhold consent, you may well be evicted. Do not confuse two days with 48 hours; a landlord could, for example, on Monday night give you notice of intent to enter Wednesday morning. This would be less than 48 hours, but still meet the two day requirement. Because this is Arizona, and the courts favor landlords, a landlord's notice to intent to access need not be in writing; verbal will suffice.
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 think it is unreasonable to enter on special holidays, such as Thanksgiving or Christmas Days. Whatever position you opine, make sure it is one that a reasonable person would agree with.
The purposes for which a landlord may enter a rental premises are to:
Any reasons beyond these are illegal (except to conduct repairs under A.R.S. § 33-1369, or if the landlord retakes premises that are abandoned, in accordance with A.R.S. § 33-1370). For example, a landlord may not enter to deliver a notice. Or to determine the welfare of your pet. A.R.S. § 33-1343(C) specifically states that a landlord shall not abuse the right to access or use it to harass the tenant.
Some leases say the landlord may enter in less time, or without notice, or that you waive the right to notice, or that notice is unnecessary if you want something repaired. That's all bullshit, and it is contrary to A.R.S. § 33-1343. In accordance with A.R.S. § 33-1315, a lease may not provide that you waive or forego your tenant rights specified in Title 33, Chapter 10, i.e. the main body of the Arizona Residential Landlord & Tenant Act. Any lease provision that is prohibited under A.R.S. § 33-1315 is unenforceable and, moreover, if the landlord deliberately uses a lease containing provisions known by the landlord to be prohibited, a tenant may recover damages from the landlord.
So tell the SOB. If you don't, the JP courts will not enforce the law. Why? Because the JPs can ignore the law and get away with it, that's why, and nobody in power will change that. You should already know better than to expect the courts to follow, rather than flout, the law. Further, you must tell the landlord in writing, because if you say you verbally told the landlord to respect your rights, and the landlord denies you said it, of course the courts will assume that you, being the tenant, are the liar.
Your notice letter should tell him that he must give you two days' notice of intent to access your dwelling unit and outdoor areas (if applicable), at reasonable times, except when impracticable or in the case of emergency, and only for the purposes set forth in A.R.S. § 33-1343. Then, additionally advise the landlord that if he violates your rights by entering unlawfully he will be subject to penalties in accordance with A.R.S. § 33-1376.
The letter should be sent either by certified mail/return receipt requested, or via process server. Also, include a notation line specifying the certified number used, or that the letter was hand-delivered by a messenger. Keep copies of all your documentation. If the certified letter is returned because the landlord refused or did not claim it, do not open the returned envelope; under A.R.S. § 33-1313(B) it is deemed received no later than five days after having been mailed, so retain the letter in its sealed condition, saving it for a judge to open the envelope and examine its contents, should the matter proceed to litigation.
Usually, such a letter will correct landlord abuses of access. If it doesn't, and the landlord makes
then, under A.R.S. § 33-1376(B), you may:
injunctive relief to prevent the recurrence of the conduct; or
Additionally, A.R.S. § 33-1376(B) permits you to recover actual damages not less than an amount equal to one month's rent. Now, I've had one attorney tell me that means you will get the damages even if you did not suffer a particular dollar value of damage. My cynical perspective is that you would have to show how you suffered the actual damages, such as property stolen during the period of unlawful access. I would loved to be proven wrong.
As to the injunctive relief, in thirteen years of tenants advocacy I have yet to hear of a single JP granting such relief to keep a landlord out, or even to limit the circumstances of a landlord's entry. It certainly is within the justice court's legal purview, but from my vantage point no JP can bring himself to tell a property owner that he cannot enter his own property, despite the circumstances and degree of abuse. I think any JP who did that would go home that night and throw up, perhaps even resign in uncontrollable abhorrence of, and self-flagellation for, his action. It just does not happen, regardless of the tenant's suffering, and nobody with the power to oversee the courts or laws will ever give a damn.
So, really, if your landlord continues to abuse access after your initial notice, the only practical remedy is lease termination, because you can terminate without going to court and exposing yourself to the gorilla's scrutiny. Of course, the access abuse needs to be documented, either by some notice the landlord (or his agent) left in the premises, or a friendly witness, or - best yet, if you can finesse the cooperation - make a call for service to the police and obtain a police report, even catching the landlord in the act! Wow, that's fantastic.
Your next step would be a notice to the landlord advising him of the violation and the consequent termination, and when you will be vacating (or have vacated, if that's the scenario). Reference your first letter and the governing statutes. I call this my "How Dare You!" letter. You may want to read my article about security deposits and landlord monetary claims, because those issues, including delivery of possession, will come into play at this point. Again, send the notice by certified mail/return receipt requested, or use a process server. And keep a copy, etc. Actually, it would be best to use a process server for delivery of this notice despite the extra cost, because undoubtedly the landlord at this stage will not cooperate in receiving the mail, and you want to make sure the notice is received with finality.
This is a classic who-done-it case, and you have made the case that the landlord did it. Good work!
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