Tenants Advocates & Association
written by Ken Volk
Repairs to Your Dwelling
This article does not address the many possible tactics and strategies
to influence your landlord/agent, short of lawful coercion. Caution is
advised: "Self-help" may not be an appropriate remedy for your circumstances.
1) Pursuant to A.R.S. § 33-1361(B), sue the owner in Superior Court,
seeking injunctive relief whereby the judge orders the owner to do the
2) A.R.S. § 33-1324 requires the owner to comply with applicable building
codes affecting health and safety, while A.R.S. § 33-1381 references your
right to complain to a governmental agency in order to enforce building
or housing codes. In this way your local municipality can order the owner
to do the work; and
3) Exercise your right to perform "self-help" for small jobs, under A.R.S.
Option one is very complex and often time consuming, and so it
is highly advised that you retain an attorney. Success is by no means
assured. Injunctive relief should be used only as a last resort.
Option two usually requires that you first complain to the owner,
is limited in what conditions constitute enforceable noncompliances with
regards to applicable ordinances, is available in many municipalities
to varying degrees (depending on if codes have been enacted and whether
the respective municipalities have a policy of enforcing what is on the
books), and may take a long time before compliance is enforced. Still,
many municipalities are adopting and strengthening their ordinances. Moreover,
using the government as your ally can give you a good witness should your
owner resort to retaliation against you. On the other hand, many government
workers can be ignorant and anti-tenant, so be careful. Contact tenants
advocates before attempting to recruit government help.
Option three can work for small jobs, but involves many factors.
A.R.S. § 33-1363, the "self-help" clause, permits you either to sue the
owner for monetary damages if repairs are not done, or to do them yourself,
deducting the cost out of the next month's rent. It is limited to small
jobs that can be completed at a maximum cost of either one-half of your
periodic rent, or $299.99, whichever amount is more.
The balance of this article addresses the repair elements of A.R.S. §
33-1363. The self-help provision stipulates that: prior notice must be
properly given to the owner, allowing him the opportunity to remedy the
conditions himself; a licensed contractor is the only person who may do
the work; and specific follow-up documentation must be presented to the
owner when the deduction is made.
A great benefit of using self-help is that all owners absolutely despise
it. They hate having you take money out of their pockets for any reason.
They hate losing the power to keep you in degraded conditions against
your will. So, once you have successfully used the self-help remedy, your
owner will take you more seriously and act more respectfully towards you.
On the other hand, you should first expect that any attempt to deduct
will be refused by your owner and mis-characterized as a partial payment.
An eviction may ensue. You should be prepared to defend yourself, even
to the extent of securing attorney representation. This remedy is not
for the faint-hearted.
What May be Repaired?
Any repair of an owner's noncompliance with A.R.S. § 33-1324 that can
be completed at a cost of no more than either half your periodic rent,
or $299.99, whichever is more. If an item is damaged or worn beyond repair,
it is reasonable to replace it, so long as the licensed contractor procures
it and then incorporates the cost into the billing.
While you can give notice for everything that arguably is an A.R.S. §
33-1324 breach, focus first on repairing those items that are most egregious.
Things that the owner would possibly assert are merely cosmetic, such
as to repaint the dwelling, should be a low priority or avoided. Remember,
if a judge has a doubt, he will invariably rule in the owner's favor.
Read that last sentence over again.
Larger jobs should be broken down into separate segments over a several
month period, if practical and financially feasible; each segment should
be noticed separately so it is apparent as a discrete job. Ask ATA about
this if it confuses you, as the distinction is important. Another alternative
for larger jobs is to join with other tenants to correct shared noncompliances,
such as a roof covering more than one dwelling unit. Just make sure the
total billing, when divvied up, falls within the dollar range for each
household, who will then have to give separate notice to the owner, of
course. Never complain about a repair/condition that you have caused.
Doing so is grounds to evict you.
Give the Bastard a Legal Chance
You must tell the owner specifically what and where is the problem. If
it is not obvious, explain the consequences or impact of the problem,
and what must be done. Tell him the condition is a violation of A.R.S.
§ 33-1324, and that if he fails to remedy the breach within ten days from
receiving your demand, then you will correct the condition yourself at
All communications should be by certified mail, return receipt requested.
Make sure the certified number is notated on the letter. Keep a copy of
all documentation. Check with the Tenants Advocates how all of this is
to be done. Better yet, have ATA help you draft the correspondence.
If you never got back your return receipt, or if the letter was refused
or unclaimed, then the clock starts ticking five days after you sent it
out. Never open a certified letter sent by you to a owner that is returned
unopened. Also, keep your original certified receipt from when you sent
out the letter.
The Owner's Response, if Any
Avoid speaking with the owner, or any agents of the owner. Doing so provides
an opening for him to later lie, claiming that certain things were stated
that could potentially harm you (e.g. you supposedly agreed that the work
was no longer of concern to you, or that you refused entry to do a repair).
If the owner approaches you, only suggest that he read your letter and
that if he has anything to say to you, then it should likewise be put
in writing. If the owner claims that certain items needed for repairs
are either unavailable or on order, these are just unacceptable excuses.
DO NOT AGREE TO ANY DELAYS OR CHANGES IN YOUR
WRITTEN DEMANDS. SIGN NOTHING. Ignore this advice at your peril.
You have been warned.
If the owner wants to come in to do repairs, allow him to do them so long
as he has given you the required two days' notice per A.R.S. § 33-1343.
However, in order to prevent you from proceeding under the self-help clause
it must be within the ten day period. You, or someone representing your
interests (e.g. friend, roommate, relative), ought to be present whenever
anybody enters your dwelling.
If the owner enters without notice, call the police immediately and have
him removed. Contact ATA.
If the owner does the repairs, but inadequately or incompletely, make
a record of it by photographs, videotaping, witnesses, etc. Makeshift,
shoddy or partial work is unacceptable, and you may proceed to do the
job the right way.
Preliminary Steps and Cautions
Document the existing substandard conditions about which you complained,
and especially that you plan to repair. Be sure to make a record
of the specific items right before the contractor works on them. This
is so you can refute any subsequent claims that the work was unnecessary
or unwarranted. At the very least take dated photographs or videotape,
but witnesses are useful, too.
All self-help repairs must be performed in their entirety by licensed
contractors. DO NOT ATTEMPT TO DO THE REPAIRS YOURSELF. Also, forget
about using a handyman, unless he is licensed with the Registrar of Contractors.
That he may hold some other type of license is irrelevant. ATA has relationships
with capable contractors who are familiar with our routine, whom we suggest
Repairs must be conducted within a reasonable time from your notice, and
the sooner the better. At the outside, repairs ought to be completed
within a month or two after the owner received your demand notice. Otherwise,
you will have to re-notice the owner.
Repairs must be completed and paid for prior to the month you intend
to deduct. For example, if notice is received by the owner in March and
you do the work in March, then the deduction could be from the April rent.
Or, if you waited until April to do the work, then the deduction could
be from the May rent. Meanwhile, interim rents must be paid in full.
It is irrelevant whether or not these points are explicitly delineated
in the statutes. Rather, this advice is based on the fact that a tenant
must always strictly adhere to the most rigid and conservative interpretation,
because the courts are so biased in favor of owners. Remember this.
Do not bring a contractor over only to present you with an estimate or
bid. That's unfair, because these guys are doing you a favor just by being
willing to do such small jobs. Believe me, it has taken ATA a long time
just to find reliable contractors that can do this work. The purpose is
to get the work done for a reasonable cost, not to get the best deal for
the owner. If the owner wanted the job done on his payment terms, he should
have done them in the first place. You owe the owner no favors. You ought
to plan on making the maximum number of repairs within the applicable
financial constraints (i.e., $299.99 or ½ the rent).
As stated above, prioritize the work done according to how a judge would
look at it. Focus on the most offensive breaches, such as those that create
unsanitary or unsafe conditions. (Of course, for severe conditions you
may decide to pursue other remedies, such as moving out.)
Bring the contractor in as quickly as possible following the expiration
of the ten day period. The longer you wait, the more opportunity for the
owner to fabricate additional things detrimental to your situation. Start
counting ten days from when the owner received, or is by law deemed to
have received, your notice -- not from when it was sent. You are personally
responsible for paying the contractor for the work. You must pay as soon
as the work is completed, or according to whatever arrangements you and
the contractor reach. Remember, it's unimportant that you secure the lowest
price, because whatever reasonable charges you pay, up to the applicable
limit, are deductible from your next rental payment.
Make sure that you receive a receipt, invoice or statement for all payments
you tendered to the contractor, specifying the exact jobs performed, and
that it is marked "Paid in Full." It is imperative that you always
keep this receipt. Also, when a contractor has completed his work you
must obtain a "Waiver of Lien" from him/her. Before the work is completed
contact ATA so we can provide you with the appropriate form and guidance
in filling it out correctly. As with receipts, keep any completed "Waiver
of Lien" forms.
Should the owner show up while the contractor is doing the work and attempt
to prevent the contractor from completing the job, call the police and
ATA. Absent the owner having given you lawful notice of his intent to
access your dwelling, you can have him removed. In any case, an owner
may not interfere with work already underway following the ten day period.
Rent Payment and Deductions
It is strongly suggested that you come back to ATA to prepare the paperwork
for paying the rent with the applicable deductions. Bring with you the
completed Waiver of Lien form as well as the receipt indicating, in detail,
the work that was performed. A photocopy of each of these items will be
forwarded to the owner, along with the reduced rent. Keep the originals
hidden away safely (owners have been known to enter dwellings and steal
It is best to perform the job well before the end of the month, to allow
for time to prepare and mail the paperwork and rental payment. If, for
some reason, you must extend beyond the forthcoming periodic rental date,
be prepared to tender late fees to the day the letter containing your
rental payment and documentation should reasonably be expected to be received
by the owner. Be careful not to go beyond the period of any five day notice
from the owner demanding rent payment, as you will then face eviction.
If time is of the essence, you may wish to transmit the paperwork and
rent by process server, rather than certified mail. The reason is that
it is quicker and more reliable; a owner cannot refuse delivery by process
server, but may play games with delivery of the mail. If you are up against
a deadline, the cost of delivery by process server is well worth it.
It is strongly recommended you tender your rental payment by personal
check. Use your own or one of someone you trust. If there is time, open
up a bank account. Even though there may be a monthly surcharge, you should
arrange that the bank sends back to you the actual checks that have been
negotiated and cleared. You want them in your hand as evidence.
Write on the check memo line exactly what it is for. Commonly, the language
would be similar to, "6/99 rent less lawful deductions only."
Once you have done any work and deductions pursuant to your notice you
may only do another job by starting the process all over again with a
new notice. (This is the conservative approach.)
If the owner refuses the rent or sends it back, contact ATA immediately.
Odds are, the jerk has claimed it is a partial payment, which is untrue,
of course. You will have to go through the motions to resubmit it along
with an explanation as to why it is the full amount lawfully due. Brace
yourself for a lawsuit to evict.
Should it proceed to litigation, you ought to counterclaim on the basis
the eviction is retaliatory. Pursuant to A.R.S. §§ 33-1367 and 33-1381
you may recover damages of twice the periodic rent, or twice your actual
damages, whichever amount is greater. Of course, you will also seek to
recover your court costs and attorney's fees. If you have followed all
of these steps in this article, you will likely prevail if you use a competent
attorney, although it may be only upon appeal.
A Few Final Comments
Unfortunately, the dollar cost for justice is very high and effectively
punitive. This is the price we pay for living in a repressive state run
by the big money interests.
It is wrong that tenants must suffer, and then pay again to end the suffering.
But what are the options? Continue to be a passive victim while allowing
your owner to persist in abusive behavior towards you and others?
We owe it to ourselves and society to challenge this egregious conduct.
That is why ATA is around. If enough tenants demand that their cases be
heard in the courts, then the courts will be forced to listen to what
we say. Sooner or later, the system will have to accommodate, and laws
With your stepping up to the plate, it will be much sooner.
ATA with any suggested site updates, additions
or corrections to this website.
2003-2017 by Kenneth A. Volk. All rights reserved.
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