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 -
Ken Volk
founder of Arizona Tenants Advocates & Association and a well-known tenants' rights advocate.
