RISKS of Exercising your Rights in Arizona

Arizona Tenants Advocates & Association
Tenants Library
Articles written by Ken Volk

RISKS
of Exercising your Rights in Arizona

This state is the pits. Landlords are arrogant and abusive. The laws are difficult to comprehend and act under. The courts are biased against tenants, and rarely award full attorney's fees to tenants who prevail (contrary to A.R.S. § 12-1178(B), although such fees are usually awarded to landlords who are victors in their cases).

If you exercise your statutory rights, there is a good chance you will be challenged by your landlord/agent. Anticipate going to court and having to defend yourself.
What then? Depending on your justice court jurisdiction, two tactics Tenants Advocates often recommends are to seek a change of judge and to demand a jury trial. But these strategies are fraught with dangers.

First, in order to secure a change of judge you must ask for it before there is any substantive ruling. As for the jury trial, it must be demanded upon your first appearance. Failure to abide by these requirements could well mean you have waived the rights to these options.

Unfortunately, even if you secure a change of judge, the replacement could be just as bad or worse. For example, in Scottsdale Justice Court you will often be shuffled off to a pro tempore justice of the peace who is likely to be influenced or controlled by the regular JP and will probably have similar predispositions. Alternatively, you will be sent to another justice court where the JP is not necessarily tenant-friendly. In the experience of the Tenants Advocates the courts in which tenants have had unhappy experiences are Glendale, Peoria, Maryvale, North Valley, Scottsdale, East Tempe, North Mesa, East Mesa, and Chandler. There are some others, too, but they are not discussed here.

The other approach is the jury trial. This is an expensive option, to be utilized when you believe that it is the only way to get a fair trial (which is pretty often). It could well cost you $1,000 or more in attorney's fees to litigate. If you win, you probably won't get your full attorney's fees awarded, leaving you hanging out to dry unless other damages are also awarded. And if you lose, you face the prospect of owing the other side's total attorney's fees and court costs, not to mention the financial judgement. In light of all this, what is a tenant to do?

• Proceed according to your rights, seeking a jury trial. If you determine that attorney's costs for a jury trial are prohibitive, waive the jury trial. This must be done twenty-four hours before the trial date. You still should be represented by an attorney in order to have a decent record on which to appeal should you lose.

• Proceed according to your rights, seeking a jury trial. Keep the jury trial and pay for an attorney. Make the case to which you are entitled. It will cost a lot, but at least you have the possibility of a fair trial, or the closest approximation thereof.

• Proceed according to your rights and, if challenged in court, pay under protest to avoid an eviction (presuming that the landlord will reciprocate by dismissing the case). Thereupon, sue the owner and possibly the management company for your resulting damages in the appropriate jurisdiction. At least you will not be evicted, and you may have a friendlier court setting. The problem is, the new court may agree with the argument that your previous payment constituted a settlement or waiver of your new claim. The other consideration that makes this option problematic is the likelihood that, despite your current intentions, you will never get around to initiating such an action.

Understand that you may be able to exercise your rights without being challenged. Great. The tenants association can assist you in preparing the necessary paper trail. However, you must be prepared, both emotionally and financially, for the consequences of a challenge by your landlord. Know your rights and be prepared.

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