Landlord and Tenant Rights and Responsibilities

questions & answers

Question: Our heater works but does not provide airflow to the bottom story of our apartment.Twice, we asked the apartment manager directly to make repairs but repairs were never made. On Monday, we sent written notice of intent to terminate lease per ARS 33-1361(A). The apartment manager told me on Monday that someone would be over Tuesday to take a look at our unit but, again, they never showed up. Do I have grounds to terminate on Saturday if nothing is done? The term "reasonable heat" seems arbitrary and I want to make sure I have legitimate grounds for terminating my lease.

Answer: Reasonable amounts of heat should be interpreted by most any judge to mean providing heat to the entire dwelling unit, otherwise you have a portion of the unit that is uninhabitable and effectively a constructive eviction from that portion of the unit.  As a result, you can arguably proceed either under 33-1361 (termination) or 33-1364 (alternatives to termination).  I've pasted them below:

33-1361. Noncompliance by the landlord
A. Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement, including a material falsification of the written information provided to the tenant, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days. If there is a noncompliance by the landlord with section 33-1324 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than five days after receipt of the notice if the breach is not remedied in five days. For the purposes of this section, material falsification includes false information relating to availability of the unit, except when a holdover tenant is in illegal possession or in violation of the rental agreement, the condition of the premises and any current services as represented by the landlord in writing and any representation regarding future services and any future changes regarding the condition of the premises, the provision of utility services and the designation of the party responsible for the payment of utility services. The rental agreement shall terminate and the dwelling unit shall be vacated as provided in the notice subject to the following:
1. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate.

33-1364. Wrongful failure to supply heat, air conditioning, cooling, water, hot water or essential services
A. If contrary to the rental agreement or section 33-1324 the landlord deliberately or negligently fails to supply running water, gas or electrical service, or both if applicable, and reasonable amounts of hot water or heat, air-conditioning or cooling, where such units are installed and offered, or essential services, the tenant may give reasonable notice to the landlord specifying the breach and may do one of the following:
1. Procure reasonable amounts of hot water, running water, heat and essential services during the period of the landlord's noncompliance and deduct their actual reasonable cost from the rent. If the landlord has failed to provide any of the utility services specified in this section due to nonpayment of the landlord's utility bill for the premises, and if there is no separate utility meter for each tenant in the premises such that the tenant could avoid a utility shutoff by arranging to have services transferred to the tenant's name, the tenant may either individually or collectively with other tenants arrange with the utility company to pay the utility bill after written notice to the landlord of the tenant's intent to do so. With the utility company's approval the tenant or tenants may pay the landlord's delinquent utility bill and deduct from any rent owed to the landlord the actual cost of the payment the tenant made to restore utility services. The tenant or tenants may continue to make such payments to the utility company until the landlord has provided adequate assurances to the tenant that the above utility services will be maintained.
2. Recover damages based upon the diminution in the fair rental value of the dwelling unit.
3. Procure reasonable substitute housing during the period of the landlord's noncompliance, in which case the tenant is excused from paying rent for the period of the landlord's noncompliance. In the event the periodic cost of such substitute housing exceeds the amount of the periodic rent, upon delivery by tenant of proof of payment for such substitute housing, tenant may recover from landlord such excess costs up to an amount not to exceed twenty-five per cent of the periodic rent which has been excused pursuant to this paragraph.

QUESTIONS

  • Our heater works but does not provide airflow to the bottom story of our apartment.Twice, we asked the apartment manager directly to make repairs but repairs were never made. On Monday, we sent written notice of intent to terminate lease per ARS 33-1361(A). The apartment manager told me on Monday that someone would be over Tuesday to take a look at our unit but, again, they never showed up. Do I have grounds to terminate on Saturday if nothing is done? The term "reasonable heat" seems arbitrary and I want to make sure I have legitimate grounds for terminating my lease.

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