questions & answers

Question: Can I withhold my rent from my landlord if there is mold in my trailer? I noticed there was mold growing around my sons cooler in his room (a/c unit) , I notified the landlord and told him about it and he promised he would send someone on that money (it’s been 3 weeks now). My son is 9 and has to sleep in the living room because of this problem , I also recently had a baby(she’s 6 months) and would hate for her to get sick from this. What legal action can I take? Also before we moved in we were promised that they would switch out the old bathtub for a new one and new flooring but nothing.

Answer: No. Under Arizona law, a tenant may not withhold any of their rent simply because their landlord is failing to make required repairs (A.R.S. 33-1368(B)). A tenant who does so could face eviction for non-payment. So what can a tenant do? Under Section A.R.S. 33-1324 of the Arizona Residential Landlord and Tenant Act, a landlord is required (among other things) to “comply with the requirements of applicable building codes materially affecting health and safety” – which includes provisions addressing “the failure to maintain minimum standards of sanitation, health or safety or that renders air, food or drink unwholesome or detrimental to health” (A.R.S. 9-1303) – and “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” A tenant who wants the landlord to fix a serious mold problem pursuant to the landlord’s obligations under A.R.S. 33-1324 must begin by providing the landlord with formal written notice, by delivering to the landlord – either by hand or by certified mail – a signed and dated letter describing the problem in detail and requesting that the landlord fix it as soon as possible. (It is always recommended that the tenant keep careful records of all their correspondence with their landlord and also take time-stamped photos and/or video to serve as a documentary record of the problem.) If, after a reasonable period of time has passed since the landlord received the tenant’s letter, the landlord does nothing to fix the problem, the tenant will want to be able to prove (to a court of law, if necessary) that the problem was a serious one. The most important thing is for the tenant to be able to show that the tenant tried to resolve the problem with the landlord and that breaking the lease was a last resort.) If, even after the tenant has notified the landlord of the problem, the landlord remains in noncompliance with A.R.S. 33-1324 “and the reasonable cost of compliance is less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater,” then tenant may either (1) go to court to recover damages from the landlord and/or obtain injunctive relief (A.R.S. 33-1361(B)) or (2) notify the landlord in writing of the tenant’s intention to correct the condition at the landlord’s expense. If, even after being notified by the tenant in writing, the landlord still fails to comply within ten days or as promptly thereafter as conditions require in case of emergency, then the tenant may have the work “done by a licensed contractor and, after submitting to the landlord an itemized statement and a waiver of lien, deduct from the tenant’s rent the actual and reasonable cost of the work,” not exceeding either $300 or 1/2 of one month’s rent, whichever is greater (A.R.S. 33-1363(A)). If, after a reasonable period of time, the landlord does nothing to fix the problem, and the tenant wishes to terminate the rental agreement and vacate the dwelling, then the tenant may deliver to the landlord written notice identifying the problem and stating that if the problem is not fixed within 10 days after the landlord receives this notice then the rental agreement will terminate. However, if a landlord fails to comply with the landlord’s obligations in way that affects or threatens to materially affect the health and safety of the tenant, then the tenant may deliver to the landlord written notice identifying the problem and stating that if the problem is not fixed within 5 days after the landlord receives this notice then the rental agreement will terminate (A.R.S. 33-1361). Conditions materially affecting health and safety include, among other things, inadequate sanitation, ventilation, or space requirements, hazardous or unsanitary premises, inadequate maintenance, unhealthy conditions (A.R.S. 9-1303). It is up to the tenant to determine whether or not a court is likely to side with them if the landlord decides to sue. If you would like to discuss your specific situation with an attorney, there are links to free and low-cost legal services on this website (at http://www.azlawhelp.org/accessToJustice).