questions & answers

Question: I rent a single family home in Tucson Arizona and over the years the roof has sustained significant water damage due to negligence and poor construct. We recently received heavy rainfall and the roof leaked, causing the ceiling to collapse into the home. Landlord sent two roofing companies to inspect the roof, both said it’s unsafe but did not use the word uninhabitable so therefore landlord will not break lease. He has contracted for roof replacement but that means we are still in the home with various cracks through out the ceiling. Can I get my own evaluation done and get out of this lease?

Answer: Under the Arizona Residential Landlord and Tenant Act (ARLTA), a landlord is required by law to (among other things) “comply with the requirements of applicable building codes materially affecting health and safety as prescribed in section 9-1303” and “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition” (A.R.S. 33-1324). A.R.S. 9-1303 contains a long list of conditions a condition that materially affect the health and safety of the occupants of residential rental dwelling units, such as “structural hazards,” including “members of ceilings, roofs, ceiling and roof supports or other horizontal members that significantly sag, split or buckle due to defective material or deterioration,” and “faulty weather protection,” including “deteriorated or ineffective waterproofing of exterior walls, roof, foundations or floors, including broken windows or doors” and “broken, rotted, split or buckled exterior wall coverings or roof coverings.” The full list is available here: https://www.azleg.gov/ars/9/01303.htm. A residential rental dwelling does not need to “uninhabitable” for it to be in a condition that violates the ARLTA. A tenant whose landlord is failing to meet the landlord’s obligations under A.R.S. 33-1324 (above) is responsible first and foremost for providing the landlord with formal written notice of the problem – ideally in a signed and dated letter (keeping a copy for the tenant’s own records) – describing the problem in detail and requesting that the problem be fixed as soon as reasonably possible. The tenant must do this regardless of whether the tenant ultimately wants to continue to live in the dwelling or leave. If the tenant wishes to terminate the rental agreement if the landlord fails to make the requested required repairs, then the tenant is permitted by the ARLTA to deliver a written notice to the landlord identifying the repairs that the landlord must make under A.R.S. 33-1324 and stating that the rental agreement will terminate ten days after the landlord receives the notice if the repairs are not made within ten days (or, if the problem is materially affecting the tenant’s health and safety, that the rental agreement will terminate five days after receipt of the notice if the repairs are not made within five days) (A.R.S. 33-1361(A)). A tenant who wishes to terminate a rental agreement on these grounds should document carefully both the condition of the dwelling (with photographs or video and witnesses) and the tenant’s attempts to notify the landlord of the problem. The problems in need of repair must be serious ones. (A report from an expert is always helpful in this regard.) If the tenant wishes to continue to live in the dwelling rather than leave, the tenant may not simply withhold either all or part of their rent because the landlord has failed to make the required repairs (A.R.S. 33-1368(B)). The tenant may sue a landlord for monetary damages suffered by the tenant due to the landlord’s violation of A.R.S. 33-1324, but as a general rule the tenant still must pay full rent. However, there are exceptions – so long as the tenant follows the proper procedures. If, even after the landlord has received the tenant’s letter requesting required repairs, the landlord still fails to comply with the landlord’s obligations under A.R.S. 33-1324, then the tenant has several options, depending on the circumstances. The tenant may sue the landlord in court to recover any monetary losses suffered by the tenant (including the diminished value of the rent being paid by the tenant to the landlord) due to the landlord’s failure to make the required repairs (A.R.S. 33-1361(B)). If the cost of making the required repairs would be no more than an amount equal to one-half of the tenant’s monthly rent payment, then the tenant may notify the landlord in writing of the tenant’s intention to make the repairs at the landlord’s expense. If, even after being notified by the tenant in writing of the tenant’s intention to pay for the work then charge the landlord, the landlord still fails to comply within ten days or as promptly thereafter as conditions require in the case of an 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)).