questions & answers
Question: Does the following remedy mean that you are required to terminate lease and move out within five days if safety hasn't been restored?: "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." Is there any other remedy? Can you withhold rent? Can you get alternate housing? Thanks.
Answer: Although the Arizona Residential Landlord and Tenant Act (ARLTA) does not state that a tenant who provides a landlord with a 5-day health and safety notice must terminate the rental agreement and move out if the landlord does not make the requested repairs, many eviction court judges interpret it that way. Tenants who remain after 5 days have passed and do not pay their rent in full and on time are evicted for nonpayment of rent because they did not leave the dwelling as they said they were going to. What follows is a general summary of some of the tenant options described by the ARLTA. If you would like legal advice, there are links to free and low-cost legal services on this website (at http://www.azlawhelp.org/accessToJustice). Under the ARLTA a landlord is required by law to (among other things) “comply with the requirements of applicable building codes materially affecting health and safety”; “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition”; “maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances ... supplied or required to be supplied by him”; and “supply running water and reasonable amounts of hot water at all times, reasonable heat and reasonable air-conditioning or cooling where such units are installed and offered, when required by seasonal weather conditions” (A.R.S. 33-1324). A tenant whose landlord is failing to meet the landlord’s obligations under A.R.S. 33-1324 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 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. 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)). If the required repairs relate to what the ARLTA calls an “essential service” such as water, heat, or air-conditioning, and the landlord has acted either *deliberately or negligently* in depriving the tenant of that service, then the tenant may notify the landlord in writing of the continued seriousness of the problem then do one of any of the following: Option One: The tenant may arrange to receive the essential service on their own and deduct the cost of that service from the tenant’s next monthly rent payment. Option Two: The tenant may file a claim in court to recover damages based on the decreased fair rental value of the dwelling. Option Three: The tenant may find “reasonable substitute housing” (an inexpensive motel, for example) until the landlord restores the service. What this means is that when the tenant pays their rent for the following month, the tenant may pay a “prorated” amount. (So, for example, if the monthly rent is $900 (or $30/day), and the tenant is forced to stay in a motel for 5 days, then the tenant may reduce the next month’s rent payment by $150.) If the cost of this substitute housing exceeds the amount of the tenant’s rent for the period, then the tenant also may recover up to 25% (but no more) of the additional expense from the landlord (A.R.S. 33-1364). This last set of options apply only if the landlord has acted either deliberately or negligently after what the law describes only as a “reasonable” period of time.
Does the following remedy mean that you are required to terminate lease and move out within five days if safety hasn't been restored?: "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." Is there any other remedy? Can you withhold rent? Can you get alternate housing? Thanks.
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