A Primer on the Rights of a Residential Tenant
(Part II of a two-part series on the Arizona Residential Landlord and Tenant Act. For Part I: “But You Must Pay the Rent! An Eviction Primer for the Residential Landlord,” please see our Fall 2016 Newsletter at Residential landlord .)
The Arizona Residential Landlord Tenant Act (the “Act”) requires every landlord to maintain “fit premises.” That requirement includes complying with applicable building codes materially affecting health and safety, making necessary repairs, maintaining common areas in clean and safe condition, maintaining all utilities in good and safe working order, etc. Given this duty, what rights does a residential tenant have when the landlord fails to provide “fit premises” or otherwise does not perform under the lease? Can the tenant just terminate the lease, withhold rent or deduct the cost of repairs from the rent? The answer is NO, not without following the applicable requirements of the Act. The following is a basic outline of those requirements.
Material breach of the lease by the landlord
If the landlord materially fails to comply with the lease (i.e. lying to the tenant about the condition of the premises) the tenant must first give written notice to the landlord. The notice must state (a) the nature of the breach and (b) that the lease will terminate after ten days (five days if the breach materially affects the health and safety of the tenant) if the breach is not remedied. If the landlord adequately remedies the problem prior to the date specified in the notice, the lease will continue. However, if the breach is not remedied by the applicable date then the tenant has the right to:
(1) terminate the lease and obtain all recoverable security deposits,
(2) obtain injunctive relief (i.e. have the court force the landlord to remedy the breach), and/or
(3) collect damages for any amounts expended or lost due to landlord’s breach.
Failure to deliver possession
In general, if the landlord does not deliver physical possession of the property to the tenant, rent abates until possession and the tenant may:
Five days after written notice, terminate the lease and recover any prepaid rent and security OR Demand performance and sue for possession and damages (up to twice the actual damages if the failure was willful and not in good faith.)
Tenant repair of minor defects
Under the Act, for any repair or defect not caused by the tenant that can be remedied for the lesser of $300.00 or one-half of the monthly rent, the tenant may:
After giving proper notice of the defect, recover damages for the breach as set forth above OR
Notify the landlord in writing that tenant intends to correct the defect at the landlord’s expense.
If the landlord does not fix the defect within 10 days of the notice (or as promptly thereafter as reasonably required in the event of an emergency), the tenant may have the work performed by a licensed contractor, submit an itemized statement and a waiver of lien to the landlord, and then deduct the actual cost of the work (up to the greater of $300.00 or one-half the rent) from the rent.
Failure to supply heating, cooling, air conditioning, water, hot water or essential services
If the landlord fails, whether intentionally or negligently, to supply running water, gas or electrical service, reasonable amount of hot water or heat, air-conditioning or cooling (where offered) or essential services, after giving the landlord “reasonable” notice specifying the breach, the tenant may:
Procure the services and deduct the actual reasonable cost from the rent; or
Recover damages for the decrease in the fair rental value of the unit; or
Obtain substitute housing until the breach is fixed, withhold rental payments and charge the landlord for any increase in cost (not to exceed 25% of the applicable rent, provided, however, if the landlord’s breach is deliberate the tenant can recover the full amount of the applicable rent.)
In any event, if the landlord terminates utility services or transfers the responsibility for payment to the tenant without tenant’s consent, the tenant may recover damages, costs, reasonable attorneys’ fees and obtain injunctive relief.
Landlord’s breach as defense in eviction action
If the tenant has given proper notice to the landlord and otherwise followed the requirements of the Act, the landlord’s breach can be used by the tenant as a defense and counterclaim in an eviction action brought by the landlord. At the hearing, the court may require the tenant to pay any undisputed rent into the court until the matter is fully adjudicated.
Fire or casualty damage
If the property is substantially destroyed, the tenant can immediately vacate the premises and then, within 14 days, give written notice to the landlord of the intention to terminate the lease as of the date the tenant vacated the residence. If the property is still habitable, the tenant can “vacate” the unusable portion of the property and the rent is then reduced proportionately.
Unlawful eviction, exclusion or diminution of services
If the tenant is unlawfully removed or excluded from the premises or if the landlord willfully diminishes or cuts off electric, gas, water or other essential services, the tenant can choose to either recover possession or terminate the lease. In both cases the tenant can recover the greater of the amount of up to two month’s rent or twice the actual damages tenant incurred.
While the Act gives the tenant many rights, it is essential that all legally required steps are followed before exercising any remedies. Failure to follow any of the steps can cause the tenant to forfeit those rights; therefore we highly advise that you seek legal counsel prior to terminating a lease and/or reducing or withholding rent.