Repairs

There are dozens of companies out there that promise tenants they can break their lease with a letter or a phone call. These companies charge hundreds of dollars, sometimes they charge one month’s rent.  They come to your home and assess the property, take pictures and video of damages or what is perceived as damages and material defects in your home.  They prepare a 5 day or a 10 day request for repairs.  The strategy is to bombard the landlord with repair request and when the landlord refuses or can not make the repairs, a subsequent letter is sent indicating that the tenant is exercising their right to terminate the lease.  You believe that it is within your right to terminate, you leave and a year later you are in court. Why? Because the 5 day notice can serve as a defense to a breach of the lease claim by your landlord but it is not a catch all nor is it a get-out-of-your-lease-free card.  If the landlord fails to make the repairs, then you should negotiate a mutual rescission agreement to end the contract before you leave. If you don’t, you can find yourself in court a year later for a breach of the lease claim and at that point, you may not have the 5-day notice as proof, no pictures or videos to defend the action.  It is important that you speak to an attorney before you move out.

Note: The statute allows the landlord to begin making the repairs within the 5 or 10 days, he doesn’t have to fix it within that time frame. Below is a sample 5-day request for repairs for Arizona residents ONLY.

Five Day Request for Repairs

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Phoenix Police crack down on slumlord

dontrent

The Phoenix police department shut down a community due to the negligence of the landlord. Rooming, Inc is the owner of two properties located within the city of Phoenix.  According to azcentral.com, “Police said Rooming Inc. President Elijah Brown targeted mentally ill and homeless people in a scheme that required them to turn over their Social Security checks in exchange for rent.”

This is a huge problem in Arizona and the system here fails our tenants at every turn. Tenants complain to the landlord and he does nothing. The tenant attempts self help or uses his limited funds to provide himself with heat or an alternative place to live. Then the landlord initiates an eviction action. Although the Rules of Eviction Procedure allows for a counterclaim, the Justice tells the tenant that he does not have a counterclaim because he failed to send a certified 5 day notice of repair, although he sent text messages and sometimes emails. Tenant complains to the police and is told that this is a civil matter. Tenant complains to building code and building code sends a notice to the landlord of an upcoming “visit”. The landlord patches up some items, code enforcer comes out gives the okay and doesn’t return for another year or so. So the tenant doesn’t complain. Tenant pays his rent and continues to live in deplorable conditions because Tenant knows that his complaints will fall on deaf ears.

And although it is admirable that the PD stepped in and issued citations and closed the community, it took way too long for the city to notice. “This landlord has been cited for multiple, non-criminal code violations, including: improper outside storage, unsafe buildings, and construction permit, certificate of occupancy and zoning violations. Phoenix police Sgt. Vince Lewis said, adding the apartments were the source of hundreds of emergency calls. “In 2016, we had 600 calls for service at this address; 400 for police, 200 for fire.”- AZCentral

To protect our tenants, we must enforce the law and allow for counterclaims during eviction actions. The only way to change the living conditions of our AZ residents is to hit the landlords, and their attorneys where it hurts; in their pockets.

Reference: http://www.azcentral.com/story/news/local/phoenix-breaking/2017/01/19/phoenix-slumlord-investigation-multiple-families-displaced/96774452/

For legal help, contact Tenant Protectors @ www.tenantprotectoraz.com

 

Don’t Let Them Lie to You

The most concerning issue with the internet is the spread of false information and what lawyers like to call, ‘google attorneys’.  As of July, 2015, a new statute was added to the Arizona Residential Landlord Tenant Act that gives tenants or landlords the power to call law enforcement to remove a guest of the tenant from the home without notice. This new statute contains language that makes for good talking points and attractive clickable links. Unfortunately, the fake news or misinterpretation, is spreading like wildfire.

The Statute:

A.R.S. 33-1378. Removal of guest; notice: A person who is a guest of a tenant who is not named on a written lease and who remains on the premises without the permission of the tenant or the landlord is not a lawful tenant and that person’s presence in or on the premises does not constitute residency or tenancy. A person who knowingly remains on the premises without the permission of the tenant or the landlord may be removed by a law enforcement officer at the request of the tenant or the landlord who is entitled to possession of the premises.

The Fear Mongering for Clicks:

Landlords will call the police to remove anyone from the home without giving you notice. The police will break down your door and arrest anyone that is not on the lease agreement simply because they don’t like the way your guest looks. So black and mexican people, beware!! Some bloggers and people that prepare documents for tenants without a law degree, have interpreted the statute to mean just that; the 4th amendment rights of your guest will be violated by the police if your landlord doesn’t like your guest sneakers or the color of their skin. Recognize that this fear mongering is for clicks or for you to purchase their non-legal services.

The Truth: 

Here is the statute again with notes:

A person who is a guest of a tenant (invited by the tenant into the home/unit) who is not named on a written lease and (requires both of these events to occur)  who remains on the premises without the permission of the tenant or the landlord (if you say the guest can stay, than the guest can stay. You don’t need the permission of both you and the landlord ) is not a lawful tenant and that person’s presence in or on the premises does not constitute residency or tenancy(Meaning your guest has no legal standing to remain in the home. So if he/she is paying rent, considers themselves a roommate or heard that if they stay for 30 days you can’t kick them out,  you can still kick them out and now you can call the police to do it. ) A person who knowingly remains on the premises without the permission of the tenant or the landlord (the guest needs permission of either the tenant or the landlord) may be removed by a law enforcement officer at the request of the tenant or the landlord who is entitled to possession of the premises.(only the person who is entitled to possession of the premises can call law enforcement)

I want you to focus on the word, “Or” while I break down this statute for you.

Who is a guest? A person who is not on the lease invited by the tenant.

When does this guest become a problem? If the guest remains on the property without the permission of the person who has rightful possession (that would be you, the tenant). Understand that your lease agreement may indicate that you can not have guest longer than a stated term, with or without the permission of your landlord. You must abide by that lease agreement. However, if you keep guest longer than that, your landlord must serve you a 10 day notice of non-compliance.

This statute DOES NOT circumvent that requirement, at all.

In order for your landlord to call the police and circumvent the 10 day notice, eviction action,etc., the following must occur:

  1. You have a guest that YOU do not want in your home (whether they are paying you rent or not).
  2. That guest refuses to leave after YOU requested him/her to leave.
  3. You don’t want to call the police so you ask your landlord to do so.
  4. The only time your landlord can call the police on your guest that you want in the house or unit, is when your landlord has rightful possession of the home/unit.

This does not mean that the landlord can not issue a 10 day notice requesting that your guest leave because your lease agreement has a provision against guest. Nor does this mean that your landlord can’t file an eviction action because of non-compliance of the lease agreement. This means that your landlord can not call the police to have your guest removed if YOU gave that guest permission to remain.

 

Justice on Wooden Piece Arranged by Businessman

Landlord/Tenant Act

Today we will discuss A.R.S. 33-1303 which states:

“Supplementary principles of law applicable Unless displaced by the provisions of this chapter, the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating cause supplement its provisions.”

Examples of some of the principles of law stated in A.R.S 33-1303:
A capacity to contract claim – you can sue and claim that he/she did not have the capacity to contract because he/she is a minor, or is mentally handicapped.
An issue under principal and agent – you can sue because the property manager never revealed that he/she was acting for the purpose of a third party but instead claimed that he/she was the owner of the property.
Misrepresentation – while you were walking through the property, before you signed the lease, you specifically asked about bed bugs, rodents, and criminal activity in your building. The landlord or a representative of the property specifically stated that no one has complained of bed bugs, there were never a reason to spray the property for any rodents or bed bugs and the building is 100 percent safe with no recent acts of violence. You move in, bed bugs destroy your furnishing, mice running around the apartment and the cops are called because of the known drug dealer next door.

Basically, this provision allows you or the landlord to include other reasons to sue besides violations of some sections of the ARLTA unless your reason for suing is trumped by a provision in the ARLTA.

Let me provide an example of what I mean by ’trumped by a provision in the ARLTA’.  You enter into a residential lease agreement with your landlord or his property manager. In that rental agreement is a provision that requires you, the tenant, to pay any cost for damages incurred by the landlord because you had to call the fire department due to an emergency. You call the fire department because there is a fire in your home. The landlord decides to sue you for damages under the contract ( a supplementary principle of law under A.R.S. 33-1303). This would be an open and shut case in favor of the landlord for damages except the ARLTA 33-1315(5) expressly prohibits this provision of the rental agreement and therefore the supplemental principle is displaced.

This applies to tenants as well.  If you believe you have a case against the landlord for neglecting his duties to repair and maintain the home, for subjecting you to dangerous situations inside of your home or for lying (misrepresentation), you may sue the landlord under a provision of the ARLTA, like ARS 33-1324, and include misrepresentation, negligence or breach of your rental contract. This is allowed because of A.R.S 33-1303. It is included for the sole purpose of explaining that you are not limited to the provisions under ARLTA if you need to sue.

But be careful! You can’t file a counterclaim in an eviction action unless a provision of the statute allows for it. We will discuss those in a later post.  To protect yourself, send out any notices or request for repairs in writing, certified letter to the landlord or the property management company. Keep a copy and the tracking receipt for it. Never just send an email, a make a phone call or submit a request through the online portal. You need to immediately follow up on those request with a certified letter.

How we can help?
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Disclaimer

Nothing contained in this blog or on our website, http://www.tenantprotectoraz.com, is legal advice.  We are here to provide information and links to resources regarding your rights under the Arizona Residential Landlord and Tenant Act and your rights under common law.  This blog and our website should be used solely as information and a starting point for your own research. Legal advice is given when your particular circumstances is described and we apply the law to your specific circumstance. 

You should contact an attorney for legal advice; for that attorney to apply your circumstances to our information or their own. We are here to educate but also to indirectly advertise our legal services. We are not your attorneys and no attorney/client relationship exist unless we enter into a written agreement to provide you with legal services. Nor does an attorney/client confidential relationship exist unless we agree to listen or review your particular circumstance. 

Legal advice.

TIP

I bet you didn’t know: The Arizona Landlord and Tenant Act A.R.S 33-1313(B) states that Notice is considered received in a variety of ways. ” A person “receives” a notice or notification when it comes to his attention, OR in the case of the landlord, it is delivered in hand OR mailed by registered OR certified mail to the place of business of the landlord through which the rental agreement was made OR at any place held out by him as the place for receipt of the communication OR delivered to any individual who is designated as an agent by section 33-1322.”  The law is clear, however, the Justice Courts state that notice for repairs must be given by the terms of the lease.  However, most lease agreements do not specify how notice must be given for repairs, actually, the Notice provision in the lease agreement is for legal notices mainly.  For a layperson, this can be confusing because this is not explained to you when you sign the lease. That is why the 5 day notices and 10 day notices are so important.  I counsel my clients to use these notices every time it is applicable.  Since these notices contain legal jargon, you need to use the address contained in the lease agreement in the Notice provision. Please remember that this small detail is very important to proving your case, providing evidence for a counterclaim or to prevent retaliation by your landlord/property manager.

Follow this blog and go to our website for more information. http://www.tenantprotectoraz.com.

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THIS IS A GAME CHANGER

So often in Justice Court, the tenants feel that the Judges are unfair and side with the landlord attorneys or the tenants may feel that the Judge is not particularly knowledgeable about the law. On an experimental basis, the Arizona Supreme Court has amended the Arizona Rules of Eviction Procedure Rule 9(c), Motion to Change Judges.
SOME COURTS ARE RUN LIKE THIS:
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WHILE OTHERS ARE LIKE:
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IF YOU LIVE IN AN APARTMENT COMMUNITY AND YOU HEAR FROM YOUR NEIGHBORS OR FRIENDS THAT THE JUDGE WHO PRESIDES OVER THE PRECINCT IN WHICH YOU LIVE, HISTORICALLY IGNORES THE RULES, FAILS TO LISTEN TO COUNTERCLAIMS OR DEFENSES OR BEGINS THE PROCEEDING 15 MINUTES BEFORE IT IS SCHEDULED TO START (ENDS UP A DEFAULT FOR TENANTS), THEN YOU SHOULD FILE A MOTION TO CHANGE JUDGES THE MINUTE YOU ARE SERVED AT YOUR HOME!!!

The New Rule States:

“For purposes of this subsection, a lawsuit has only two sides. A party or a side, if there is more than one plaintiff or one defendant in a lawsuit, may request a change of judge as a matter of right orally or in writing. The party or side must request a change of judge as a matter of right in the precinct where the lawsuit is pending. The request must state that the party or side has not previously requested a change of judge in this lawsuit, that the party or side has not waived the party’s right to change of judge, and that the request is timely. A request is timely if it is made prior to or at the time of the first court appearance or upon reassignment of the matter to a new judge for trial. A party waives a right to a change of judge if the judge has ruled on any contested motion or issue, or if the trial has started. When a proper and timely request for a change of judge as a matter of right is orally requested or filed, the court must transfer the lawsuit to a new judge within the county for further proceedings.”
“If a party believes that the party will not have a fair and impartial trial before a justice of the peace, then the party must proceed as provided in Arizona Revised Statutes § 22-204, except that any request must be made by the date of the first court appearance and five days’ notice is not required.”
“The provisions of this subsection are deemed experimental and will expire December 31, 2017, unless otherwise extended by the Supreme Court of Arizona.”