My first year practicing in UnJustice Court was difficult. I read the Arizona Residential Landlord Tenant Act repeatedly and showed up to court ready to argue my case. Each time, I was met with resistance from the Judges regarding counterclaims. According to each Judge, counterclaims are not allowed in eviction actions due to non-payment of rent or because these proceedings are meant to be “speedy” and counterclaims will prolong the termination of the lease and removal of mothers with children to the streets (not in those words).
Yet the ARLTA does allow for counterclaims stemming from material breaches of the lease; it is not precluded simply because the action is for non-payment of the rent. In fact, most of the eviction actions include other claims in addition to non-payment.
SO, how do you deal with this? File your answer and your counterclaim and demand that the Judge rule on it. Make sure he states in open court that the counterclaim(s) are dismissed or are not proper for whatever reason. This allows you to file a Complaint in Superior Court, if your damages are over $10,000 as I’m sure they will be. No issue or claim preclusion because you were unable to file your claim at the time of the initial action.
Sue them in a court where all of the Judges went to law school, instead of UnJustice Court where they were “elected” and then trained by eviction lawyers.
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.
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.