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Making Repairs to Your Dwelling

by Arizona Tenants Association

NOTES:

This article does not address the many possible tactics and strategies to influence your landlord/agent, short of lawful coercion. Caution is advised: "Self-help" may not be an appropriate remedy for your circumstances. The term owner can be substituted by "landlord" or "agent," as applies.

Under Arizona's landlord-tenant statutes there are three ways contemplated to compel your landlord/agent to make or permit repairs to your dwelling:

1)

Pursuant to ARS 33-1361(B), sue the owner in Superior Court, seeking injunctive relief whereby the judge orders the owner to do the work;

2)

ARS 33-1324 requires the owner to comply with applicable building codes affecting health and safety, while ARS 33-1381 references your right to complain to a governmental agency in order to enforce building or housing codes. In this way your local municipality can order the owner to do the work; and

3)

Exercise your right to perform "self-help" for small jobs, under ARS 33-1363.

Option one is very complex and often time consuming, and so it is highly advised that you retain an attorney. Success is by no means assured. Injunctive relief should be used only as a last resort.

Option two usually requires that you first complain to the owner, is limited in what conditions constitute enforceable noncompliances with regards to applicable ordinances, is available in many municipalities to varying degrees (depending on if codes have been enacted and whether the respective municipalities have a policy of enforcing what is on the books), and may take a long time before compliance is enforced. Still, many municipalities are adopting and strengthening their ordinances. Moreover, using the government as your ally can give you a good witness should your owner resort to retaliation against you. On the other hand, many government workers can be ignorant and anti-tenant, so be careful. Contact the tenants association before attempting to recruit government help.

Option three can work for small jobs, but involves many factors. ARS 33-1363, the "self-help" clause, permits you either to sue the owner for monetary damages if repairs are not done, or to do them yourself, deducting the cost out of the next month's rent. It is limited to small jobs that can be completed at a maximum cost of either one-half of your periodic rent, or $299.99, whichever amount is more.

The balance of this article addresses the repair elements of ARS 33-1363. The self-help provision stipulates that: prior notice must be properly given to the owner, allowing him the opportunity to remedy the conditions himself; a licensed contractor is the only person who may do the work; and specific follow-up documentation must be presented to the owner when the deduction is made.

A great benefit of using self-help is that all owners absolutely despise it. They hate having you take money out of their pockets for any reason. They hate losing the power to keep you in degraded conditions against your will. So, once you have successfully used the self-help remedy, your owner will take you more seriously and act more respectfully towards you. On the other hand, you should first expect that any attempt to deduct will be refused by your owner and mis-characterized as a partial payment. An eviction may ensue. You should be prepared to defend yourself, even to the extent of securing attorney representation. This remedy is not for the faint-hearted.

WHAT MAY BE REPAIRED

Any repair of a owner's noncompliance with ARS 33-1324 that can be completed at a cost of no more than either half your periodic rent, or $299.99, whichever is more. If an item is damaged or worn beyond repair, it is reasonable to replace it, so long as the licensed contractor procures it and then incorporates the cost into the billing.

While you can give notice for everything that arguably is an ARS 33-1324 breach, focus first on repairing those items that are most egregious. Things that the owner would possibly assert are merely cosmetic, such as to repaint the dwelling, should be a low priority or avoided. Remember, if a judge has a doubt, he will invariably rule in the owner's favor. Read that last sentence over again.

Larger jobs should be broken down into separate segments over a several month period if practical and financially feasible; each segment should be noticed separately so it is apparent as a discrete job. Ask ATA about this if it confuses you, as the distinction is important. Another alternative for larger jobs is to join with other tenants to correct shared noncompliances, such as a roof covering more than one dwelling unit. Just make sure the total billing, when divvied up, falls within the dollar range for each household, who will then have to give separate notice to the owner, of course.

Never complain about a repair/condition that you have caused. Doing so is grounds to evict you.

GIVE THE LANDLORD A LEGAL CHANCE

You must tell the owner specifically what and where is the problem. If it is not obvious, explain the consequences or impact of the problem, and what must be done. Tell him the condition is a violation of ARS 33-1324, and that if he fails to remedy the breach within ten days from receiving your demand, then you will correct the condition yourself at his expense.

All communications should be by certified mail, return receipt requested. Make sure the certified number is notated on the letter. Keep a copy of all documentation. Check with the tenants association how all of this is to be done. Better yet, have ATA help you draft the correspondence.

If you never got back your return receipt, or if the letter was refused or unclaimed, then the clock starts ticking five days after you sent it out. Never open a certified letter sent by you to a owner that is returned unopened. Also, keep your original certified receipt from when you sent out the letter.

THE OWNER'S RESPONSE, IF ANY

Avoid speaking with the owner, or any agents of the owner. If the owner approaches you, only suggest that he read your letter and that if he has anything to say to you, then it should likewise be put in writing. If the owner claims that certain items needed for repairs are either unavailable or on order, these are just unacceptable excuses. DO NOT AGREE TO ANY DELAYS OR CHANGES IN YOUR WRITTEN DEMANDS. SIGN NOTHING.

If the owner wants to come in to do repairs, allow him to do them so long as he has given you the required two days' notice per ARS 33-1343. However, in order to prevent you from proceeding under the self-help clause it must be within the ten day period. You, or someone representing your interests (e.g. friend, roommate, relative), ought to be present whenever anybody enters your dwelling. If the owner enters without notice, call the police immediately and have him removed. Contact ATA.

If the owner does the repairs, but inadequately or incompletely, make a record of it by photographs, videotaping, witnesses, etc. Makeshift, shoddy or partial work is unacceptable, and you may proceed to do the job the right way.