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Residential Landlord & Tenant Act

Betsey Bayless
State of Arizona

The Secretary of State's Office prints this booklet for public information.

THE OFFICE CANNOT ANSWER ANY OUESTIONS ABOUT THIS LAW.

FOR ASSISTANCE, YOU MAY CONTACT

COMMUNITY INFORMATION AND REFRRAL SERVICES, INC. (602) 2638856.

If you live in the City of Phoenix and need assistance, please call the Landlord Tenant message line at (602) 262-7210 and a Counselor will return your call as quickly as possible.

FOR EMERGENCY SITUATIONS INVOLVING LANDLORDTENANT ISSUES, PLEASE WALK IN TO CITY HALL AT 200 WEST WASHINGTON, 4th Floor BETWEEN 8 A.M. AND 5 P.M., MONDAY THROUGH FRIDAY. A COUNSELOR WILL ASSIST YOU With YOUR PROBLEM.

Free parking is available in the parking garage at the southwest corner
of Washington Street and 3rd Avenue.

THE CITY OF PHOENIX HOUSING COUNSELING OFFICE HOLDS MONTHLY
WORKSHOPS ON THE THIRD THURSDAY OF EACH MONTH. FOR RESERVATIONS, PLEASE CALL 256-3517.

You may obtain general information, in either English or Spanish, free of charge from the Arizona Tenants Association by calling (602) 257-8987. For more assistance in exercising your rights, you may be asked to purchase a membership with the Tenants Association. Memberships vary in price depending on several factors. Specialty services, such as nspections, legal representation, and comprehensive programs, are available at additional cost.

YOU MAY ALSO CONTACT THE FOLLOWING WITH WHICH THE CITY OF MESA HAS CONTRACTED: Arizona FEDERATION OF HOUSING COUNSELORS, INC.
602 257 1715; FAX: 602-254-6080

OTHER AREAS OF THE State MAY CALL 602-269-3915 OR 1-888-270-0323.

The Office of the Secretary of State is an equal opportunity employer.

Requests for reasonable alternate formats and/or accommodations can be made five days in advance by contacting the Secretary of State ADA Coordinator at 6025424285.

ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT

Arizona Revised Statutes Title 33, Chapter 10 and other Pertinent Statutes

TITLE 33, CIIAPTER 10

Article 1. General Provisions

Article 2. Landlord Obligations

Article 3. Tenant Obligations

Article 4. Remedies

Article 5. Retaliatory Action

TITLE 33, CHAPIER

Article 1. General Provisions

TITLE 12, CIIAPTER 8

Article 4. Forcible Entry And Detainer.

ARIZONA REVISED STATUTES

TITLE 33. PROPERTY

CHAPTER 10. ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT

ARTICLE 1. GENERAL PROVISIONS

Section

33-1301.

Short title

33-1302.

Purposes

33-1303.

Supplementary principles of law applicable

33-1304.

Applicability of chapter

33-1305.

Administration of remedies; enforcement

33-1306.

Settlement of disputed claim or right

33-1307.

Territorial application

33-1308.

Exclusions from application of chapter

33-1309.

Jurisdiction and service of process

33-1310.

General definitions

33-1311.

Obligation of good faith

33-1312.

Unconscionability

33-1313.

Notice

33-1314.

Terms and conditions of rental agreement

33-1314.01

Utility charges; submetering; allocation; exemption

33-1315.

Prohibited provisions in rental agreements

33-1316.

Separation of rents and obligations to maintain property forbidden

33-1317.

Discrimination by landlord or lessor against tenant with children prohibited; classification; exceptions; civil remedy; applicability

ARTICLE 2. LANDLORD OBLIGATIONS

Section

33-1321.

Security deposits

33-1322.

Disclosure and tender of written rental agreement

33-1323.

Landlord to supply possession of dwelling unit

33-1324.

Landlord to maintain fit premises

33-1325.

Limitation of liability

33-1326.

Expired

33-1327.

Expired

33-1328.

Expired

33-1329.

Regulation of rents; authority

ARTICLE 3. TENANT OBLIGATIONS

Section

33-1341.

Tenant to maintain dwelling unit

33-1342.

Rules and regulations

33-1343.

Access

33-1344.

Tenant to use and occupy as a dwelling unit

ARTICLE 4. REMEDIES

Section

33-1361.

Noncompliance by the landlord

33-1362.

Failure to deliver possession

33-1363.

Self-help for minor defects

33-1364.

Wrongful failure to supply heat, air conditioning, cooling, water, hot water or essential services

33-1365.

Landlord's noncompliance as defense to action for possession or rent

33-1366.

Fire or casualty damage

33-1367.

Tenant's remedies for landlord's unlawful ouster, exclusion or diminution of services

33-1368.

Noncompliance with rental agreement by tenant; failure to pay rent; utility discontinuation; liability for guests; definition

33-1369.

Failure to maintain

33-1370.

Abandonment; notice; remedies; personal property; definition

33-1371.

Acceptance of partial payments

33-1372.

Landlord liens; distraint for rent

33-1373.

Remedy alter termination

33-1374.

Recovery of possession limited

33-1375.

Periodic tenancy; holdover remedies

33-1376.

Landlord and tenant remedies for abuse of access

33-1377.

Special detainer actions; service; trial postponement

ARTICLE 5. RETALIATORY ACTION

Section

33-1381.

Retaliatory conduct prohibited

ARTICLE 1. GENERAL PROVISIONS

33-1301.

Short title

This chapter shall be known and may be cited as the Arizona Residential Landlord and Tenant Act.

33-1302.

Purposes

Underlying purposes and policies of this chapter are:

1.

To simplify, clarify, modernize and revise the law governing the rental of dwelling units and the rights and obligations of landlord and tenant.

2.

To encourage landlord and tenant to maintain and improve the quality of housing.

33-1303.

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.

33-1304.

Applicability of chapter

This chapter shall apply to the rental of dwelling units. Any conflict between the provisions of chapter 3 and chapter 7 of this tide with the provisions of this chapter shall be governed by the provisions of this chapter.

33-1305.

Administration of remedies; enforcement

A.

The remedies provided by this chapter shall be so administered that the aggrieved party may recover appropriate damages. The aggrieved patty has a duty to mitigate damages.

B.

Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.

33-1306.

Settlement of disputed claim or right

A claim or right arising under this chapter or on a rental agreement, if disputed in good faith, may be settled by agreement.

33-1307.

Territorial application

This chapter applies to, regulates, and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.

33-1308.

Exclusions from application of chapter

Unless created to avoid the application of this chapter, the following arrangements are not covered by this chapter:

1.

Residence at an institution, public or private, if incidental to detention or the provision of medical, educational, counseling or religious services.

2.

Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his interest.

3.

Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.

4.

Transient occupancy in a hotel, motel or recreational lodging.

5.

Occupancy by an employee of a landlord as a manager or custodian whose right to occupancy is conditional upon employment in and about the premises.

6.

Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.

7.

Occupancy in or operation of public housing as authorized, provided, or conducted under or pursuant to title 36, chapter 12, or under or pursuant to any federal law or regulation.

33-1309.

Jurisdiction and service of process

A.

The appropriate court of this state may exercise jurisdiction over any landlord with respect to any conduct in this state governed by this chapter or with respect to any claim arising from a transaction subject to this chapter. In addition to any other method provided by rule or by statute, personal jurisdiction over a landlord may be acquired in a civil action or proceeding instituted in the appropriate court by the service of process in the manner provided by this section.

B.

If a landlord is not a resident of this state or is a corporation not authorized to do business in this state and engages in any conduct in this state governed by this chapter, or engages in a transaction subject to this chapter, he may designate an agent upon whom service of process may be made in this state. The agent shall be a resident of this state or a corporation authorized to do business in this state. The designation shall be in writing and filed with the secretary of state. If no designation is made and filed or if process cannot be served in this state upon the designated agent, process may be served upon the secretary of state, but the plaintiff or petitioner shall forthwith mail a copy of the process and pleading by registered or certified mail to the defendant or respondent at his last reasonably ascertained address. In the event there is no last reasonably ascertainable address and if the defendant or respondent has not complied with 33-1322, subsections A and B, then service upon the secretary of state shall be sufficient service of process without the mailing of copies to the defendant or respondent. Service of process shall be deemed complete and the time shall begin to run for the purposes of this section at the time of service upon the secretary of state. The defendant shall appear and answer within thirty days after completion thereof in the manner and under the same penalty as if he had been personally served with the summons. An affidavit of compliance with this section shall be filed with the clerk of the court on or before the return day of the process, if any, or within any further time the court allows. Where applicable, the affidavit shall contain a statement that defendant or respondent has not complied with 33-1322, subsections A and B.

33-1310.

General definitions

Subject to additional definitions contained in subsequent articles of this chapter which apply to specific articles thereof, and unless the context otherwise requires, in this chapter:

1.

"Action" includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including an action for possession.

2.

"Building and housing codes" include any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises, or dwelling unit.

3.

"Delivery of possession means returning dwelling unit keys to the landlord and vacating the premises.

4.

"Dwelling unit" means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. "Dwelling unit" excludes real property used to accommodate a mobile home, unless the mobile home is rented or leased by the landlord.

5.

"Good faith" means honesty in fact in the conduct or transaction concerned.

6.

"Landlord" means the owner, lessor or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by 33-1322.

7.

"Organization" includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest and any other legal or commercial entity which is a landlord, owner, manager or constructive agent pursuant to 33-1322.

8.

"Owner" means one or more persons, jointly or severally, in whom is vested all or part of the legal title to property or all or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagee in possession.

9.

"Person" means an individual or organization.

10.

"Premises" means a dwelling unit and the structure of which it is a part and existing facilities and appurtenances therein, including furniture and utilities where applicable, and grounds, areas and existing facilities held out for the use of tenants generally or whose use is promised to the tenant.

11.

"Rent" means payments to be made to the landlord in full consideration for the rented premises.

12.

"Rental agreement" means all agreements, written, oral or implied by law, and valid rules and regulations adopted under 33-1342 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.

13.

"Roomer" means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the dwelling unit and other dwelling units. Major facility in the case of a bathroom means toilet, or either a bath or shower, and in the case of a kitchen means refrigerator, stove or sink.

14.

"Security" means money or property given to assure payment or performance under a rental agreement. "Security" does not include a reasonable charge for redecorating or cleaning.

15.

"Single family residence" means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment nor any other essential facility or service with any other dwelling unit.

16.

"Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

17.

"Term of lease" means the initial term or any renewal or extension of the written rental agreement currently in effect not including any wrongful holdover period.

Amended by Laws 1995, Ch. 219, 3, effective July 13, 1995.

33-1311.

Obligation of good faith

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.

33-1312.

Unconscionability

A.

If the court, as a matter of law, finds either of the following:

 

1.

A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

 

2.

A settlement in which a party waives or agrees to forego a claim or right under this chapter or under a rental agreement was unconscionable at the time it was made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid any unconscionable result

B.

If Unconscionability is put into issue by a party or by the court upon its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination.

33-1313.

Notice

A.

A person has notice of a fact if he has actual knowledge of it' has received a notice or notification of it or from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person "knows" or "has knowledge" of a fact if he has actual knowledge of it.

B.

A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it 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 331322 or, in the case of the tenant' it is delivered in hand to the tenant or mailed by registered or certified mail to him at the place held out by him as the place for receipt of the communication or, in the absence of such designation, to his last known place of residence. If notice is mailed by registered or certified mail, the tenant or landlord is deemed to have received such notice on the date the notice is actually received by him or five days alter the date the notice is mailed, whichever occurs first.

C.

"Notice," knowledge or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting the transaction and in any event from the time it would have been brought to this attention if the organization had exercised reasonable diligence.

33-1314.

Terms and conditions of rental agreement

A.

The landlord and tenant may include in a rental agreement terms and conditions not prohibited by this chapter or any other rule of law including rent' term of the agreement and other provisions governing the rights and obligations of the parties.

B.

In the absence of a rental agreement' the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.

C.

Rent shall be payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent shall be uniformly apportionable from day to day.

D.

Unless the rental agreement fixes a definite term, the tenancy shall be week to week in case of a roomer who pays weekly rent, and in all other cases month to month.

E.

If a municipality that levies a transaction privilege tax on residential rent changes the percentage of that tax, the landlord on thirty day written notice to the tenant may adjust the amount of rent due to equal the difference caused by new percentage amount of tax. The adjustment to rent shall not occur before the date upon which the new tax is effective. In order for a landlord to adjust rent pursuant to this subsection, the landlord's right to adjust rent pursuant to this subsection shall be disclosed in the rental agreement.

Amended by Laws 1995, Ch. 219, 4, effective July 13, 1995.

33-1314.01. Utility charges; submetering; allocation; exemption

A.

A landlord may charge separately for gas, water, wastewater, solid waste removal or electricity by installing a submetering system or by allocating the charges separately through a ratio utility billing system.

B.

If a landlord charges separately for a utility pursuant to subsection A, the landlord may recover the charges imposed on the landlord by the utility provider plus an administrative fee for the landlord for actual administrative costs only. The landlord shall not impose any additional charges. The rental agreement shall contain a disclosure that lists the utility services that are charged separately and shall specify the amount of any administrative fee that is associated with submetering or the use of a ratio utility billing system.

C.

If provided in the rental agreement, the landlord may impost a submetering system or ratio utility billing system during the term of a rental agreement if the landlord provides notice as prescribed by subsection G.

D.

If a landlord is not in compliance with subsection B, the tenant shall first object in writing to the landlord regarding the utility billing. If the dispute is not resolved, the tenant may file a civil complaint in justice court to enforce this section.

E.

If a landlord uses an allocation or submetering system, the bill format for each billing period shall:

 

1.

Separately state the cost of the charges for the period together with the opening and the closing meter readings and the dates of the meter readings.

 

2.

Show the amount of any administrative fee charged.

F.

If a landlord does not use a submetering system and allocates charges separately for gas, water, wastewater, solid waste removal or electricity, the landlord may allocate the costs to each tenant by using one or more of the following ratio utility billing system methods:

 

1.

Per tenant.

 

2.

Proportionately by livable square footage.

 

3.

Per type of unit

 

4.

Per number of water fixtures.

 

5.

For water and wastewater, by use of an individually submetered hot water usage measure for the tenant's dwelling unit.

 

6.

Any other method that fairly allocates the charges and that is described in the tenant's rental agreement.

G.

If a landlord uses a ratio utility billing system method pursuant to subsection F, the rental agreement shall contain a specific description of the ratio utility billing method used to allocate utility costs. For any existing tenancies, the landlord shall provide at least ninety days' notice to the tenant before the landlord begins using a submetering system or allocating costs through a ratio utility billing system.

H.

For purposes of regulating apartment communities as public or consecutive water systems, the department of environmental quality shall not adopt rules pursuant to tide 49, chapter 2, article 9 that are more stringent than those authorized by federal law. Without other evidence of activities that are subject to regulation under tide 49, chapter 2, article 9, the department of environmental quality shall not use an apartment community's use of a submetering system or a ratio utility billing system as the sole basis for regulating an apartment community as a public or consecutive water system.

Added by Laws 2000, Ch.. 203, 1, effective July 18, 2000.

33-1315.

Prohibited provisions in rental agreements

A.

A rental agreement shall not provide that the tenant does any of the following:

 

1.

Agrees to waive or to forego rights or remedies under this chapter.

 

2.

Agrees to pay the landlord's attorney's fees, except an agreement m writing may provide that attorney's fees may be awarded to the prevailing party in the event of court action and except that a prevailing party in a contested forcible detainer action is eligible to be awarded attorney fees pursuant to 12-341.01 regardless of whether the rental agreement provides for such an award.

 

3.

Agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.

B.

A provision prohibited by subsection A of this section included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by him to be prohibited, the tenant may recover actual damages sustained by him and not more than two months' periodic rent.

33-1316.

Separation of rents and obligations to maintain property forbidden

A rental agreement, assignment, conveyance, trust deed or security instrument may not permit the receipt of rent free of the obligation to comply with 33-1324, subsection A.

33-1317.

Discrimination by landlord or lessor against tenant with children prohibited; classification; exceptions; civil remedy; applicability

A.

A person who knowingly refuses to rent to any other person a place to be used for a dwelling for the reason that the other person has a child or children, or who advertises in connection with the rental a restriction against children, either by the display of a sign, placard or written or printed notice, or by publication thereof in a newspaper of general circulation, is guilty of a petty offense.

B.

No person shall rent or lease his property to another in violation of a valid restrictive covenant against the sale of such property to persons who have a child or children living with them.

C.

No person shall rent or lease his property to persons who have a child or children living with them when his property meets the definition of housing for older persons m 411491.04.

D.

A person who knowingly rents or leases his property in violation of the provisions of subsection B or C of this section is guilty of a petty offense.

E.

A person whose rights under this section have been violated may bring a civil action against a person who violates this section for all the following:

 

1.

Injunctive or declaratory relief to correct the violation.

 

2.

Actual damages sustained by the tenant or prospective tenant.

 

3.

A civil penalty of three times the monthly rent of the housing accommodation involved in the violation if the violation is determined to be intentional.

 

4.

Court costs and reasonable attorney fees.

F.

Nothing in this section shall prohibit a person from refusing to rent a dwelling by reason of reasonable occupancy standards established by the owner or the owner's agent which apply to persons of all ages, and which have been adopted and published before the event in issue. An occupancy limitation of two persons per bedroom residing in a dwelling unit shall be presumed reasonable for this state and all political subdivisions of this state.

G.

Subsection B of this section applies only to dwellings occupied or intended to be occupied by no more than four families living independently of each other and in which the owner maintains and occupies one of the living quarters as the owner's residence.

Amended by Laws 1991, Ch. 181, 2, effective September21, 1991, retroactively effective to July 1, 1991. Amended by Laws 1994, Ch. 355, 2, effective July 17, 1994.

ARTICLE 2. LANDLORD OBLIGATIONS

33-1321.

Security deposits

A.

A landlord shall not demand or receive security, however denominated, including, but not limited to, prepaid rent in an amount or value in excess of one and one half month's rent. This subsection does not prohibit a tenant from voluntarily paying more than one and one half month's rent in advance.

B.

The purpose of all nonrefundable fees or deposits shall be stated in writing by the landlord. Any fee or deposit not designated as nonrefundable shall be refundable.

C.

With respect to tenants who first occupy the premises or enter into a new written rental agreement after January 1, 1996, upon move in a landlord shall furnish the tenant with a signed copy of the lease, a move in form for specifying any existing damages to the dwelling unit and written notification to the tenant that the tenant may be present at the move out inspection. Upon request by the tenant, the landlord shall notify the tenant when the landlord's move out inspection will occur. If the tenant is being evicted for a material and irreparable breach and the landlord has reasonable cause to fear violence or intimidation on the part of the tenant, the landlord has no obligation to conduct a joint move out inspection with the tenant

D.

Upon termination of the tenancy, property or money held by the landlord as prepaid rent and security may be applied to the payment of all rent, and subject to a landlord's duty to mitigate, all charges as specified in the signed lease agreement, or as provided in this chapter, including the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with 33-1341. Within fourteen days, excluding Saturdays, Sundays or other legal holidays, after termination of the tenancy and delivery of possession and demand by the tenant the landlord shall provide the tenant an itemized list of all deductions together with the amount due and payable to the tenant, if any. Unless other arrangements are made in writing by the tenant, the landlord shall mail, by regular mail, to the tenant's last known place of residence.

E.

If the landlord fails to comply with subsection D of this section the tenant may recover the property and money due the tenant together with damages in an amount equal to twice the amount wrongfully withheld.

F.

This section does not preclude the landlord or tenant from recovering other damages to which the landlord or tenant may be entitled under this chapter.

G.

The holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this section.

Amended by Laws 1989, Ch. 133, 1, effective September15, 1989.
Amended by Laws 1995, Ch. 219,
5, effective July 13, 1995.

33-1322.

Disclosure and tender of written rental agreement

A.

The landlord or any person authorized to enter into a rental agreement on his behalf shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of each of the following:

 

1.

The person authorized to manage the premises.

 

2.

An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for notices and demands.

B.

At or before the commencement of the tenancy, the landlord shall inform the tenant in writing that a free copy of the Arizona residential landlord and tenant act is available through the Arizona secretary of state's office.

C.

The information required to be furnished by this section shall be kept current and refurnished to tenant upon tenant's request. This section extends to and is enforceable against any successor landlord, owner or manager.

D.

A person who fails to comply with subsections A and B becomes an agent of each person who is a landlord for the following purposes:

 

1.

Service of process and receiving and receipting for notices and demands.

 

2.

Performing the obligations of the landlord under this chapter and under the rental agreement and expending or making available for the purpose all rent collected from the premises.

E.

If there is a written rental agreement, the landlord must tender and deliver a signed copy of the rental agreement to the tenant and the tenant must sign and deliver to the landlord one fully executed copy of such rental agreement within a reasonable time after the agreement is executed. A written rental agreement shall have all blank spaces completed. Noncompliance with this subsection shall be deemed a material noncompliance by the landlord or the tenant, as the case may be, of the rental agreement

Amended by Laws 1995, Ch. 219, 6, effective July 13, 1995.

33-1323. Landlord to supply possession of dwelling unit

At the commencement of the term the landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and 33-1324. The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in 33-1375, subsection C.

33-1324. Landlord to maintain fit premises

A.

The landlord shall:

 

1.

Comply with the requirements of applicable building codes materially affecting health and safety.

 

2.

Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.

 

3.

Keep all common areas of the premises in a clean and safe condition.

 

4.

Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him.

 

5.

Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal.

 

6.

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, except where the building that includes the dwelling unit is not required by law to be equipped for that purpose or the dwelling unit is so constructed that heat, air-conditioning, cooling or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection.

B.

If the duty imposed by subsection A, paragraph 1 of this section is greater than any duty imposed by any other paragraph of this section, the landlord's duty shall be determined by reference to that paragraph.

C.

The landlord and tenant of a single family residence may agree in writing, supported by adequate consideration, that the tenant perform the landlord's duties specified in subsection A, paragraphs S and 6 of this section, and also specified repairs, maintenance tasks, alterations and remodeling, but only if the transaction is entered into in good faith, not for the purpose of evading the obligations of the landlord and the work is not necessary to cure noncompliance with subsection A, paragraphs 1 and 2 of this section.

D.

The landlord and tenant of any dwelling unit other than a single family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling only if:

 

1.

The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord and is set forth in a separate writing signed by the parties and su~ ported by adequate consideration.

 

2.

The work is not necessary to cure noncompliance with subsection A, paragraphs 1 and 2 of this section.

 

3.

The agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.

Amended by Laws 1995, Ch. 219, 7, effective July 13, 1995.
Amended by Laws 2000, Ch. 203,
2 effective July 18, 2000.

33-1325.

Limitation of liability

A.

Unless otherwise agreed, a landlord, who conveys premises that include a dwelling unit subject to a rental agreement in a good faith sale to a bona fide purchaser, is relieved of liability under the rental agreement and this chapter as to events occurring subsequent to written notice to the tenant of the conveyance. He remains liable to the tenant for any property and money to which the tenant is entitled under 33-1321.

B.

Unless otherwise agreed, a manager of premises that include a dwelling unit is relieved of liability under the rental agreement and this chapter as to events occurring after written notice to the tenant of the termination of his management.

33-1326.

Expired

Expired January 1, 1985, except as to prior notice.

33-1327.

Expired

Expired January 1, 1985, except as to prior notice.

33-1328.

Expired

Expired January 1, 1985, except as to prior notice.

33-1329.

Regulation of rents; authority

A.

Notwithstanding any other provisions of law to the contrary the state legislature determines that the imposition of rent control on private residential housing units by cities, including charter cities, and towns is of statewide concern. Therefore, the power to control rents on private residential property is preempted by the state. Cities, including charter cities, or towns shall not have the power to control rents.

B.

The provisions of subsection A shall not apply to residential property which is owned, financed, insured or subsidized by any state agency, or by any city, including charter city, or town.

ARTICLE 3. TENANT'S OBLIGATIONS

33-1341. Tenant to maintain dwelling unit

The tenant shall:

1.

Comply with all obligations primarily imposed upon tenants by applicable provisions of building codes materially affecting health and safety.

2.

Keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit.

3.

Dispose from his dwelling unit all ashes, rubbish, garbage and other waste in a clean and safe manner.

4.

Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits.

5.

Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances including elevators in the premises.

6.

Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so.

7.

Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises.

33-1342.

Rules and regulations

A.

A landlord, from time to time, may adopt rules or regulations, however described, concerning the tenant's use and occupancy of the premises. Such rules or regulations are enforceable against the tenant only if:

 

1.

Their purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for the tenants generally.

 

2.

They are reasonably related to the purpose for which adopted.

 

3.

They apply to all tenants in the premises in a fair manner.

 

4.

They are sufficiently explicit in prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what the tenant must or must not do to comply.

 

5.

They are not for the purpose of evading the obligations of the landlord.

 

6.

The tenant has notice of them at the time the tenant enters into the rental agreement.

B.

A rule or regulation adopted after the tenant enters into the rental agreement is enforceable against the tenant if a thirty-day notice of its adoption is given to the tenant and it does not constitute a substantial modification of the tenant's rental agreement.

C.

If state, county, municipal or other governmental bodies adopt new ordinances, rules or other legal provisions affecting existing rental agreements, the landlord may make immediate amendments to lease agreements to bring them into compliance with the law. The landlord shall give a tenant written notice that the tenant's lease agreement has been amended, and the notice shall provide a brief description of the amendment and the effective date.

Amended by Laws 199s, Ch. 219, 8, effective July 13, 1995.

33-1343. Access

A.

The tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.

B.

The landlord may enter the dwelling unit without consent of the tenant in case of emergency.

C.

The landlord shall not abuse the right to access or use it to harass the tenant. Except in case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days' notice of his intent to enter and enter only at reasonable times.

D.

The landlord has no other right of access except by court order and as permitted by 33-1369 and 33-1370, or if the tenant has abandoned or surrendered the premises.

33-1344. Tenant to use and occupy as a dwelling unit

Unless otherwise agreed, the tenant shall occupy his dwelling unit only as a dwelling unit

ARTICLE 4. REMEDIES

33-1361. Noncompliance by the landlord

A.

Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement, including a material falsification of the written information provided to the tenant, 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 ten days after receipt of the notice if the breach is not remedied in ten days. If there is a noncompliance by the landlord with 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. For the purposes of this section, material falsification shall include availability of the unit, except when a holdover tenant is in illegal possession or in violation of the rental agreement, the condition of the premises and any current services as represented by the landlord in writing as well as any written representation, as well as any representation regarding future services and any future changes regarding the condition of the premises, the provision of utility services and the designation of the party responsible for the payment of utility services. The rental agreement shall terminate and the dwelling unit shall be vacated as provided in the notice subject to the following:

 

1.

If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate.

 

2.

The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent.

B.

Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or 33-1324.

C.

The remedy provided in subsection B of this section is in addition to any right of the tenant arising under subsection A of this section.

D.

If the rental agreement is terminated, the landlord shall return all security recoverable by the tenant under 33-1321.

Amended by laws 1995, Ch. 219, 9, effective July 13, 1995.

33-1362.

Failure to deliver possession

A.

If the landlord fails to deliver physical possession of the dwelling unit to the tenant as provided in 33-1323, rent abates until possession is delivered and the tenant may do either of the following:

 

1.

Upon at least five days' written notice to the landlord terminate the rental agreement and upon termination the landlord shall return all prepaid rent and security.

 

2.

Demand performance of the rental agreement by the landlord and, if the tenant elects, maintain an action for possession of the dwelling unit against the landlord or any person wrongfully in possession and recover the damages sustained by him.

B.

If the landlord fails to deliver constructive possession to the tenant because of noncompliance with 33-1324, rent shall not abate. Tenant may proceed with the remedies provided for in 33-1361.

C.

If a person's failure to deliver possession is willful and not in good faith, an aggrieved person may recover from that person an amount not more than two months' periodic rent or twice the actual damages sustained by him, whichever is greater.

33-1363.

Self-help for minor defects

A.

If the landlord fails to comply with 33-1324, and the reasonable cost of compliance is less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater, the tenant may recover damages for the breach under 33-1361, sub section B, or may notify the landlord of the tenant's intention to correct the condition at the landlord's expense. After being notified by the tenant in writing, if the landlord fails to comply within ten days or as promptly there alter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and, alter submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work, not exceeding the amount specified in this subsection.

B.

A tenant may not repair at the landlord's expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent.

Amended by Laws 1995, Ch. 219, 10, effective July 13, 1995.

33-1364.

Wrongful failure to supply heat, air conditioning, cooling, water, hot water or essential services

A.

If contrary to the rental agreement or 33-1324 the landlord deliberately or negligently fails to supply running water, gas or electrical service, or both if applicable, and reasonable amounts of hot water or heat, air conditioning or cooling, where such units are installed and offered, or essential services, the tenant may give reasonable notice to the landlord specifying the breach and may do one of the following:

 

1.

Procure reasonable amounts of hot water, running water, heat and essential services during the period of the landlord's noncompliance and deduct their actual reasonable cost from the rent. If the landlord has failed to provide any of the utility services specified in this section due to nonpayment of the landlord's utility bill for the premises, and if there is no separate utility meter for each tenant in the premises such that the tenant could avoid a utility shutoff by arranging to have services transferred to the tenant's name, the tenant may either individually or collectively with other tenants arrange with the utility company to pay the utility bill alter written notice to the landlord of the tenant's intent to do so. With the utility company's approval the tenant or tenants may pay the landlord's delinquent utility bill and deduct from any rent owed to the landlord the actual cost of the payment the tenant made to restore utility services. The tenant or tenants may continue to make such payments to the utility company until the landlord has provided adequate assurances to the tenant that the above utility services will be maintained.

 

2.

Recover damages based upon the diminution in the fair rental value of the dwelling unit.

 

3.

Procure reasonable substitute housing during the period of the landlord's noncompliance, in which case the tenant is excused from paying rent for the period of the landlord's noncompliance. In the event the periodic cost of such substitute housing exceeds the amount of the periodic rent, upon delivery by tenant of proof of payment for such substitute housing, tenant may recover from landlord such excess costs up to an amount not to exceed twenty-five percent of the periodic rent which has been excused pursuant to this paragraph.

B.

A landlord shall provide all utilities and services specified in the lease agreement.

C.

A landlord shall not terminate utility services as specified in subsection A of this section which are provided to the tenant as part of the rental agreement, except as necessary to make needed repairs or as provided in 331368. Subsequent to the execution of the rental agreement, a landlord may not transfer the responsibility for payment of such utility services to the tenant without the tenant's written consent

D.

If a landlord is in violation of subsection C of this section, the tenant may recover damages, costs and reasonable attorneys fees and obtain injunctive relief. Nothing in this section shall preclude a tenant's right to recover damages as specified in 33-1367.

E.

A lease agreement shall not contain any terms contrary to this section.

F.

In addition to the remedy provided in paragraph 3 of subsection A of this section, in the event the landlord's noncompliance is deliberate, the tenant may recover the actual and reasonable cost or fair and reasonable value of the substitute housing not in excess of an amount equal to the periodic rent.

G.

If the tenant proceeds under this section, he may not proceed under 33-1361 or 33-1363 as to that breach, except as to damages which occur prior to the tenant proceeding under subsection A or B of this section.

H.

The rights under this section do not arise until the tenant has given notice to the landlord and such rights do not include the right to repair. Such rights do not arise if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent.

Amended by Laws 1995, Ch.k 219, 11, effective July 13, 199S.

33-1365. Landlord's noncompliance as defense to action for possession or rent; definition

A.

In an action for possession based upon nonpayment of the rent or in an action for rent where the tenant is in possession, if the landlord is not in compliance with the rental agreement or this chapter, the tenant may counterclaim for any amount which he may recover under the rental agreement or this chapter. In that event after notice and hearing the court from time to time may order the tenant to pay into court all or part of the undisputed rent accrued and all periodic rent thereafter accruing and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court and the balance, if any, by the other party. However, if no rent remains due after application of this section, or if the tenant is adjudged to have acted in geed faith and satisfies a judgment for rent entered for the landlord, judgment shall be entered for the tenant in the action for possession.

B.

In an action for rent where the tenant is not in possession, the tenant may counterclaim as provided in subsection A but the tenant is not required to pay any rent into court.

Amended by Laws 1995, Ch.k 219, 12 effective July 13, 1995.

33-1366. Fire or casualty damage

A.

If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may do either of the following:

 

1.

Immediately vacate the premises and notify the landlord in writing within fourteen days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating.

 

2.

If continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant's liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

B.

If the rental agreement is terminated the landlord shall return all security recoverable under 33-1321. Accounting for rent in the event of termination or apportionment is to occur as of the date the tenant vacates all or part of the dwelling unit.

33-1367.

Tenant's remedies for landlord's unlawful ouster, exclusion or diminution of services

If the landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than two months' periodic rent or twice the actual damages sustained by him, whichever is greater. If the rental agreement is terminated the landlord shall return all security recoverable under 33-1321.

33-1368.

Noncompliance with rental agreement by tenant; failure to pay rent; utility discontinuation; liability for guests; definition

A.

Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement, including material falsification of the information pr~ vided on the rental application, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days. For the purposes of this section, material falsification shall include the following untrue or misleading information about the:

 

1.

Number of occupants in the dwelling unit, pets, income of prospective tenant, social security number and current employment listed on the application or lease agreement.

 

2.

Tenant's criminal records, prior eviction record and current criminal activity. Material falsification of information in this paragraph is not curable under this section.

If there is a noncompliance by the tenant with 331341 materially affecting health and safety, the landlord may deliver a written notice to the tenant 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. However, if the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement 'will not terminate. If there is an additional act of these types of noncompliance of the same or a Similar nature during the term of the lease after the previous remedy of noncompliance, the landlord may institute a special detainer action pursuant to 33-1377 ten days after delivery of a written notice advising the tenant that a second noncompliance of the same or a similar nature has occurred. If there is a breach that is both material and irreparable and that occurs on the premises, including but not limited to an illegal discharge of a weapon, homicide as defined in 13-1102 through 13-1105, prostitution as defined in 13-3211, criminal street gang activity as prescribed in 13-105, activity as prohibited in 13-2308, the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in 13-3451, threatening or intimidating as prohibited in 13-1202, assault as prohibited in 13-1203, acts that have been found to constitute a nuisance pursuant to 12-991 or a breach of the lease agreement that otherwise jeopardizes the health, safety and welfare of the landlord, the landlord's agent or another tenant or involving imminent or actual serious property damage, the landlord may deliver a written notice for immediate termination of the rental agreement and shall proceed under 33-1377.

B.

A tenant may not withhold rent for any reason not authorized by this chapter. If rent is unpaid when due and the tenant fails to pay rent within five days after written notice by the landlord of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period of time, the landlord may terminate the rental agreement by filing a special detainer action pursuant to 33-1377. Before the filing of a special detainer action the rental agreement shall be reinstated if the tenant tenders all past due and unpaid periodic rent and a reasonable late fee set forth in a written rental agreement. After a special detainer action is filed the rental agreement is reinstated only if the tenant pays all past due rent, reasonable late fees set forth in a written rental agreement, attorney fees and court costs. After a judgment has been entered in a special detainer action in favor of the landlord, any reinstatement of the rental agreement is solely in the discretion of the landlord.

C.

The landlord may recover all reasonable damages, resulting from noncompliance by the tenant with the rental agreement or 33-1341 or occupancy of the dwelling unit, court costs, reasonable attorney fees and all quantifiable damage caused by the tenant to the premises.

D.

The landlord may discontinue utility services provided by the landlord on the day following the day that a writ of restitution or execution is executed pursuant to 12-1181. Disconnections shall be performed only by a person authorized by the utility whose service is being discontinued. Nothing in this section shall supersede standard tariff and operational procedures that apply to any public service corporation, municipal corporation or special districts providing utility services in this state.

E.

The landlord shall hold the tenant's personal property for a period of twenty-one days beginning on the first day after a writ of restitution or writ of execution is executed as prescribed in 12-1181. The landlord shall use reasonable care in moving and holding the tenant's property and may store the tenant's property in an unoccupied dwelling unit owned by the landlord, the unoccupied dwelling unit formerly occupied by the tenant or off the premises if an unoccupied dwelling unit is not available. If the tenant's former dwelling unit is used to store the property, the landlord may change the locks on that unit at the landlord's discretion. The landlord shall prepare an inventory and promptly notify the tenant of the location and cost of storage of the personal property by sending a notice by certified mail, return receipt requested, addressed to the tenant's last known address and to any of the tenant's alternative addresses known to the landlord. To reclaim the personal property, the tenant shall pay the landlord only for the cost of removal and storage for the time the property is held by the landlord. Within five days after a written offer by the tenant to pay these charges the landlord must surrender possession of the personal property in the landlord's possession to the tenant upon the tenant's tender of payment If the landlord fails to surrender possession of the personal property to the tenant, the tenant may recover the possessions or an amount equal to the damages determined by the court if the landlord has destroyed or disposed of the possessions before the twenty-one days specified in this section or after the tenant's offer to pay. The tenant shall pay all removal and storage costs accrued through the fifth day after the tenant's offer to pay is received by the landlord or the date of delivery or surrender of the property, whichever is sooner. Payment by the tenant relieves the landlord of any further responsibility for the tenant's possessions.

F.

A tenant does not have any right of access to that property until all payments specified in subsection E of this section have been made in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and identification or financial documents including all those related to the tenant's immigration status, employment status, public assistance or medical care. If the landlord holds the property for the twenty-one day period and the tenant does not make a reasonable effort to recover it, the landlord, upon the expiration of twenty-one days as provided in this subsection, may administer the personal property as provided in 33-1370, subsection E. The landlord shall hold personal property after a writ of restitution or writ of execution is executed for not more than twenty-one days after such an execution. Nothing in this subsection shall preclude the landlord and tenant from making an agreement providing that the landlord will hold the personal property for a period longer than twenty-one days.

G.

For the purposes of this chapter, the tenant shall be held responsible for the actions of the tenant's guests that violate the lease agreement or rules or regulations of the landlord if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent those actions to the best of the tenant's ability.

H.

For purposes of this section, "days" means calendar days.

Amended by Laws 1989, ch. 67, 1; Laws 1989, Ch. 246, 4, effective September15, 1989. Amended by Laws 199Z Ck 304, 3, effective September 30, 1992; Amended by laws 1994. Ch. 200, 22, effective April 19, 1994 Amended by Laws 1995, Ch. 219, 13, effective July 13, 1995. Amended by Laws 1999, Ch. 4, 8, effective August 6, 1999.

33-1369.

Failure to maintain

If there is noncompliance by the tenant with 33-1341 materially affecting health and safety that can be remedied by repair, replacement of a damaged item or cleaning and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen days alter written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner and submit an itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as rent on the next date when periodic rent is due, or if the rental agreement has terminated, for immediate payment.

33-1370.

Abandonment; notice; remedies; personal property; definition

A.

If a dwelling unit is abandoned alter the time prescribed in subsection H of this section, the landlord shall send the tenant a notice of abandonment by certified mail, return receipt requested, addressed to the tenant's last known address and to any of the tenant's alternate addresses known to the landlord. The landlord shall also post a notice of abandonment on the door to the dwelling unit or any other conspicuous place on the property for five days.

B.

Five days alter notice of abandonment has been both posted and mailed, the landlord may retake the dwelling unit and rerent the dwelling unit at a fair rental value if no personal property remains in the dwelling unit. After the landlord retakes the dwelling unit, money held by the landlord as a security deposit is forfeited and shall be applied to the payment of any accrued rent and other reasonable costs incurred by the landlord by reason of the tenant's abandonment.

C.

If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.

D.

After the landlord has retaken possession of the dwelling unit, the landlord may store the tenant's personal possessions in the unoccupied dwelling unit that was abandoned by the tenant, in any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available. The landlord shall notify the tenant of the location of the personal property in the same manner prescribed in subsection A of this section.

E.

The landlord shall hold the tenant's personal property for a period of ten days alter the landlord's declaration of abandonment. The landlord shall use reasonable care in holding the tenant's personal property. If the landlord holds the property for this period and the tenant makes no reasonable effort to recover it, the landlord may sell the property, retain the proceeds and apply them toward the tenant's outstanding rent or other costs which are covered in the lease agreement or otherwise provided for in Title 33, Chapter 10 or Tide 12, Chapter 8 and have been incurred by the landlord due to the tenant's abandonment. Any excess proceeds shall be mailed to the tenant at the tenant's last known address. A tenant does not have any right of access to that property until the actual removal and storage costs have been paid in full, except that the tenant may obtain clothing and the tools, apparatus and books of a trade or profession and any identification or financial documents, including al those related to the tenant's irnmigration status, employment status, public assistance or medical care. If provided by a written rental agreement, the landlord may destroy or otherwise dispose of some or all of the property if the landlord reasonably determines that the value of the property is so low that the cost of moving, storage and conducting a public sale exceeds the amount that would be realized from the sale.

F.

For a period of twelve months alter the sale the landlord shall:

 

1.

Keep adequate records of the outstanding and unpaid rent and the sale of the tenant's personal property.

 

2.

Hold any excess proceeds which have been returned as undeliverable for the benefit of the tenant.

G.

If the tenant notifies the landlord in writing on or before the date the landlord sells or otherwise disposes of the personal property that the tenant intends to remove the personal property from the dwelling unit or the place of safekeeping, the tenant has five days to reclaim the personal property. To reclaim the personal property the tenant must only pay the landlord for the cost of removal and storage for the period the tenant's personal property remained in the landlord's safekeeping.

H.

In this section "abandonment" means either the absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent fqr the dwelling unit is outstanding and unpaid for ten days and there is no reasonable evidence other than the presence of the tenant's personal property that the tenant is occupying the residence or the absence of the tenant for at least five days, if the rent for the dwelling unit is outstanding and unpaid for five days and none of the tenant's personal property is in the dwelling unit

Amended by Laws 1995, Ch. 219, 14, effective July 13, 1995.

33-1371.

Acceptance of partial payments

A.

A landlord is not required to accept a partial payment of rent or other charges. A landlord accepting a partial payment of rent or other charges retains the right to proceed against a tenant only if the tenant agrees in a contemporaneous writing to the terms and conditions of the partial payment with regard to continuation of the tenancy. The written agreement shall contain a date on which the balance of the rent is due. The landlord may proceed as provided in article 4 of this chapter and in tide 12, chapter 8 against a tenant in breach of this agreement or any other breach of the original rental agreement. If the landlord has provided the tenant with a notice of failure to pay rent as specified in 331368, subsection B prior to the completion of the agreement for partial payment, no additional notice under 331368, subsection B is required in case of a breach of the partial payment agreement.

B.

Except as specified in subsection A of this section, acceptance of rent, or any portion thereof, with knowledge of a default by tenant or acceptance of performance by the tenant that varied from the terms of the rental agreement or rules or regulations subsequently adopted by the landlord constitutes a waiver of the right to terminate the rental agreement for that breach.

Amended by Laws 1992, Ch. 304, 4, effective September 30, 1992. Amended by Laws 1995, Ch. 219, 14 is, effective Ju1y 13, 1995.

33-1372.

Landlord liens; distraint for rent

A.

A lien or security interest on behalf of the landlord in the tenant's household goods is not enforceable unless perfected before the effective date of this chapter.

B.

Distraint for rent is abolished.

33-1373.

Remedy after termination

If the rental agreement is terminated, the landlord may have a claim for possession and for rent and a separate claim for actual damages for breach of the rental agreement.

33-1374.

Recovery of possession limited

A landlord may not recover or take possession of the dwelling unit by action or otherwise, including forcible removal of the tenant or his possessions, willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, except in case of abandonment, surrender or as permitted in this chapter.

Amended by Laws 1995, Ch. 219, 16, effective July 13, 1995.

33-1375.

Periodic tenancy; holdover remedies

A.

The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least ten days prior to the termination date specified in the notice.

B.

The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty days prior to the periodic rental date specified in the notice.

C.

If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is willful and not in good faith the landlord, in addition, may recover an amount equal to not more than two months' periodic rent or twice the actual damages sustained by the landlord, whichever is greater. If the landlord consents in writing to the tenant's continued occupancy, 33-1314, subsection D applies.

Amended by Laws 1995, Ch. 219, 17, effective July 13, 1995.

33-1376.

Landlord and tenant remedies for abuse of access

A.

If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access, or terminate the rental agreement. In either case, the landlord may recover actual damages.

B.

If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement In either case, the tenant may recover actual damages not less than an amount equal to one month's rent.

33-1377.

Special detainer actions; service; trial postponement

A.

Special detainer actions shall be instituted for remedies prescribed in 331368. Except as provided in this section, the procedure and appeal rights prescribed in tide 12, chapter 8, article 4 apply to special detainer actions.

B.

The summons shall be issued on the day the complaint is filed and shall command the person against whom the complaint is made to appear and answer the complaint at the time and place named which shall be not more than six nor less than three days from the date of the summons. The tenant is deemed to have received the summons three days after the summons is mailed if personal service is attempted and within one day of issuance of the summons a copy of the summons is conspicuously posted on the main entrance of the tenant's residence and on the same day the summons is sent by certified mail, return receipt requested, to the tenant's last known address. The summons in a special detainer action shall be served at least two days before the return day and the return day made on the day assigned for trial. Service of process in this manner shall be deemed the equivalent of having served the tenant in person for the purposes of awarding a money judgment for all rent, damages, costs and attorney fees due.

C.

For good cause shown supported by an affidavit, the trial may be postponed for not more than three days in a justice court or five days in the superior court.

D.

In addition to determining the right to actual possession, the court may assess damages, attorney fees and costs as prescribed by law.

E.

If a complaint is filed alleging a material and irreparable breach pursuant to 33-1368, subsection A, the summons shall be issued as provided in subsection B of this section, except that the trial date and return date shall be set no later than the third day following the filing of the complaint. If after the hearing the court finds by preponderance of the evidence that the material and irreparable breach did occur, the court shall order restitution in favor of the plaintiff not less than twelve nor more than twenty-four hours later.

F.

If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for late charges stated in the rental agreement, for costs and, at the plaintiff's option, for all rent found to be due and unpaid through the periodic rental period provided for in the rental agreement as described in 33-1314, subsection C and shall grant a writ of restitution.

G.

If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for costs, and if it appears that the plaintiff has acquired possession of the premises since commencement of the action, a writ of restitution shall issue in favor of the defendant.

Amended by Laws 1992, Ch. 304, 5, effective September 30, 1992
Amended by Laws 1995, Ch. 219,
18, effective July 13, 1995.

ARTICLE 5. RETALIATORY ACTION

33-1381.

Retaliatory conduct prohibited

A.

Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after any of the following:

 

1.

The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially atfecting health and safety.

 

2.

The tenant has complained to the landlord of a violation under 33-1324.

 

3.

The tenant has organized or become a member of a tenants' union or similar organization.

 

4.

The tenant has complained to a governmental agency charged with the responsibility for enforcement of the wage-price stabilization act

B.

If the landlord acts in violation of subsection A of this section, the tenant is entitled to the remedies provided in 33-1367 and has a defense in action against him for possession. In an action by or against the tenant, evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord's conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. "Presumption", in this subsection, means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

C.

Notwithstanding subsections A and B of this section, a landlord may bring an action for possession if either of the following occurs:

 

1.

The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent.

 

2.

The tenant is in default in rent

The maintenance of the action does not release the landlord from liability under 331361, subsection B.

TITLE 33. PROPERTY

CHAPTER 17. RESIDENTIAL RENTAL PROPERTY

ARTICLE 1. GENERAL PROVISIONS

Section

33-1901.

Definitions

33-1902.

Residential rental property; recording with the assessor; agent designation; civil penalty

33-1903.

Appointment of temporary receiver; term; duties, accounting

33-1904.

Inspections

33-1905.

Slum property; appeal

ARTICLE 1. GENERAL PROVISIONS

33-1901.

Definitions

In this article, unless the context otherwise requires:

 

1.

"Managing agent" means a person, corporation, partnership or limited liability company that is authorized by the owner to operate and manage the property.

 

2.

"Residential rental property" means property that is used solely as leased or rented property for residential purposes. If the property is a space rental mobile home park, residential rental property includes the rental space that is leased or rented by the owner of that rental space but does not include the mobile home or recreational vehicle that serves as the actual dwelling if the dwelling is owned and occupied by the tenant of the rental space and not by the owner of the rental space.

 

3.

"Slum property" means residential rental property that has deteriorated or is in a state of disrepair and that manifests one or more of the following conditions that are a danger to the health or safety of the public:

 

(a)

Structurally unsound exterior surfaces, roof, walls, doors, floors, stairwells, porches or railings.

 

(b)

Lack of potable water, adequate sanitation facilities, adequate water or waste pipe connections.

 

(c)

Hazardous electrical systems or gas connections.

 

(d)

Lack of safe, rapid egress.

 

(e)

Accumulation of human or animal waste, medical or biological waste, gaseous or combustible materials, dangerous or corrosive liquids, flammable or explosive materials or drug paraphernalia.

Added by Laws 1999, Ch. 4, 10, effective August 6, 1999.
Amended by Laws 2000, Ch. 283,
10, effective July 18, 2000.

33-1902.

Residential rental property; recording with the assessor; agent designation; civil penalty

A.

An owner of residential rental property shall maintain with the assessor in the county where the property is located information required by this section in a manner to be determined by the assessor. The owner shall update any information required by this section within ten days after a change in the information occurs. The following information shall be maintained:

 

1.

The name, address and telephone number of the property owner.

 

2.

If the property is owned by a corporation, limited liability company, partnership, limited partnership, trust or real estate investment trust, the name, address and telephone number of any of the following:

 

(a)

For a corporation, a corporate officer.

 

(b)

For a partnership, a general partner.

 

(c)

For a limited liability company, the managing or administrative member.

 

(d)

For a limited partnership, a general partner.

 

(e)

For a trust, a trustee.

 

(f)

For real estate investment trust, a general partner or an officer.

 

3.

The street address and parcel number of the property.

 

4.

The year the building was built.

B.

An owner of residential rental property who lives outside this state shall designate and record with the assessor a statutory agent who lives in this state and who will accept legal service on behalf of the owner. The owner shall designate the agent in a manner to be determined by the assessor. The information shall include the name, address and telephone number of the agent.

C.

Residential rental property shall not be occupied if the information required by this section is not on file with the county assessor. This subsection does not affect any existing lease.

D.

All records, files and documents that are required by this section are public records.

E.

A person who fails to comply with any provision of this section shall be assessed a civil penalty of one thousand dollars, plus an additional one hundred dollars for each month after the date of the original violation until compliance occurs. The court shall not suspend any portion of the civil penalty provided by this subsection.

F.

Notwithstanding subsection E of this section, if a person complies within ten days after receiving the complaint that notices the violation, the court shall dismiss the complaint and shall not impose a civil penalty.

G.

In carrying out the provisions of this section the county assessor shall have immunity as provided in section 12-820.01.

Added by Laws 1999, Ch. 4, 10, effective August 6, 1999.
Amended by Laws
2000, Ch. 283, 11, effective July 18,2000.

33-1903.

Appointment of temporary receiver; term; duties, accounting

A.

This state or a city, town or county of this state may apply to the superior court for the appointment of a temporary receiver to manage a property that is not in compliance with section 331902 and that is designated as a slum property by a city, town or county or the state.

B.

If the court determines that the appointment of a temporary receiver is necessary to remedy the condition for which the property is registered or to cause the owner to register the property, the court may order the appointment of a temporary receiver to manage or operate the premises for as long as the court deems necessary. The court shall not appoint a temporary receiver for a term of more than one year.

C.

A temporary receiver who is appointed pursuant to subsection B of this section either shall be a real estate licensee specializing in property management or an attorney specializing in real estate law and shall swear or affirm to faithfully and fairly discharge the receiver's duties. The court may require the temporary receiver to post a bond in an amount fixed by the court.

D.

The court shall determine the following:

 

1.

The management duties of the receiver.

 

2.

The amount of compensation to be paid to the receiver.

 

3.

The method of payment.

 

4.

The payment periods.

E.

The temporary receiver shall continue to manage the property during the pendency of any appeal or until relieved by the court. The court may remove a temporary receiver on its own motion or on the motion of any party or the temporary receiver.

F.

The temporary receiver may do any of the following:

 

1.

Take control of the property.

 

2.

Pay the mortgage on the property if there are sufficient monies derived from the income of the property to do so.

 

3.

Collect rents due on the property.

 

4.

Make or have made any repairs that are necessary to bring the property into compliance with any statute or ordinance.

 

5.

Make payments that are necessary for the maintenance or restoration of utilities to the property.

 

6.

Purchase materials that are necessary to make repairs.

 

7.

Renew, terminate or modify existing rental contracts and leases as provided by law.

 

8.

Enter into new rental contracts and leases.

 

9.

Affirm, renew or terminate an existing insurance contract that covers the property as provided by law.

 

10.

Enter into a new contract that provides for insurance coverage on the property.

 

11.

Hire security or other personnel that are necessary for the safe and proper operation and maintenance of the property.

 

12.

Prosecute or defend suits that flow from the management of the property and retain counsel.

 

13.

Exercise all other authority that an owner of the property would have except the authority to sell the property.

G.

Before the receiver spends monies in excess of ten thousand dollars the court and the party who is responsible for the payment of the temporary receiver 5 expenditures shall approve the expenditure of those monies.

H.

The costs of compensation to and expenditures by the temporary receiver shall be paid in the following order of priority:

 

1.

From the income that is derived from the property and that is available after all taxes and mortgages are satisfied.

 

2.

By the party who requested the appointment of the temporary receiver.

I.

On filing with the county recorder of the county in which the property is located, a lien is created in favor of the party who pays the temporary receiver 5 costs of compensation and expenditures other than the defendant. The lien is prior to all other liens, obligations or encumbrances except for prior recorded mortgages, restitution liens, child support liens and general tax liens.

J.

On the completion of the receivership, the temporary receiver shall file with the court a full accounting of all costs and expenses incurred and all income received during the course of the receivership.

K.

On finding that the appointment of a temporary receiver is no longer warranted, the court on its own motion or the motion of any party may terminate the temporary receivership.

L.

On compliance with section 331902 and alter all violations have been cured, the temporary receivership shall be terminated.

Added by Laws 1999, Ch. 4, 10, effective August 6, 1999. Amended by Laws 2000, Ch. 283, 12, effective July 18, 2000.

33-1904.

Inspections

A.

In addition to any other statute or ordinance providing for the inspection of property, a city, town or county or the state may inspect the residential rental property if either of the following occurs:

 

1.

A property owner fails to comply with the provisions of section 331902. The property is subject to immediate inspection until there is compliance. If the property is occupied, the inspecting authority shall request consent of the tenant before entering the interior of the structure. Except as otherwise provided by law, the right of inspection does not extend to the interior of a dwelling unit in a space rental mobile home park or recreational vehicle park that is not owned by a landlord unless the tenant is in possession of the dwelling unit, or if the dwelling unit is vacant or abandoned, the owner consents to the inspection. If the tenant refuses to consent to the entry, the inspecting authority has recourse to any remedy provided by law to secure entry.

 

2.

A property has been designated as a slum property by a city, town or county or the state. The city, town, county or state may annually inspect a property designated as a slum property for three consecutive years. A city, town or county or the state shall establish the process by which a property is designated as a slum property.

B.

The property owner is responsible for the costs of an inspection that is conducted pursuant to this section. If the property that is inspected is a dwelling unit in a space rental mobile home park or recreational vehicle park that is not owned by a landlord, the owner of the dwelling unit is responsible for the costs of the inspection.

C.

On recording a penalty or inspection cost with the recorder's office in the county in which the property is located, the penalty or inspection cost is deemed to be an assessment and is prior to all other liens, obligations or encumbrances except for liens under tide 12, chapter 7, article 12, prior recorded mortgages, restitution liens, child support liens and general tax liens. If the property that was inspected was a dwelling unit in a space rental mobile home park or recreational vehicle park that is not owned by a landlord, a lien shall not be recorded against the owner of the property other than the dwelling. the lien may be filed with the department of transportation and, if filed, has the same effect as otherwise provided for in this section.

D.

This section shall not affect any other statute or ordinance pertaining to inspection of property.

Added by Laws 1999, Ch. 4, 10, effective August 6, 1999.

33-1905.

Slum property; appeal

A.

A governmental agency that may designate a residential rental property as a slum property shall establish procedures by which the owner of the property may file an administrative appeal contesting the designation of the property.

B.

The decision at the hearing on the administrative appeal is the final administrative decision.

C.

A party may appeal the administrative decision pursuant to tide 12, chapter 7, article 6.

Added by Laws 1999, Ch. 4, 10, effective August 6, 1999.
Amended by Laws 2000, Ch. 283,
13, effective July 18, 2000.

TITLE 12. COURTS AND CWIL PROCEEDINGS

CHAPTER 8. SPECIAL ACTIONS AND PROCEEDINGS RELATING TO PROPERTY

ARTICLE 4. FORCIBLE ENTRY AND DETAINER

Section

12-1171.

Acts which constitute forcible entry or detainer

12-1172.

Definition of forcible entry

12-1173.

Definition of forcible detainer; substitution of parties

12-1173.01.

Additional definition of forcible detainer

12-1174.

Immateriality of time possession obtained by tenant

12-1175.

Complaint and answer; service and return

12-1176.

Demand for jury; trial procedure

12-1177.

Trial and issue; postponement of trial

12-1178.

Judgment; writ of restitution; limitation on issuance

12-1179.

Appeal to superior court; notice; bond

12-1180.

Stay of proceedings (~n judgment; record on appeal

12-1181.

Trial and judgment on appeal; writ of restitution

12-1182.

Appeal to supreme court; stay and bond

12-1183.

Proceedings no bar to certain actions

ARTICLE 4. FORCIBLE ENTRY AND DETAINER

12-1171.

Acts which constitute forcible entry or detainer

A person is guilty of forcible entry and detainer, or of forcible detainer, as the case may be, if he:

 

1.

Makes an entry into any lands, tenements or other real property, except in cases where entry is given by law.

 

2.

Makes such an entry by force.

 

3.

Willfully and without force holds over any lands, tenements or other real property after termination of the time for which such lands, tenements or other real property were let to him or to the person under whom he claims, alter demand made in writing for the possession thereof by the person entitled to such possession.

12-1172.

Definition of forcible entry

A "forcible entry," or an entry where entry is not given by law within the meaning of this article, is:

 

1.

An entry without the consent of the person having the actual possession.

 

2.

As to a landlord, an entry upon the possession of his tenant at will or by sufferance, whether with or without the tenant's consent.

12-1173.

Definition of forcible detainer; substitution of parties

There is a forcible detainer if:

 

1.

A tenant at will or by sufferance or a tenant from month to month or a lesser period whose tenancy has been terminated retains possession alter his tenancy has been terminated or alter he receives written demand of possession by the landlord.

 

2.

The tenant of a person who has made a forcible entry refuses for five days alter written demand to give possession to the person upon whose possession the forcible entry was made.

 

3.

A person who has made a forcible entry upon the possession of one who acquired such possession by forcible entry refuses for five days alter written demand to give possession to the person upon whose possession the first forcible entry was made.

 

4.

A person who has made a forcible entry upon the possession of a tenant for a term refuses to deliver possession to the landlord for five days alter written demand, alter the term expires. if the term expires while a writ of forcible entry applied for by the tenant is pending, the landlord may, at his own cost and for his own benefit, prosecute it in the name of the tenant.

Amended by Laws 1983, Ch. 234, 1. Amended by Laws 1987, Ch. 263, Ch. 1.

12-1173.01.

Additional definition of forcible detainer

A.

In addition to other persons enumerated in this article, a person in any of the following cases who retains possession of any land, tenements or other real property alter he received written demand of possession may be removed through an action for forcible detainer filed with the clerk of the superior court in accordance with this article:

 

1.

If the property has been sold through the foreclosure of a mortgage, deed of trust or contract for conveyance of real property pursuant to title 33, chapter 6, article 2.

 

2.

If the property has been sold through a trustee's sale under a deed of trust pursuant to title 33, chapter 6.1.

 

3.

If the property has been forfeited through a contract for conveyance of real property pursuant to title 33, chapter 6, article 3.

 

4.

If the property has been sold by virtue of an execution and the tide has been duly transferred.

 

5.

If the property has been sold by the owner and the title has been duly transferred.

B.

The remedies provided by this section do not affect the rights of persons in possession under a lease or other possessory right which is superior to the interest sold, forfeited or executed upon.

C.

The remedies provided by this section are in addition to and do not preclude any other remedy granted by law.

Added by Laws l984, Ch.. 121, 2.

12-1174.

Immateriality of time possession obtained by tenant

It is not material whether a tenant received possession from his landlord or became his tenant alter obtaining possession.

12-1175.

Complaint and answer; service and return

A.

When a party aggrieved files a complaint of forcible entry or forcible detainer, in writing and under oath, with the clerk of the superior court or a justice of the peace, summons shall issue no later than the next judicial day.

B.

The complaint shall contain a description of the premises of which possession is claimed in sufficient detail to identify them and shall also state the facts which entitle plaintiff to possession and authorize the action.

C.

The summons shall be served at least two days before the return day, and return made thereof on the day assigned for trial.

Amended by Laws 1989, Ch. 246. 1, effective September 15.1989.

121176.

Demand for jury; trial procedure

A.

The clerk or justice of the peace shall at the time of issuing the summons, if requested by plaintiff, issue a venire to the sheriff or constable of the county commanding him to summon a jury of eight persons, if the proceeding is in the superior court, and six persons, if in the justice court, qualified jurors of the county, to appear on the day set for trial to serve as jurors in the action. The venire shall be served and returned on the day assigned for trial. The trial date shall be no more than five judicial days alter the aggrieved party files the complaint.

B.

If the plaintiff does not request a jury, the defendant may do so when he appears, and the jury shall be summoned in the manner set forth in subsection A.

C.

If any jurors fail to attend, or are excused alter being challenged, the jury shall be completed by causing other qualified jurors to be summoned immediately.

D.

The action shall be docketed and tried as other civil actions.

Amended by Laws 1984, Ch. 10, 1. Amended by Laws 1989, Ch. 246, 2 effective September15, 1989.

12-1177.

Thai and issue; postponement of trial

A.

On the trial of an action of forcible entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

B.

If a jury is demanded, it shall return a verdict of guilty or not guilty of the charge as stated in the complaint. If a jury is not demanded the action shall be tried by the court.

C.

For good cause shown, supported by affidavit, the trial may be postponed for a time not to exceed three calendar days in a justice court or ten calendar days in the superior court.

Amended by Laws 1992, Ch. 304, 1, effective September 30, 1992

12-1178.

Judgment; writ of restitution; limitation on issuance

A.

If the defendant is found guilty, the court shall give judgment for the plaintiff for restitution of the premises, for all charges stated in the rental agreement and for costs and, at the plaintiff's option, for all rent found to be due and unpaid through the periodic rental period, as described in 33-1314, subsection C, as provided for in the rental agreement, and shall grant a writ of restitution. If the defendant's social security number is contained on the complaint at the time of judgment, the person designated by the judge to prepare the judgment shall ensure the defendant's social security number is contained on the judgment.

B.

If the defendant is found not guilty, judgment shall be given for the defendant against the plaintiff for costs, and if it appears that the plaintiff has acquired possession of the premises since commencement of the action, a writ of restitution shall issue in favor of the defendant

C.

No writ of restitution shall issue until the expiration of five calendar days after the rendition of judgment. The writ of restitution shall be enforced as promptly and expeditiously as possible. The issuance or enforcement of a writ of restitution shall not be suspended, delayed, or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion unless a judge finds good cause.

Amended by Laws 1989, Ch. 246, 3, effective September15, 1989.
Amended by Laws 1995, Ch. 219,
1, effective July 13, 1995.

12-1179.

Appeal to superior court; notice; bond

A.

Either party may appeal from a justice court to the superior court in the county in which the judgment is given by giving notice as in other civil actions within five calendar days after rendition of the judgment pursuant to this section. The appeal shall be filed in accordance with this section, and the time to appeal shall not be extended or otherwise affected by the filing of a motion to set aside or vacate the judgment or similar motion.

B.

A party seeking to appeal a judgment shall file with the notice of appeal a bond for costs on appeal, which shall be in an amount set by the justice of the peace sufficient to cover the costs on appeal. The bond shall be payable to the clerk of the superior court. If a patty is unable to file a bond for costs on appeal, the party shall file with the justice court a notice of appeal along with an affidavit stating that he is unable to give bond for costs on appeal and the reasons therefor. Within five court days after the filing of the affidavit, any other party may file, in the justice court, objections to the affidavit. The justice of the peace shall hold a hearing on the affidavit and objections within five court days thereafter. If the justice court sustains the objections, the appellant shall file, within five court days thereafter, a bond for costs on appeal as provided for in this section or in such lesser amount as ordered by the justice court.

C.

A party seeking to appeal a judgment may stay the execution of either the judgment for possession or any judgment for money damages by filing a supersedeas bond. The justice court shall hold a hearing on the motion within five court days after the parties advise the justice court of their failure to stipulate on the amount of the bond. The stay is effective when the supersedeas bond or bonds are filed.

D.

The party seeking to stay the execution of the judgment for possession shall file a supersedeas bond in the amount of rent accruing from the date of the judgment until the next periodic rental date, together with costs and attorney's fees, if any. The tenant shall pay to the clerk of the superior court, on or before each periodic rental due date during the pendency of the appeal, the amount of rent due under the terms of the lease or rental agreement. Such amounts shall be made payable by the superior court to the owner, landlord or agent as they accrue to satisfy the amount of periodic rent due under the lease or rental agreement In all cases where the rent due under the terms of the lease or rental agreement is paid through the office of the clerk of the superior court as set forth in this subsection, the order of the court may include a onetime handling fee in the amount of ten dollars to be paid by the party seeking to stay the execution of the judgment for possession. In no event shall the amounts paid per month exceed the amount of monthly rent charged by the owner for the premises. Where habitability as provided for in sections 33-1324 and 33-1364 has been raised as an affirmative defense by the tenant to the nonpayment of rent or when the tenant has filed a counterclaim asserting a habitability issue, the superior court will retain all money paid under this sub- section pending a final judgment

E.

If during the pendency of the appeal the party seeking to stay the execution of the judgment for possession falls to pay the rent on the periodic rental due date, the party in whose favor a judgment for possession was issued may move the superior court to lift the stay of the execution of the judgment for possession. The superior court shall hear the motion to lift the stay of the execution of the judgment for possession and release accrued monies, if any, within five court days from the failure of the party to pay the periodic rent due under the terms of the lease or rental agreement If the judgment appealed from involves a finding of a material and irreparable breach pursuant to 33-1368 or 33-1476, subsection D, paragraph 3 the superior court shall treat it as an emergency matter and conduct a hearing on a motion to lift the stay of execution of the writ of restitution within three days. If the third day is a Saturday, Sunday or other legal holiday, the hearing shall be heard on the next day thereafter.

F.

The party seeking to stay the execution of the judgment for money damages shall file a supersedeas bond in the amount of the judgment, together with costs and attorney's fees, if any. The amount of the bond shall be fixed by the court and payable to the clerk of the superior court.

Amended by Laws 1981, Ch. 143, 1. Amended by Laws 1992, Ch. 304, 2, effective September 30, 1992. Amended by Laws 1995, Ch. 219, 2, effective July 13, 1995.

12-1180.

Stay of proceedings on judgment; record on appeal

When the appeal bond is filed and approved, the justice of the peace shall stay flirther proceedings on the judgment and immediately prepare a transcript of all entries on the justice's docket in the action and transmit it, together with all the original papers, to the clerk of the superior court of the county in which the trial was had.

Amended by Laws 1996, Ch. 95, 5.

12-1181.

Trail and judgment on appeal; writ of restitution

A.

On trial of the action in the superior court, appellee, if out of possession and the right of possession is adjudged to him, shall be entitled to damages for withholding possession of the premises during pendency of the appeal and the court shall also render judgment in favor of appellee and against appellant and the sureties on his bond for damages proved and costs.

B.

The writ of restitution or execution shall be issued by the clerk of the superior court and shall be executed by the sheriff or constable as in other actions.

12-1182.

Appeal to supreme court; stay and bond

A.

In a forcible entry or forcible detainer action originally commenced in the superior court, an appeal may be taken to the supreme court as in other civil actions.

B.

The appeal, if taken by the party in possession of the premises, shall not stay execution of the judgment unless the superior court so orders, and appellant shall file a bond in an amount fixed and approved by the court, conditioned that appellant will prosecute the appeal to effect and will pay the rental value of the premises pending the appeal and all damages, costs, and rent adjudged against him by the superior court or the supreme court.

12-1183.

Proceedings no bar to certain actions

The proceedings under a forcible entry or forcible detainer shall not bar an action for trespass, damages, waste, rent or mesne profits.