Making Repairs to Your Dwelling
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by Arizona Tenants Association
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NOTES:
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This article does not address the many possible tactics and
strategies to influence your landlord/agent, short of
lawful coercion. Caution is advised: "Self-help" may not be
an appropriate remedy for your circumstances. The term
owner can be substituted by "landlord" or "agent," as applies.
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Under Arizona's landlord-tenant statutes there are three ways
contemplated to compel your landlord/agent to make or
permit repairs to your dwelling:
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1)
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Pursuant to ARS § 33-1361(B), sue the owner in Superior Court,
seeking injunctive relief whereby the judge orders the owner
to do the work;
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2)
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ARS § 33-1324 requires the owner to comply with applicable
building codes affecting health and safety, while ARS § 33-1381
references your right to complain to a governmental agency in
order to enforce building or housing codes. In this way
your local municipality can order the owner to do the work;
and
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3)
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Exercise your right to perform "self-help" for small jobs,
under ARS § 33-1363.
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Option one is very complex and often time consuming, and so
it is highly advised that you retain an attorney. Success is
by no means assured. Injunctive relief should be used only as
a last resort.
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Option two usually requires that you first complain to the
owner, is limited in what conditions constitute enforceable
noncompliances with regards to applicable ordinances, is available
in many municipalities to varying degrees (depending on if codes
have been enacted and whether the respective municipalities
have a policy of enforcing what is on the books), and may take
a long time before compliance is enforced. Still, many municipalities
are adopting and strengthening their ordinances. Moreover, using
the government as your ally can give you a good witness should
your owner resort to retaliation against you. On the other hand,
many government workers can be ignorant and anti-tenant, so
be careful. Contact the tenants association before attempting
to recruit government help.
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Option three can work for small jobs, but involves many factors.
ARS § 33-1363, the "self-help" clause, permits you either
to sue the owner for monetary damages if repairs are not done,
or to do them yourself, deducting the cost out of the next month's
rent. It is limited to small jobs that can be completed at a
maximum cost of either one-half of your periodic rent, or $299.99,
whichever amount is more.
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The balance of this article addresses the repair elements of
ARS § 33-1363. The self-help provision stipulates that: prior
notice must be properly given to the owner, allowing him the
opportunity to remedy the conditions himself; a licensed contractor
is the only person who may do the work; and specific follow-up
documentation must be presented to the owner when the deduction
is made.
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A great benefit of using self-help is that all owners absolutely
despise it. They hate having you take money out of their pockets
for any reason. They hate losing the power to keep you in degraded
conditions against your will. So, once you have successfully
used the self-help remedy, your owner will take you more seriously
and act more respectfully towards you. On the other hand, you
should first expect that any attempt to deduct will be refused
by your owner and mis-characterized as a partial payment. An
eviction may ensue. You should be prepared to defend yourself,
even to the extent of securing attorney representation. This
remedy is not for the faint-hearted.
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WHAT MAY BE REPAIRED
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Any repair of a owner's noncompliance with ARS § 33-1324 that
can be completed at a cost of no more than either half your
periodic rent, or $299.99, whichever is more. If an item is
damaged or worn beyond repair, it is reasonable to replace it,
so long as the licensed contractor procures it and then incorporates
the cost into the billing.
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While you can give notice for everything that arguably is an
ARS § 33-1324 breach, focus first on repairing those items that
are most egregious. Things that the owner would possibly assert
are merely cosmetic, such as to repaint the dwelling, should
be a low priority or avoided. Remember, if a judge has a doubt,
he will invariably rule in the owner's favor. Read that last
sentence over again.
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Larger jobs should be broken down into separate segments over
a several month period if practical and financially feasible;
each segment should be noticed separately so it is apparent
as a discrete job. Ask ATA about this if it confuses you, as
the distinction is important. Another alternative for larger
jobs is to join with other tenants to correct shared noncompliances,
such as a roof covering more than one dwelling unit. Just make
sure the total billing, when divvied up, falls within the dollar
range for each household, who will then have to give separate
notice to the owner, of course.
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Never complain about a repair/condition that you have
caused. Doing so is grounds to evict you.
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GIVE THE LANDLORD A LEGAL CHANCE
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You must tell the owner specifically what and where is the
problem. If it is not obvious, explain the consequences or impact
of the problem, and what must be done. Tell him the condition
is a violation of ARS § 33-1324, and that if he fails to remedy
the breach within ten days from receiving your demand, then
you will correct the condition yourself at his expense.
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All communications should be by certified mail, return receipt
requested. Make sure the certified number is notated on the
letter. Keep a copy of all documentation. Check with the tenants
association how all of this is to be done. Better yet, have
ATA help you draft the correspondence.
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If you never got back your return receipt, or if the letter
was refused or unclaimed, then the clock starts ticking five
days after you sent it out. Never open a certified letter sent
by you to a owner that is returned unopened. Also, keep your
original certified receipt from when you sent out the letter.
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THE OWNER'S RESPONSE, IF ANY
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Avoid speaking with the owner, or any agents of the owner.
If the owner approaches you, only suggest that he read your
letter and that if he has anything to say to you, then it should
likewise be put in writing. If the owner claims that certain
items needed for repairs are either unavailable or on order,
these are just unacceptable excuses. DO NOT AGREE TO ANY DELAYS
OR CHANGES IN YOUR WRITTEN DEMANDS. SIGN NOTHING.
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If the owner wants to come in to do repairs, allow him to do
them so long as he has given you the required two days' notice
per ARS § 33-1343. However, in order to prevent you from proceeding
under the self-help clause it must be within the ten day period.
You, or someone representing your interests (e.g. friend, roommate,
relative), ought to be present whenever anybody enters your
dwelling. If the owner enters without notice, call the police
immediately and have him removed. Contact ATA.
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If the owner does the repairs, but inadequately or incompletely,
make a record of it by photographs, videotaping, witnesses,
etc. Makeshift, shoddy or partial work is unacceptable, and
you may proceed to do the job the right way.
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