Arizona Landlord and Tenant Law

Arizona Landlord and Tenant Law
State Bar of Arizona Annual Convention June 11, 2010 Prepared by: Honorable C. Steven McMurry, Encanto Justice Court Jeffrey Kastner, Community Legal Services Ellen Sue Katz, William E. Morris Institute for Justice Katie Rogers, Southern Arizona Legal Aid Updated August 2011 (Slides 28, 42-43) Updated July 2012 (Slide 22) William E. Morris Institute for Justice

What Governs Landlord-Tenant Relationship?
The Arizona Residential Landlord and Tenant Act (“ARLTA”). A.R.S. § et seq. (Modeled after the Uniform Residential Landlord and Tenant Act.) Forcible Entry and Detainer Statute. A.R.S. § et seq. Residential Rental Property Statute. A.R.S. § et seq. Rules of Procedure for Eviction Actions. (Effective January 1, 2009) Federal and state fair housing laws.

What Governs Landlord-Tenant Relationship? Continued
Tenants have a property interest in their residences and eviction proceedings that deprive them of the property must comply with the due process requirements of the 14th Amendment to the U. S. Constitution. Greene v. Lindsey, 456 U.S. 444, (1982). Foundation Development Corporation v. Loehmann’s, 163 Ariz. 438, 788 P.2d 1189 (Ariz. 1990), recognizing common law right of tenant’s property interest in rental.

Case Law Arizona Other state courts. Because Arizona has few reported decision, cases from other states are helpful. Eskanos and Supperstein v. Irwin, 637 P.2d 403 (Colo. Ct. App. 1981), Stanley v. Moore, 454 S.E.2d 225, 330 N.C. 717, (1995). Constructive Eviction.

Noble v. Alis, 474 N.E.2d 109 (Ind. Ct. App. 1st Dist. 1985). Illegal Contract Defense. Lease unenforceable because apartment had neither been registered by landlord as a residential unit nor issued an occupancy permit. Fairchild v. Park, 90 Cal. App. 4th 919, 109 Cal. Rptr.2d 442 (2d Dist. 2001). Implied Warranty of Habitability.

Federal cases Common Law. Examples. Common Law of Invitation. Travel across common areas is implied Implied Covenant of Quiet Enjoyment Dillon-Malik, Inc. v. Wactor, 151 Ariz. 452, 758 P.2d 671 (Ariz. App. 1986)

Who is Covered by ARLTA Persons in a landlord/tenant relationship who are renting apartments, homes, duplexes, and condominiums. Persons who are renting a mobile home and the mobile home space from the same owner.

Who is not Covered by ARLTA
Residents in an institution, public or private, if incidental to detention, the provision of medical, educational, counseling or religious services or the provision of a social service program that is provided by a social service provider. Residents who are occupying under a contract of sale for a dwelling unit. Transient residency in a hotel, motel or recreational lodging.

Who is not Covered by ARLTA Continued
Residents employed by a landlord as a manager or custodian when their right to occupy the unit is conditioned upon their employment with the landlord. Occupancy by an owner of a condominium. Residents in public housing.

General Concepts Obligation of good faith
There is an obligation of good faith under A.R.S. § Every duty under the ARLTA and every act which must be performed, has a condition precedent of an obligation of good faith in its performance. Unconscionability Under A.R.S. § , unconscionability in a rental agreement, if found by the court as a

General Concepts Continued
matter of law, may render the agreement unenforceable. Remedies Under A.R.S. § , remedies provided in ARLTA shall be administered so that aggrieved party may recover “appropriate” damages. Aggrieved party has a duty to mitigate damages.

Rental Agreements Lease (Rental Agreement)
A lease is defined under A.R.S. § and § A lease is a written or oral contract for a dwelling unit between a landlord and a tenant. If written lease does not include a definite term, then the term is week to week or month to month, depending on how often the person pays rent.

Rental Agreements Continued
Lease agreements which are not in writing are most commonly month to month. Oral Leases can be oral. Under A.R.S. § , if there is no definite lease term then the term is week to week or month to month, depending on how often rent is paid. Written Written leases are governed by A.R.S. § It is required that the lease provides the name

Rental Agreements Continued
and address of both the property manager and the owner or her agent. A written copy of the ARLTA must be provided or the tenant must be told how to obtain one from Secretary of State website. The tenant must receive a signed copy of the lease. Cannot Require Tenant to Forego Rights and Remedies under ARLTA. A.R.S. § (A)(1).

Landlord Responsibilities
Landlord to Maintain Fit Premises. A.R.S. § Comply with all building codes materially affecting health and safety. Make all repairs and do whatever is necessary to keep premises in a “fit and habitable condition.” Maintain in good working order all electrical, plumbing, heating and cooling supplied or required to be supplied by him.

Landlord Responsibilities Continued
Supply water, reasonable amounts of hot water, heating and cooling where such units are installed or required by seasonal weather conditions. Keep all common areas in a safe and clean condition. Provide receptacles for garbage and waste and arrange for removal.

Tenant Responsibilities
Tenant to maintain dwelling unit. A.R.S. § Comply with conditions imposed on her by building codes materially affecting health and safety. Keep the premises in a safe and clean condition. Use all appliances, electrical and plumbing equipment in a reasonable manner.

Tenant Responsibilities Continued
Dispose of garbage and waste in a clean and safe manner. Keep plumbing fixtures used by tenant in a clean condition. Cannot deliberately or negligently damage, impair or remove any part of the premises or knowingly permit any person to do so. Shall not nor shall he allow other persons on the premises with his consent to disturb his neighbors' peaceful enjoyment of the premises.

Tenant Responsibilities Continued
Promptly and in writing notify the landlord of any situation or occurrence that requires the landlord to provide maintenance or make repairs. Updated August 2011

Access and Abuse of Access
Rights. A.R.S. § Tenant shall not unreasonably withhold access to unit to landlord to inspect, make repairs, supply services or to show to prospective renters or purchasers. If tenant notifies landlord of service or maintenance request, the notice constitutes permission for landlord to enter unit for the sole purpose of acting on request.

Access and Abuse of Access Continued
Landlord cannot enter the unit without tenant’s permission except in case of emergency. Landlord shall not abuse right of access and in general shall give tenant at least two days’ notice of intent to enter and only enter at reasonable times. Landlord has no other right of access except by court order, as permitted by A.R.S. §§ and , or if tenant abandoned or surrendered premises.

Statute amended August When tenant makes maintenance request s/he “waives receipt of any separate or additional access notice that may be required …” The sponsor of bill stated this provision was only for rescheduled appointments. Better practice is for landlords to give notice when repairs will be made. Need to see how new law is used by landlords.

Remedies. A.R.S. § If tenant does not allow access, the landlord can seek injunctive relief or terminate agreement and in both cases seek actual damages. If landlord enters unlawfully or unreasonably or makes repeated demands for entry so it is harassment, tenant can seek injunctive relief or terminate rental agreement and in both cases seek actual damages of no less than one month’s rent.

Whose Actions are Tenants Responsible for
Under A.R.S. § (G), a tenant is responsible for the actions of the tenant’s guests that violate the lease agreement if the tenant could reasonably be expected to be aware that the actions might occur and did nothing to prevent those actions to the best of the tenant’s ability. Under many “Crime-Free” lease addendums, landlords try to make tenants responsible for the criminal actions, or actions that violate the lease, of any person “affiliated” with the tenant, guest or

Whose Actions are Tenants Responsible for Continued
household member, whether or not the tenant could reasonably be expected to be aware that the actions might occur, whether or not the tenant tried to prevent the actions, and even if the actions did not occur on the premises. Many tenant advocates believe these crime free lease provisions violate the ARLTA and other laws. Example: Landlord may file an eviction against the victim of domestic violence for the actions of the abuser. See Crime Free Lease Addendum Slides.

Tenant’s Rights if Landlord Fails to Comply
Minor Repairs Under A.R.S. § (A), if the landlord fails to comply with section (landlord to maintain the premises), and the cost of compliance is less than three hundred dollars, or one half the monthly rent, whichever is greater, the tenant may recover damages for the breach under section , or notify the landlord that tenant will have the condition corrected by a licensed contractor if landlord does not correct the

Tenant’s Rights if Landlord Fails to Comply Continued
condition within 10 days of the notification or less in cases of emergency. If the landlord does not comply, the tenant may have the work performed by a licensed contractor and submit a statement and waiver of lien to the landlord. Tenant may deduct the cost of the work from the rent, but not in excess of $ or one-half of the monthly rent.

Tenant may only use this remedy if the condition repaired is a breach of the fit and habitable provisions. Updated August 2011. Failure to Supply Utilities/Essential Services Under A.R.S. § , if contrary to rental agreement or section the landlord deliberately or negligently fails to supply essential services such as electricity, running water, gas, cooling and heating, the tenant may procure such services and deduct the cost from the rent,

procure substitute housing until services are provided (not to exceed 125% of rent), or recover damages based on diminution in value of rental property. If refusal to provide services is deliberate, tenant may recover actual and reasonable costs or the fair value of substitute housing not to exceed the original rental. Failure to Maintain Habitability of Unit. Under A.R.S. § , if there is a noncompliance by the landlord with section

materially affecting health and safety, the tenant may deliver a written notice to the landlord stating the acts 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. The rental agreement shall terminate and the dwelling unit shall be vacated as provided in the notice subject to the following:

If the breach is remediable by repairs or the payment of damages or otherwise and the landlord remedies the breach prior to the date specified in the notice, the rental agreement will not terminate. Except as provided in ARLTA, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or with sections or

If the rental agreement is terminated, the landlord shall return all security recoverable by the tenant under section Violation of rental agreement. A.R.S. § (A). If there is noncompliance, tenant may give notice that the agreement will be terminated if breach is not remedied within 10 days after receipt of notice. Same relief as provided for health and safety violations.

Prohibited Provisions in Rental Agreement. A.R.S. § (B). If landlord knowingly uses a rental agreement with a prohibited provision, the tenant may recover actual damages and no more than two months’ rent. Failure to deliver possession. A.R.S. § Tenant may (1) terminate lease with 5 day written notice and landlord shall return all prepaid rent and security or (2) demand performance and sue to recover damages.

Landlord’s Rights if Tenant Fails to Comply
Non-payment of Rent Under A.R.S. § , 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 section

Landlord’s Rights if Tenant Fails to Comply Continued
If the tenant pays all the past due and unpaid rent and late fees (if provided for in written rental agreement) before the filing of a special detainer action the rental agreement shall be reinstated. 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. Material Breach of Lease or Rules – Health and Safety: Under A.R.S. § (A) if there is a noncompliance by the tenant with section materially affecting health and safety, the landlord can give tenant written notice stating the

breach and that the lease will terminate not less than five days after receipt of the notice if tenant does not remedy the breach. However, if the breach is remediable 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 section ten days after delivery of a written notice advising the tenant that a second noncompliance of the same or a similar nature has occurred.

Material non-compliance by tenant. A.R.S. § (A). Landlord may deliver a written notice specifying the breach and that lease will terminated not less than ten days after receipt of notice if the breach is not remedied. Material and Irreparable Breach of the Lease or Rules. The landlord may deliver a written notice for the immediate termination of the rental agreement, 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 sections through , prostitution as defined in section , criminal street gang activity as prescribed in section , activity as prohibited in section , the unlawful manufacturing, selling, transferring, possessing, using or storing of a controlled substance as defined in section , threatening or intimidating as prohibited in section , assault as prohibited in section ,

and acts that have been found to constitute a nuisance pursuant to section or a breach of the lease agreement that jeopardizes the health, safety and welfare of the landlord, the landlord's agent or another tenant or involving imminent or actual serious property damage.

Bedbugs Landlord obligations. A.R.S. § 33-1319(A).
Provide bedbug educational materials to all tenants. Not enter into a lease for a unit the landlord knows to be infected with bedbugs. Tenant obligations. A.R.S. § (B). Not knowingly move materials infested with bedbugs into rental unit. Provide written or electronic notice to landlord of known presence of bedbugs.

Bedbugs Continued This section does not limit any other rights, remedies and obligations under the Act. This section does not create a cause of action for damages. Updated August 2011

Landlord Notices Service is by personal delivery or certified or registered mail. A.R.S. § If service is by mail, service is deemed to have been received on date actually received or five days after notice is mailed, whichever occurs first. Thus, a five day notice, if served by certified or registered mail, usually becomes a 10 day notice. Notices must inform the tenant of the specific breach alleged and the time period in which the breach may be cured, as required by law.

Landlord Notices Continued
Non-Payment of Rent Notice: 5 Day for rent. A.R.S. § (B) Cure period Within 5 days, amount in notice After 5 days but prior to filing lawsuit, unpaid rent and reasonable late fees if in lease After filing lawsuit, in addition to above, attorney’s fees and court costs. Notice for non-payment other than rent

10 Day Notice. The tenant has 10 days to cure the payment of other sums due such as damages or security deposits. A.R.S. § (A). Notice for other breaches – curable 5 Day Notice. For curable breaches affecting health and safety, tenant has 5 days to cure. A.R.S. § (A). 10 Day Notice. For other curable breaches, such as noise complaints, the tenant has 10 days to cure. A.R.S. § (A).

Non-compliance by tenant with health and safety provisions in A.R.S. § where repair, replacement or cleaning can cure. 14 Day Notice. A.R.S. § Notice for non-curable breaches. Falsification of rental agreement. A.R.S. § (A). 10 Day Notice. 2nd breach of the same or similar nature. 10 Day Notice. A.R.S. § (A).

Immediate termination. A.R.S. § (A) Breach that is both material and irreparable which occurs on the premises including serious criminal acts or otherwise jeopardizes the health and safety of the landlord or another tenant or involves imminent or actual serious property damage. Termination of Lease Notice None if the lease expires by its own terms. 30 days prior to start of next periodic rental.

Applies to month to month leases and certain written leases by their terms. A.R.S. § 10 days for termination of week to week tenancy. Written notice for tenancy at sufferance or at will. A.R.S. § Written notice to vacate after foreclosure. A.R.S. §

Other notices 2 Day. For entry to inspect or repair, except in case of emergency. A.R.S. § (D). Notices as required by rental agreement.

Partial Payment of Rent
A.R.S. § Landlord is not required to accept partial payment of rent. If landlord accepts partial payment and wants to proceed with eviction, the landlord must get the tenant’s agreement in writing contemporaneously with partial payment. Agreement must provide when rest of payment is due.

Waiver of Breach A.R.S. § 33-1371(B)
Acceptance of rent, except as specified in Section A, with knowledge of a breach or default by landlord constitutes a waiver of right to terminate rental agreement for breach. Example: Tenant has loud party. Landlord knows about loud party and accepts rent after the party. The landlord may not give the tenant a notice based on the party.

Waiver of Breach Continued
Butterfield v. Duquesne Mining, Co., 66 Ariz. 102, 182 P.2d 102 (Ariz. 1947) (same).

Tenant Notices Service is by personal delivery or certified or registered mail. A.R.S. § If service is by mail, service is deemed to have been received on date actually received or 5 days after notice is mailed, whichever occurs first. Thus, a 5 day notice, if served by registered or certified mail, usually becomes a 10 day notice. 5 Day To terminate lease if landlord fails to remedy breaches materially affecting health and safety. A.R.S. § (A).

Tenant Notices Continued
To deliver possession of unit or lease will terminate. A.R.S. § 10 Day To terminate if landlord fails to remedy other breaches. A.R.S. § To invoke self help provision to have minor repairs done. A.R.S. §

Tenant Notices Continued
Reasonable notice Where landlord fails to supply heat, air conditioning, cooling, water, hot water, or essential services. A.R.S. § (A). 14 Day Written notice to demand return of security deposit. A.R.S. § (D). In case of fire or other casualty to terminate lease back to date tenant vacates unit. A.R.S. §

Victims of Domestic Violence
General Provisions: A.R.S. § Prohibition of Provisions in Rental Agreement. Cannot waive or limit tenant’s right to summon a police officer or other emergency assistance. Section (A)(4). Federal and State Fair Housing Acts (42 U.S.C. § 3601 et seq. and A.R.S. § et seq. Prohibits discrimination based on sex and familial status.

Victims of Domestic Violence Continued
Subsidized Housing. Public housing authorities are prohibited from discriminating against victims of domestic violence. 42 U.S.C. § 1437f. See also federal Violence Against Women Act. Special Rights to Terminate Lease. A.R.S. § Victim of domestic violence defined in A.R.S. § may give written notice to terminate lease by: Attaching copy of Protective Order, or report to police of incident of domestic violence.

Request must be made within 30 days of domestic violence unless waived by landlord. Landlord can request: Proof authorizing service of protective order. Name and address of perpetrator if known. Tenant must pay rent to date of termination and all outstanding previous obligations. Landlord may retain rent for month in which termination occurs if prepaid.

Security deposit is refundable in accordance with A.R.S. § , but cannot be offset for early lease termination. Additional Remedies: Landlord is required to rekey or change locks at tenant’s request and expense. Landlord must refuse access to perpetrator. Landlord can look to perpetrator for losses. Co-tenant’s lease is also terminated subject to renegotiation.

Protecting Tenants at Foreclosure Act of 2009 Public Law 111-22, 12 U
Protecting Tenants at Foreclosure Act of 2009 Public Law , 12 U.S.C. § 5220 (Note), Title VII Effective March 20, 2009 Section Affects all mortgages including federally related mortgages (federally related is defined in Real Estate Settlement Procedures Act of 1974, 12 U.S.C. § 2602). Protects “Bona Fide Tenants” where foreclosure sale has taken place and provides for an extended tenancy for: The remainder of the lease, or

Protecting Tenants at Foreclosure Act of 2009 Continued
90 days from date of notice to vacate by buyer at sale, whichever is greater. Exception where buyer intends to occupy as primary residence. Then only a 90 day notice is required. Section Amends 42 U.S.C. § 1437f(o)(7) concerning Section 8 Tenants (federally subsidized rentals through public housing agencies) Buyer assumes agreement between prior owner and agency.

Buyer is bound by the remainder of lease and must give tenant at least 90 day notice to vacate. Exception where buyer intends to occupy as primary residence and then must still give 90 day notice. Under Sections 702 and 703, notice period to tenant starts after tenant receives 90 day notice. New owner responsible for maintenance. A.R.S. § Tenant responsible for paying rent.

Eviction Action: In general, eviction actions after foreclosure should be filed in Superior Court. A.R.S. § Authorizes action after foreclosure sale. Except where buyer and tenant have entered into landlord tenant relationship, such as by the payment of rent. Constitutionality of Act: Based upon “Commerce Clause” and “Police Powers.” Vacant Properties create public

nuisance by increasing blight, crime, nuisance and increased public services.

Retaliation A.R.S. § A landlord may not increase rent, decrease services or bring or threaten to bring an eviction action after any of the following: Tenant complained to governmental agency about building or housing code violations materially affecting health and safety. Tenant complained to landlord about violations of section Tenant organized or became a member of a tenants’ union or similar group.

Retaliation Continued
Tenant complained to government agency with enforcement of wage-price stabilization act. If landlord violates section, tenant entitled to remedies in section Evidence of complaint within 6 months of alleged act of retaliation creates presumption of retaliation. Exceptions: Tenant in default on rent. Tenant or person on premises with consent caused violations because of lack of reasonable care.

Justice Court Jurisdictional Amount: Up to $10,000. A.R.S. § (B). For an eviction where up to $10,000 is at issue in a county that has more than 2 million persons, the action must be filed in Justice Court. A.R.S. § (E)(4). In other counties, Justice and Superior Courts have concurrent jurisdiction. A.R.S. § (C).

Superior Court Jurisdictional Amount: Unless concurrent jurisdiction with Justice Court, over $10,000. Foreclosures and disputed ownership Where title to the property is at issue, a civil action, not an eviction, must be filed. If the title to the property is at issue, the action must be filed in Superior Court because Justice Courts are limited jurisdiction courts and issue of title is not within statutory grant. A.R.S. § )(D) and (F).

Role of Judiciary The Role of the Judiciary in processing an eviction calendar in Justice Court presents special problems, not only with fairness, but especially with the appearance of fairness. Recognize, for example, that a Justice of the Peace (JP) may see the same attorney twice a week times 50 weeks (a hundred times a year). In front of the tenant, however, the JP must act as though he does not know the attorney.

Court Proceedings For an eviction action, possession of the unit must be at issue. A.R.S. §§ (D) and (A). If all that is at issue is past due rent or damages, a civil action must be brought. Rule 1 of Rules of Procedure for Eviction Actions: “These rules shall be known and cited as the Rules of Procedure for Eviction Actions (“RPEA”). These rules shall govern the procedure in the superior courts and justice courts involving forcible and special detainer actions, which are jointly referred to in these rules as

Court Proceedings Continued
“eviction actions.” For purposes of these rules, there shall be only one form of action known as an “eviction action.” The Arizona Rules of Civil Procedure apply only when incorporated by reference in these rules, except that Rule 80(i) shall apply in all courts and Rule 42(f) shall apply in the superior courts.” Rule 2 of Rules of Procedure for Eviction Actions: “These rules shall be construed in accordance with statutory provisions related to forcible entry and

Court Proceedings Continued
detainer actions and special detainer actions. All eviction actions are statutory summary proceedings and the statutes establishing them govern their scope and procedure.”

Eviction Action Timelines
Timeline for regular evictions. A special detainer eviction action is commenced by filing a complaint and a summons. The clerk specifies a return (trial) date not less than three nor more than six days from the filing. Service must be completed at least two days before the return date. “Post and mail” service (which is common) will add two more days before service is complete. A.R.S. §

Eviction Action Timelines Continued
Timeline for immediate evictions: If the complaint alleges a material and irreparable breach (Section (A)), the return date shall be no later than the third day after the complaint is filed. (This provision is frequently disregarded by the courts.)

“Return” Date is Trial Date
Statutorily, the “return” date of an eviction case is also the trial date. While this remains largely true in small counties and in cases of “immediate” evictions, as a practical matter the urban court will probably continue a contested, non-immediate matter for up to three days.

Prima Facie Case for Landlords
A rental agreement (usually a written one) between landlord and tenant A breach by the tenant (usually non payment of rent) A proper notice to the tenant demanding a cure, and no forthcoming cure. Sufficient facts to show that landlord has a superior right to possession because of the breach or any other basis, such as a holdover after the lease expires. Tenant in possession of unit at time of filing complaint.

Defenses, Affirmative Defenses and Counterclaims for Tenants
Some Defenses: Payment was made Rent or other monies not owed Partial payment with no waiver No notice was properly given Notice did not contain required information No opportunity or inadequate opportunity to cure Full payment was offered but refused No breach occurred Breach was cured

Defenses, Affirmative Defenses and Counterclaims for Tenants Continued
Breach was not repeated (i.e., noise stopped) Wrong party sued Premature filing of complaint Service of summons and complaint not proper Counterclaims: Often the claim is for diminution in value for failure to maintain property and provide required services. See sections (A) and (failure to deliver essential services).

Defenses, Affirmative Defenses and Counterclaims for Tenants Continued
Some Affirmative Defenses: Offset of rent for claims for minor repairs and warranty of habitability. Retaliation

Pleading Requirements
Rules of Procedure for Eviction Actions Rule 1. Rules of Civil Procedure do not apply. Rule 5. Pleading Requirements: Service of “Residential Eviction Procedures Information Sheet” Complaint shall disclose: Legal name of landlord (i.e., Joe Smith Corporation). Include business name (i.e., Casa Apartments)

Pleading Requirements Continued
Name, address and telephone number of attorney or landlord (if pro se) State in bold: “Your Landlord is Suing to Have You Evicted. Please Read Carefully” Notice that if tenant fails to appear a default judgment will likely be entered with the relief requested, including removal of tenant from property. Name of court, address and telephone number.

Date and time for trial. State the “specific reason” for eviction; that a proper notice was served; the date and manner of service; and attach a copy of the notice. Be verified and if by attorney that “the attorney believes the assertions in the complaint to be true on the basis of a reasonably diligent inquiry.”

If suing for money damages, must state the frequency of rent paid; due date for each payment; amount due on each date; method of calculating late fees; total amount of rent, late fees, other charges or damages permitted by law due; nature and amount of rent concessions; and attorney fees allowed by contract or law if default.

If eviction only for non-payment of rent, must state that tenant may contact landlord or attorney to reinstate lease prior to entry of judgment. If eviction for other than non-payment, must state the reason for the termination; and the specific facts, including date, place and circumstances of reason for termination so tenant has an opportunity to prepare defense.

Rule 7. Answer: Shall state in short and plain terms any defenses tenant wishes to raise. Note. In Justice Court, a written answer is not required. See Rule 11(b). A.R.S. §§ and 216 (pleadings in Justice Court may be made orally except for specific allegations, not usually applicable to eviction actions).

Service Besides regular service, Section (B) permits “post and mail” service. This requires one attempt at personal service and then mail by certified mail, return receipt requested and posting conspicuously on main entrance to the residence. Tenant deemed to have received summons three days after the summons is mailed. Statute provides this “shall be deemed the equivalent of having served the tenant in person for the purposes of awarding a money

Service Continued judgment for all rent, damages, costs and attorney fees due.” The limits of this statute have not been subjected to a due process challenge. Summons must be served at least two days before trial date.

Jury Trials Jury trials are allowed. A.R.S. § Rule 12.

Record of Proceedings All proceedings shall be recorded by either a recording device or a court reporter. Rule 11(a).

Claims of Material and Irreparable Breach
Finding of material and irreparable breach requires a court hearing. A.R.S. § (E). Rule 13(b)(3)(B).

Diclosures/Discovery
Rule 10. Disclosures: Upon request, a party shall provide: Copy of lease; list of witnesses and exhibits; an accounting of charges and payments for last 6 months (if action is for non-payment of rent); and copies of documents party intends to introduce at trial. Upon good cause, court may order: Depositions, inspection of premises, production of documents, in a manner that

Disclosures/Discovery Continued
will not delay the trial, except for continuances for good cause or by stipulation of the parties. Sanctions for failure to disclose under Rule 10. Court may take appropriate action, including continue trial, exclude evidence and strike complaint or answer. Court may issue subpoenas for witnesses or documents to be served in accordance with Arizona Rules of Civil Procedure.

Remedies Article 4 of ARLTA. A.R.S. §§ 33-1361 through 33-1377.
Remedies may include possession of unit, rent owed, damages, attorney’s fees and costs and injunctive relief. The procedures in A.R.S. § et seq. apply. Special Detainer Judgment (A.R.S. § (D)). Landlord: Writ of Restitution Late charges stated in rental agreement

Remedies Continued Rent through period stated in rental agreement
Attorney’s fees Costs Damages

Remedies Continued Tenant Writ of Restitution. A.R.S. § 33-1377(G)
Offset of rent Attorney’s fees Costs Damages Injunctive relief. A.R.S. §§ (B) and 1364(D). See also A.R.S. §

Remedies Continued Emotional distress damages. Thomas v. Goodreault, 163 Ariz. 159, 786 P2d (Ariz. App. 1990). Rules 13(c) of the Rules of Procedure for Eviction Actions explains relief in detail. Other Requirements in Rule 13(c)(2). Damages may be awarded when there is proven a factual and legal basis for such judgment provided: Court shall not award any amount or category of damages not specifically stated in the complaint or counterclaim.

Remedies Continued Amount awarded must be consistent with amounts asked for in the complaint or counterclaim. However, it may include additional rent, late fees and charges accruing after filing. Reasonable late fees as provided by a written agreement. Rent concessions. Where there is a counterclaim, the court shall determine the prevailing party for purposes of

Remedies Continued awarding costs and attorney’s fees. Other remedies:
Small claims court: Landlord may sue only for money damages or after tenant vacates unit for damages up to $2,500 limit. A.R.S. § Civil action. Landlord may bring action after tenant vacates for damages for breach of lease.

Remedies Continued $10,000 or less in Justice Court. A.R.S. § (B). If for more than $10,000, must be filed in Superior Court. Judgment for Possession. Issuance of Writ Regular Eviction. No writ issued until 5 days after judgment signed. A.R.S. § (C). Rule 13( c) (1)(A). Immediate Termination. A.R.S. § (A). Defined as “material and irreparable” issued no less than 12 nor more than 24 hours after entry

Remedies Continued of judgment. A.R.S. § 33-1377(E). Rule 13(c)(1)(B).
Issuance of Writ Rule 14 Upon a timely application, court shall promptly issue writ accompanied by proper fees and deposits when action has not been stayed. Executed by: Constable for Justice Courts Sheriff for Superior Courts

Post Eviction Issues Note:
Motion to set aside or vacate judgment does not automatically stay writ unless court separately finds good cause. A.R.S. § (A). If writ requested more than 45 days after judgment, Plaintiff must comply with Rule 14(b)(2). Motion to Quash writ is governed by Rule 14(c). Court shall promptly review motion. If court finds good cause to believe improper issuance, court

Post Eviction Issues Continued
shall schedule a hearing within 3 days of filing motion.

Property Left in Unit After Eviction
A.R.S. § (E). Landlord must hold property for 21 days after writ is executed. Landlord required to use reasonable care in moving and storing tenant’s property. Landlord required to promptly prepare an inventory and notify tenant of location and storage charges by certified mail to last known address and any alternative address known to landlord.

Property Left in Unit After Eviction Continued
Tenant can retrieve property by only paying moving and storage charges (not amount of judgment) and landlord is required to return property within 5 days of payment. Tenant must pay charges up to those 5 days or date of actual receipt, whichever is less. Tenant has access without payment of storage and moving charges to: Clothing, tools, books, and apparatus of trade or profession.

Identification, financial, medical and immigration documents. After 21 days and the tenant has not made reasonable efforts to obtain property, then property administered in accordance with A.R.S. § (E). Landlord must use reasonable care and hold for 10 days after abandonment. Then if tenant has not made reasonable efforts to obtain property, landlord may sell property and apply proceeds to amount owed, except if

written agreement allows landlord to destroy or otherwise dispose of property if landlord reasonably determines that value is less than costs to store, move and have public sale. Landlord must keep records and excess proceeds returned as undeliverable for 12 months.

Appeal Process Appeals from Justice Court
A.R.S. § (Appeal is to the Superior Court). See Superior Court Rules of Appellate Procedure (“SCRAP”) for procedure and process of appeals: Notice of Appeal must be filed within 5 calendar days after entry of judgment. Filing motion to set aside or motion for new trial does not extend time. A.R.S. § (A). Note: Justice Court may have individual forms they provide including notice and designation of record forms.

Appeal Process Continued
If judgment entered by default, SCRAP Rule 3(d) requires that a motion to set aside the judgment be filed first in justice court, and if the motion is denied, the party can appeal the denial to the superior court. Rule 15(a) sets forth grounds for motion to set aside. For grounds set out in Rules 15(a)(2), (4) and (5), motion must be filed within 60 days. For other bases, motion must be filed in a reasonable time.

Bonds required to be filed with appeal. Cost Bond. A.R.S. § (B). Rule 17(b)(1). Set by trial court and in Maricopa County is set presently at $250. Cost bond may be waived by filing an affidavit of inability to pay. SCRAP Rule 6(b)(3). Rent Bond. A.R.S (D). Rule 17(b)(2). This bond is posted in order to allow tenant to remain in property pending appeal. The amount is the rent due from the date of

judgment to the next periodic rental date which is not included in the judgment plus timely rent paid as it comes due. Supersedeas Bond. A.R.S. § (C). Rule 17(b)(3). In order to stop execution on money judgment, tenant must post the money judgment. If tenant fails to continue to pay rent bond, then the landlord may file motion to lift the

stay which shall be heard within 5 days for an ordinary eviction or within 3 days for an “immediate” eviction. A.R.S. § (E). If court has imposed a condition for appeal and the landlord files a motion to lift the stay for its violation, the hearing shall be heard within 3 days. This decision is reviewable by Special Action. Rule 17.

Record: Rule 11(a) provides: “All proceedings in eviction actions shall be recorded through a recording device or by a court reporter.” Appellant shall make arrangements to purchase CD/transcript. The current rate is $17 for a CD in Maricopa County. This cost should be waived for an indigent defendant. SCRAP Rule 5. Designated documents. SCRAP Rule 7. The superior court can determine whether to accept a recording or written transcript.

If the record is insufficient, the court can order a trial de novo in the trial court. SCRAP Rule 7(E). Parties’ briefs are filed in Justice Court and court submits brief to Superior Court. Appellant’s Opening Brief. Must be filed with Justice Court within 60 days from deadline to file notice of appeal. Appellee’s brief is due 30 days from filing of appellant’s memorandum. No reply is allowed unless specifically authorized by court.

Procedural Motions. SCRAP Rule 8(c) sets out appropriate motions such as a motion to strike. Further Appeal: No further appeal is authorized for Justice Court decisions. SCRAP Rule 14. However, a Special Action reviewing the decision of the Superior Court acting in its “appellate” role may be filed in the Court of Appeals. A.R.S. § (A)(1). Rules of Procedure for Special Actions (“RPSA”).

If the appellate court declines to accept jurisdiction, then the decision of the Court of Appeals may be reviewed by petition filed within 30 days with the Arizona Supreme Court. SCRAP Rule 23(a). RPSA Rule 8(b).

Appeal Process Appeals from Superior Court Decision
A.R.S. § Appeal taken as in other civil actions. Rules of Civil Appellate Procedure (“RCPA”), Rule 9 provides notice of appeal must be filed no later than 30 days after entry of judgment. The time is extended for appeal if a motion for new trial is filed. RCPA Rule 9(b). Bond is set by the Superior Court which shall include all rent due and to become due plus other damages awarded. A.R.S. § Rule 17(C).

Crime Free Lease Addendums
These policies are encouraged by police departments and local authorities. The policies often make tenants liable for the actions of other persons that the tenant knows that occur “at or near” the premises. The policies try to expand tenant liability beyond ARLTA. Example: Victims of domestic violence; minor child steals candy from store near complex; and guest at party leaves and gets in a fight.

Crime Free Lease Addendums Continued
An eviction based on violation of a crime free lease provision may be challenged. Example: Landlord files eviction because tenant’s ex-boyfriend came to unit and attacked tenant. Tenant called police and abuser arrested. HUD determination that eviction of victim of domestic violence because of domestic violence is sex discrimination. Alvera v. Creekside Village Apartments, Case No. HUDALJ (D. Oregon, April 16, 2001).

Crime Free Lease Addendums Continued
May violate A.R.S. §§ 1341(7) and (G).

Trespass Policies Some landlords add a “Trespass Clause” to the rental agreement. These policies seek to exclude certain persons from the property who the landlord deems “objectionable.” These clauses often make a tenant responsible for persons who come on the premises in violation of the clause and allow for the eviction of a tenant who repeatedly has a guest in violation of the clause. There is tension with these policies and ARLTA. A.R.S. § (7). A tenant is required to

Trespass Policies Continued
“[c]onduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbor’s peaceful enjoyment of the premises.” In limited circumstances a tenant will be liable for the actions of his guests. A.R.S. § (G). This section limits the tenant’s responsibility to those actions of the tenant’s guest that the tenant could reasonably be expected to be aware of and that the tenant did not attempt to prevent, to the best of his ability.

Trespass policies may violate state and federal laws. The common law of invitation. State v. Shack, 277 A.2d 369 (N.J. 1971); Travel across common areas is implied. Commonwealth v. Richardson, 48 N.E.2d 678 (Mass. 1943); The right to the implied covenant of quiet enjoyment. Dillion-Malik, Inc. v. Wactor, 151 Ariz. 452, 758 P.2d 67 (Ariz. App. 1986).

Restricting visitors may breach covenant of quiet enjoyment. Doe v. New Bedford Housing Authority, 630 N.E.2d 248 (Mass. 1994); Ashley Court Enterprises v. Whitaker, 592 A.2d 1128 (N.J. Super. 1991); Branish v. NHP Property Management, 694 A.2d 1106 (Pa. Super. 1997); Diggs v. Housing Authority of Frederick, 67 F.Supp.2d 522 (D. Md. 1999). An invitation by a tenant is a defense to a charge of trespass. State v. Dixon, 725 A.2d 920 (Vt. 1999)

725 A.2d 920 (Vt. 1999); L.D.L. v. State, 569 So.2d 1310 (Fla. Dist. Ct. App. 1990) Federal and state fair housing laws.

Criminal Background Checks
Rental Applications Trespass Policies Because some racial and ethnic groups have higher arrest and criminal conviction rates, these policies may constitute disparate impact claims of discrimination. Arizona Civil Rights Advisory Board. “Crime Free Housing Program” letter dated April 10, 2007, at LetterReCrimeFreeHousing.pdf.

Criminal Background Checks Continued
If policies applied discriminatorily, this may constitute disparate treatment.

Abandonment A.R.S. § (H): Means: (1) either the absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent for 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 (2) 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.

Abandonment Continued
The landlord shall send a notice of abandonment to tenant by certified mail and post notice conspicuously on property for 5 days. If no response, landlord may retake unit and shall use reasonable efforts to lease unit. Procedures for storage and/or sale of property are set forth in sections (D)-(F).

Security Deposits A.R.S. § 33-1321
Limited to one and one-half months’ rent. Any fee that is non-refundable must be clearly designated. Upon occupancy, the landlord must give the tenant a signed copy of the lease, a move-in form to specify damages and written notice the tenant may be present at the move-out inspection. Upon termination of lease, the prepaid rent and security may be applied to rent owed.

Security Deposits Continued
Within 14 days after lease terminated, possession of residence returned to landlord and request by tenant, the landlord shall give tenant an itemized list of deductions and amount due. List and amount due shall be mailed to tenant’s last known address by first class mail. If landlord fails to comply, the tenant may recover the property and money due plus damages equal to two times the amount wrongfully withheld.

Families with Children
Protection. A.R.S. § Person who knowingly refuses to rent because prospective tenant has children or who advertises no children rental by any means is guilty of a petty offense. Exemptions for valid restrictive covenants and housing for older persons in A.R.S. § Not prohibit reasonable occupancy standards. Two persons per bedroom is presumed reasonable.

Families with Children Continued
Victims of violations can seek Injunctive or declaratory relief Actual damages Civil penalty of three times monthly rent of unit at issue Court costs and attorney’s fees

Section 8 and Other Subsidized Housing
Most common types of subsidized housing: Section 8 housing choice voucher program Low Income Housing Tax Credit Housing (“LIHTC”) Public Housing Project Based Section 8 Housing (housing for elderly and disabled) Rule 4(f) states: “Compliance with Laws Governing Subsidized Rent. The parties shall comply with all federal and state laws and regulations

Section 8 and Other Subsidized Housing Continued
governing subsidized rent.” The landlord and tenant must comply with the following laws: U. S. Code (see 42 U.S.C. § 1401 et seq.,primarily § 1437f for low income housing and 26 U.S.C. § 42 for low income housing tax credits) Code of Federal Regulations (24 C.F.R. Parts for HUD subsidized housing and 26 C.F.R. § 1.42 et seq. for tax credits).

HUD Handbook on subsidized housing and Revenue Rulings. Individual public housing authority’s administrative plan and internal admission and occupancy manuals. Lease forms approved by the Public Housing Authority (“PHA”). Restrictive deed covenants. Violence Against Women Act protections, public law , 119 Stat (2006).

Some important distinctions from state landlord and tenant law. Non-payment by public housing agency of its portion of rent is NOT a ground for eviction. All notices served on tenant also must be served on public housing agency. In both “project based” Section 8 and Low Income Housing Tax Credit (“LIHTC”) properties good cause required to terminate lease. Good cause defined in source material.

Landlord cannot charge any amount in excess of Section 8 contract. (If a landlord does, the landlord will be subject to a claim under federal false claims act). Landlord’s payment from PHA may be abated or terminated for violation of failure to maintain the property. Any inconsistencies between the Housing Assistance Payment (“HAP”) addendum and the lease, the HAP addendum controls.

Rights and obligations are governed by USCA, CFRs, HUD Handbook (available on HUD’s website), and local PHA admission and occupancy manuals (usually available online on PHA’s website). For LIHTC and project based Section 8 properties, lease cannot be terminated until after meeting is held between landlord and tenant concerning the termination is completed.

Before termination from the rent subsidy program or from public housing, the tenant is entitled to a full due process hearing. Procedures for the hearing are set out in the respective enabling laws.

Notable Differences Between the ARLTA and the Arizona Mobile Home Parks Residental Landord and Tenant Act (“Mobile Home Parks Act”) A.R.S. § states that the mobile home act does not apply to a mobile home and mobile home space if both are owned by the same person, or to the rental of a mobile home space that is not located in a mobile home park. The ARLTA applies to those tenancies. A.R.S. § (C) and (D) allow the court to award attorneys fees and treble damages for harassing or groundless claims. This is not provided under the ALRTA.

Notable Differences Between the ARLTA and the Arizona Mobile Home Parks Act Continued
A.R.S. § requires the initial rental agreement to be in writing and to be for a term no less than one year. No written rental agreement is required under the ARLTA. A.R.S. § requires that there be a separate meter for each mobile home space for the purposes of determining electricity and water usage. The ARLTA does not have this requirement.

A.R.S. § allows that the rental agreement may provide that the landlord may charge a guest fee. The ARLTA has no such provision. A.R.S. § allows for live in care givers on a temporary basis with a written treatment plan provided by a physician. The landlord cannot charge a fee for this individual, and the person has no rights of tenancy. The ARLTA has no such provision. A.R.S. § prohibits a landlord from charging a penalty fee for late payment of rent

unless a tenant is allowed a minimum of five days beyond the date the rent is due in which to remit payment. The ARLTA allows a late fee to be charged after the 1st day that rent is due under the lease. Under A.R.S. § (c), late fees are capped at $5.00 per day. Under ARLTA, late fees must be “reasonable.” A.R.S. § (B).

A.R.S. § provides for the allowance of an incorporated tenants' park purchase association to be formed for the purpose of giving written notification to the owner of a mobile home park of the association's interest in purchasing the park. The ARLTA does not allow any interest of a tenant’s association in purchasing an apartment complex or similar multi-tenant housing.

A.R.S. § requires the mobile home park management to provide for removal of garbage, rubbish, and other waste incidental to the occupancy of the mobile home space. The ARLTA does not have this requirement. It also requires the management to furnish a prospective tenant with information concerning the type, size and power rating of all electrical, water and sewer connections. The ARLTA does not have these provisions or requirements.

A.R.S. § requires that before execution of the rental agreement the landlord shall provide the tenant with the statements of policy of the mobile home park and the date of expiration of each statement. These statements must be attached to the rental agreement. At least sixty days before the expiration of a statement of policy, the landlord shall notify all of the tenants of any new statement of policy.

A landlord may have only one set of statements of policy in effect at any period of time and that set of statements of policy applies to all tenants. The ARLTA has no such requirement. A.R.S. § requires that a tenant inform the manager of the mobile home park at least thirty days before the expiration of the rental agreement that the agreement will not be renewed by the tenant and that the premises will be vacated. If timely notice is not given prior to moving from the mobile

home space, the tenant then is responsible for rent equal to an amount consistent with the applicable notice period. The ARLTA does not provide for such notice. A rental agreement under the ARLTA may provide for this notice. It also prohibits a tenant from removing a mobile home from a mobile home space unless the tenant has received from the landlord a clearance for removal.

A.R.S. § gives the landlord no right of access to a mobile home owned by a tenant. However, the landlord and tenant may mutually agree, in writing, to give the landlord access. Under the ARLTA, a landlord can have reasonable access to a dwelling unit with 48 hours notice or in cases of emergency or requested repair.

A.R.S. § provides that if there is a material noncompliance by the landlord with the rental agreement, the tenant may deliver a written notice to the landlord specifying the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days. The ARLTA provides that the rental agreement shall terminate immediately if the landlord does not remedy the breach within 10 days after

receiving notice. Under A.R.S. § , if there is a noncompliance by the landlord materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the breach and that the rental agreement will terminate upon a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days. The rental agreement shall terminate and the mobile home space shall be vacated as provided in the notice.

Under the ARLTA if there is such a non-compliance, the tenant may deliver a notice stating that the rental agreement will end within five days if the breach is not remedied. Under A.R.S. § , if rent is unpaid when due and the tenant fails to pay rent within seven 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. Under the ARLTA the tenant has five days within which to pay rent after written notice. Under A.R.S. § , the landlord shall specify the reason or reasons for the termination or nonrenewal of any tenancy in the mobile home park. The reason or reasons relied on for the termination or nonrenewal shall be stated in writing with specific facts, so that the date, place and circumstances concerning the reason or reasons for termination or

nonrenewal can be determined. The landlord may not terminate or refuse to renew a tenancy without good cause. The ARLTA has no such requirement. A landlord may refuse to renew a lease after the lease period is over. Under A.R.S. § , if there is noncompliance by the tenant with section materially affecting health and safety that can be remedied by repair, and the tenant fails to comply as promptly as

conditions require in case of emergency or within ten days after written notice by the landlord, the landlord may enter the mobile home space, 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 additional rent on the next date when periodic rent is due, or if the rental agreement was terminated, for immediate payment.

Under A.R.S. § , a tenant or a tenant's successor in interest shall provide the landlord with a written notification of intent to remove a mobile home from a mobile home space. The notification shall include the date the mobile home will be removed from the mobile home park, contact information of the person removing the home, and the contact information of the person that will be the responsible party for restoring the mobile home space in accordance with the rental agreement and

contractors, the landlord may require a security deposit or surety bond of not more than one thousand dollars minus the amount of any security deposit that was collected at the beginning of the tenant's tenancy. A mobile home shall not be removed from a mobile home park by any tenant, any mobile home owner or any other person or unless the person or that is removing the mobile home has received from the landlord a written clearance for removal.

The tenant must have a statement from landlord that that all monies due for space rent as of the date of removal have been paid or that the landlord and that person or entity have otherwise agreed to the removal.

Slum Properties A.R.S. § 33-1901 et seq.
Enforced by cities and counties No private right of action

Resources Maricopa County Superior Court and Justice Court website. ARLTA from Secretary of State website. Residential_Landlord_Tenant_Act/ Pima County Justice Court website.

Arizona Landlord and Tenant Law

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Arizona Landlord and Tenant Law

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