Making Repairs When Landlord Won’t

If this happens to you, you have several options under Arizona law:

Pursuant to A.R.S. § 33-1361(B), you may sue the owner in Superior Court, seeking injunctive relief wherein the judge orders the landlord to do the work;
Pursuant to A.R.S. § 33-1324, it requires the landlord to comply with applicable building codes affecting health and safety, while A.R.S. § 33-1381 references your right to complain to a governmental agency in order to enforce building or housing codes. Under this option, your local municipality may order the owner to do the work; and,
Exercise your right to repair & deduct under “self-help” for small jobs, under A.R.S. § 33-1363.

Option One:
This option can be complex and often time consuming. Success is by no means guaranteed unless the repairs violate public policy. Injunctive relief should be used only as a last resort.

Option Two:
This option involves or requires:

that you first complain/notice the owner;
is limited in what conditions constitute enforceable non-compliances with regards to applicable ordinances;
is available in many municipalities to varying degrees (depending on what codes have been enacted and whether the respective municipalities have a policy of enforcing the applicable code); 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 landlord resort to retaliation against you.

Option Three:
This option will work for small jobs, but involves many factors. A.R.S. § 33-1363, the “self-help” or repair & deduct clause, permits you either to sue the owner for monetary damages if repairs are not done, or to do them yourself, deducting the cost out of the next month’s rent. It is limited to small jobs that can be completed at a maximum cost of either one-half of your periodic rent, or $299.99, whichever amount is more.

The balance of this article addresses the repair elements of A.R.S. § 33-1363. The self-help provision stipulates that:

prior notice must be properly given to the landlord
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.

The downside to this option is that a not-so-nice landlord may use this as a reason for evicting you by claiming that the payment received is a partial payment of rent. Then, an eviction may ensue based on non-payment of rent. If this happens, be prepared to defend yourself by calling Equal Access.

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

While you can give notice for everything that arguably is an A.R.S. § 33-1324 breach, focus first on repairing those items that are most egregious. Issues that the landlord could possibly assert that are merely cosmetic, such as to repainting the outside of the dwelling, should be a low priority or avoided.

Larger jobs should be undertaken using Option One.

Giving the Landlord a Legal Opportunity
You must inform the landlord, in writing, specifically what is the problem. If it is not obvious, explain the consequences or impact of the problem, and what must be done. Inform him the condition is a violation of A.R.S. § 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 and deduct accordingly.

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.

The Landlord Reply
If the landlord wants to do repairs, you must allow him access in order to do them so long as he has given you the required two days’ notice per A.R.S. § 33-1343. However, in order to prevent you from proceeding under the self-help clause it must be within the ten-day period, unless you decide to waive this clause.

If the owner does the repairs, but they don’t correct the problem, make a record of it by photographs, videotaping, witnesses, etc. then notice the landlord of the defects. Wait the required ten days, then proceed to Option Two…self-help.

Self-help: Preliminary Steps and Cautions
All self-help repairs must be performed by licensed contractors. DO NOT ATTEMPT TO DO THE REPAIRS YOURSELF. Also, forget about using a handyman, unless he is licensed with the Registrar of Contractors.

Caveat: The following suggestions are not based on anystatutes, but on common sense and past review of client cases. Repairs must be completed and paid for prior to the month you intend to deduct. For example, if notice is received by the landlord in August and you do the work in August, then the deduction could be from the September rent.

Bring the contractor in as quickly as possible following the expiration of the ten day period. The longer you wait, the more opportunity for the landlord to difuse your claim. You must pay as soon as the work is completed, or according to whatever arrangements you and the contractor reach.

Be sure that you ask for and receive a receipt, invoice or statement for all payments you tendered to the contractor, specifying the exact jobs performed, and that it is marked “Paid in Full.” Also, when a contractor has completed his work you must obtain a “Waiver of Lien” from them as evidence that the work was paid in full.

Rent Payment and Deductions
We suggest that you allow Equal Access to prepare the paperwork for paying the rent with the applicable deductions for our small fee of $55.

In this regard, please bring copies the following:

Waiver of Lien form;
The receipt indicating the work that was performed;
A photocopy of each of these letters mailed to the landlord; and
A check for the difference in rent.

Keep the originals.

Subsequent Issues
If the owner refuses the rent and sends it back, contact us immediately as the landlord may claim it is a partial payment and commence an eviction action.

Should it proceed to litigation, you may want to file a counterclaim on the basis the eviction is retaliatory. Pursuant to A.R.S. §§ 33-1367 and A.R.S. § 33-1381 you may recover damages of twice the periodic rent, or twice your actual damages, whichever amount is greater.

Good luck!