The Arizona Residential Landlord and Tenant Act (�ARLTA�)

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The Arizona Residential Landlord and Tenant Act (�ARLTA�) Powered By Docstoc
					  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

                                                          1
       What Governs Landlord-Tenant
              Relationship?
• The Arizona Residential Landlord and Tenant Act
  (“ARLTA”). A.R.S. § 33-1301 et seq. (Modeled after
  the Uniform Residential Landlord and Tenant Act.)
• Forcible Entry and Detainer Statute. A.R.S. § 12-1171
  et seq.
• Residential Rental Property Statute. A.R.S. § 33-1901
  et seq.
• Rules of Procedure for Eviction Actions. (Effective
  January 1, 2009)
• Federal and state fair housing laws.

                                                          2
       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, 451-52
  (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.
                                                       3
       What Governs Landlord-Tenant
              Relationship?
                      Continued
• 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.


                                                         4
 What Governs Landlord-Tenant
        Relationship?
                  Continued
• 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.



                                                      5
        What Governs Landlord-Tenant
               Relationship?
                       Continued
   – 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)




                                                           6
           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.




                                                      7
         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.


                                                       8
        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.




                                                     9
                General Concepts
• Obligation of good faith
   – There is an obligation of good faith under A.R.S.
     §33-1311. 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. §33-1312, unconscionability in a
     rental agreement, if found by the court as a


                                                         10
                General Concepts
                      Continued

     matter of law, may render the agreement
     unenforceable.
• Remedies
   – Under A.R.S. § 33-1305, remedies provided in
     ARLTA shall be administered so that aggrieved
     party may recover “appropriate” damages.
     Aggrieved party has a duty to mitigate damages.




                                                       11
                Rental Agreements

• Lease (Rental Agreement)
   – A lease is defined under A.R.S. §33-1310.12 and
     §33-1314.
   – 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.


                                                            12
               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. §33-1314, 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. §33-1322.
      • It is required that the lease provides the name

                                                      13
              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. § 33-1315(A)(1).


                                                  14
            Landlord Responsibilities

• Landlord to Maintain Fit Premises. A.R.S. § 33-1324.
   – 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.



                                                       15
        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.




                                                   16
            Tenant Responsibilities

• Tenant to maintain dwelling unit. A.R.S. § 33-1341.
   – 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.




                                                        17
          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.

                                                   18
         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




                                                   19
          Access and Abuse of Access

• Rights. A.R.S. § 33-1343
   – 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.


                                                          20
       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. §§ 33-1369 and
  33-1370, or if tenant abandoned or surrendered
  premises.

                                                   21
       Access and Abuse of Access
                    Continued

– Statute amended August 2012. 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.



                                                     22
          Access and Abuse of Access
                      Continued

• Remedies. A.R.S. § 33-1376.
   – 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.

                                                         23
          Whose Actions are Tenants
              Responsible for
• Under A.R.S. §33-1368 (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

                                                        24
        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.

                                                    25
Tenant’s Rights if Landlord Fails to Comply

• Minor Repairs
  – Under A.R.S. §33-1363(A), if the landlord fails to
    comply with section 33-1324(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 33-1361, or notify the landlord that tenant
    will have the condition corrected by a licensed
    contractor if landlord does not correct the

                                                      26
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 $300.00 or one-half of the monthly
   rent.



                                                      27
 Tenant’s Rights if Landlord Fails to Comply
                        Continued

• 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. § 33-1364, if contrary to rental
     agreement or section 33-1324 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,

                                                         28
Tenant’s Rights if Landlord Fails to Comply
                      Continued

     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. §33-1361, if there is a
     noncompliance by the landlord with section

                                                         29
Tenant’s Rights if Landlord Fails to Comply
                    Continued

   33-1324 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:


                                                     30
Tenant’s Rights if Landlord Fails to Comply
                    Continued

 – 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 33-1318 or 33-1324.


                                                    31
Tenant’s Rights if Landlord Fails to Comply
                    Continued

 – If the rental agreement is terminated, the landlord
   shall return all security recoverable by the tenant
   under section 33-1321.
 – Violation of rental agreement. A.R.S. § 33-
   1361(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.

                                                     32
 Tenant’s Rights if Landlord Fails to Comply
                       Continued

• Prohibited Provisions in Rental Agreement. A.R.S. §
  33-1315(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. § 33-1362.
  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.

                                                          33
 Landlord’s Rights if Tenant Fails to Comply

• Non-payment of Rent
  – Under A.R.S. §33-1368, 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 33-1377.


                                                     34
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.


                                                     35
 Landlord’s Rights if Tenant Fails to Comply
                       Continued

   – 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. §33-1368(A) if there is a
     noncompliance by the tenant with section 33-
     1341 materially affecting health and safety, the
     landlord can give tenant written notice stating the

                                                       36
Landlord’s Rights if Tenant Fails to Comply
                     Continued

   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.




                                                          37
Landlord’s Rights if Tenant Fails to Comply
                    Continued

 – 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 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.


                                                      38
 Landlord’s Rights if Tenant Fails to Comply
                      Continued

• Material non-compliance by tenant. A.R.S. § 33-
  1368(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,

                                                          39
Landlord’s Rights if Tenant Fails to Comply
                     Continued

 including but not limited to an illegal discharge of a
 weapon, homicide as defined in sections 13-1102
 through 13-1105, prostitution as defined in section
 13-3211, criminal street gang activity as prescribed in
 section 13-105, activity as prohibited in section 13-
 2308, the unlawful manufacturing, selling,
 transferring, possessing, using or storing of a
 controlled substance as defined in section 13-3451,
 threatening or intimidating as prohibited in section
 13-1202, assault as prohibited in section 13-1203,

                                                       40
Landlord’s Rights if Tenant Fails to Comply
                    Continued

 and acts that have been found to constitute a
 nuisance pursuant to section 12-991 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.




                                                      41
                      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. § 33-1319(B).
   – Not knowingly move materials infested with
     bedbugs into rental unit.
   – Provide written or electronic notice to landlord of
     known presence of bedbugs.
                                                       42
                      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




                                                       43
                Landlord Notices

• Service is by personal delivery or certified or
  registered mail. A.R.S. § 33-1313. 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.

                                                      44
                 Landlord Notices
                       Continued

• Non-Payment of Rent Notice:
  – 5 Day for rent. A.R.S. § 33-1368(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


                                                          45
                 Landlord Notices
                      Continued
  – 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. § 33-1368(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.
    § 33-1368(A).
  – 10 Day Notice. For other curable breaches, such
    as noise complaints, the tenant has 10 days to
    cure. A.R.S. § 33-1368(A).

                                                       46
                 Landlord Notices
                      Continued

• Non-compliance by tenant with health and safety
  provisions in A.R.S. § 33-1341 where repair,
  replacement or cleaning can cure. 14 Day Notice.
  A.R.S. § 33-1369.
• Notice for non-curable breaches.
   – Falsification of rental agreement. A.R.S. § 33-
     1368(A). 10 Day Notice.
   – 2nd breach of the same or similar nature. 10 Day
     Notice. A.R.S. § 33-1368(A).


                                                        47
                Landlord Notices
                      Continued

• Immediate termination. A.R.S. § 33-1368(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.

                                                      48
              Landlord Notices
                    Continued

  Applies to month to month leases and certain
  written leases by their terms. A.R.S. § 33-1375.
– 10 days for termination of week to week tenancy.
– Written notice for tenancy at sufferance or at will.
  A.R.S. § 12-1173.01.
– Written notice to vacate after foreclosure. A.R.S.
  § 12-1173.01.




                                                     49
                 Landlord Notices
                       Continued

• Other notices
  – 2 Day. For entry to inspect or repair, except in case
    of emergency. A.R.S. § 33-1343(D).
  – Notices as required by rental agreement.




                                                        50
            Partial Payment of Rent

• A.R.S. § 33-1371
   – 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.



                                                      51
                 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.


                                                       52
              Waiver of Breach
                    Continued

– Butterfield v. Duquesne Mining, Co., 66 Ariz. 102,
  182 P.2d 102 (Ariz. 1947) (same).




                                                       53
                  Tenant Notices

• Service is by personal delivery or certified or
  registered mail. A.R.S. § 33-1313. 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. § 33-1361(A).
                                                          54
                  Tenant Notices
                       Continued

     To deliver possession of unit or lease will
     terminate. A.R.S. § 33-1362.
• 10 Day
   – To terminate if landlord fails to remedy other
     breaches. A.R.S. § 33-1361.
   – To invoke self help provision to have minor repairs
     done. A.R.S. § 33-1363.




                                                       55
                   Tenant Notices
                       Continued

• Reasonable notice
   – Where landlord fails to supply heat, air
     conditioning, cooling, water, hot water, or
     essential services. A.R.S. § 33-1364(A).
• 14 Day
   – Written notice to demand return of security
     deposit. A.R.S. § 33-1321(D).
   – In case of fire or other casualty to terminate lease
     back to date tenant vacates unit. A.R.S. § 33-
     1366.

                                                        56
         Victims of Domestic Violence

General Provisions:
• A.R.S. § 33-1315. Prohibition of Provisions in Rental
  Agreement. Cannot waive or limit tenant’s right to
  summon a police officer or other emergency
  assistance. Section 33-1315(A)(4).
• Federal and State Fair Housing Acts (42 U.S.C. § 3601
  et seq. and A.R.S. § 41-1491 et seq.
   – Prohibits discrimination based on sex and familial
     status.


                                                      57
         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. § 33-1318.
   – Victim of domestic violence defined in A.R.S. § 13-
     3601 may give written notice to terminate lease
     by:
      • Attaching copy of Protective Order, or report to
         police of incident of domestic violence.

                                                       58
     Victims of Domestic Violence
                   Continued

– 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.


                                                  59
         Victims of Domestic Violence
                       Continued

• Security deposit is refundable in accordance with
  A.R.S. § 33-1321, 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.

                                                       60
      Protecting Tenants at Foreclosure
                 Act of 2009
  Public Law 111-22, 12 U.S.C. § 5220 (Note), Title VII

• Effective March 20, 2009
• Section 702. 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

                                                          61
     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 703. 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.

                                                     62
      Protecting Tenants at Foreclosure
                 Act of 2009
                        Continued
   – 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. §
  33-1324.
  – Tenant responsible for paying rent.

                                                      63
      Protecting Tenants at Foreclosure
                 Act of 2009
                      Continued
• Eviction Action:
   – In general, eviction actions after foreclosure
     should be filed in Superior Court. A.R.S. § 12-
     1173.01. 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

                                                      64
    Protecting Tenants at Foreclosure
               Act of 2009
                     Continued
nuisance by increasing blight, crime, nuisance and
increased public services.




                                                     65
                    Retaliation

• A.R.S. § 33-1381. 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 33-1324.
   – Tenant organized or became a member of a
     tenants’ union or similar group.

                                                     66
                    Retaliation
                      Continued

   – Tenant complained to government agency with
      enforcement of wage-price stabilization act.
• If landlord violates section, tenant entitled to
  remedies in section 33-1367.
• 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.
                                                     67
                    Justice Court

• Jurisdictional Amount: Up to $10,000. A.R.S. § 22-
  201(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. § 22-
  201(E)(4). In other counties, Justice and Superior
  Courts have concurrent jurisdiction. A.R.S. § 22-
  201(C).



                                                         68
                   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. § 22-
     201)(D) and (F).

                                                            69
                 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.



                                                      70
                Court Proceedings

• For an eviction action, possession of the unit must be
  at issue. A.R.S. §§ 33-1377(D) and 12-1177(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

                                                         71
                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

                                                       72
             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.”




                                                     73
            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. §33-1377.


                                                       74
            Eviction Action Timelines
                       Continued

• Timeline for immediate evictions: If the complaint
  alleges a material and irreparable breach (Section 33-
  1368 (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.)




                                                        75
           “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.




                                                        76
        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.
                                                      77
    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

                                                    78
     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 33-1365 (A) and 33-
  1364 (failure to deliver essential services).



                                                        79
     Defenses, Affirmative Defenses and
         Counterclaims for Tenants
                       Continued

• Some Affirmative Defenses:
   – Offset of rent for claims for minor repairs and
     warranty of habitability.
   – Retaliation




                                                       80
             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)

                                                      81
   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.

                                               82
   Pleading Requirements
             Continued

»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.”


                                                  83
   Pleading Requirements
            Continued

»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.



                                               84
   Pleading Requirements
             Continued

»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.

                                             85
         Pleading Requirements
                   Continued

₋ 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. §§ 22-
          215 and 216 (pleadings in Justice Court
          may be made orally except for specific
          allegations, not usually applicable to
          eviction actions).


                                                    86
                       Service

• Besides regular service, Section 33-1377 (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


                                                      87
                       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.




                                                        88
                     Jury Trials

• Jury trials are allowed. A.R.S. § 12-1176. Rule 12.




                                                        89
             Record of Proceedings

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




                                                      90
 Claims of Material and Irreparable Breach

• Finding of material and irreparable breach requires a
  court hearing. A.R.S. § 33-1377(E). Rule 13(b)(3)(B).




                                                      91
               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

                                                            92
           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.


                                                      93
                    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. § 12-1171 et seq. apply.
• Special Detainer Judgment (A.R.S. § 33-1377(D)).
   – Landlord:
       • Writ of Restitution
       • Late charges stated in rental agreement

                                                    94
              Remedies
               Continued

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




                                         95
                  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. §§ 33-1361(B) and
     1364(D). See also A.R.S. § 12-1178.



                                                   96
                     Remedies
                      Continued

      • Emotional distress damages. Thomas v.
          Goodreault, 163 Ariz. 159, 786 P2d. 1010
          (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.
                                                        97
                 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


                                                       98
                    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. § 22-503.
  – Civil action. Landlord may bring action after
    tenant vacates for damages for breach of lease.




                                                      99
                      Remedies
                       Continued

     $10,000 or less in Justice Court. A.R.S. § 22-
     201(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. § 12-1178(C). Rule 13( c)
     (1)(A).
   – Immediate Termination. A.R.S. § 33-1368(A).
     Defined as “material and irreparable” issued no
     less than 12 nor more than 24 hours after entry

                                                       100
                     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

                                                      101
              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. § 12-1179(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

                                                     102
          Post Eviction Issues
                  Continued

shall schedule a hearing within 3 days of filing
motion.




                                                   103
     Property Left in Unit After Eviction

• A.R.S. § 33-1368(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.


                                                    104
  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.

                                                 105
     Property Left in Unit After Eviction
                      Continued

   – 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. § 33-1370(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

                                                     106
  Property Left in Unit After Eviction
                   Continued

  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.




                                                   107
                  Appeal Process
              Appeals from Justice Court

• A.R.S. § 12-1179 (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. § 12-1179(A). Note: Justice Court
     may have individual forms they provide including
     notice and designation of record forms.


                                                          108
               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.


                                                     109
                Appeal Process
                    Continued

– Bonds required to be filed with appeal.
   • Cost Bond. A.R.S. § 12-1179(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. 12-1179(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

                                                      110
           Appeal Process
                Continued

  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. § 12-1179(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


                                                111
             Appeal Process
                  Continued

  stay which shall be heard within 5 days for an
  ordinary eviction or within 3 days for an
  “immediate” eviction. A.R.S. § 12-1179(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.



                                                    112
           Appeal Process
                Continued

• 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.

                                                113
                Appeal Process
                     Continued

    • 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.

                                                       114
               Appeal Process
                   Continued

– 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. § 12-120.21(A)(1). Rules of
     Procedure for Special Actions (“RPSA”).

                                                     115
           Appeal Process
                Continued

• 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).




                                               116
                  Appeal Process
         Appeals from Superior Court Decision

• A.R.S. § 12-1182. 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. § 12-1182. Rule 17(C).

                                                     117
        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.

                                                      118
        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 10-99-0538-8 (D.
     Oregon, April 16, 2001).

                                                     119
     Crime Free Lease Addendums
                   Continued

– May violate A.R.S. §§ 1341(7) and 33-1368(G).




                                                  120
                 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. § 33-1341(7). A tenant is required to

                                                          121
                 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. § 33-1368(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.
                                                     122
                 Trespass Policies
                       Continued

• 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).


                                                      123
              Trespass Policies
                    Continued

– 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)

                                                    124
              Trespass Policies
                    Continued

  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.




                                                    125
         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 http://www.azag.gov/civil_rights/ACRAB_
  LetterReCrimeFreeHousing.pdf.


                                                     126
          Criminal Background Checks
                        Continued

• If policies applied discriminatorily, this may
  constitute disparate treatment.




                                                   127
                   Abandonment

• A.R.S. § 33-1370(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.
                                                         128
                  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 33-1370(D)-(F).




                                                      129
                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.

                                                   130
                 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.


                                                        131
             Families with Children

• Protection. A.R.S. § 33-1317
• 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. § 41-1491.04.
• Not prohibit reasonable occupancy standards. Two
  persons per bedroom is presumed reasonable.


                                                    132
              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




                                                       133
  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


                                                   134
  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 0-
     1699 for HUD subsidized housing and 26 C.F.R. §
     1.42 et seq. for tax credits).


                                                       135
Section 8 and Other Subsidized Housing
                  Continued

– 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 109-162, 119 Stat. 2960 (2006).

                                                   136
  Section 8 and Other Subsidized Housing
                     Continued

• 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.

                                                   137
Section 8 and Other Subsidized Housing
                    Continued

– 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.

                                                    138
Section 8 and Other Subsidized Housing
                   Continued

– 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.


                                                  139
    Section 8 and Other Subsidized Housing
                  Continued

– 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.




                                                   140
   Notable Differences Between the ARLTA and the
  Arizona Mobile Home Parks Residental Landord and
        Tenant Act (“Mobile Home Parks Act”)
• A.R.S. §33-1407 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. §33-1408 (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.

                                                     141
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
• A.R.S. §33-1413 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. §33-1413.01 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.



                                                      142
    Notable Differences Between the ARLTA and the
            Arizona Mobile Home Parks Act
                      Continued
• A.R.S. §33-1413.02 allows that the rental agreement
  may provide that the landlord may charge a guest
  fee. The ARLTA has no such provision.
• A.R.S. § 33-1413.03 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. §33-1414 prohibits a landlord from charging a
  penalty fee for late payment of rent

                                                        143
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
  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. § 33-1414(c), late fees are capped at
  $5.00 per day.
   – Under ARLTA, late fees must be “reasonable.”
     A.R.S. § 33-1368(B).



                                                        144
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
• A.R.S. § 33-1418 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.



                                                       145
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued

• A.R.S. §33-1434 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.

                                                    146
    Notable Differences Between the ARLTA and the
            Arizona Mobile Home Parks Act
                      Continued
• A.R.S. § 33-1436 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.


                                                         147
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
   – 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. § 33-1436 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

                                                      148
 Notable Differences Between the ARLTA and the
         Arizona Mobile Home Parks Act
                   Continued
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.


                                                   149
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
• A.R.S. §33-1453 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.




                                                     150
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
• A.R.S. § 33-1471 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

                                                      151
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
      receiving notice.
• Under A.R.S. § 33-1471, 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.

                                                       152
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
   – 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. § 33-1476, 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

                                                         153
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
  agreement.
   – Under the ARLTA the tenant has five days within
     which to pay rent after written notice.
• Under A.R.S. §33-1476, 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

                                                      154
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
  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. § 33-1477, if there is noncompliance by
  the tenant with section 33-1451 materially affecting
  health and safety that can be remedied by repair,
  and the tenant fails to comply as promptly as

                                                     155
 Notable Differences Between the ARLTA and the
         Arizona Mobile Home Parks Act
                   Continued
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.


                                                    156
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
• Under A.R.S. § 33-1485.01, 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

                                                       157
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
  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.

                                                   158
   Notable Differences Between the ARLTA and the
           Arizona Mobile Home Parks Act
                     Continued
• 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.




                                                    159
                 Slum Properties

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




                                    160
                    Resources

• Maricopa County Superior Court and Justice Court
  website. www.superiorcourt.maricopa.gov
  www.superiorcourt.maricopa.gov/justicecourts
• www.AzLawHelp.org
• ARLTA from Secretary of State website.
  www.az.sos.gov/public_services/Publications/
  Residential_Landlord_Tenant_Act/
• Pima County Justice Court website.
  http://jp.co.pima.az.us


                                                     161

				
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