Before undertaking an eviction action, the landlord should be sure that his or her obligations to the tenant have been met and that no reasonable defenses may be offered. Here is a synopsis of the primary defenses a tenant can raise in response to an eviction.
Unlawful Use of “Self-Help” Procedures
Landlords in Arizona and elsewhere must adhere to specific rules and procedures when evicting a tenant. They cannot not take the law into their own hands. When they do, the eviction is called a “self-help” eviction. Examples of illegal “self-help” evictions include changing the locks, taking the tenant’s property, bullying the tenant, or turning off the heat or electricity.
Many states, including Arizona, allow the tenant to pursue the landlord for monetary damages if the landlord has tried to illegally evict the tenant using self-help measures. In Arizona, the penalties can consist of two months’ rent or twice the actual damages, whichever is greater. If tenant elects to terminate the lease, landlord must return the security deposit and any prepaid rent. The landlord can also be held liable for attorneys’ fees incurred by the tenant to show the eviction was unlawful. Moreover, the tenant may be entitled to stay in the unit if evicted through unlawful self-help measures.
Violation of Required Procedures
Landlords must follow all of the procedures outlined in the Arizona Residential Landlord and Tenant Act when evicting a tenant. If the landlord fails to comply with proper procedure the tenant may be able to prolong the eviction process or even win the case. For example, if the landlord does not properly serve the eviction notice to the tenant, the notice would be unenforceable. The landlord would then have to give the notice to the tenant again, in the proper manner, before the five- or ten-day time frame would begin. The tenant can also use evidence that the landlord did not follow proper procedures as a defense to the eviction. If the defense succeeded the landlord would be required to start the process all over again.
Payment Of Rent
If the tenant pays the entire rent owed along with applicable late fees, court and attorney’s fees before the trial, the eviction action is terminated. In addition, if the landlord accepted partial payment of the rent during the 5 day notice period, or thereafter, he or she would generally be considered to have waived the right to pursue an eviction action.
Failure To Make Necessary Repairs
The landlord is obligated to maintain the rental unit and surrounding common areas in a fit and habitable condition. The scope of this obligation is delineated in ARS 33-1324, which provides that the landlord shall:
1. Comply with the requirements of applicable building codes materially affecting health and safety;
2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
3. Keep all common areas of the premises in a clean and safe condition.
4. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances;
5. Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish and other waste; and
6. Supply running water and reasonable amounts of hot water at all times, reasonable heat and reasonable air-conditioning or cooling.
If the landlord breaches any of these duties, the tenant can make the repairs and deduct the amount from the rent owed. The deduction from rent is limited to $300 or half the monthly rent, whichever is greater.
Before making the repairs, the tenant must notify the landlord in writing of the needed repairs and give the landlord at least ten days to fix the problem(s). If the landlord fails to do so during this time period, the tenant can hire a licensed contractor to make the repairs up to the above limits.
Failure To Give Tenant the Opportunity to Correct Lease Violation
The landlord must give the tenant an opportunity to fix a lease violation, if possible, before proceeding with an eviction lawsuit. Some examples of fixable violations include having unauthorized pets or guests, or failing to keep the rental unit in clean and sanitary condition.
The landlord must give the tenant either five days or ten days, depending on the violation, to correct the problem. The 5-Day Notice is used where there is material noncompliance with a specific lease provision that affects the health or safety of other tenants or the community. A 10-Day Notice is used if the tenant is in material noncompliance of a provision of the rental agreement not involving health and safety, which must be specified in the notice. This includes having unauthorized persons or pets living in the unit.
In situations where the tenant is responsible for causing substantial damage to the property or engages in unlawful behavior, only 24 hours notice is required. If the tenant fixes a fixable violation within the appropriate time period, the eviction cannot proceed.
Arizona law prohibits tenant evictions in retaliation for exercising any of the following rights:
1. The tenant has complained to a government agency about a building or health code violation;
2. The tenant has complained to the landlord about repairs the landlord must make under the law;
3. The tenant has organized or joined a tenants’ union.
Evicting a tenant within six months of performing any of these acts is called retaliation, and the tenant can use evidence of these actions as a defense against an eviction.
The federal Fair Housing Act prohibits landlords from discriminating against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. If a landlord evicts a tenant in violation of the federal Fair Housing Act, then the tenant can use the discrimination as a defense against the eviction.
Please contact Lynx Legal Service with any questions on the above issues, at 888-441-2355 or firstname.lastname@example.org. Our experienced professionals are standing by to answer any questions you may have or if you’re ready to start a case.