Rental property owners should be aware of the strict rules governing landlord retaliation because they adversely affect a landlord’s ability to remove problem tenants from their units. Not knowing the rules in your state, or failing to strictly follow them could result in otherwise avoidable time and expenses, including the time and expense associated with having to defend a retaliatory eviction lawsuit.
Protected Activities
In almost all states, it is illegal for a landlord to retaliate against tenants for certain conduct undertaken in furtherance of their legal rights. In Arizona, the protected conduct includes situations where:
1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety.
2. The tenant has complained to the landlord of a violation of the landlord’s duty to maintain the premises fit for habitability
3. The tenant has organized or become a member of a tenants’ union or similar organization.
Such evictions are barred if and only if the landlord is seeking to evict based on the tenant’s exercise of those one of these rights. Notably, Arizona does not afford blanket protections from “exercising a legal right” as other states (like California) do. It’s important to understand that the anti-retaliation laws will shield you only for those activities that are mentioned in your state’s statute. In Arizona, for example, a tenant who circulates a petition demanding beefed-up security would not be protected in Arizona, since “exercise of a legal right” isn’t included in Arizona’s statute.
A presumption arises under Arizona law that retaliatory conduct exists, where the tenant produces evidence of a complaint within six months prior to the alleged act of retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. Under Arizona law, a “presumption” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence. This means that it will be up to the landlord to prove to the judge, should you end up in court, that his motives were not retaliatory.
What Is Landlord Retaliation?
What are landlords prohibited from doing in response to your protected conduct? The kinds of retaliatory acts covered by state statutes include increasing rent or decreasing services or by bringing or threatening to bring an action for eviction.
Common examples of cover-ups that are really retaliations include:
• an unexplained termination that follows hard on the heels of a long-term tenant’s legitimate decision to withhold the rent
• a refusal to renegotiate a lease following a tenant’s complaint to the health department, and
• sending a termination notice alleging misuse of common facilities after a tenant has used the common room to bring tenants together to fight a proposed rent increase.
Tenant Remedies
A tenant has various remedies available to him or her if retaliation is proven. For example, if the landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount equal to two months’ periodic rent and twice the actual damages sustained by him. If the rental agreement is terminated, the landlord is required to return all deposits. Retaliation also provides a defense to an eviction action brought against the tenant.
Even though it may look like illegal retaliation, you can still evict an otherwise bad tenant for nonpayment of rent, violation of the rental agreement, bad faith complaints to the authorities, or to make necessary repairs to the unit (where those repairs require the unit to be vacant). You may have a defense against a tenant’s claim of retaliatory eviction if you can show the tenant unlawfully withheld rent, violated the rental agreement, or complained in bad faith. The key is to comply with the letter of the law at all times and create a supportive paper trail, including the reasons underlying your chosen course of action.
Lynx Legal Service’s representatives are standing by to answer any questions you may have regarding landlord retaliation, or any other issues caused by a problem tenant. We can be reached at 888-441-2355 or at [email protected].