Residential Tenants Remedies for Their Landlord's Failure to Maintain the Rental Property

By
Services for Real Estate Pros with The Law Office of Mark Tucker

If a residential landlord intentionally or negligently fails to provide essential services such as running water, gas, electricity heat or air conditioning or shuts off running water, gas, electric service, heat or air conditioning, the the tenant should give the landlord written notice describing the problems and request immediate restoration.  If the landlord fails to comply in a timely manner the tenant may do one of the following:
     a.    Subtract the cost of obtaining reasonable services from the next rent payment. For example, if the tenant has to buy water because there is no running water, the tenant should save and provide the landlord a copy of the receipts and subtract the cost of the water from the next rent payment;
     b.    Sue the landlord for an order directing him to restore the services and for the decrease in rental value during the time the tenant waited for repairs; or
     c.    Temporarily move out until the landlord makes the necessary repairs. The tenant may then deduct rent for the time they did not live in landlord's rental property. For example, if the tenants rent is $750 a month, then their pro-rated daily rent is about $25. If the air conditioning failed and they gave notice to the landlord, and while repairs were made had to stay in a motel for five (5) days, then they could multiply five by $25 and subtract $125.00 from their next rental payment.
Landlords and Tenants should always keep copies of all written notices that they give to the other and all receipts and documents, including those they have received.
While notices may be hand-delivered, the best practice is to send all written notices by certified mail, return receipt requested. This is because the Arizona Residential Landlord and Tenant Act provides that If notice is mailed by registered or certified mail, the tenant or landlord is deemed to have received such notice on the date the notice is actually received by him or five days after the date the notice is mailed, whichever occurs first. If this is the case, the sending party does not need to prove that the either side actually received the notice, because the law creates the presumption they have notice and will treat them as such whether they actually had notice or not.

If you a residential landlord fails to comply with his statutory duties to maintain the property (See my blog dated January 15, 2010 for a discussion of these duties) or fails to follow through with any specific promises in the lease, the tenant may give the landlord written notice (hand delivered or sent by certified mail) demanding that he remedy the situation within ten (10) days giving notice that the tenant will terminate the lease and move out. If the request for repairs involves serious health and safety matters such as electrical problems or outside doors that do not lock, the tenant would againgive written notice demanding repairs, but demand that the landlord make the repairs in five (5) days. If the landlord does nothing to repair the home within ten days or, for health or safety issues, five days, after getting the notice, the tenant may terminate the lease and move out. (This includes demands that the landlord provide proof that he has brought the mortgage current if the property has been set for a trustees sale.) If the tenant cannot move out, they may file a lawsuit asking the court to force the landlord to do the repairs; they can also be able to sue for damages.

The tenant may take advantage of the right to make repairs and deduct the cost from their rent.
However there are limitations and conditions: If the issue requires a repair that will cost less than $300, or an amount up to one-half of the monthly rent, they may hire a licensed contractor to make the repair at the landlord’s expense. However, they must first follow these steps:
     a.    Give the landlord a written notice as described above, but the notice must include language informing the landlord that the tenant may have repairs made if the landlord does nothing within the time given him.
     b.    Before the tenant can do anything else, he must wait until the end of the 10 or 5 day notice period and allow the landlord time to make the repairs.
     c.    After the 10 or 5 days have passed, the tenant may hire a licensed contractor to make the repairs. To hold the landlord responsible for the repair costs, the person who made the repairs must be a licensed contractor (not an unlicensed handyman.)
     d.    The tenant must pay the licensed contractor and get an itemized bill showing what was repaired and the payment made.  The contractor must provide “waiver of lien.”
     e.   Next, the tenant must give the landlord a notice that states that the repairs are complete, attach copies of the itemized bill and the waiver of lien to the notice, and state that he is subtracting the cost of the repairs from his next month’s rent.
     f.    The tenant must complete each of these steps before they can subtract the repair cost from their rent.
7.    The above procedures only apply when the landlord has failed to comply with legal duties or promises in the lease.  If the tenant, a family member of the tenant, or one of the tenant's guests or pets cause damage, the tenant is not entitled to take advantage of the right to repairs  must talk to the landlord about how to remedy the situation. If the tenant is at fault he may be responsible for the full cost of repairs.

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