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  1. #1

    Default Landlord Refused to Make Repairs

    My question involves landlord-tenant law in the State of: Arizona

    Background: My wife and I are near the end of a 3 yr lease (ends 31 Oct 13). We have the landlord from he11. Total slumlord mentality; never wants to fix anything. He is so bad that the property management company terminated his contract last July.

    Last September, the water softener (located in garage) head leaked, causing major damage to the garage drywall and spare bedroom carpet. Landlord had insurance repair the damage. Landlord stated at the time that his daughter was getting married in Hawaii and that he would replace the water softener when he was able to afford it.

    Lease (boiler plate AZ lease) specifically states that Landlord agrees to rent - lists standard property (dishwasher, stove, etc) - under Other Personal Property, water softener is written in.

    On 15 May (8 months after it broke), I finally demanded that my landlord replace the water softener, as hard water stains were building up on all of the toilets, sinks, etc.

    On 21 May, my landlord sent me a certified letter which stated (among other things): "I never agreed that in the future I would replace it (water softener). I agreed to revisit it. This was not a guarantee. The hard water buildup over eight months does not require the scrubbing you reference. This etches the surface which in turn causes damage and causes the minerals to bond even tighter."

    On 24 May, I emailed the following: "We have received your certified letter. I will not rebut any of your statements; I will simply agree to disagree on all of those matters.
    My wife and I are very uncomfortable remaining in this house and are currently seeking other housing. We will give you notice of when we will vacate the property."
    Note: the landlord had an entire litany of items where we 'broke' the lease in his certified letter.

    On 27 June, I sent a certified letter to the landlord stating that we would return the house to him on 21 July due to his failure to replace the water softener, among other items that have not been repaired. In my certified letter, I cited Az Revised Statute 33-1324 para 2 (landlord must make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition) as the reason for terminating the lease.

    On 3 July, my landlord had an attorney mail a certified letter written by the lawyer stating that "My client strongly disputes the accusations in your letter and does not agree that he is in default under your Lease. Consequently, we expect you to fulfill the terms of the Lease and pursue all remedies if you fail to do so.
    Specifically, first you point to paragraph 2, Arizona Revised Statutes 33-1324. The repairs you mention do not violate Arizona Revised Statutes 33-1324, including the water softener."

    Finally, here's my question. Did I cite the wrong ARS? Should I have cited 33-1361?:
    33-1361. Noncompliance by the landlord

    A. Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement, including a material falsification of the written information provided to the tenant, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days. If there is a noncompliance by the landlord with section 33-1324 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions 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. For the purposes of this section, material falsification includes false information relating to availability of the unit, except when a holdover tenant is in illegal possession or in violation of the rental agreement, the condition of the premises and any current services as represented by the landlord in writing and any representation regarding future services and any future changes regarding the condition of the premises, the provision of utility services and the designation of the party responsible for the payment of utility services. The rental agreement shall terminate and the dwelling unit shall be vacated as provided in the notice subject to the following:

    1. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate.

    2. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family or other person on the premises with the tenant's consent.

    B. Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or with section 33-1318 or 33-1324.

    C. The remedy provided in subsection B of this section is in addition to any right of the tenant arising under subsection A of this section.

    D. If the rental agreement is terminated, the landlord shall return all security recoverable by the tenant under section 33-1321.



    Surely the landlord must have to repair/replace the water softener, since that was an item specified in the lease, right? Am I able to terminate the lease due to the landlord's failure to repair the water softener?

    Any recommendations on how I should handle this? I've got plenty more ammunition (rather not post it on a public forum) to terminate the lease and look forward to going to court if the landlord decides to take it that far.

    Thanks in advance.

  2. #2
    Join Date
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    Default Re: Landlord Refused to Make Repairs

    I doubt you will find a judge that determines hard water makes a home inhabitable. You can try. I will throw you a bone from NJ. Can you prove the water does not meet state potability standards now?

    http://scholar.google.com/scholar_ca...en&as_sdt=6,36

  3. #3
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    Default Re: Landlord Refused to Make Repairs

    On 27 June, I sent a certified letter to the landlord stating that we would return the house to him on 21 July due to his failure to replace the water softener, among other items that have not been repaired. In my certified letter, I cited Az Revised Statute 33-1324 para 2 (landlord must make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition) as the reason for terminating the lease.
    How does not having a water softener make the house unfit for habitable purposes? How does it affect your health or safety? Hard water is not unhealthy or unsafe to drink.


    Am I able to terminate the lease due to the landlord's failure to repair the water softener?
    unlikely.


    Any recommendations on how I should handle this?
    live out your lease making sure to give any notice required of non-renewal and move.

  4. #4
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    Default Re: Landlord Refused to Make Repairs

    I have hard water .. life goes on ...

  5. #5

    Default Re: Landlord Refused to Make Repairs

    jk, thanks for the response. There are several other items in the house that the landlord refuses to repair, some are more 'health and safety' related than simply a water softener. Are landlords able to not repair items in a property as long as it doesn't effect health and safety?
    This is why I asked the question as to whether or not ARS 33-1361 applies? Suppose the dishwasher fails. Based on your logic, a landlord doesn't need to repair/replace the dishwasher because it doesn't put health and safety at risk. Or if the oven fails but the stove works - there's no health and safety issue there. Or a washer and dryer.

    If you are correct that nothing other than health and safety issues need to be fixed by a landlord, that is depressing news to me. The latitude allowed to a landlord is nearly unlimited.

  6. #6
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    Default Re: Landlord Refused to Make Repairs

    you invoked "health and safety" >I cited Az Revised Statute 33-1324 para 2 (landlord must make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition) as the reason for terminating the lease.

    have you notified the landlord of the things which needed repair? if you did and the landlord did not carry out the repairs as agreed in the lease that would be a breach of contract.

  7. #7
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    Default Re: Landlord Refused to Make Repairs

    When a landlord commits a minor breach of contract, that can be grounds for a rent abatement or similar remedy, but you cannot use something that creates a minor inconvenience and claim it to justify breaching the lease. As jk indicates, a broken water softener does not create any health or safety risk. It does not render the premises unfit or uninhabitable. In terms of ARS Sec. 33-1361, I question whether a broken water heater would be deemed by a court to be "material noncompliance", particularly when there appears to be an unresolved question of the landlord's duty to repair that particular appliance, but as you have not told us of the other repair issues and you have not served a notice under that statute the issue isn't germane at present.

    You have told us that your landlord said, "I never agreed that in the future I would replace it (water softener). I agreed to revisit it. This was not a guarantee." What does "I agreed to revisit it" mean? What was your actual discussion and agreement with the landlord in relation to the water softener?

    You have told us that you replied, "I will not rebut any of your statements; I will simply agree to disagree on all of those matters." Why did you choose not to challenge the landlord's position? What did you believe would be the result of that choice, and your statement that you would "simply agree to disagree", given that the landlord had clearly stated that he did not believe he was under any duty to repair the water softener?

    You talk about "among other items that have not been repaired" and "several other items in the house that the landlord refuses to repair, some are more 'health and safety' related", but have told us only about the water softener. Please share the details about the other needed repairs - what they are, how they affect health and safety, when you requested repair, how your landlord responded, whether repairs have been done and, if not, why not.

  8. #8

    Default Re: Landlord Refused to Make Repairs

    My apologies for the slow response. I wanted to make sure the ten days my landlord was allowed to correct problems had passed before posting.

    Other issues: There are French doors in the back of the house. I have listed it several times as needing to be repaired, as there is a large gap between the two doors. The gap has gotten progressively larger. At this point, the gap at the base of the doors is approximately 3/4 inch, more than large enough to allow scorpions and other pests to get into the house. And they do come into the house on a regular basis. The gap reaches a flush state at the top of the doors, so that 3/4 inch gap at the base is slowly tapered to zero at the top of the door. Since it is large enough to allow animals into the house, I would consider this to be a health and safety issue. But even if it's not a health and safety issue, he needs to fix it.

    The landlord has the property registered as a primary residence, in violation of ARS 33-1902. I gave him 10 days' notice to reregister the property as a rental and he failed to do so. ARS 33-1902:
    33-1902. Residential rental property; recording with the assessor; agent designation; civil penalty; fee

    A. An owner of residential rental property shall maintain with the assessor in the county where the property is located information required by this section in a manner to be determined by the assessor. The owner shall update any information required by this section within ten days after a change in the information occurs. The following information shall be maintained:

    1. The name, address and telephone number of the property owner.

    2. If the property is owned by a corporation, limited liability company, partnership, limited partnership, trust or real estate investment trust, the name, address and telephone number of any of the following:

    (a) For a corporation, a corporate officer.

    (b) For a partnership, a general partner.

    (c) For a limited liability company, the managing or administrative member.

    (d) For a limited partnership, a general partner.

    (e) For a trust, a trustee.

    (f) For a real estate investment trust, a general partner or an officer.

    3. The street address and parcel number of the property.

    4. The year the building was built.

    B. An owner of residential rental property who lives outside this state shall designate and record with the assessor a statutory agent who lives in this state and who will accept legal service on behalf of the owner. The owner shall designate the agent in a manner to be determined by the assessor. The information shall include the name, address and telephone number of the agent.

    C. Residential rental property shall not be occupied if the information required by this section is not on file with the county assessor. If the owner has not filed the information required by this section with the county assessor and the residential rental property is occupied by a tenant and the tenant chooses to terminate the tenancy, the tenant shall deliver to the landlord, owner or managing agent of the property a written ten day notice to comply with this section. The notice shall be delivered by certified mail, return receipt requested, or by hand delivery. If the owner does not comply with this section within ten days after receipt of the notice, the tenant may terminate the rental agreement and the landlord shall return all prepaid rent to the tenant. Security deposits shall be returned in accordance with section 33-1321, subsection D. The landlord shall return those monies by certified mail, return receipt requested, or by hand delivery to the tenant within ten days after the termination of the rental agreement. This subsection applies to any existing lease and to any new lease after August 25, 2004. Notwithstanding this subsection, an owner is in compliance with this subsection only if the owner had filed the information required by subsection A of this section with the county assessor.

    D. All records, files and documents that are required by this section are public records.

    E. For residential rental property that is acquired by an owner after the date of the notice of assessed valuation and the notice prescribed by section 42-15103 and until the issuance of the next notice of assessed valuation, a city or town shall assess a civil penalty of one thousand dollars against a person who fails to comply with this section, plus an additional one hundred dollars for each month after the date of the original violation until compliance occurs. The court shall not suspend any portion of the civil penalty provided by this subsection.

    F. Notwithstanding subsection E of this section, if a person complies within ten days after receiving the complaint that notices the violation, the court shall dismiss the complaint and shall not impose a civil penalty.

    G. Except for newly acquired residential rental property as prescribed by subsection E of this section, if a residential rental property owner fails to register with the county assessor as prescribed by this section, the city or town may impose a civil penalty in the amount of one hundred fifty dollars per day for each day of violation after the date of the most recent notice of assessed valuation and the notice prescribed by section 42-15103. If a person complies within ten days after receiving the notice from the county assessor, the court shall dismiss the complaint and shall not impose a civil penalty.

    H. In carrying out this section, the county assessor shall have immunity as provided in section 12-820.01.

    I. The county assessor may assess a fee of not more than ten dollars for each initial registration and each change of information in the registry.

    J. On request from a city or town the county assessor shall provide the most current list of all registered rental property owners within the city's or town's boundaries.


    The landlord made a written statement that he did not approve a Handicap Assist Grip Bar to be installed in the bathroom. My wife is a Wounded Warrior (due to service in Iraq) and has mobility issues. It appears to be a violation of the Fair Housing Act to discriminate against someone who is handicapped. My wife does not appear to have mobility issues, as she does a good job of hiding them.


    Mr Knowitall, on the water softener issue, are you saying that I need to specifically cite ARS 33-1361 and tell him that he has ten days to comply in order to terminate the lease? I gave him ten days to comply with ARS 33-1902 but he did not register the property as a rental.
    The verbal conversation that I had about the water softener is that the landlord stated that he couldn't replace it immediately because his daughter was getting married, but he promised that he would fix it once he was able to afford a new one. In the nine months since it failed, his story changed.

  9. #9
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    Default Re: Landlord Refused to Make Repairs

    No, as should be clear from what I previously wrote, I'm stating that a non-working water softener is not a health or safety issue, and is not likely to be viewed by a court as a material breach of a lease.

    So... your complaints other than that are a 3/4" gap between exterior french doors through which you believe something could theoretically enter, although apparently nothing has to date; a complaint about the landlord's noncompliance with local regulation that has nothing to do with the fitness of the premises; and a nebulous statement about the landlord's disapproval of a "Handicap Assist Grip Bar", which you claim could constitute discrimination against handicapped person right before suggesting that the landlord would have no way of knowing that your wife has a disability. Anything else?

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