A tenant in Arizona can be evicted for violating a portion of the rental or lease agreement, not maintaining the rental unit premises in a safe and sanitary manner, and not paying rent. If a tenant receives an eviction notice, the tenant may have several options (legal defenses) available to fight the eviction. This article will explore the legal defenses available to a tenant in Arizona when faced with an eviction.
The Arizona Residential Landlord and Tenant Act regulates the eviction process in Arizona; the legal cites included in this article refer to sections of this state law. It is important for landlords to carefully follow all the procedures contained within the act when evicting a tenant. A landlord can evict a tenant for several different reasons.
Violations of the lease or rental agreement include lying on the rental application, having unauthorized pets or guests, providing an incorrect Social Security number or incorrect employment information. The landlord must give the tenant a written notice that specifies the violation and gives the tenant ten days to fix the violation or the lease will be terminated and eviction proceedings will begin (see ARS § 33-1368(A)).
A tenant can also be evicted for failing to maintain the premises of the rental unit in a manner that affects the health and safety of the tenant or others living on the premises. Some examples include not disposing of garbage, willfully destroying parts of the property, or violating applicable building codes (see ARS § 33-1341). If a tenant is being evicted for failing to maintain the rental unit premises, then the landlord must give the tenant a written five-day notice that specifies that the tenant has five days to either fix the problem, if possible, or the rental agreement will be terminated and eviction proceedings will begin (see ARS §33-1368(A)).
If the tenant is being evicted for not paying rent, the landlord must give the tenant a written five-day notice. The five-day notice must specify that the tenant has five days to either pay the rent or eviction proceedings will begin (see ARS § 33-1368(B)).
If, upon receiving a written notice, the tenant does not move out or remedy the specified violation, the landlord may then begin the eviction process by filing a complaint with the courthouse in the county where the rental unit is located. In Arizona, an eviction lawsuit is also called a special detainer action. After the landlord files the lawsuit at the courthouse, the tenant will receive a copy of the complaint and a summons. The summons will give the tenant instructions on when to appear in court to answer the complaint and provide any defenses the tenant wishes to use against the eviction. If the tenant wishes to fight the eviction, the tenant must appear at the hearing. At the hearing, the judge will listen to both the landlord and the tenant and make a decision about whether the tenant will be evicted.
For more information on the eviction process and links for forms to use in each Arizona county, see the Evictions and Small Claims section of the Arizona Judicial Branch website.
It is not always worthwhile for a tenant to fight an eviction. If the tenant loses, the tenant could have to pay all of the landlord's court and attorneys' fees and receive a negative credit rating. Depending on the situation, it might be better for the tenant to negotiate with the landlord to work out an agreement without going to court. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate. com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.
Tenants have several defenses available to them when choosing to fight an eviction in Arizona.
Arizona state law ARS § 33-1367 prohibits a landlord from forcing a tenant out of the rental unit unlawfully. It is illegal for a landlord to change the locks on the rental unit or turn off the utilities in order to force a tenant to move out of the rental unit. These kinds of practices are called self-help evictions, and Arizona law specifically makes them illegal. If the landlord tries to evict the tenant through a self-help method, the landlord may end up owing the tenant monetary damages. See the Nolo article Illegal Eviction Procedures in Arizona for more information.
Landlords must follow all of the procedures outlined in the Arizona Residential Landlord and Tenant Act when evicting a tenant in Arizona. If the landlord fails to do so, the tenant could have a valid defense against the eviction. For example, if the landlord does not properly serve the eviction notice to the tenant, then the appropriate time frame for the tenant to remedy the situation or move out will not begin running. 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 use evidence that the landlord did not follow proper procedures as a defense to the eviction.
If the landlord is justified in evicting the tenant, this defense will not stop the eviction proceedings entirely. It will merely delay the legal proceedings, giving the tenant more time to remain in the rental unit before being evicted.
If the landlord is evicting the tenant for not paying rent, the tenant might have a few justifications, or legal grounds, with which to fight the eviction.
The tenant has three options to pay rent and stop eviction after receiving a five-day notice from the landlord for failure to pay rent:
1. If the tenant pays the rent in full during the five-day time period, then the landlord must not continue with the eviction.
2. After the five-day period but before the landlord files a complaint to begin the eviction process, the tenant can still stop the eviction if the tenant pays the rent in full and any applicable late fees.
3. After the landlord files the complaint to begin the eviction process but before the judge has given a final decision, the tenant can still stop the eviction by paying all the rent due and owing, plus late fees and the landlord's court and attorney's fees. If the tenant does this, the landlord must stop the eviction process (see ARS § 33-1368(B)).
The landlord has a responsibility to maintain the premises of the rental unit in a fit and habitable condition. This means that the landlord must comply with all applicable building codes, keep the common areas clean and safe, and maintain the electrical, plumbing, sanitary, heating, and air conditioning facilities within the rental unit. For a full list of the landlord's responsibilities, see ARS § 33-1324. Keep in mind that building codes are established by individual cities within Arizona. Mesa's city codes, Tucson's city codes, and Scottsdale's city codes are all available online. For other cities, contact the local city government for more information.
If the landlord does not maintain the premises, then the tenant can make the repairs and deduct the amount from the rent owed. Before making the repairs, the tenant must give the landlord a written notice specifying the needed repairs and give the landlord at least ten days to fix the repairs. If the landlord does not make the repairs within ten days, the tenant can hire a licensed contractor to make the repairs. The tenant is limited in the amount of money the tenant can deduct from the rent, either $300 or half the monthly rent, whichever is greater. For more information, see ARS § 33-1363 and the Nolo article Arizona Tenant Rights to Withhold Rent or "Repair and Deduct."
The landlord must give the tenant an opportunity to fix a lease violation, if possible, before proceeding with an eviction lawsuit. Some examples of violations that the landlord must give the tenant the opportunity to fix include having unauthorized pets or guests, failing to keep the rental unit clean and sanitary, or providing false information on the lease application. The landlord must give the tenant either five days or ten days, depending on the violation, to correct the problem. If the tenant fixes the violation within the appropriate time period, the landlord must not proceed with the eviction. If the landlord proceeds with the eviction even after the tenant fixed the violation, the tenant can use the fact that the violation was fixed within the time period as a defense to the eviction (see ARS § 33-1368(A)).
If a landlord falsely accuses a tenant of a violating a portion of the lease agreement, then the tenant must provide proof that the lease violation was outside the tenant's control or was not caused by the tenant.
It is illegal, under Arizona state law ARS § 33-1381, for a landlord to evict a tenant in retaliation for exercising any of the following legal actions:
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 (see ARS § 33-1324 for the repairs a landlord must make).
3. The tenant has organized or joined a tenants' union.
4. The tenant has complained to the government agency in charge of enforcing the wage-price stabilization act.
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. For more information, see the Nolo article Arizona State Laws Prohibiting Landlord Retaliation.
The federal Fair Housing Act makes it illegal for a landlord to discriminate 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. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.
For more information on the Arizona Residential Landlord and Tenant Act, see the pamphlet A Guide to the Arizona Residential Landlord/Tenant Act and Fair Housing published by the City of Scottsdale. For information on evictions and to see if you qualify for legal aid, see AZLawHelp.org. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.
When responding to an eviction lawsuit, it is important to understand how your courthouse operates. The Arizona Judicial branch provides an online directory of all the courthouses in the state. Some courts will provide more information on the eviction process, such as the Maricopa County Justice Court and the Pima County Justice Court.
If you have questions about your eviction case or defense or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you have a complicated care or if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.
For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.
For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).