When Tenants Must Conduct Repairs
Often tenants call the Arizona Tenants Advocates office, concerned about being liable for the cost of performing repairs or paying for services relative to the rental premises. Usually the party who is responsible for this is identified in the lease. That seems pretty clear to the tenants, but invariably things are not as they appear. And it’s a good thing, so read on.
BLAME THE TENANT
As a matter of equity, renters are accountable for damages they have themselves caused. This liability extends to actions of guests that violate the lease agreement, or the rules or regulations. However, such is the case only if the tenant could reasonably be expected to be aware that such guest actions might occur and did not attempt to prevent those actions to the best of his or her ability. Otherwise, there is no liability for actions of guests. See A.R.S. § 33-1368(G).
A.R.S. § 33-1341 deals with the tenant’s obligations to comply with building codes, keep the rental premises clean and safe, remove waste in a clean and safe manner, keep plumbing fixtures clean, reasonably use facilities and appliances in the premises, and not destroy, deface, damage, impair or remove any part of the premises. Should a tenant’s violation of these mandates materially affect health and safety, and it can be remedied by repair, replacement of a damaged item or cleaning, then the landlord can give notice requiring the tenant to cure the deficiency. Should the tenant fail to comply, the landlord can have the work done, present a bill to the tenant, and require the tenant to cover the cost with the next rental payment (or immediately if the lease is terminated). See A.R.S. § 33-1369.
PERFORMING THE LANDLORD’S DUTIES. . .
A landlord has duties to maintain and repair that cannot be assigned to the renter. He must comply with applicable building codes materially affecting health and safety as prescribed in A.R.S. § 9-1303. These duties cover issues of: sanitation; ventilation; structural hazards; electrical wiring; plumbing; mechanical equipment; vents; weather protection; fire hazards or protection; faulty materials or construction; hazardous or unsanitary premises; unsafe building; conditions that render air, food or drink unwholesome or detrimental to health; inadequate exits; and occupancy that exceeds the maximum allowable load. Also, a landlord must make all repairs and do whatever is necessary to put and keep the rental premises in a fit and habitable condition. Cure of any such noncompliances are the landlord’s sole responsibility, and cannot be delegated to the renter. See A.R.S. § 33-1324.
That having been said, Arizona renters can agree to perform some of the landlord’s duties that are not prohibited (as in the previous paragraph), subject to limitations set forth in A.R.S. § 33-1324, subsections C and D:
1. The agreement must be in writing. If in a single family residence, it can be integrated into the lease. Otherwise, it must be a separate document, such as an addendum or other contract, that is signed by the parties. For what constitutes a single family residence, see A.R.S. § 33-1310(15).
2. The work to be performed must be specifically identified. It is too general to hold the tenant responsible for all repairs under a certain value, or other vague requirements. An example of a reasonably specific duty is responsibility for pest control.
3. It can include repairs, maintenance tasks, alterations and remodeling.
4. For a single family residence, it can also include: providing and maintaining appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arranging for their removal; supplying running water and reasonable amounts of hot water at all times, reasonable heat and reasonable air-conditioning or cooling where such units are installed and offered, when required by seasonal weather conditions.
5. The landlord must provide adequate consideration to the tenant for performing the services. This can take different forms, such as a discount in the rent, an actual stipend, or anything else of value.
6. The agreement may not be for the purpose of evading the landlord’s obligations and must be in good faith.
Some of these factors are vague and contradictory, and landlords push it to the limit. For example, the prohibition of performing work related to sanitation, mechanical equipment, vents, and weather protection corresponds with what is permissible, namely repairs and maintenance tasks. This isn’t surprising, as the Arizona Residential Landlord & Tenant Act is full of such inconsistencies.
. . . OR NOT
So, when evaluating whether the threshold has been met for the tenant to be held liable, it is best to focus on unambiguous deficiencies. The most fundamental and common deficiency is the lack of any consideration having been provided. Almost always there is none, which by itself renders invalid assignment of the duty. Often the agreement does not sufficiently specify the duty, such as requiring that the tenant pay a deductible on all repairs. It is not uncommon for landlords to throw everything, even with specificity, upon the tenant’s shoulder, when clearly they are solely the landlord’s responsibility as set forth in A.R.S. §§ 33-1324 and, by extension, 9-1303.
Commonly landlords will refuse the rent payment without inclusion of the ill-gotten proceeds. The pressure is extortion: either pay the extra, or face having to mount a defense in an eviction action alleging rent nonpayment. Invariably, tenants capitulate.
Yet, it is prohibited for leases to contain provisions by which the tenant waives or foregoes rights or remedies under the Arizona Residential Landlord & Tenant Act. Any such provision is unenforceable. If a landlord attempts to use a lease containing provisions he knows areprohibited, the tenant may recover his actual damages and up to two months’ rent. This would include unlawfully trying to hold the tenant liable for maintenance or repairs. See A.R.S. § 33-1315.
The problem is, I’ve never seen a court award such damages. But I’m hoping this article will reach enough tenants that one day there will be a case that is so egregious that a court will take the leap. Let’s make the law really mean something. Stand up for your rights. Stand up against the abuse. Refuse to be a patsy for your landlord foisting his obligations on you.
© 2003-2017 by Kenneth A. Volk. All rights reserved.