One of the types of problems that come across our desk is of tenants who find they have a court date scheduled against them, or in extreme cases, are evicted, without having received any notice. This whole area of landlord/tenant relations is very problematic for tenants because there is very little oversight of landlords who claim to have served notice but haven’t. The Arizona Residential Landlord and Tenant Act requires the landlord to serve a 5-day notice before taking a tenant to court for nonpayment of rent and a 10-day notice before taking the tenant to court for a lease violation. But landlords abuse this requirement in all sorts of ways. Sometimes they don’t serve the notice at all. Other times they serve the notice, but back date it so the tenant does not have the full time period to cure the violation.
What makes this problem worse is that eviction proceedings in Justice Court are “summary proceedings,” meaning they are expedited and the tenant does not have the same options he would in a regular lawsuit. Most states allow tenants at least some rudimentary way of putting on a defense, including utilizing the “discovery” process to demand that the landlord make a showing of when he served notice on the tenant. Then, if the tenant has an alibi, say, he was at work when the landlord’s agent claimed he served the notice, the tenant would be able to assert a defense. But Arizona does not have such a provision for tenants. Trials in eviction court are either held on the very first court date, or at most, two or three days later. If a tenant was not properly served a five or ten day notice, or if the notice was back-dated, the tenant has no way of proving that to the court. And most courts routinely believe the landlord, not the tenant, even when it is not the person who served the notice who “testifies” (I put that in quotes because it is not a formal proceeding) but the building manager who represents that someone else served the tenant. In any other jurisdiction in the country that would be called hearsay, but in Arizona it happens all the time.
This problem with respect to notice is very difficult to get around. The best advice we can give is to pay your rent on time, get a receipt, don’t violate your lease, and if you have any inkling that the landlord is taking legal action against you, go on to the Justice Court website in your county and see if you have a case pending. In Maricopa County the website address is justicecourts.maricopa.gov.
There is another type of notice which is easier to deal with. The landlord/tenant act is structured so that in most situations the tenant can invoke self-help remedies, which means, after notice is served, he can simply take the action set forth in the notice; he doesn’t have to go to court and get permission to do so. So under A.R.S. § 33-1361, for example, if there is material noncompliance by the landlord with the rental agreement, the tenant can serve notice and then take one of any number of actions, including terminating his lease. Under A.R.S. § 33-1363 the tenant can serve notice of a defect in his apartment, and then if the landlord doesn’t correct it within ten days (or five days if it materially affects his health and safety), he can use up to half his rent money to correct the condition. Under A.R.S. § 33-1364(A) the tenant can serve notice of the landlord’s failure to provide essential services and then take one or any number of actions, including procuring the essential service and deducting it from his rent, procuring alternate housing during the period of the landlord’s noncompliance in which case rent is excused during that period, or terminating his lease. Other A.R.S. sections have other notice requirements. But the underlying feature of all of them is that the tenant’s notice is what initiates the process of self-help. Then when the landlord doesn’t comply, the tenant can effectuate the remedy provided for in the notice.
Unlike with landlords, who don’t have to prove that they served notice in an eviction case, tenants are always scrutinized by the courts as to whether or not they served notice. Therefore, you must always serve the notice in writing, and we generally recommend that you serve it by certified mail, return receipt requested. One of the nice things about serving notice by certified mail is that under the landlord tenant act it is deemed delivered five days after it was mailed if the landlord does not sign for it. (A.R.S. § 33-1313(B).) So if a landlord thinks he is being slick by declining to sign for certified mail, he’s actually hurting himself because he’s foregoing notice of the tenant’s self-help remedy, which makes it easy for the tenant to invoke the remedy once the notice period expires.
There are some circumstances in which notice by email or text is sufficient. These are when the landlord responds to the email or text. The problem with this type of notice is that without a response, you have no way of proving that the landlord actually received the notice. But if you regularly communicate with your landlord by email or text and the landlord regularly responds, you can use your judgment as to whether you want to take the chance on serving the notice electronically, betting that he’ll respond to your notice.
But if you do serve the landlord electronically and the landlord does not respond, you must under those circumstances send the notice by certified mail.
There are also circumstances under which you cannot wait the five days for certified mail to be deemed delivered. This arises, for example, when you’re on day four of a five-day notice period for nonpayment of rent. You must get him the rent by the next day, and you must have proof that you sent him that rent. In such situations we recommend that you serve the notice by overnight mail, signature requirement waived. The reason the signature requirement must be waived is so that if the landlord refuses to sign, the package is delivered anyway and you have a tracking number from the Post Office to prove the date and time of delivery.
Finally, there are circumstances in which you need proof of service of the notice the same day. In such circumstances, you really have only the choices of using messenger services or process servers. In such situations we generally recommend using a process server because he’s an officer of the court and his certification that a notice was served bears a lot of weight. These are the same people who serve summons’ in lawsuits, and it’s very rare that their certifications of service are challenged.
One more point needs to be made: you must keep a copy of the document you served on the landlord. I find it surprising how many tenants fail to do that.
For that matter, I find it surprising how many tenants truly believe that a landlord’s actual notice of something constitutes notice under the law. This is a little ironic because the A.R.S. § 33-1313(A) does in fact provide that a person has notice of a fact if he has actual knowledge of it. But landlords are not going to admit they have knowledge of a fact that admission works against them. If you are going to invoke a self-help remedy under the landlord/tenant act, you must provide notice to the landlord as outlined in this article.