The Arizona Residential Landlord and Tenant Act requires the landlord to provide air conditioning and other essential services. As one might imagine, during the summer months, lack of air conditioning is one of the big complaints we get here at Arizona Tenants Union.
The law sets forth a variety of classes of landlord noncompliances with their obligations to maintain the premises, and different classes of problems have different remedies. Thus, if there are sparks coming from an electrical outlet, or a bedbug infestation, or other conditions that materially affect health and safety, A.R.S. § 33-1361 gives the landlord has a much shorter time period – five days – to correct the violations than the ten day time period they have to correct a normal repair problem, such as a broken refrigerator. But under A.R.S. § 33-1364, that time period is shortened even further for the landlord’s failure to supply air conditioning or other essential services. Under this section of the landlord/tenant act, a tenant can effectuate his remedy, which we’ll be getting into later, following “reasonable notice.”
But what constitutes “reasonable notice? And what is an essential service?
A.R.S. § 33-1364(A) defines an “essential service” as “running water, gas or electrical service, or both if applicable, and reasonable amounts of hot water or heat, air conditioning or cooling, where such units are installed in offered, or essential services.” It generally is not helpful when the term being defined is included in the definition, and that certainly is the case here. It is our opinion that the best way to interpret this section is to do so literally: “essential services” means lack of water, gas, electric, hot water, heat, and air conditioning. There are tenants who have made the argument that failure to exterminate for bedbugs or other vermin, or even non-functioning telephone jacks, constitute deprivation of an essential service. But what you have to remember is that the courts are not pro-tenant, and it is always your best bet to be as conservative as possible when interpreting the landlord/tenant law when it is ambiguous.
The same question arises with respect to giving the landlord “reasonable notice” and then taking action. Is the purpose of the notice simply to advise the landlord of the lack of air conditioning and what you’re doing to restore it, or is it designed to give the landlord a chance to fix the air conditioning problem? Again, we err on the side of caution. As a general rule of thumb, we advise tenants to give the notice and then wait 24 hours after the landlord has received it before taking action. Now, in a general repair situation, we usually advise tenants to send a notice by certified mail, return receipt requested, because under A.R.S. § 33-1313(B) a notice sent by certified mail is deemed received five days after it has been mailed, whether the landlord signs for it or not. But when time is of the essence and you can’t wait an additional five days, such as when you don’t have air conditioning, we advise you to send the notice by Priority Mail, signature requirement waived. This is because, first of all, it gets there in one day, but also because Priority Mail has a tracking number associated with it. You can receive proof from the Post Office that the notice was delivered. The reason you should waive the signature requirement is because that way the landlord can’t refuse it and then claim he didn’t get it. Unlike certified mail, Priority Mail is not deemed delivered after a certain time period unless it is actually delivered. So by waiving the signature requirement you can get proof of actual delivery through the tracking number.
There are several remedies provided to the tenant under A.R.S. 33-1364 for lack of air conditioning or other essential services. The tenant may only pick only one of these remedies. First, after reasonable notice is given, the tenant may procure reasonable amounts of the essential service during the period of the landlord’s noncompliance and deduct it from the rent. So if the electricity went off because the power bill wasn’t paid, the tenant can simply pay the bill. But if the problem is caused by something that needs to be fixed, there is an obligation set forth in A.R.S. 33-1305(A) that the tenant mitigate the landlord’s damages, which means that the tenant must take the least expensive measure to correct the condition. So if the air conditioning went out because the unit broke, it is not reasonable to buy a new air conditioner at the landlord’s expense; air conditioning can be procured by renting a portable air conditioner during the days it’s needed.
There is an interesting nuance here: A.R.S. 33-1364 says the tenant may procure services but it does not say that the tenant may hire a repair person to have the condition repaired. But there is another section of the landlord/tenant act, A.R.S. § 33-1363, that allows a tenant to pay up to half his rent to make a repair after giving the landlord ten days to comply “or as promptly thereafter as conditions require in the case of an emergency.” But once again, we come into an ambiguity: is lack of air conditioning an emergency? And again, we say, you should take as conservative a route as possible and follow the letter of the law. Except that here, if you procure air conditioning by renting a portable air conditioner, it may end up costing the landlord more than a half a month’s rent, which means you’re not mitigating his damages. So it’s very contradictory and complicated.
That’s what we’re here for: to help you sort out the complications of your situation and try to give you the most reasonable path to follow.
The second option the tenant has is to recover damages based on the “diminution [reduction] in the fair rental value of the dwelling unit.” Again, what does this mean? We say, arbitrarily, that it cuts the value in half for the days you were deprived the air conditioning or other essential service. It is very important for you to note that this does not allow you to pay a reduced rent for those days. It simply means you have a claim against the landlord in a lawsuit. This makes this particular provision rather meaningless.
The third option you have is to procure substitute housing, in which case rent for that period is excused. It is important to note that you may not deduct the entire cost of a motel room from the rent. But it does allow you to deduct each day’s rent plus 25% (or 125% of each day’s rent) if the motel room costs more than a day’s rent. So if your rent is $600/month, and there are 30 days in that month, your rent comes out to $20.00/day. Using the formula of deducting 125% of each day’s rent, you can deduct $20.00 for the day’s rent plus an additional 25% of that which is $5.00, equaling $25.00 total deduction.
Remember, you can only use one of these options.
As with so much in the landlord/tenant act, the path laid out for the tenant to get relief from a landlord’s violation is not as clear as it may seem on the surface. If you are having problems with air conditioning or other essential services, or any other issues with your landlord, call the Arizona Tenants Union. We have the knowledge and experience to figure out the best course of action and walk you through it.