As I’ve discussed many times in this blog, Arizona is one of those states in which tenants have essentially no due process of law. I like to give real examples to breathe life into this maxim. Here’s the latest one:
A tenant recently came into our office who was having terrible problems with her landlord. She was smart and knowledgeable about the law, and she decided she was going to force the courts to follow proper procedures and due process. Her case isn’t over yet, but what has happened so far provides a fascinating glimpse not just into how things work in Arizona Justice Courts, but in the Arizona legal system in general.
Connie lives in a run down apartment in a building owned by a single-member Limited Liability Company, meaning that one person owns the building, but he owns it in the name of an LLC, not his individual name. Starting in March of this year, Connie began asking for repairs: her kitchen sink wasn’t draining properly, her dishwasher didn’t work, the apartment desperately needed a paint job, and it was overrun with roaches. No sooner did Connie ask for repairs then the landlord served her with a 30-day notice of termination of her tenancy, effective April 30.
The notice was defective for a number of reasons. First, it was sent in retaliation for Connie asking for legitimate repairs. This is illegal: any notice of termination of tenancy served within six months of requesting repairs is considered retaliation under the Arizona Residential Landlord and Tenant Act, A.R.S. § 33-1381, and carries with it a penalty of double the rent or double the actual damages, whichever is greater. Additionally, the notice of termination was not issued by the entity that owned the building: it was done in the name of the landlord personally, not the LLC. Needless to say, Connie did not to honor the notice and remained in her apartment.
Connie paid April and then May rent and the landlord did nothing. But on June 1 he served Connie with a 5-day notice to vacate the apartment, referencing the Notice of Termination issued in March.
Again, Connie did not move but instead paid June rent. A few days later the landlord filed a pro se (without a lawyer) eviction lawsuit. At that point Connie filed defenses to the lawsuit: that the name of the entity on the complaint was wrong, that Connie had paid April, May and June rent subsequent to her receiving the notice of termination, and that the eviction notice was served in retaliation for Connie asking for repairs.
Connie had also filed counterclaims against the landlord. All the counterclaims were made based on provisions of the Arizona Residential Landlord and Tenant Act and other Arizona laws. Connie counterclaimed for double the rent for retaliation against her requesting repairs, pursuant to A.R.S. § 33-1381. Connie also counterclaimed for a retroactive rent abatement due to past breaches of the warranty of habitability (that is, the apartment wasn’t worth its full value because of the violations) pursuant to A.R.S. § 33-1361. Additionally, Connie counterclaimed for theft of services, because in addition to everything else, the landlord had illegally wired the building electricity to Connie’s electric meter.
The court correctly dismissed the landlord’s case against Connie, citing a single issue: that the landlord had accepted rent after he served the original notice. But the court refused to hear the counterclaims, holding, first of all, that the counterclaims died when the landlord’s claim died, and secondly, that the Arizona landlord/tenant act did not allow counterclaims that weren’t specifically authorized by law.
But Connie’s counterclaims were specifically authorized by law. A.R.S. § 33-1305 provides that the remedies set forth in the landlord/tenant act “shall be administered so that the aggrieved party can recover appropriate damages.” A.R.S. § 33-1309 provides that any appropriate court of the state may exercise jurisdiction over any landlord with respect to any conduct governed by the landlord/tenant act. A.R.S. § 33-1381 specifically allows a tenant to make a counterclaim of double the rent for a landlord’s retaliation. And A.R.S. § 33-1361 specifically allows a tenant to recover damages if an apartment is out of material compliance with the landlord/tenant act, meaning that it had violations which reduced its value. All of this means that the court was required to hear Connie’s counterclaims.
Connie also asked for a jury trial. Again, as a matter of due process, A.R.S. § 12-1176 specifically gives a plaintiff the right to a jury trial. In this case, Connie was the defendant in the eviction action. However, she was the plaintiff in the counterclaims. But the judge, in holding that tenants do not have the right to file counterclaims once the initial claim has been dismissed, held that Connie was not entitled to a jury trial as well.
After the court dismissed the counterclaims, Connie filed a case in Superior Court (a “Special Action”) asking for a generalized ruling that Justice Courts are required to follow due process and hear counterclaims and also give tenants jury trials. That case is pending. If Connie wins, we hope that will have a profound impact on the way landlord/tenant cases are administered in Arizona.
In the meantime, after the landlord lost the first case, he tried again. This time he served the summons by taping it to the door and also mailing it by certified mail. But the statute requires that the certified mail be done the same day as the posting of the summons, and the landlord didn’t do that. Normally, a court will not even let a tenant make a technical defense such as this one in an eviction action. But because Connie was, in effect, suing the Justice Court judge in a higher court, that judge decided to be cautious and follow due process, and he dismissed the landlord’s case again. But again, he dismissed Connie’s counterclaims. And he became angry at Connie! It was as if he considered Connie greedy to want to recover damages that were rightfully hers, since the landlord’s claim was dismissed, and that it was her fault that the claims were dismissed.
So Connie remains in her apartment, six months after she initially asked for repairs and the landlord refused them. Her kitchen sink still floods, her dishwasher still does not work, the apartment is still overrun with roaches. And Connie has continued to pay rent each month. But she has not given up, and the dollar amount of the counterclaims is rising to the point where she’ll soon be able to file them in Superior Court, not Justice Court, where (presumably) they’ll get a fairer hearing.
I tell this story with the level of detail I did to illustrate on a concrete level how things really work here. This was a tenant who was as sophisticated as they get. Yet despite her intelligence, her knowledge of the law, and her willingness to stand up for what was right, and in spite even of her beating the landlord twice, she still has not been able to get due process and recover damages that are specifically set forth in the landlord/tenant act and are rightfully hers. This is because there are so few tenants who stand up for themselves in court, who interpose counterclaims and demand that the courts hear them that it has become the default position of the Justice Court system that tenants are not entitled to due process. This is what we mean when we say that there is not a culture of tenants’ rights in Arizona. The legal system does not know what to do with tenants who are trying to effectuate for themselves those rights conferred upon them by the Arizona Residential Landlord and Tenant Act.
This is the type of thing that we’re trying to change at Arizona Tenants Union. Join us! Stand up for tenants’ rights! If you don’t do it, it won’t be done.