I’ve written at some length about the lack of due process in Justice Court eviction proceedings. But I wonder how many people really understand just how serious these issues are that I complain about. So I’m going to go into some detail about the problems tenants face in court. The devil is in the details, and some of the details may astound you.
There is a fundamental principle in law that in order for a court to hear a case, it must have jurisdiction. This means, among other things, that the parties that come before it must have standing to do so. In order for a landlord to bring about an eviction action, he must show that he owns the building and has the authority to file the Complaint. Otherwise, anyone could bring an eviction action to evict anyone. I could go to court and file to have you evicted from a building I have nothing to do with. Obviously, that’s an absurd situation.
Except that’s what happens to tenants every day! Landlords routinely serve both the five- or ten-day notice preceding the court case and the Complaint itself in the names of parties who have no standing to do so. The Complaint may be in the name of the management company, not the owner. It may be in the personal name of an officer of a corporate entity that owns the building. Sometimes the 5- and 10-day notices don’t have any name listed at all. These technicalities should keep a landlord from evicting the tenant.
But tenants don’t know this. They don’t know what needs to be included on a five- or ten-day notice or a Complaint. They don’t know, for example, that the 5-day notice has to say that the tenancy is terminated and not just that the tenant owes rent. And they don’t know how to research the ownership of a building through the County Assessor’s Office. As a result, landlords routinely evict tenants even though they don’t have the correct information on face of their paperwork and the standing to go into court.
In any other situation a court will deal with the jurisdictional issues before it even starts considering the claim on its merits. But in Arizona, the Justice Courts give no consideration to jurisdictional issues even if the tenant raises them to the judge! To anyone who deals in the legal arena, such a thing is unheard of. It’s astonishing that a court will not require, as a condition to move forward with a case, the landlord to prove he has standing to bring the case in the first place. But jurisdictional issues simply are not considered by Justice Courts, and parties proceeding as landlords but who don’t have standing to bring a case routinely do so anyway. This happens even when the landlord is represented by an attorney.
The next thing that should happen in an eviction proceeding is that the landlord should be required to show that he served the five- or ten-day notice that preceded the Complaint. But eviction cases are summary proceedings which means that they move through the courts at a much faster rate than a typical lawsuit. The tenant does not have a chance to engage in the discovery process to pin the landlord down on when the notice was supposedly served, which might allow some tenants to come up with an alibi. Now, the tenant is entitled to have an evidentiary hearing held in which he can cross examine the landlord and raise these issues. But the courts never, ever allow a tenant to do so.
Next, we get to the merits of the case. In most situations in Arizona a tenant may not withhold rent. But the tenant may pay a reduced rent if he suffered a fire, flood, or other casualty damage that rendered the apartment fully or partially unusable. (A.R.S. § 33-1368.) A tenant may also make repairs and deduct the cost from the rent under some circumstances. (A.R.S. § 33-1363.) So the tenant should have a chance to prove these affirmative defenses to the landlord’s claims for rent. Now, it is true that most tenants don’t have such defenses. But we have found that even tenants who do, such as those for whom we help prepare the proper paperwork, are not given an opportunity to testify in court. The judge says, “Did you pay the rent?,” the tenant says, “No, but . . .” and before he even has a chance to finish his sentence the judge pounds his gavel and says “Writ of restitution (eviction order) issued, 5-day stay (meaning the tenant has five days before the Constable comes out to evict him), next case.”
One of the big problems is the eviction rules require the tenant to file a notice of affirmative defenses and counterclaims and pay certain filing fees in order to raise these issues. But the court paperwork the tenant receives does not say anywhere on it that the tenant has to go through additional administrative procedures to raise these affirmative defenses and counterclaims. So the tenant comes to court empty-handed and is entirely unprepared for what happens.
Moving on: the Arizona Residential Landlord and Tenant Act allows a tenant to recover money damages for a variety of landlord misconduct. The tenant is allowed to be reimbursed for any money he expended if the landlord is out of compliance with his obligation to maintain. (A.R.S. § 33-1361.) If the landlord fails to deliver possession, the tenant may recover twice the rent. (A.R.S. §33-1362.) If the landlord fails to provide essential services such as air conditioning or hot water, the tenant may recover 125% of each day’s rent while he was out of possession of the apartment. (A.R.S. § 33-1364). If the landlord abuses his right of access, the tenant may recover a month’s rent. (A.R.S. § 33-1376.) If the landlord illegally ousts the tenant from his apartment, including constructive eviction such as shutting off services, the tenant can recover damages of twice the rent. (A.R.S. § 33-1367.) If the landlord attempts to terminate the tenancy or otherwise evict a tenant within six months of that tenant asking for repairs, the landlord’s actions are presumed retaliatory and the tenant may recover damages of twice the rent. (A.R.S. § 33-1381.) The list goes on and on.
All of this means that in many eviction proceedings, the tenant doesn’t just have affirmative defenses to the amount of rent owed, but he also has counterclaims for actual and statutory damages against which rent owed can be offset. The landlord/tenant act specifically allows a tenant to make counterclaims in an eviction action. (A.R.S. § 33-1305.) But judges routinely sever the counterclaims and require the tenant to bring a separate action for them. This means the tenant cannot set off against the rent he owes a counterclaim owed to him by the landlord. I’ve seen tenants evicted for both of these reasons –that the judge would not consider an affirmative defense, and that a judge would not allow the tenant proceed on a counterclaim.
Finally, there is the issue of a jury trial. The law gives an absolute right to tenants to have a jury trial. (A.R.S. § 12-1176.) But judges almost always deny this right to tenants who know to ask for one.
Due process is fundamental to the American system of justice. But in Arizona, at the Justice Court level in evictions proceedings, not only is the due process afforded to tenants limited, the amount of that limitation is mind-boggling. One of the most important things we try to do as a tenants union is to garner the political strength to force the courts to obey the law. The scope of this problem is state-wide, and it exists in every Justice Court jurisdiction in Arizona. It’s an uphill battle: reform may have to be made court by court, judge by judge. But if there is enough of an outcry about the situation – similar, perhaps, to the outcry against the abuses by Sheriff Joe Arpaio and former County Attorney Andrew Thomas that led to the latter’s demise and the former’s serious legal problems – maybe we can cause some movement to take place around this issue. This means we have to first create our own movement. Tenants’ rights activism isn’t just about helping individual tenants with problems they’re having with their landlord; it’s also about galvanizing tenants to create a political movement to bring these horrendous practices of Justice Courts into the daylight.
And so I repeat my weary refrain: join Arizona Tenants Union! Let’s create the culture of tenant organizing and tenants’ rights that is so desperately needed and bring about some fundamental fairness in the way people are treated here.