I have in the past discussed the eviction process in Arizona, but I haven’t talked specifically about how to defend yourself in an eviction action. What I’m going to do here is try to give you some specific strategies for defending yourself in eviction proceedings. I am not going to go into detail discussing arcane technicalities because I don’t think most tenants will be able to articulate them properly, especially coming against a landlord attorney like Andy “Dr. Evictor” Hull. I also don’t think the judges are smart enough or willing enough to consider these sorts of defenses from an unrepresented tenant. But there are some specific defenses that you can raise which, if applicable, may give you an edge if the landlord is trying to evict you.
First of all, before you receive a court summons you should have received a notice, usually a 5-day notice for nonpayment of rent or a 10-day notice for lease violation. If you receive a 10-day notice for a lease violation, you need to know that for the first violation you have ten days to cure, or correct the condition, but for the second violation for the same reason, you do not have the chance to cure again. A.R.S. § 33-1368(A)(2). So particularly if the landlord has sent you a 10-day notice for something you didn’t do, you have to send a letter to your landlord by certified mail denying that you committed the violation. That way, if he claims a second violation and tries to evict you, you’ll be able to show the judge that the first violation is in dispute and you need a trial to litigate both alleged violations.
If you receive a 5-day notice for nonpayment of rent, you must pay your rent plus late fees within that five day period. But you are not responsible for attorneys’ fees or other costs at that point. A.R.S. § 33-1368(B).
The real challenge comes when you’ve passed the notice stage and are in Justice Court. Justice Court judges are almost always very pro-landlord; moreover, they are not interested in following due process. Landlord lawyers know this and they walk all over tenants who are not represented. I’m going to tell you how to even out the odds (somewhat).
First of all, it is extremely important to file an answer to the complaint with the clerk of the court before you walk into the courtroom, on the first day of the proceeding. You can get the paperwork from the clerk (or you can join Arizona Tenants Union and we can help you draft professional pleadings). Make four copies, have all of them stamped by the clerk and give one to the clerk, one to the judge when your case is called, one to the landlord or his attorney, and keep one copy for yourself. The cost of filing an answer is $45.00, and a lot of tenants don’t want to pay this, but there’s no getting around it. It’s critical that the judge gets a chance to read your defense before the case starts, and if you don’t file an answer and pay the fee, the judge won’t listen to a thing you say; he’ll only be concerned with whether you paid the rent.
So what are your defenses? First of all, if the landlord has accepted a partial payment of rent for the month, he waives his right to evict you. A.R.S. § 33-1371(A). Many landlords make this mistake, and many tenants do not know to raise the issue. But it is one which judges seem to be aware of and respect, so if this happens in your case, it’s important to bring it up to the judge.
Second, the five- or ten-day notice and also the summons have to be made in the name of the right entity. The owner of the building is allowed to name an agent, but that agent has to be either a person or a corporate entity (corporation, LLC, etc.). A lot of times the notice is unsigned, or is in simply the name of the apartment complex. Such an entity cannot bring a case against you – it’s sort of like my Honda Civic bringing a case against me for failing to change the oil. It simply cannot be a party to a court case and the court does not have the jurisdiction to hear that case.
You can go on the Maricopa County Assessor and the Arizona Corporation Commission websites and get ownership and agent information. Or you can join Arizona Tenants Union and we will find out that information for you and provide all the paperwork you need.
Third, if you’re not personally served with the notice, it must be posted on the door and mailed by certified mail the same day. Also, it must be served at least two days before the court date. A.R.S. § 33-1377(B). These, like the situation discussed above where a non-legal entity brings the case, are also jurisdictional defenses.
Now, there’s an important technical detail in raising jurisdiction defenses, and it’s a little complicated. The technicality is that when you fill out the paper at the clerk’s office, you don’t call it an “Answer,” you just call it an “Affirmative Defense” and “Counterclaims.” The reason is that once you file an answer you are submitting to the jurisdiction of the court, and you cannot raise this issue later.
You also have the right to a jury trial under certain circumstances. A.R.S. § 33-1176(A) says the plaintiff has a right to demand a jury trial. But most tenants are defendants in eviction actions, not plaintiffs. The way around this is to file a counterclaim if you can. That way, even though you’re the defendant in the landlord’s action against you, you’re the plaintiff in your action against the landlord.
There are two types of counterclaims you can raise: equitable counterclaims and statutory counterclaims. An equitable counterclaim simply means that you are entitled to recover certain money damages as a matter of fairness. For example, if you complain to the landlord that a pipe is loose, and he doesn’t fix it and it bursts and ruins your furniture, you can make a claim against the landlord on that basis.
A statutory counterclaim is one that is rooted in the law. Many of the sections of the Arizona Residential Landlord and Tenant Act provide that the landlord owes you money damages for a variety of his noncompliances. For example, he is required to give you two days’ notice of his need for access into your unit. A.R.S. § 33-1343(A). If he abuses this provision and enters before two days have expired, he is liable for damages of a months’ rent for each instance. A.R.S. § 33-1376(B).
Many of the sections of the landlord/tenant act require the tenant to give the landlord prior notice before he is able to recover statutory damages. One of the things we at Arizona Tenants Union do for our members give the landlord notice of all possible noncompliances at the beginning of your tenancy. That way, if you need to assert counterclaims later, you have made the requisite demands.
Even if you have properly raised the counterclaim, one of the things I’ve seen happen is that the judge will dismiss the jury demand because the lease forbids cases being heard by juries. This is illegal. The landlord/tenant act specifically provides that if a lease provision contradicts the law, the law prevails. A.R.S. § 33-1315(A)(1). But as I said, judges routinely ignore the law, either because they don’t know it or they don’t care. If the judge tells you that you can’t have a jury because your lease forbids it, insist to him that the lease provision prohibiting a jury is unenforceable. He still might rule against you, but you will have created a record that you can use for appeal if you want.
The foregoing might seem like a lot to digest – and it’s only the tip of the iceberg. But these are things you should know as a tenant. We at Arizona Tenants Union are trying to instill a culture of tenants’ rights in Arizona in which tenants know their rights, and landlords know tenants know their rights. Even if you’re not facing eviction, it’s a good idea to make the disclosure and other demands on the landlord at the beginning of the tenancy so that you’re protected in the event that something goes wrong. It also it starts the landlord/tenant relationship off on the right foot, meaning the landlord understands that you know your rights. Join the Arizona Tenants Union to learn your rights as a tenant and become part of the growing movement to turn the landlord/tenant relationship in Arizona on its head and make Arizona a tenant-friendly state.