fan-atuIt’s summer again, and with it brings . . . broken air conditioners!  The other day, 3-On-Your-Side did a piece about what a tenant should do if his air conditioning is not working.  But the information they gave was incorrect.  I actually called them and am waiting for a response on whether I can go on air and make a correction.  In the meantime, at the risk of repeating myself from previous blogs, I want to go over the rules and procedures concerning the provision of air conditioning and other essential services in Arizona.

First, under A.R.S. § 33-1363 the tenant may use half his rent money to make repairs as promptly as conditions require, after giving notice.  Usually a tenant has to wait ten days to effectuate a “repair and deduct” strategy but the law makes an exception for conditions that require more prompt attention.  This will be discussed in more detail below.

There are also a separate set of remedies set forth under A.R.S. § 33-1364 governing the provision of essential services: running water, gas or electricity, hot water, heat, and air conditioning or cooling.  Under the statute, the tenant may give “reasonable notice” to the landlord and then do one of the following: 1) procure reasonable amounts of essential services during the period of the landlord’s noncompliance and deduct their cost from the rent;  2) recover damages based upon the diminution in the fair rental value of the dwelling unit; or 3) procure reasonable substitute housing during the period of the landlord’s noncompliance, in which case the tenant is excused from paying up to 125% of each day’s rent.

So what does this all mean?  First, the statute says the tenant can take the actions set forth after giving “reasonable notice.”  But what is “reasonable notice?”  The statute doesn’t say, so it comes down to a matter of judgment: what might a judge decide is reasonable?  We think you have to give the landlord a day – 24 hours – to correct the condition.  So depending upon how you serve the landlord the notice, you have to wait 24 hours from then.  Now, it is essential that you serve the notice is such a way that you have evidence of the landlord’s receipt.  Usually we recommend using certified mail, but that takes too long in cases like these, where you need an immediate repair.  So you should serve it by Priority (overnight) Mail, Signature Requirement Waived.  This means it gets delivered the next day and you get a tracking number you can use to go on the USPS website and get proof of delivery, but because the signature requirement is waived, the landlord will not have the option of declining the notice.

You can also hire a process server for same-day delivery.  We don’t recommend using messenger services, even though they’re cheaper, because you can’t count on them coming into court to testify that they delivered the papers.  Process servers will.

The law only allows you to invoke one remedy.  If you can, the best remedy is to use your rent money to make the repair.  The problem is, air conditioner repairs usually cost more than half a month’s rent, which is the maximum you can pay, so most tenants are out of luck with regard to invoking this remedy.  I’ve written separate blogs that are posted on this website on how to effectuate “repair and deduct” strategies so I don’t want to reiterate them here, except to say that you must give the proper notice as set forth above, you must use a licensed contractor, he must sign a form releasing the landlord from liability caused by his work, and,as I said, you cannot spend more than half your rent making the repairs.

Secondly, a tenant may “procure reasonable amounts” of cooling.  Again, what does this mean?  If the air conditioning went off because the landlord didn’t pay the electric bill, you’re allowed to pay that bill.  Otherwise, our recommendation is that you rent a portable air conditioning unit.  You can use your entire rent money to do so.  Do not buy a portable air conditioner and deduct it from your rent: courts wouldn’t look favorably upon that.

Alternatively, you can stay elsewhere.  If you rent a motel room you can deduct 125% of each day’s rent from the rent you pay.  But a motel usually costs more than 125% of a day’s rent.  (If your monthly rent is $600, your daily rent is $20.00.  125% of that is $25.00 which is way less than the cost of even a cheap motel room.)  So you end up losing money anyway.

Finally, you can either stay in the heat or stay with a friend and pay a reduced rent for the days without air conditioning.  We think it’s reasonable to reduce the daily rent by half if you’re staying in the unit, or reducing it fully if you’re staying with a friend.

If your air conditioning goes out, call ATU.  We can help you figure out your best course of action and help you write the letters and walk you through the process.