Almost exactly a year ago I posted a blog on retaliation. However, a tenant in a building I was organizing re-posted it and I had a chance to re-read it and I realized that I made a serious mistake. I indicated that retaliation does not include a landlord terminating a tenancy. This was incorrect. Included in the definition of retaliation is that a landlord may not bring or threaten to bring an action for possession against a tenant who has engaged in protected conduct. Terminating a tenancy is threat to bring an action against a tenant for possession. Therefore terminating a tenancy constitutes retaliation.
The Arizona Residential Landlord and Tenant Act, A.R.S. § 33-1381 protects a tenant from retaliation by his landlord for invoking his rights under the law. But that protection against retaliation is very specific. Any actions a landlord takes that are not specifically defined as retaliation do not, in fact, constitute retaliation under the law. The actions the landlord may not take against a tenant who has invoked his rights and are defined as retaliatory are limited to the following: increasing rent, decreasing services, or bringing or threatening to bring an action against the tenant for possession. A.R.S. § 33-1381(A)(1). Under this definition, retaliation may include terminating a tenancy or refusing to renew a lease, but only if it was done within six months of a tenant taking action.
It is important to understand that only a very limited number of tenant actions are protected against retaliation. The only actions that are protected are: 1) complaining to a governmental agency charged with responsibility for enforcing a building or housing code of a violation applicable to the premises materially affecting health and safety (A.R.S. § 33-1381(A)(1)); 2) complaining to the landlord about a violation of A.R.S. § 33-1324 (landlord’s obligation to make repairs) (A.R.S. § 33-1381(A)(2)); 3) joining a tenants union (A.R.S. § 33-1381(A)(3)), or 4) complaining to a governmental agency charged with the responsibility for enforcement the wage-price stabilization act (A.R.S. § 33-1381(A)(4)). That’s it! You are not protected if the landlord wrongly takes you to court and you win. That is not protected conduct. It may be protected if you go around the building and knock on doors and try to form a tenants association to speak to the landlord collectively because you are protected if you join a tenants union. Certainly you are protected if you join Arizona Tenants Union before knocking on doors. But the thing to know is that the retaliation statute is one of the pieces of the law that was substantially watered down by the legislature when it considered tenants’ right statutes in other jurisdictions and used them as a basis for crafting its own law.
Another area in which the Arizona legislature watered down the law was in its definition of which actions are legally presumed to be in retaliation. In most jurisdictions, all conduct defined as retaliatory is also specifically presumed to be retaliatory. But in Arizona, the only presumption of retaliation is if the landlord takes an action defined as being retaliatory as set forth above within six months of a tenant making a complaint. (A.R.S. § 33-1381(B)). In such a situation, the landlord’s conduct is presumed to be in retaliation and the burden is on the landlord to prove that it was not. In all other situations, retaliation is not presumed but is a defense the tenant can raise. But the burden is on him to prove that the landlord’s action was, in fact, retaliatory.
As with so many seeming rights tenants have in Arizona, when you get right down to the details, you see that those rights are really hollow. But despite the generally watered down nature of the rules governing retaliation, there is at least one situation in which the law does have some teeth. That is during the six month period after a tenant makes a complaint about repairs. In those situations, actions a landlord takes against a tenant are legally presumed to be retaliatory. So what we suggest is that if you are in a tenancy which you want to maintain but are afraid that the landlord does not intend to renew it, make a formal, written complaint about repair conditions within six months of the time the tenancy terminates. Make sure you have evidence that you sent the complaint to the landlord. So serve it by certified mail and keep a copy of the complaint in your possession. That way, you can put the burden on the landlord to prove that his actions are not done in retaliation against you asserting your rights. Now, the presumption of retaliation in such a situation is one that is rebuttable, which means the landlord can still evict you if he can show he had other legitimate reasons for doing so. But it does give you a leg to stand on in an eviction action, which is a very rare thing in Arizona.
Remember, one thing you can do that protects you against retaliation is to join a tenants union. That’s us. We are the tenants union in Arizona. We do what we do because we are activists and passionate about defending our members’ rights. And we are passionate about changing the landlord/tenant landscape in Arizona to favor tenants. Membership dues are $60.00 a year. We are relentless in our defense of our members: ask anyone, landlord or tenant, who has come in contact with us. Dues are tax-deductible and your membership might be the biggest thing you can do to create some semblance of fairness, some leveling of the playing field, in you life and the lives of those around you. Before you leave this website, go to the bottom of any page and sign up for membership. It is only by your actions that the landlord/tenant act in Arizona, such as it is, will have any teeth in it at all.