A situation came up in the office recently which is emblematic of a problem with tenants trying to effectuate remedies by themselves. A tenant called the office who had read the Arizona Residential Landlord and Tenant Act and then drafted a 5-day demand letter for a landlord to correct a health and safety violation, specifically, a mold problem, pursuant to A.R.S. 33-1324. The letter included the language of A.R.S. 33-1361 specifying the breach and actually quoted the exact language of the statute that “the rental agreement will terminate upon a date not less than five days after receipt of the notice if the remedy is not remedied in five days.” I was extremely impressed that the tenant read and understood the law in its particulars and drafted a letter using the same language we use in our own boilerplate letters.
The tenant was smart and competent at what she did. But she made several mistakes because she did not have the experience that we, as professional tenant counselors, have. First, she hand-delivered the letter to the management office without getting a receipt. This alone was fatal to her action: without a signed receipt from the landlord or a certified mail receipt from the Post Office, the landlord would simply say that he never received the notice. Landlords do this all the time because they know that tenants don’t understand that when you serve a notice it is as much to prove you gave notice as to actually give the notice. It just doesn’t occur to so many people that landlords would lie, and landlords use this naivety of tenants all the time to their advantage.
But she made another mistake which was understandable because it was completely counterintuitive. She called a mold inspector before she sent the letter, to confirm that there was mold in the apartment. She had actually seen the growths and it was clear to her that it was mold. But she thought it was necessary to get a professional report before she started the action.
The problem is that the landlord has five days to correct the condition. So the tenant needs to get the mold inspection done after the five day period has expired, not before. Otherwise, again, the landlord will lie: he will simply say that he sent someone to make the repair, and the tenant won’t be able to show otherwise. Here, the thing for the tenant to understand is that if she gives notice and calls out the mold inspector five days later and it turns out it is not mold, the only consequence to her is that she can’t break her lease. If it turns out it is mold, she can take the appropriate remedy. In this case, even if the notice she gave were properly served, she would not be able to go forward without another mold inspection. Having paid $400 for the first inspection, she simply did not have the money to bring the inspector out a second time.
I raise this issue as an example of why tenants should not try to take actions without calling us first. There are so many situations in which subtle technicalities come up that tenants don’t think about, even if they read the landlord/tenant act as carefully as this tenant did. To give another example, A.R.S. 33-1363 allows a tenant to use up to half his rent money to make a repair, after giving the landlord a ten day notice. But one of the requirements in this section is that he must include with the reduced rent and receipt for repair a waiver of lien. What’s that? It’s simply a form the contractor signs waiving his right to put a lien on the property in the event that he is not paid by the tenant. It’s a simple form: it says: “I hereby waive any lien against [Name of Landlord] for the work I did as described in the attached bill.” But it is not something a tenant would know how to write.
Arizona Tenants Union is the only real tenants’ rights organization in Arizona. We are organized as a 501(c)(3) charity under the Internal Revenue Service tax code which means all donations and membership dues are tax deductible. Membership dues are $60.00 a year, and not only will you be receiving professional help for your problems as a tenant, but you will be supporting the tenants’ movement in Arizona. Go on our website, www.tenantsmatter.org, and join today.