What is the proper way to terminate a lease if the landlord has not made requested repairs?
Full Question:
I've signed a year lease on a rental home with the landlord but am wanting to terminate the lease after only 3 months. We had a written agreement before moving in that the landlord would have a working pool system for us becuase it was not working at the time, and have the paint on the driveway scraped up because it was peeling. After 3 months he still had not gotten them done and is now trying to blame us for the pool not working. He has also on numerous occasions jumped the fence in the backyard to gain access to the house without asking our permission while we are living there. Is there any way we can break the lease with minimal penalization to us?
06/09/2007 |
Category: Landlord Ten... ยป Lease Termin... |
State: Arizona |
#6280
Answer:
You should carefully read your lease agreement to determine your rights and obligations relating to termination and your landlord's rights and obligations regarding maintenance of the premises.
33-341. Termination of tenancies
A. A tenancy from year to year terminates at the end of each year unless
written permission is given to remain for a longer period. The permission
shall specify the time the tenant may remain, and upon termination of such
time the tenancy expires.
B. A lease from month to month may be terminated by the landlord giving
at least ten days notice thereof. In case of nonpayment of rent notice is
not required.
C. A tenant from month to month shall give ten days notice, and a tenant
on a semimonthly basis shall give five days notice, of his intention to
terminate possession of the premises. Failure to give the notice renders
the tenant liable for the rent for the ensuing ten days.
D. When a tenancy is for a certain period under verbal or written
agreement, and the time expires, the tenant shall surrender possession.
Notice to quit or demand of possession is not then necessary.
E. A tenant who holds possession of property against the will of the
landlord, except as provided in this section, shall not be considered a
tenant at sufferance or at will.
33-343. Premises rendered untenantable without fault of lessee;
nonliability of tenant for rent; right to quit premises
The lessee of a building which, without fault or neglect on the part of
the lessee, is destroyed or so injured by the elements or any other cause
as to be untenantable or unfit for occupancy, is not liable thereafter to
pay rent to the lessor or owner unless expressly provided by written
agreement, and the lessee may thereupon quit and surrender possession of
the premises.
33-1313. Notice
A. A person has notice of a fact if he has actual knowledge of it, has
received a notice or notification of it or from all the facts and
circumstances known to him at the time in question he has reason to know
that it exists. A person "knows" or "has knowledge" of a fact if he has
actual knowledge of it.
B. A person "notifies" or "gives" a notice or notification to another by
taking steps reasonably calculated to inform the other in ordinary course
whether or not the other actually comes to know of it. A person "receives"
a notice or notification when it comes to his attention, or in the case of
the landlord, it is delivered in hand or mailed by registered or certified
mail to the place of business of the landlord through which the rental
agreement was made or at any place held out by him as the place for receipt
of the communication or delivered to any individual who is designated as an
agent by section 33-1322 or, in the case of the tenant, it is delivered in
hand to the tenant or mailed by registered or certified mail to him at the
place held out by him as the place for receipt of the communication or, in
the absence of such designation, to his last known place of residence. If
notice is mailed by registered or certified mail, the tenant or landlord is
deemed to have received such notice on the date the notice is actually
received by him or five days after the date the notice is mailed, whichever
occurs first.
C. "Notice," knowledge or a notice or notification received by an
organization is effective for a particular transaction from the time it is
brought to the attention of the individual conducting the transaction and
in any event from the time it would have been brought to his attention if
the organization had exercised reasonable diligence.
33-1314. Terms and conditions of rental agreement
A. The landlord and tenant may include in a rental agreement terms and
conditions not prohibited by this chapter or any other rule of law
including rent, term of the agreement and other provisions governing the
rights and obligations of the parties.
B. In the absence of a rental agreement, the tenant shall pay as rent the
fair rental value for the use and occupancy of the dwelling unit.
C. Rent shall be payable without demand or notice at the time and place
agreed upon by the parties. Unless otherwise agreed, rent is payable at the
dwelling unit and periodic rent is payable at the beginning of any term of
one month or less and otherwise in equal monthly installments at the
beginning of each month. Unless otherwise agreed, rent shall be uniformly
apportionable from day-to-day.
D. Unless the rental agreement fixes a definite term, the tenancy shall
be week-to-week in case of a roomer who pays weekly rent, and in all other
cases month-to-month.
E. If a municipality that levies a transaction privilege tax on
residential rent changes the percentage of that tax, the landlord on thirty
day written notice to the tenant may adjust the amount of rent due to equal
the difference caused by new percentage amount of tax. The adjustment to
rent shall not occur before the date upon which the new tax is effective.
In order for a landlord to adjust rent pursuant to this subsection, the
landlord's right to adjust rent pursuant to this subsection shall be
disclosed in the rental agreement.
33-1323. Landlord to supply possession of dwelling unit
At the commencement of the term the landlord shall deliver possession of
the premises to the tenant in compliance with the rental agreement and
section 33-1324. The landlord may bring an action for possession against
any person wrongfully in possession and may recover the damages provided in
section 33-1375, subsection C.
33-1324. Landlord to maintain fit premises
A. The landlord shall:
1. Comply with the requirements of applicable building codes materially
affecting health and safety.
2. Make all repairs and do whatever is necessary to put and keep the
premises in a fit and habitable condition.
3. Keep all common areas of the premises in a clean and safe condition.
4. Maintain in good and safe working order and condition all electrical,
plumbing, sanitary, heating, ventilating, air-conditioning and other
facilities and appliances, including elevators, supplied or required to be
supplied by him.
5. Provide and maintain appropriate receptacles and conveniences for the
removal of ashes, garbage, rubbish and other waste incidental to the
occupancy of the dwelling unit and arrange for their removal.
6. Supply running water and reasonable amounts of hot water at all times,
reasonable heat and reasonable air-conditioning or cooling where such units
are installed and offered, when required by seasonal weather conditions,
except where the building that includes the dwelling unit is not required
by law to be equipped for that purpose or the dwelling unit is so
constructed that heat, air-conditioning, cooling or hot water is generated
by an installation within the exclusive control of the tenant and supplied
by a direct public utility connection.
B. If the duty imposed by subsection A, paragraph 1 of this section is
greater than any duty imposed by any other paragraph of this section, the
landlord's duty shall be determined by reference to that paragraph.
C. The landlord and tenant of a single family residence may agree in
writing, supported by adequate consideration, that the tenant perform the
landlord's duties specified in subsection A, paragraphs 5 and 6 of this
section, and also specified repairs, maintenance tasks, alterations and
remodeling, but only if the transaction is entered into in good faith, not
for the purpose of evading the obligations of the landlord and the work is
not necessary to cure noncompliance with subsection A, paragraphs 1 and 2
of this section.
D. The landlord and tenant of any dwelling unit other than a single
family residence may agree that the tenant is to perform specified repairs,
maintenance tasks, alterations or remodeling only if:
1. The agreement of the parties is entered into in good faith and not for
the purpose of evading the obligations of the landlord and is set forth in
a separate writing signed by the parties and supported by adequate
consideration.
2. The work is not necessary to cure noncompliance with subsection A,
paragraphs 1 and 2 of this section.
3. The agreement does not diminish or affect the obligation of the
landlord to other tenants in the premises.
33-1343. Access
A. The tenant shall not unreasonably withhold consent to the landlord to
enter into the dwelling unit in order to inspect the premises, make
necessary or agreed repairs, decorations, alterations or improvements,
supply necessary or agreed services or exhibit the dwelling unit to
prospective or actual purchasers, mortgagees, tenants, workmen or
contractors.
B. The landlord may enter the dwelling unit without consent of the tenant
in case of emergency.
C. The landlord shall not abuse the right to access or use it to harass
the tenant. Except in case of emergency or if it is impracticable to do so,
the landlord shall give the tenant at least two days' notice of his intent
to enter and enter only at reasonable times.
D. The landlord has no other right of access except by court order and as
permitted by sections 33-1369 and 33-1370, or if the tenant has abandoned
or surrendered the premises.
33-1361. Noncompliance by the landlord
A. Except as provided in this chapter, if there is a material
noncompliance by the landlord with the rental agreement, including a
material falsification of the written information provided to the
tenant, the tenant may deliver a written notice to the landlord
specifying the acts and omissions constituting the breach and that the
rental agreement will terminate upon a date not less than ten days after
receipt of the notice if the breach is not remedied in ten days. If there
is a noncompliance by the landlord with section 33-1324 materially
affecting health and safety, the tenant may deliver a written notice to
the landlord specifying the acts and omissions constituting the breach
and that the rental agreement will terminate upon a date not less than
five days after receipt of the notice if the breach is not remedied in
five days. For the purposes of this section, material falsification INCLUDES FALSE INFORMATION RELATING TO availability of the unit,
except when a holdover tenant is in illegal possession or in violation of
the rental agreement, the condition of the premises and any current
services as represented by the landlord in writing AND any representation regarding future
services and any future changes regarding the condition of the premises,
the provision of utility services and the designation of the party
responsible for the payment of utility services. The rental agreement
shall terminate and the dwelling unit shall be vacated as provided in the
notice subject to the following:
1. If the breach is remediable by repairs or the payment of damages or
otherwise and the landlord adequately remedies the breach prior to the date
specified in the notice, the rental agreement will not terminate.
2. The tenant may not terminate for a condition caused by the
deliberate or negligent act or omission of the tenant, a member of the
tenant's family or other person on the premises with the tenant's
consent.
B. Except as provided in this chapter, the tenant may recover damages
and obtain injunctive relief for any noncompliance by the landlord with
the rental agreement or WITH section 33-1318 OR 33-1324.
C. The remedy provided in subsection B of this section is in addition
to any right of the tenant arising under subsection A of this section.
D. If the rental agreement is terminated, the landlord shall return all
security recoverable by the tenant under section 33-1321.
33-1362. Failure to deliver possession
A. If the landlord fails to deliver physical possession of the dwelling
unit to the tenant as provided in section 33-1323, rent abates until
possession is delivered and the tenant may do either of the following:
1. Upon at least five days' written notice to the landlord terminate the
rental agreement and upon termination the landlord shall return all prepaid
rent and security.
2. Demand performance of the rental agreement by the landlord and, if the
tenant elects, maintain an action for possession of the dwelling unit
against the landlord or any person wrongfully in possession and recover the
damages sustained by him.
B. If the landlord fails to deliver constructive possession to the tenant
because of noncompliance with section 33-1324, rent shall not abate. Tenant
may proceed with the remedies provided for in section 33-1361.
C. If a person's failure to deliver possession is willful and not in good
faith, an aggrieved person may recover from that person an amount not more
than two months' periodic rent or twice the actual damages sustained by
him, whichever is greater.
33-1363. Self-help for minor defects
A. If the landlord fails to comply with section 33-1324, and the
reasonable cost of compliance is less than three hundred dollars, or an
amount equal to one-half of the monthly rent, whichever amount is greater,
the tenant may recover damages for the breach under section 33-1361,
subsection B, or may notify the landlord of the tenant's intention to
correct the condition at the landlord's expense. After being notified by
the tenant in writing, if the landlord fails to comply within ten days or
as promptly thereafter as conditions require in case of emergency, the
tenant may cause the work to be done by a licensed contractor and, after
submitting to the landlord an itemized statement and a waiver of lien,
deduct from his rent the actual and reasonable cost of the work, not
exceeding the amount specified in this subsection.
B. A tenant may not repair at the landlord's expense if the condition was
caused by the deliberate or negligent act or omission of the tenant, a
member of the tenant's family or other person on the premises with the
tenant's consent.
33-1365. Landlord's noncompliance as defense to action for possession or
rent; definition
A. In an action for possession based upon nonpayment of the rent or in
an action for rent where the tenant is in possession, if the landlord is
not in compliance with the rental agreement or this chapter, the tenant may
counterclaim for any amount which he may recover under the rental agreement
or this chapter. In that event after notice and hearing the court from time
to time may order the tenant to pay into court all or part of the
undisputed rent accrued and all periodic rent thereafter accruing and shall
determine the amount due to each party. The party to whom a net amount is
owed shall be paid first from the money paid into court and the balance, if
any, by the other party. However, if no rent remains due after application
of this section, or if the tenant is adjudged to have acted in good faith
and satisfies a judgment for rent entered for the landlord, judgment shall
be entered for the tenant in the action for possession.
B. In an action for rent where the tenant is not in possession, the
tenant may counterclaim as provided in subsection A but the tenant is not
required to pay any rent into court.
33-1373. Remedy after termination
If the rental agreement is terminated, the landlord may have a claim for
possession and for rent and a separate claim for actual damages for breach
of the rental agreement.
33-1376. Landlord and tenant remedies for abuse of access
A. If the tenant refuses to allow lawful access, the landlord may obtain
injunctive relief to compel access, or terminate the rental agreement. In
either case, the landlord may recover actual damages.
B. If the landlord makes an unlawful entry or a lawful entry in an
unreasonable manner or makes repeated demands for entry otherwise lawful
but which have the effect of unreasonably harassing the tenant, the tenant
may obtain injunctive relief to prevent the recurrence of the conduct or
terminate the rental agreement. In either case, the tenant may recover
actual damages not less than an amount equal to one month's rent.