The real estate puzzles posed by the COVID-19 pandemic are legion. In normal times, Arizona’s real estate regime has not made much room for what is referred to as “rent striking.” In other words, the reasons a tenant might have been tacitly authorized by law to withhold rent have been few indeed. But in the immediate wake of the pandemic’s rise much of the relief created by lawmakers—mainly on the federal level, which supersedes Arizona law—has come out in the balance favoring tenants.
In less fraught times, the landlord’s right to rent for the lease of their property has been protected by the Arizona Residential Landlord and Tenant Act. Basically, in order for a tenant to legally withhold rent (outside of an agreement made with the landlord), their need to do so must be directly connected with a failure of the landlord to maintain the “fit and habitable condition of the premises,” in the language of the Act. And this follows a set order of operations. After requesting the landlord get the property up to snuff, the tenant must notify the landlord in written format that they intend to correct the problem(s) at the landlord’s expense. Then they must give the landlord ten days to fix the issue(s) listed in the letter, prior to actually attempting to find a self-help solution. At this point, if the landlord has not acted, the tenant may have the solution(s) provided by a licensed contractor, the itemized statement for which they must then provide to the landlord, along with a “waiver of lien.” These steps permit the tenant to deduct from the rent they owe the cost of the work (provided the charge is not unreasonable)—but not in an amount exceeding either three hundred dollars or half the amount of the month’s rent—whichever amount is larger.
Of course, these provisions still stand. But the COVID-19 situation has added new scenarios in which a tenant may withhold rent, including that introduced under a recent eviction moratorium announced by the Center for Disease Control, which ends on December 31. This creates a situation in which a renter may send a written declaration to their landlord swearing that if they are evicted their options are limited to homelessness or moving into someone else’s home in close quarters. That said, tenants who take advantage of this moratorium are not off the hook completely—they must pay the rent in the end, in the form of back-rent. Yet the hardships placed on landlords in the meantime, such as unpaid mortgages, may prove insurmountable for many.
If a tenant in the state of Arizona has withheld rent, either legally or illegally, an experienced attorney with strong scruples like the real estate attorneys at Provident Law can be of help. Our attorneys represent buyers, sellers, landlords, tenants, lenders, borrowers, trustees, guarantors, shareholders, partners, and others. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects. Contact us for more details.
Christopher J. Charles is the founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.
Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.comor at 480-388-3343.