questions & answers

Question: My apartment lease will be expiring in a few months and the new lease that has been proposed includes a new payment for a percentage of the common area utilities. The calculation is based on the total utility bill for the common areas then breaks down by square footage and number of occupants of each apartment. The monthly charges will fluctuate from month to moth as the common area charges change. My questions are is this legal? Aren't we already paying for the common area utilities by paying rent? Would this not be consider a double dip? Please advise. Thank you, Kathleen Ingram

Answer:  For more information on Landlord and Tenant obligations please read the article “Landlord and Tenant Rights and Responsibilities”. More information is provided under the Arizona Residential Landlord Tenant Act, which can be found in the Arizona Revised Statutes.
A landlord must provide all utilities and services specified in the lease agreement, and the property must be delivered to the tenant in compliance with both the rental agreement and A.R.S. § 33-1324. A.R.S. §§ 33-1323 and 33-1364(B.
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01323.htm&Title=33&DocType=ARS
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01364.htm&Title=33&DocType=ARS

A landlord may not take possession through voluntarily decreasing services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential services to the tenant, except as per the landlord-tenant act.    A.R.S. § 33-1374. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01374.htm&Title=33&DocType=ARS

A landlord’s willful diminution of service by interrupting or causing the interruption of electric, gas, water or other essential service to the tenant permits the tenant to: recover possession or terminate the rental agreement; AND recover damages of twice the rent or twice the actual damages suffered; and, if opting to terminate, get back the security deposit. A.R.S. § 33-1367. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01367.htm&Title=33&DocType=ARS

Also, the tenant may give notice of noncompliance and thereupon terminate if not remedied, sue for damages, or sue for injunctive relief. A.R.S. §§ 33-1361(A) and 33-1361(B). http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01361.htm&Title=33&DocType=ARS

Under A.R.S. § 33-1364(B), a landlord shall provide all utilities and services specified in the lease agreement, and may not terminate such services except to make repairs. A landlord may not transfer responsibility for such utility services to the tenant without the tenant's written consent. A.R.S. 33-1364. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01364.htm&Title=33&DocType=ARS

When a landlord does not provide essential services, including running water, gas or electrical service, reasonable amount of hot water or heat, air-conditioning or cooling, or other essential services, a tenant has numerous options under A.R.S. § 33-1364.
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01364.htm&Title=33&DocType=ARS


After "reasonable notice," a tenant may:
* Procure the service himself during the period that the landlord fails to provide the service, deducting the cost from the next month's rent;
* If the service is cut off due to the landlord's nonpayment to the utility service provider, and there is not a separate meter for each tenant in the apartment community, then the tenant may, by himself or together with other tenants, arrange to pay the landlord's utility bill and deduct the ongoing costs out of the rent until the landlord provides "adequate assurances to the tenant that the above utility services will be maintained." A.R.S. 33-1364.
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01364.htm&Title=33&DocType=ARS