questions & answers

Question: We have found black toxic mold in the house we are renting and we just gor the report back from the inspection expert and it has confirmed the mold to be highly toxic. We are afraid that once we tell the landlord he will evict us. What are our rights? We have asked the landlord to fix things in the past and his answer was I will let you out of the lease instead of fixing the problems.We really could use some legal advice.Thank you.

Answer: What follows is a general informational summary of the tenants’ rights described by the Arizona Residential Landlord and Tenant Act (ARLTA). If you or any other tenant would like to obtain legal advice from a lawyer, there are links to free and low-cost legal services on this website (at http://www.azlawhelp.org/accessToJustice). Under the ARLTA, a landlord is required by law to (among other things) “comply with the requirements of applicable building codes materially affecting health and safety” and “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition” (A.R.S. 33-1324). As a general rule, this means that a landlord is responsible for removing toxic mold, so long as the tenant did not either cause or make the problem worse (A.R.S. 33-1341). A tenant whose landlord is failing to meet the landlord’s obligations under the ARLTA is responsible first and foremost for providing the landlord with formal written notice of the problem – ideally in a signed and dated letter (keeping a copy for the tenant’s own records) – describing the problem in detail and requesting that the problem be fixed as soon as reasonably possible. The tenant must do this regardless of whether the tenant ultimately wants to continue to live in the dwelling or leave. If the tenant wishes to terminate the rental agreement if the landlord fails to make the requested repairs, then the tenant is permitted by the ARLTA to deliver a written notice to the landlord identifying the repairs that the landlord must make under A.R.S. 33-1324 and stating that the rental agreement will terminate ten days after the landlord receives the notice if the repairs are not made within ten days (or, if the problem is materially affecting the tenant’s health and safety, as is the case when the problem is toxic mold, that the rental agreement will terminate five days after receipt of the notice if the repairs are not made within five days) (A.R.S. 33-1361(A)). A tenant who wishes to terminate a rental agreement on these grounds should document carefully both the condition of the dwelling (with photographs or video and witnesses, as well as an expert report when possible) and the tenant’s attempts to notify the landlord of the problem. If the tenant wishes to continue to live in the dwelling rather than leave, the tenant may not simply withhold either all or part of their rent because the landlord has failed to make the required repairs (A.R.S. 33-1368(B)). The tenant may sue a landlord for monetary damages suffered by the tenant due to the landlord’s violation of A.R.S. 33-1324, but as a general rule the tenant still must pay full rent. However, there are exceptions – so long as the tenant follows the proper procedures. If, even after the landlord has received the tenant’s letter requesting required repairs, the landlord still fails to comply with the landlord’s obligations under ARLTA, then the tenant has several options, depending on the circumstances. The tenant may sue the landlord in court to recover any monetary losses suffered by the tenant (including the diminished value of the rent being paid by the tenant to the landlord) due to the landlord’s failure to make the required repairs (A.R.S. 33-1361(B)). If the cost of making the required repairs would be no more than an amount equal to one-half of the tenant’s monthly rent payment, then the tenant may notify the landlord in writing of the tenant’s intention to make the repairs at the landlord’s expense. If, even after being notified by the tenant in writing of the tenant’s intention to pay for the work then charge the landlord, the landlord still fails to comply within ten days or as promptly thereafter as conditions require in the case of an emergency, then the tenant may have the work “done by a licensed contractor and, after submitting to the landlord an itemized statement and a waiver of lien, deduct from the tenant’s rent the actual and reasonable cost of the work,” not exceeding either $300 or 1/2 of one month’s rent, whichever is greater (A.R.S. 33-1363(A)). As to the risk that a landlord may retaliate against a tenant if and when the tenant requests required repairs, under the ARLTA a landlord is prohibited from increasing the rent or decreasing services or filing or threatening to file an eviction action against the tenant after the tenant has complained to the landlord about a violation of the landlord’s obligation to make required repairs (A.R.S. 33-1381(A)). A tenant whose landlord retaliates in this way may go to court not only to dispute or overturn an eviction but also to recover from the landlord an amount equal to two months’ rent or twice the actual monetary damages sustained by the tenant due to the landlord’s retaliation, whichever is greater (A.R.S 33-1371(B)). The ARTLA also states that “In an action by or against the tenant, evidence of a complaint within six months prior to the alleged act of retaliation creates a presumption that the landlord’s conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of termination of the rental agreement. ‘Presumption’ ... means that the [judge or jury] must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence” (A.R.S. 33-1381(B)).