A change to A.R.S. Sec. 33-1341 will go into effect this summer, and I’m not sure if the legislature has done anyone a favor. Our Residential Landlord & Tenant Act features a division of responsibility for keeping a dwelling unit in shape to inhabit. First, the basic obligation to maintain “a fit and habitable condition” rests on the Landlord, under A.R.S. Sec. 33-1324. Our Court of Appeals 30 years ago said that it’s a breach of the “fit and habitable” duty of the Landlord if it doesn’t repair a toilet – because that’s a condition that materially affects health and safety. That opinion, Schaefer v. Murphey, effectively “mashed up” 33-1324A. 1 and 2, or, basically, made “fit and habitable” and “comply with health and safety requirements” synonymous phrases. Thus, if Landlord neglect made the property unhealthy or unsafe, that was a breach of the statutory duty to keep the premises fit and habitable. That duty was not conditioned on anything – it’s a constant Landlord obligation.  That way, slum lords have to be wary of prosecution for persistent neglect of their property.

Under Sec. 33-1341, which requires a Tenant to maintain her dwelling unit, the Tenant also has to comply with applicable codes materially affecting health and safety. In other words, once the lease begins, the Tenant has to comply with health and safety regulations, but if there’s some major system failure, say of the plumbing or air-conditioning/heating or the electrical wiring, that’s on the Landlord to cause to be repaired. If the Landlord doesn’t do that, the statute used to say that if the cost to comply with the statutory duty was less than 1/2 of the monthly rent, Tenant could give notice to Landlord, and, after some opportunity for the Landlord to get after it, the Tenant could get the work done by a licensed contractor and deduct the cost–up to the half-month’s rent. The only exception to that rule was for repairs that were made necessary by the intentional act or negligence of the tenant or a family member or guest.

Now the statute still contains the self-help right outlined above, but the amendment inserts a couple of weird twists. First, repair and deduct is now no longer a permitted Tenant remedy unless the condition that the Tenant repairs is tantamount to one that would breach the Landlord’s duty to maintain “fit and habitable” premises. There’s two things askew here. First of all, repair and deduct from rent was capped at 1/2 month’s rent by the statute, which meant, typically, that the defects in the premises were minor, gauged by the cost to repair (say, arbitrarily, around $500, for most renters at least). So if there was a major problem, the Tenant needed to harass the Landlord to spend a bigger sum, failing which, the Tenant’s only remedies were to call the building inspectors, sue or move out. Now, the Tenant has to guess whether the defect in the premises is substantial enough to constitute a breach of the Landlord’s duty to maintain “fit and habitable” premises.

The second weird dimension of this change to Sec. 33-1363(B) is that since the Tenant is supposed to herself comply with codes affecting health and safety, what does the new provision mean? If the sink backs up or leaks and the water stagnates and becomes unhealhful, or worse, mildew or mold begins to develop, the Tenant must repair the sink.  However,  she doesn’t know if she can repair and deduct, without knowing if this defect, unless fixed by the Landlord, is a breach of his duty. If dumping her hair down the sink consistently caused the backup, that’s understood to be on the Tenant’s dime; but if the backup just happens from long-time accumulation in the pipes or a burst fixture (guess what I did on the morning of July 4th?), then it should be the Landlord’s duty to get the plumber out for the fix.

The second change to the Landlord & Tenant Act effective soon is to Sec. 33-1341, the Tenant’s duty to maintain the premises. Here the change is that the Tenant has to notify the Landlord, promptly, in writing, of an event that triggers the Landlord to make repairs or maintain as is his duty under Sec. 33-1324. If the problem is an emergency, and that happens on a Friday, then what? The Landlord doesn’t have to make the repair? Why impose that requirement to give written notice? If the Tenant doesn’t give written notice, or that written notice isn’t “prompt” (according to some unarticulated standard) is that a default by Tenant, and what is the Landlord’s remedy?

I’m sure that there are  occasional “high maintenance” tenants in Arizona that complain constantly to their Landlords about anything displeasing. This adjustment to the statute makes their torturing their Landlords somewhat more difficult (okay, a lot more difficult, if the Tenant is illiterate or without access to paper or to a post office box due to mobility or transportation issues and is without email capability). And the change may make the nature of what needs repairing more clear, if the Tenant can articulate the problem in writing. But it just seems to invite the worms out of the can, especially since there’s no setting forth of an exception for an emergency or any clarification of the parameters for determining if the condition repaired satisfies the Landlord’s “fit and habitable condition” maintenance trigger.

What a quagmire; this whole “who’s got the repair responsibility” needs to be reworked in the R L & T statue. My hunch?  A court will referee this fight when a pro bono attorney or a non-profit decides to make an issue of the mess.