Title 33 - Property
CHAPTER 10 - ARIZONA RESIDENTIAL LANDLORD AND TENANT ACT
Article 1 - General ProvisionsShort
title
This chapter shall be known and may be cited as the Arizona
residential landlord and tenant act. Title 33, Chap. 10, §33-1301
Purposes
Underlying purposes and policies of this chapter are:
1. To simplify, clarify, modernize and revise the law
governing the rental of dwelling units and the rights and
obligations of landlord and tenant.
2. To encourage landlord and tenant to maintain and improve
the quality of housing. Title 33, Chap. 10, §33-1302
Supplementary principles of law applicable
Unless displaced by the provisions of this chapter, the
principles of law and equity, including the law relating to capacity
to contract, mutuality of obligations, principal and agent, real
property, public health, safety and fire prevention, estoppel,
fraud, misrepresentation, duress, coercion, mistake, bankruptcy or
other validating or invalidating cause supplement its provisions.
Title 33, Chap. 10, §33-1303
Applicability of chapter
This chapter shall apply to the rental of dwelling units. Any
conflict between the provisions of chapter 3 and chapter 7 of this
title with the provisions of this chapter shall be governed by the
provisions of this chapter. Title 33, Chap. 10, §33-1304
Administration of remedies; enforcement
A. The remedies provided by this chapter shall be so
administered that the aggrieved party may recover appropriate
damages. The aggrieved party has a duty to mitigate damages.
B. Any right or obligation declared by this chapter is
enforceable by action unless the provision declaring it specifies a
different and limited effect. Title 33, Chap. 10, §33-1305
Settlement of disputed claim or right
A claim or right arising under this chapter or on a rental
agreement, if disputed in good faith, may be settled by agreement.
Title 33, Chap. 10, §33-1306
Territorial application
This chapter applies to, regulates, and determines rights,
obligations and remedies under a rental agreement, wherever made,
for a dwelling unit located within this state. Title 33, Chap.
10, §33-1307
Exclusions from application of chapter
Unless created to avoid the application of this chapter, the
following arrangements are not covered by this chapter:
1. Residence at an institution, public or private, if
incidental to detention or the provision of medical, educational,
counseling or religious services.
2. Occupancy under a contract of sale of a dwelling unit or
the property of which it is a part, if the occupant is the purchaser
or a person who succeeds to his interest.
3. Occupancy by a member of a fraternal or social
organization in the portion of a structure operated for the benefit
of the organization.
4. Transient occupancy in a hotel, motel or recreational
lodging.
5. Occupancy by an employee of a landlord as a manager or
custodian whose right to occupancy is conditional upon employment in
and about the premises.
6. Occupancy by an owner of a condominium unit or a holder of
a proprietary lease in a cooperative.
7. Occupancy in or operation of public housing as authorized,
provided, or conducted under or pursuant to title 36, chapter 12, or
under or pursuant to any federal law or regulation. Title 33,
Chap. 10, §33-1308
Jurisdiction and service of process
A. The appropriate court of this state may exercise
jurisdiction over any landlord with respect to any conduct in this
state governed by this chapter or with respect to any claim arising
from a transaction subject to this chapter. In addition to any other
method provided by rule or by statute, personal jurisdiction over a
landlord may be acquired in a civil action or proceeding instituted
in the appropriate court by the service of process in the manner
provided by this section.
B. If a landlord is not a resident of this state or is a
corporation not authorized to do business in this state and engages
in any conduct in this state governed by this chapter, or engages in
a transaction subject to this chapter, he may designate an agent
upon whom service of process may be made in this state. The agent
shall be a resident of this state or a corporation authorized to do
business in this state. The designation shall be in writing and
filed with the secretary of state. If no designation is made and
filed or if process cannot be served in this state upon the
designated agent, process may be served upon the secretary of state,
but the plaintiff or petitioner shall forthwith mail a copy of the
process and pleading by registered or certified mail to the
defendant or respondent at his last reasonably ascertained address.
In the event there is no last reasonably ascertainable address and
if the defendant or respondent has not complied with section
33-1322, subsections A and B, then service upon the secretary of
state shall be sufficient service of process without the mailing of
copies to the defendant or respondent. Service of process shall be
deemed complete and the time shall begin to run for the purposes of
this section at the time of service upon the secretary of state. The
defendant shall appear and answer within thirty days after
completion thereof in the manner and under the same penalty as if he
had been personally served with the summons. An affidavit of
compliance with this section shall be filed with the clerk of the
court on or before the return day of the process, if any, or within
any further time the court allows. Where applicable, the affidavit
shall contain a statement that defendant or respondent has not
complied with section 33-1322, subsections A and B. Title 33,
Chap. 10, §33-1309
General definitions
Subject to additional definitions contained in subsequent
articles of this chapter which apply to specific articles thereof,
and unless the context otherwise requires, in this chapter:
1. "Action" includes recoupment, counterclaim,
setoff, suit in equity and any other proceeding in which rights are
determined, including an action for possession.
2. "Building and housing codes" include any law,
ordinance or governmental regulation concerning fitness for
habitation, or the construction, maintenance, operation, occupancy,
use or appearance of any premises, or dwelling unit.
3. "Delivery of possession" means returning
dwelling unit keys to the landlord and vacating the premises.
4. "Dwelling unit" means a structure or the part of
a structure that is used as a home, residence, or sleeping place by
one person who maintains a household or by two or more persons who
maintain a common household. "Dwelling unit" excludes real
property used to accommodate a mobile home, unless the mobile home
is rented or leased by the landlord.
5. "Good faith" means honesty in fact in the
conduct or transaction concerned.
6. "Landlord" means the owner, lessor or sublessor
of the dwelling unit or the building of which it is a part, and it
also means a manager of the premises who fails to disclose as
required by section 33-1322.
7. "Organization" includes a corporation,
government, governmental subdivision or agency, business trust,
estate, trust, partnership or association, two or more persons
having a joint or common interest and any other legal or commercial
entity which is a landlord, owner, manager or constructive agent
pursuant to section 33-1322.
8. "Owner" means one or more persons, jointly or
severally, in whom is vested all or part of the legal title to
property or all or part of the beneficial ownership and a right to
present use and enjoyment of the premises. The term includes a
mortgagee in possession.
9. "Person" means an individual or organization.
10. "Premises" means a dwelling unit and the
structure of which it is a part and existing facilities and
appurtenances therein, including furniture and utilities where
applicable, and grounds, areas and existing facilities held out for
the use of tenants generally or whose use is promised to the tenant.
11. "Rent" means payments to be made to the
landlord in full consideration for the rented premises.
12. "Rental agreement" means all agreements,
written, oral or implied by law, and valid rules and regulations
adopted under section 33-1342 embodying the terms and conditions
concerning the use and occupancy of a dwelling unit and premises.
13. "Roomer" means a person occupying a dwelling
unit that lacks a major bathroom or kitchen facility, in a structure
where one or more major facilities are used in common by occupants
of the dwelling unit and other dwelling units. Major facility in the
case of a bathroom means toilet, or either a bath or shower, and in
the case of a kitchen means refrigerator, stove or sink.
14. "Security" means money or property given to
assure payment or performance under a rental agreement.
"Security" does not include a reasonable charge for
redecorating or cleaning.
15. "Single family residence" means a structure
maintained and used as a single dwelling unit. Notwithstanding that
a dwelling unit shares one or more walls with another dwelling unit,
it is a single family residence if it has direct access to a street
or thoroughfare and shares neither heating facilities, hot water
equipment nor any other essential facility or service with any other
dwelling unit.
16. "Tenant" means a person entitled under a rental
agreement to occupy a dwelling unit to the exclusion of others.
17. "Term of lease" means the initial term or any
renewal or extension of the written rental agreement currently in
effect not including any wrongful holdover period. Title 33,
Chap. 10, §33-1310
Obligation of good faith
Every duty under this chapter and every act which must be
performed as a condition precedent to the exercise of a right or
remedy under this chapter imposes an obligation of good faith in its
performance or enforcement. Title 33, Chap. 10, §33-1311
Unconscionability
A. If the court, as a matter of law, finds either of the
following:
1. A rental agreement or any provision thereof was
unconscionable when made, the court may refuse to enforce the
agreement, enforce the remainder of the agreement without the
unconscionable provision, or limit the application of any
unconscionable provision to avoid an unconscionable result.
2. A settlement in which a party waives or agrees to forego a
claim or right under this chapter or under a rental agreement was
unconscionable at the time it was made, the court may refuse to
enforce the settlement, enforce the remainder of the settlement
without the unconscionable provision, or limit the application of
any unconscionable provision to avoid any unconscionable result.
B. If unconscionability is put into issue by a party or by
the court upon its own motion the parties shall be afforded a
reasonable opportunity to present evidence as to the setting,
purpose and effect of the rental agreement or settlement to aid the
court in making the determination. Title 33, Chap. 10, §33-1312
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. Title 33, Chap. 10, §33-1313
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. Title 33, Chap. 10, §33-1314
Utility charges; submetering; ratio utility billing;
allocation; water system exemption
A. A landlord may charge separately for gas, water,
wastewater, solid waste removal or electricity by installing a
submetering system or by allocating the charges separately through a
ratio utility billing system.
B. If a landlord charges separately for a utility pursuant to
subsection A, the landlord may recover the charges imposed on the
landlord by the utility provider plus an administrative fee for the
landlord for actual administrative costs only. The landlord shall
not impose any additional charges. The rental agreement shall
contain a disclosure that lists the utility services that are
charged separately and shall specify the amount of any
administrative fee that is associated with submetering or the use of
a ratio utility billing system.
C. If provided in the rental agreement, the landlord may
impose a submetering system or ratio utility billing system during
the term of a rental agreement if the landlord provides notice as
prescribed by subsection G.
D. If a landlord is not in compliance with subsection B, the
tenant shall first object in writing to the landlord regarding the
utility billing. If the dispute is not resolved, the tenant may file
a civil complaint in justice court to enforce this section.
E. If a landlord uses an allocation or submetering system,
the bill format for each billing period shall:
1. Separately state the cost of the charges for the period
together with the opening and the closing meter readings and the
dates of the meter readings.
2. Show the amount of any administrative fee charged.
F. If a landlord does not use a submetering system and
allocates charges separately for gas, water, wastewater, solid waste
removal or electricity, the landlord may allocate the costs to each
tenant by using one or more of the following ratio utility billing
system methods:
1. Per tenant.
2. Proportionately by livable square footage.
3. Per type of unit.
4. Per number of water fixtures.
5. For water and wastewater, by use of an individually
submetered hot water usage measure for the tenant's dwelling unit.
6. Any other method that fairly allocates the charges and
that is described in the tenant's rental agreement.
G. If a landlord uses a ratio utility billing system method
pursuant to subsection F, the rental agreement shall contain a
specific description of the ratio utility billing method used to
allocate utility costs. For any existing tenancies, the landlord
shall provide at least ninety days' notice to the tenant before the
landlord begins using a submetering system or allocating costs
through a ratio utility billing system.
H. For purposes of regulating apartment communities as public
or consecutive water systems, the department of environmental
quality shall not adopt rules pursuant to title 49, chapter 2,
article 9 that are more stringent than those authorized by federal
law. Without other evidence of activities that are subject to
regulation under title 49, chapter 2, article 9, the department of
environmental quality shall not use an apartment community's use of
a submetering system or a ratio utility billing system as the sole
basis for regulating an apartment community as a public or
consecutive water system. Title 33, Chap. 10, §33-1314.01
Prohibited provisions in rental agreements
A. A rental agreement shall not provide that the tenant does
any of the following:
1. Agrees to waive or to forego rights or remedies under this
chapter.
2. Agrees to pay the landlord's attorney's fees, except an
agreement in writing may provide that attorney's fees may be awarded
to the prevailing party in the event of court action and except that
a prevailing party in a contested forcible detainer action is
eligible to be awarded attorney fees pursuant to section 12-341.01
regardless of whether the rental agreement provides for such an
award.
3. Agrees to the exculpation or limitation of any liability
of the landlord arising under law or to indemnify the landlord for
that liability or the costs connected therewith.
B. A provision prohibited by subsection A of this section
included in a rental agreement is unenforceable. If a landlord
deliberately uses a rental agreement containing provisions known by
him to be prohibited, the tenant may recover actual damages
sustained by him and not more than two months' periodic rent. Title
33, Chap. 10, §33-1315
Separation of rents and obligations to maintain property
forbidden
A rental agreement, assignment, conveyance, trust deed or
security instrument may not permit the receipt of rent free of the
obligation to comply with section 33-1324, subsection A. Title
33, Chap. 10, §33-1316
Discrimination by landlord or lessor against tenant with
children prohibited; classification; exceptions;
civil remedy; applicability
A. A person who knowingly refuses to rent to any other person
a place to be used for a dwelling for the reason that the other
person has a child or children, or who advertises in connection with
the rental a restriction against children, either by the display of
a sign, placard or written or printed notice, or by publication
thereof in a newspaper of general circulation, is guilty of a petty
offense.
B. No person shall rent or lease his property to another in
violation of a valid restrictive covenant against the sale of such
property to persons who have a child or children living with them.
C. No person shall rent or lease his property to persons who
have a child or children living with them when his property meets
the definition of housing for older persons in section 41-1491.04.
D. A person who knowingly rents or leases his property in
violation of the provisions of subsection B or C of this section is
guilty of a petty offense.
E. A person whose rights under this section have been
violated may bring a civil action against a person who violates this
section for all of the following:
1. Injunctive or declaratory relief to correct the violation.
2. Actual damages sustained by the tenant or prospective
tenant.
3. A civil penalty of three times the monthly rent of the
housing accommodation involved in the violation if the violation is
determined to be intentional.
4. Court costs and reasonable attorney fees.
F. Nothing in this section shall prohibit a person from
refusing to rent a dwelling by reason of reasonable occupancy
standards established by the owner or the owner's agent which apply
to persons of all ages, and which have been adopted and published
before the event in issue. An occupancy limitation of two persons
per bedroom residing in a dwelling unit shall be presumed reasonable
for this state and all political subdivisions of this state.
G. Subsection B of this section applies only to dwellings
occupied or intended to be occupied by no more than four families
living independently of each other and in which the owner maintains
and occupies one of the living quarters as the owner's residence.
Title 33, Chap. 10, §33-1317 Article 2 -
Landlord Obligations
Security deposits
A. A landlord shall not demand or receive security, however
denominated, including, but not limited to, prepaid rent in an
amount or value in excess of one and one-half month's rent. This
subsection does not prohibit a tenant from voluntarily paying more
than one and one-half month's rent in advance.
B. The purpose of all nonrefundable fees or deposits shall be
stated in writing by the landlord. Any fee or deposit not designated
as nonrefundable shall be refundable.
C. With respect to tenants who first occupy the premises or
enter into a new written rental agreement after January 1, 1996,
upon move in a landlord shall furnish the tenant with a signed copy
of the lease, a move-in form for specifying any existing damages to
the dwelling unit and written notification to the tenant that the
tenant may be present at the move-out inspection. Upon request by
the tenant, the landlord shall notify the tenant when the landlord's
move-out inspection will occur. If the tenant is being evicted for a
material and irreparable breach and the landlord has reasonable
cause to fear violence or intimidation on the part of the tenant,
the landlord has no obligation to conduct a joint move-out
inspection with the tenant.
D. Upon termination of the tenancy, property or money held by
the landlord as prepaid rent and security may be applied to the
payment of all rent, and subject to a landlord's duty to mitigate,
all charges as specified in the signed lease agreement, or as
provided in this chapter, including the amount of damages which the
landlord has suffered by reason of the tenant's noncompliance with
section 33-1341. Within fourteen days, excluding Saturdays, Sundays
or other legal holidays, after termination of the tenancy and
delivery of possession and demand by the tenant the landlord shall
provide the tenant an itemized list of all deductions together with
the amount due and payable to the tenant, if any. Unless other
arrangements are made in writing by the tenant, the landlord shall
mail, by regular mail, to the tenant's last known place of
residence.
E. If the landlord fails to comply with subsection D of this
section the tenant may recover the property and money due the tenant
together with damages in an amount equal to twice the amount
wrongfully withheld.
F. This section does not preclude the landlord or tenant from
recovering other damages to which the landlord or tenant may be
entitled under this chapter.
G. The holder of the landlord's interest in the premises at
the time of the termination of the tenancy is bound by this section.
Title 33, Chap. 10, §33-1321
Disclosure and tender of written rental agreement
A. The landlord or any person authorized to enter into a
rental agreement on his behalf shall disclose to the tenant in
writing at or before the commencement of the tenancy the name and
address of each of the following:
1. The person authorized to manage the premises.
2. An owner of the premises or a person authorized to act for
and on behalf of the owner for the purpose of service of process and
for the purpose of receiving and receipting for notices and demands.
B. At or before the commencement of the tenancy, the landlord
shall inform the tenant in writing that a free copy of the Arizona
residential landlord and tenant act is available through the Arizona
secretary of state's office.
C. The information required to be furnished by this section
shall be kept current and refurnished to tenant upon tenant's
request. This section extends to and is enforceable against any
successor landlord, owner or manager.
D. A person who fails to comply with subsections A and B
becomes an agent of each person who is a landlord for the following
purposes:
1. Service of process and receiving and receipting for
notices and demands.
2. Performing the obligations of the landlord under this
chapter and under the rental agreement and expending or making
available for the purpose all rent collected from the premises.
E. If there is a written rental agreement, the landlord must
tender and deliver a signed copy of the rental agreement to the
tenant and the tenant must sign and deliver to the landlord one
fully executed copy of such rental agreement within a reasonable
time after the agreement is executed. A written rental agreement
shall have all blank spaces completed. Noncompliance with this
subsection shall be deemed a material noncompliance by the landlord
or the tenant, as the case may be, of the rental agreement.
Title 33, Chap. 10, §33-1322
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. Title 33, Chap. 10, §33-1323
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. Title 33, Chap.
10, §33-1324
Limitation of liability
A. Unless otherwise agreed, a landlord, who conveys premises
that include a dwelling unit subject to a rental agreement in a good
faith sale to a bona fide purchaser, is relieved of liability under
the rental agreement and this chapter as to events occurring
subsequent to written notice to the tenant of the conveyance. He
remains liable to the tenant for any property and money to which the
tenant is entitled under section 33-1321.
B. Unless otherwise agreed, a manager of premises that
include a dwelling unit is relieved of liability under the rental
agreement and this chapter as to events occurring after written
notice to the tenant of the termination of his management. Title 33,
Chap. 10, §33-1325
Regulation of rents; authority
A. Notwithstanding any other provisions of law to the
contrary the state legislature determines that the imposition of
rent control on private residential housing units by cities,
including charter cities, and towns is of statewide concern.
Therefore, the power to control rents on private residential
property is preempted by the state. Cities, including charter
cities, or towns shall not have the power to control rents.
B. The provisions of subsection A shall not apply to
residential property which is owned, financed, insured or subsidized
by any state agency, or by any city, including charter city, or
town. Title 33, Chap. 10, §33-1329 Article
3 - Tenant Obligations
Tenant to maintain dwelling unit
The tenant shall:
1. Comply with all obligations primarily imposed upon tenants
by applicable provisions of building codes materially affecting
health and safety.
2. Keep that part of the premises that he occupies and uses
as clean and safe as the condition of the premises permit.
3. Dispose from his dwelling unit all ashes, rubbish, garbage
and other waste in a clean and safe manner.
4. Keep all plumbing fixtures in the dwelling unit or used by
the tenant as clean as their condition permits.
5. Use in a reasonable manner all electrical, plumbing,
sanitary, heating, ventilating, air-conditioning and other
facilities and appliances including elevators in the premises.
6. Not deliberately or negligently destroy, deface, damage,
impair or remove any part of the premises or knowingly permit any
person to do so.
7. Conduct himself and require other persons on the premises
with his consent to conduct themselves in a manner that will not
disturb his neighbors' peaceful enjoyment of the premises.
Title 33, Chap. 10, §33-1341
Rules and regulations
A. A landlord, from time to time, may adopt rules or
regulations, however described, concerning the tenant's use and
occupancy of the premises. Such rules or regulations are enforceable
against the tenant only if:
1. Their purpose is to promote the convenience, safety or
welfare of the tenants in the premises, preserve the landlord's
property from abusive use or make a fair distribution of services
and facilities held out for the tenants generally.
2. They are reasonably related to the purpose for which
adopted.
3. They apply to all tenants in the premises in a fair
manner.
4. They are sufficiently explicit in prohibition, direction
or limitation of the tenant's conduct to fairly inform the tenant of
what the tenant must or must not do to comply.
5. They are not for the purpose of evading the obligations of
the landlord.
6. The tenant has notice of them at the time the tenant
enters into the rental agreement.
B. A rule or regulation adopted after the tenant enters into
the rental agreement is enforceable against the tenant if a thirty
day notice of its adoption is given to the tenant and it does not
constitute a substantial modification of the tenant's rental
agreement.
C. If state, county, municipal or other governmental bodies
adopt new ordinances, rules or other legal provisions affecting
existing rental agreements, the landlord may make immediate
amendments to lease agreements to bring them into compliance with
the law. The landlord shall give a tenant written notice that the
tenant's lease agreement has been amended, and the notice shall
provide a brief description of the amendment and the effective date.
Title 33, Chap. 10, §33-1342
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. Title 33,
Chap. 10, §33-1343
Tenant to use and occupy as a dwelling unit
Unless otherwise agreed, the tenant shall occupy his dwelling
unit only as a dwelling unit. Title 33, Chap. 10, §33-1344 Article
4 - Remedies
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 shall include 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 as well as any written representation, as well as 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 section 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.
Title 33, Chap. 10, §33-1361
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. Title 33,
Chap. 10, §33-1362
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. Title 33, Chap. 10, §33-1363
Wrongful failure to supply heat, air conditioning,
cooling, water, hot water or essential services
A. If contrary to the rental agreement or section 33-1324 the
landlord deliberately or negligently fails to supply running water,
gas or electrical service, or both if applicable, and reasonable
amounts of hot water or heat, air-conditioning or cooling, where
such units are installed and offered, or essential services, the
tenant may give reasonable notice to the landlord specifying the
breach and may do one of the following:
1. Procure reasonable amounts of hot water, running water,
heat and essential services during the period of the landlord's
noncompliance and deduct their actual reasonable cost from the rent.
If the landlord has failed to provide any of the utility services
specified in this section due to nonpayment of the landlord's
utility bill for the premises, and if there is no separate utility
meter for each tenant in the premises such that the tenant could
avoid a utility shutoff by arranging to have services transferred to
the tenant's name, the tenant may either individually or
collectively with other tenants arrange with the utility company to
pay the utility bill after written notice to the landlord of the
tenant's intent to do so. With the utility company's approval the
tenant or tenants may pay the landlord's delinquent utility bill and
deduct from any rent owed to the landlord the actual cost of the
payment the tenant made to restore utility services. The tenant or
tenants may continue to make such payments to the utility company
until the landlord has provided adequate assurances to the tenant
that the above utility services will be maintained.
2. Recover damages based upon the diminution in the fair
rental value of the dwelling unit.
3. Procure reasonable substitute housing during the period of
the landlord's noncompliance, in which case the tenant is excused
from paying rent for the period of the landlord's noncompliance. In
the event the periodic cost of such substitute housing exceeds the
amount of the periodic rent, upon delivery by tenant of proof of
payment for such substitute housing, tenant may recover from
landlord such excess costs up to an amount not to exceed twenty-five
per cent of the periodic rent which has been excused pursuant to
this paragraph.
B. A landlord shall provide all utilities and services
specified in the lease agreement.
C. A landlord shall not terminate utility services as
specified in subsection A of this section which are provided to the
tenant as part of the rental agreement, except as necessary to make
needed repairs or as provided in section 33-1368. Subsequent to the
execution of the rental agreement, a landlord may not transfer the
responsibility for payment of such utility services to the tenant
without the tenant's written consent.
D. If a landlord is in violation of subsection C of this
section, the tenant may recover damages, costs and reasonable
attorneys fees and obtain injunctive relief. Nothing in this section
shall preclude a tenant's right to recover damages as specified in
section 33-1367.
E. A lease agreement shall not contain any terms contrary to
this section.
F. In addition to the remedy provided in paragraph 3 of
subsection A of this section, in the event the landlord's
noncompliance is deliberate, the tenant may recover the actual and
reasonable cost or fair and reasonable value of the substitute
housing not in excess of an amount equal to the periodic rent.
G. If the tenant proceeds under this section, he may not
proceed under section 33- 1361 or section 33-1363 as to that breach,
except as to damages which occur prior to the tenant proceeding
under subsection A or B of this section.
H. The rights under this section do not arise until the
tenant has given notice to the landlord and such rights do not
include the right to repair. Such rights do not arise 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. Title 33, Chap. 10, §33-1364
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.
Title 33, Chap. 10, §33-1365
Fire or casualty damage
A. If the dwelling unit or premises are damaged or destroyed
by fire or casualty to an extent that enjoyment of the dwelling unit
is substantially impaired, the tenant may do either of the
following:
1. Immediately vacate the premises and notify the landlord in
writing within fourteen days thereafter of his intention to
terminate the rental agreement, in which case the rental agreement
terminates as of the date of vacating.
2. If continued occupancy is lawful, vacate any part of the
dwelling unit rendered unusable by the fire or casualty, in which
case the tenant's liability for rent is reduced in proportion to the
diminution in the fair rental value of the dwelling unit.
B. If the rental agreement is terminated the landlord shall
return all security recoverable under section 33-1321. Accounting
for rent in the event of termination or apportionment is to occur as
of the date the tenant vacates all or part of the dwelling unit.
Title 33, Chap. 10, §33-1366
Tenant's remedies for landlord's unlawful ouster,
exclusion or diminution of services
If the landlord unlawfully removes or excludes the tenant
from the premises or wilfully diminishes services to the tenant by
interrupting or causing the interruption of electric, gas, water or
other essential service to the tenant, the tenant may recover
possession or terminate the rental agreement and, in either case,
recover an amount not more than two months' periodic rent or twice
the actual damages sustained by him, whichever is greater. If the
rental agreement is terminated the landlord shall return all
security recoverable under section 33-1321. Title 33, Chap. 10, §33-1367
Noncompliance with rental agreement by tenant; failure to
pay rent; utility discontinuation; liability for
guests; definition
A. Except as provided in this chapter, if there is a material
noncompliance by the tenant with the rental agreement, including
material falsification of the information provided on the rental
application, the landlord may deliver a written notice to the tenant
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. For the purposes of this section, material falsification
shall include the following untrue or misleading information about
the:
1. Number of occupants in the dwelling unit, pets, income of
prospective tenant, social security number and current employment
listed on the application or lease agreement.
2. Tenant's criminal records, prior eviction record and
current criminal activity. Material falsification of information in
this paragraph is not curable under this section. If there is a
noncompliance by the tenant with section 33-1341 materially
affecting health and safety, the landlord may deliver a written
notice to the tenant 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. However, if the breach is remediable by
repair or the payment of damages or otherwise, and the tenant
adequately remedies the breach before the date specified in the
notice, the rental agreement will not terminate. If there is an
additional act of these types of noncompliance of the same or a
similar nature during the term of the lease after the previous
remedy of noncompliance, the landlord may institute a special
detainer action pursuant to section 33-1377 ten days after delivery
of a written notice advising the tenant that a second noncompliance
of the same or a similar nature has occurred. If there is a breach
that is both material and irreparable and that occurs on the
premises, including but not limited to an illegal discharge of a
weapon, homicide as defined in sections 13-1102 through 13-1105,
prostitution as defined in section 13-3211, criminal street gang
activity as prescribed in section 13-105, activity as prohibited in
section 13-2308, the unlawful manufacturing, selling, transferring,
possessing, using or storing of a controlled substance as defined in
section 13-3451, threatening or intimidating as prohibited in
section 13-1202, assault as prohibited in section 13-1203, acts that
have been found to constitute a nuisance pursuant to section 12-991
or a breach of the lease agreement that otherwise jeopardizes the
health, safety and welfare of the landlord, the landlord's agent or
another tenant or involving imminent or actual serious property
damage, the landlord may deliver a written notice for immediate
termination of the rental agreement and shall proceed under section
33-1377.
B. A tenant may not withhold rent for any reason not
authorized by this chapter. If rent is unpaid when due and the
tenant fails to pay rent within five days after written notice by
the landlord of nonpayment and the landlord's intention to terminate
the rental agreement if the rent is not paid within that period of
time, the landlord may terminate the rental agreement by filing a
special detainer action pursuant to section 33-1377. Before the
filing of a special detainer action the rental agreement shall be
reinstated if the tenant tenders all past due and unpaid periodic
rent and a reasonable late fee set forth in a written rental
agreement. After a special detainer action is filed the rental
agreement is reinstated only if the tenant pays all past due rent,
reasonable late fees set forth in a written rental agreement,
attorney fees and court costs. After a judgment has been entered in
a special detainer action in favor of the landlord, any
reinstatement of the rental agreement is solely in the discretion of
the landlord.
C. The landlord may recover all reasonable damages, resulting
from noncompliance by the tenant with the rental agreement or
section 33-1341 or occupancy of the dwelling unit, court costs,
reasonable attorney fees and all quantifiable damage caused by the
tenant to the premises.
D. The landlord may discontinue utility services provided by
the landlord on the day following the day that a writ of restitution
or execution is executed pursuant to section 12-1181. Disconnections
shall be performed only by a person authorized by the utility whose
service is being discontinued. Nothing in this section shall
supersede standard tariff and operational procedures that apply to
any public service corporation, municipal corporation or special
districts providing utility services in this state.
E. The landlord shall hold the tenant's personal property for
a period of twenty- one days beginning on the first day after a writ
of restitution or writ of execution is executed as prescribed in
section 12-1181. The landlord shall use reasonable care in moving
and holding the tenant's property and may store the tenant's
property in an unoccupied dwelling unit owned by the landlord, the
unoccupied dwelling unit formerly occupied by the tenant or off the
premises if an unoccupied dwelling unit is not available. If the
tenant's former dwelling unit is used to store the property, the
landlord may change the locks on that unit at the landlord's
discretion. The landlord shall prepare an inventory and promptly
notify the tenant of the location and cost of storage of the
personal property by sending a notice by certified mail, return
receipt requested, addressed to the tenant's last known address and
to any of the tenant's alternative addresses known to the landlord.
To reclaim the personal property, the tenant shall pay the landlord
only for the cost of removal and storage for the time the property
is held by the landlord. Within five days after a written offer by
the tenant to pay these charges the landlord must surrender
possession of the personal property in the landlord's possession to
the tenant upon the tenant's tender of payment. If the landlord
fails to surrender possession of the personal property to the
tenant, the tenant may recover the possessions or an amount equal to
the damages determined by the court if the landlord has destroyed or
disposed of the possessions before the twenty-one days specified in
this section or after the tenant's offer to pay. The tenant shall
pay all removal and storage costs accrued through the fifth day
after the tenant's offer to pay is received by the landlord or the
date of delivery or surrender of the property, whichever is sooner.
Payment by the tenant relieves the landlord of any further
responsibility for the tenant's possessions.
F. A tenant does not have any right of access to that
property until all payments specified in subsection E of this
section have been made in full, except that the tenant may obtain
clothing and the tools, apparatus and books of a trade or profession
and identification or financial documents including all those
related to the tenant's immigration status, employment status,
public assistance or medical care. If the landlord holds the
property for the twenty-one day period and the tenant does not make
a reasonable effort to recover it, the landlord, upon the expiration
of twenty-one days as provided in this subsection, may administer
the personal property as provided in section 33-1370, subsection E.
The landlord shall hold personal property after a writ of
restitution or writ of execution is executed for not more than
twenty-one days after such an execution. Nothing in this subsection
shall preclude the landlord and tenant from making an agreement
providing that the landlord will hold the personal property for a
period longer than twenty-one days.
G. For the purposes of this chapter, the tenant shall be held
responsible for the actions of the tenant's guests that violate the
lease agreement or rules or regulations of the landlord if the
tenant could reasonably be expected to be aware that such actions
might occur and did not attempt to prevent those actions to the best
of the tenant's ability.
H. For purposes of this section, "days" means
calendar days. Title 33, Chap. 10, §33-1368
Failure to maintain
If there is noncompliance by the tenant with section 33-1341
materially affecting health and safety that can be remedied by
repair, replacement of a damaged item or cleaning and the tenant
fails to comply as promptly as conditions require in case of
emergency or within fourteen days after written notice by the
landlord specifying the breach and requesting that the tenant remedy
it within that period of time, the landlord may enter the dwelling
unit and cause the work to be done in a workmanlike manner and
submit an itemized bill for the actual and reasonable cost or the
fair and
reasonable value thereof as rent on the next date when periodic
rent is due, or if the rental agreement has terminated, for
immediate payment. Title 33, Chap. 10, §33-1369
Abandonment; notice; remedies; personal property;
definition
A. If a dwelling unit is abandoned after the time prescribed
in subsection H of this section, the landlord shall send the tenant
a notice of abandonment by certified mail, return receipt requested,
addressed to the tenant's last known address and to any of the
tenant's alternate addresses known to the landlord. The landlord
shall also post a notice of abandonment on the door to the dwelling
unit or any other conspicuous place on the property for five days.
B. Five days after notice of abandonment has been both posted
and mailed, the landlord may retake the dwelling unit and rerent the
dwelling unit at a fair rental value if no personal property remains
in the dwelling unit. After the landlord retakes the dwelling unit,
money held by the landlord as a security deposit is forfeited and
shall be applied to the payment of any accrued rent and other
reasonable costs incurred by the landlord by reason of the tenant's
abandonment.
C. If the tenant abandons the dwelling unit, the landlord
shall make reasonable efforts to rent it at a fair rental. If the
landlord rents the dwelling unit for a term beginning prior to the
expiration of the rental agreement, it is deemed to be terminated as
of the date the new tenancy begins. If the landlord fails to use
reasonable efforts to rent the welling unit at a fair rental or if
the landlord accepts the abandonment as a surrender, the rental
agreement is deemed to be terminated by the landlord as of the date
the landlord has notice of the abandonment. If the tenancy is from
month to month or week to week, the term of the rental agreement for
this purpose shall be deemed to be a month or a week, as the case
may be.
D. After the landlord has retaken possession of the dwelling
unit, the landlord may store the tenant's personal possessions in
the unoccupied dwelling unit that was abandoned by the tenant, in
any other available unit or any storage space owned by the landlord
or off the premises if a dwelling unit or storage space is not
available. The landlord shall notify the tenant of the location of
the personal property in the same manner prescribed in subsection A
of this section.
E. The landlord shall hold the tenant's personal property for
a period of ten days after the landlord's declaration of
abandonment. The landlord shall use reasonable care in holding the
tenant's personal property. If the landlord holds the property for
this period and the tenant makes no reasonable effort to recover it,
the landlord may sell the property, retain the proceeds and apply
them toward the tenant's outstanding rent or other costs which are
covered in the lease agreement or otherwise provided for in title
33, chapter 10 or title 12, chapter 8 and have been incurred by the
landlord due to the tenant's abandonment. Any excess proceeds shall
be mailed to the tenant at the tenant's last known address. A tenant
does not have any right of access to that property until the actual
removal and storage costs have been paid in full, except that the
tenant may obtain clothing and the tools, apparatus and books of a
trade or profession and any identification or financial documents,
including all those related to the tenant's immigration status,
employment status, public assistance or medical care. If provided by
a written rental agreement, the landlord may destroy or otherwise
dispose of some or all of the property if the landlord reasonably
determines that the value of the property is so low that the cost of
moving, storage and conducting a public sale exceeds the amount that
would be realized from the sale.
F. For a period of twelve months after the sale the landlord
shall:
1. Keep adequate records of the outstanding and unpaid rent
and the sale of the tenant's personal property.
2. Hold any excess proceeds which have been returned as
undeliverable for the benefit of the tenant.
G. If the tenant notifies the landlord in writing on or
before the date the landlord sells or otherwise disposes of the
personal property that the tenant intends to remove the personal
property from the dwelling unit or the place of safekeeping, the
tenant has five days to reclaim the personal property. To reclaim
the personal property the tenant must only pay the landlord for the
cost of removal and storage for the period the tenant's personal
property remained in the landlord's safekeeping.
H. In this section "abandonment" means either the
absence of the tenant from the dwelling unit, without notice to the
landlord for at least seven days, if rent for the dwelling unit is
outstanding and unpaid for ten days and there is no reasonable
evidence other than the presence of the tenant's personal property
that the tenant is occupying the residence or the absence of the
tenant for at least five days, if the rent for the dwelling unit is
outstanding and unpaid for five days and none of the tenant's
personal property is in the dwelling unit. Title 33, Chap. 10,
§33-1370
Acceptance of partial payments
A. A landlord is not required to accept a partial payment of
rent or other charges. A landlord accepting a partial payment of
rent or other charges retains the right to proceed against a tenant
only if the tenant agrees in a contemporaneous writing to the terms
and conditions of the partial payment with regard to continuation of
the tenancy. The written agreement shall contain a date on which the
balance of the rent is due. The landlord may proceed as provided in
article 4 of this chapter and in title 12, chapter 8 against a
tenant in breach of this agreement or any other breach of the
original rental agreement. If the landlord has provided the tenant
with a notice of failure to pay rent as specified in section
33-1368, subsection B prior to the completion of the agreement for
partial payment, no additional notice under section 33-1368,
subsection B is required in case of a breach of the partial payment
agreement.
B. Except as specified in subsection A of this section,
acceptance of rent, or any portion thereof, with knowledge of a
default by tenant or acceptance of performance by the tenant that
varied from the terms of the rental agreement or rules or
regulations subsequently adopted by the landlord constitutes a
waiver of the right to terminate the rental agreement for that
breach. Title 33, Chap. 10, §33-1371
Landlord liens; distraint for rent
A. A lien or security interest on behalf of the landlord in
the tenant's household goods is not enforceable unless perfected
before the effective date of this chapter.
B. Distraint for rent is abolished. Title 33, Chap. 10, §33-1372
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. Title 33, Chap.
10, §33-1373
Recovery of possession limited
A landlord may not recover or take possession of the dwelling
unit by action or otherwise, including forcible removal of the
tenant or his possessions, willful diminution of services to the
tenant by interrupting or causing the interruption of electric, gas,
water or other essential service to the tenant, except in case of
abandonment, surrender or as permitted in this chapter. Title 33,
Chap. 10, §33-1374
Periodic tenancy; hold-over remedies
A. The landlord or the tenant may terminate a week-to-week
tenancy by a written notice given to the other at least ten days
prior to the termination date specified in the notice.
B. The landlord or the tenant may terminate a month-to-month
tenancy by a written notice given to the other at least thirty days
prior to the periodic rental date specified in the notice.
C. If the tenant remains in possession without the landlord's
consent after expiration of the term of the rental agreement or its
termination, the landlord may bring an action for possession and if
the tenant's holdover is willful and not in good faith the landlord,
in addition, may recover an amount equal to not more than two
months' periodic rent or twice the actual damages sustained by the
landlord, whichever is greater. If the landlord consents in writing
to the tenant's continued occupancy, section 33-1314, subsection D
applies. Title 33, Chap. 10, §33-1375
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. Title 33, Chap. 10, §33-1376
Special detainer actions; service; trial postponement
A. Special detainer actions shall be instituted for remedies
prescribed in section 33-1368. Except as provided in this section,
the procedure and appeal rights prescribed in title 12, chapter 8,
article 4 apply to special detainer actions.
B. The summons shall be issued on the day the complaint is
filed and shall command the person against whom the complaint is
made to appear and answer the complaint at the time and place named
which shall be not more than six nor less than three days from the
date of the summons. The tenant is deemed to have received the
summons three days after the summons is mailed if personal service
is attempted and within one day of issuance of the summons a copy of
the summons is conspicuously posted on the main entrance of the
tenant's residence and on the same day the summons is sent by
certified mail, return receipt requested, to the tenant's last known
address. The summons in a special detainer action shall be served at
least two days before the return day and the return day made on the
day assigned for trial. Service of process in this manner shall be
deemed the equivalent of having served the tenant in person for the
purposes of awarding a money judgment for all rent, damages, costs
and attorney fees due.
C. For good cause shown supported by an affidavit, the trial
may be postponed for not more than three days in a justice court or
five days in the superior court.
D. In addition to determining the right to actual possession,
the court may assess damages, attorney fees and costs as prescribed
by law.
E. If a complaint is filed alleging a material and
irreparable breach pursuant to section 33-1368, subsection A, the
summons shall be issued as provided in subsection B of this section,
except that the trial date and return date shall be set no later
than the third day following the filing of the complaint. If after
the hearing the court finds by preponderance of the evidence that
the material and irreparable breach did occur, the court shall order
restitution in favor of the plaintiff not less than twelve
nor more than twenty-four hours later.
F. If the defendant is found guilty, the court shall give
judgment for the plaintiff for restitution of the premises, for late
charges stated in the rental agreement, for costs and, at the
plaintiff's option, for all rent found to be due and unpaid through
the periodic rental period provided for in the rental agreement as
described in section 33-1314, subsection C and shall grant a writ of
restitution.
G. If the defendant is found not guilty, judgment shall be
given for the defendant against the plaintiff for costs, and if it
appears that the plaintiff has acquired possession of the premises
since commencement of the action, a writ of restitution shall issue
in favor of the defendant. Title 33, Chap. 10, §33-1377 Article
5 - Retaliatory Action
Retaliatory conduct prohibited
A. Except as provided in this section, a landlord may not
retaliate by increasing rent or decreasing services or by bringing
or threatening to bring an action for possession after any of the
following:
1. The tenant has complained to a governmental agency charged
with responsibility for enforcement of a building or housing code of
a violation applicable to the premises materially affecting health
and safety.
2. The tenant has complained to the landlord of a violation
under section 33-1324.
3. The tenant has organized or become a member of a tenants'
union or similar organization.
4. The tenant has complained to a governmental agency charged
with the responsibility for enforcement of the wage-price
stabilization act.
B. If the landlord acts in violation of subsection A of this
section, the tenant is entitled to the remedies provided in section
33-1367 and has a defense in action against him for possession. 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", in this subsection, means that the trier of
fact must find the existence of the fact presumed unless and until
evidence is introduced which would support a finding of its
nonexistence.
C. Notwithstanding subsections A and B of this section, a
landlord may bring an action for possession if either of the
following occurs:
1. The violation of the applicable building or housing code
was caused primarily by lack of reasonable care by the tenant or
other person in his household or upon the premises with his consent.
2. The tenant is in default in rent. The maintenance of the
action does not release the landlord from liability under section
33-1361, subsection B. Title 33, Chap. 10, §33-1381
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