Material Breach of the Rental Agreement (5-day Notice for Health and Safety)


A.R.S. § 33-1368(A)
The following does not apply to mobile home park evictions, recreational vehicle park evictions, and certain subsidized housing. Below is information that may be helpful to landlords and tenants but is not a substitute for legal advice. There are other rules and laws that may be applicable to your situation, but these are common rules and laws that apply in eviction actions.

A.R.S. means Arizona Revised Statutes and RPEA means Rules of Procedure for Eviction Actions.
  1  NOTICE
  • The landlord must give the tenant a written notice stating what the problem is and that the rental agreement will terminate after 5 days if the problem is not fixed in 5 days. A.R.S. § 33-1368(A).
  • In an action for material breach of the rental agreement materially affecting health and safety, the landlord cannot file the eviction with the court action until after the 5 days specified in the notice is up (at least 6 days after the tenant receives the notice).
  • If the tenant did not receive a termination notice and an opportunity to fix the problems, or the notice does not comply with the law or was not properly served, the court must dismiss the eviction action. RPEA 13(a)(2).
  • If the tenant fixed the problems identified in a 5-day notice, and there is a second 5-day notice claiming problems of the same or similar nature in the same rental agreement period, the landlord may give the tenant a second notice and then file an eviction action if the tenant remains in the rental unit after the 10th day. Even if the tenant fixes the problems specified in the second notice, the landlord can still file the eviction action.
2  SERVICE

Generally, an eviction action summons and complaint must be served by a constable or sheriff in one of two ways:

  1. personally served on the tenant, or
  2. posted in an obvious place and mailed to the tenant by certified mail. RPEA 5(f).
3  ANSWER
  • The tenant may file a written answer or answer orally in open court on the record. If the court sets a trial date, the tenant may be ordered to file a written answer. RPEA 7
  • If a party cannot afford the filing fee, ask the clerk for a fee waiver/deferral application in order to not pay the fee when filing. http://www.azcourts.gov/courtfilingfees
4  DEFENSES
  • Problems claimed in the notice and complaint did not occur.
  • If there was a time period for the tenant to fix the problems specified in the notice, and the tenant fixed the problems before the final day of the 5-day notice.
  • The landlord accepted rent, or a portion of rent with knowledge of an alleged violation by the tenant and did not obtain a writing signed by the tenant at the time of accepting rent informing the tenant of the terms and conditions of accepting the rent. A.R.S. § 33-1371, RPEA 13(a)(4). This defense applies even if part of the rent is paid by a third party unless the third party has a contract with the landlord and is a government agency, housing authority, agent for government agency/housing authority, or agent of a for-profit organization. However, the defense does apply if the third party is a faith-based organization, community action agency, non-profit, friend, family member, or anyone else. 
  • Retaliation – If the tenant complained to the landlord or a government agency charged with code enforcement about habitability issues materially affecting health and safety within 6 months prior to the eviction being filed, there is a presumption that the eviction is retaliatory. The tenant may be entitled to damages if this happened. See Legal Info Sheet: Eviction Actions: Claims Against your Landlord. A.R.S. § 33-1381.
5  TRIAL
  • The tenant has a right to a trial if the court determines that the tenant MAY have a defense or proper counterclaim. RPEA 11(b)(1).
  • Unless waived in writing in the lease, the tenant may have a right to a jury trial, but must ask for it the first time they see the judge. The judge will then decide if there are factual matters to be determined by a jury. If there are no factual matters appropriate for a jury, the case will be heard by the judge. RPEA 11(d).
6  EVIDENCE AND TESTIMONY
  • Evidence and testimony (documents and statements) must be relevant to the proceeding.
  • A witness must testify from personal knowledge – the witness telling the court what somebody else told the witness is generally not allowed.
  • Both parties have a duty to make timely objections. If a witness testifies to a fact he or she does not have personal knowledge of or if the testimony is not relevant to the proceeding, immediately tell the judge you object to the testimony or evidence.
7  JUDGMENT
  • A default judgment may be entered against the tenant if the tenant is not present in the court when the case is called by the judge. RPEA 13.
  • Stipulated judgment – the tenant is agreeing that the allegations in the complaint are true and judgment will be entered against the tenant. The tenant will not have an opportunity to offer a defense and cannot appeal from this type of judgment.
  • The judge may award the landlord possession of the property plus rent, late fees (if there is a written rental agreement), attorney fees, court costs, and other damages if there is a legal and factual basis to award these damages.
  • See Legal Info Sheet: Eviction Actions: After an Eviction Judgment for important information if the judge rules against you. 



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