If a tenant rents a house with a spa (or other amenity), and it stops working, does the landlord have to fix it?

The "correct" answer depends on many variables. If the spa (or whatever) was not working when the tenant took tenancy and the landlord made clear that it would not be fixed, then the answer is clear -- the landlord would not have to fix it. If the spa was working when the tenant took tenancy, but it stopped working because of something the tenant, occupant or a guest did, then the tenant is responsible for repairs. (See ARS Sec. 33-1341). If the spa was working when the tenant took tenancy and the tenant is not responsible under Sec. 33-1341, then we must determine if the landlord's refusal to fix the spa constitutes a "default," which is referred to in the Arizona Residential Landlord and Tenant Act (the "Act") as a "noncompliance." The first place to look is in the rental agreement. If the rental agreement includes language that makes clear the landlord is not obligated to fix the spa, then (again) the answer is clear – the landlord would not have to fix it. If the rental agreement says nothing about the spa, then we turn to the Act. Section 33-1361 of the Act allows the tenant to serve a notice on the landlord of a noncompliance and, if the landlord does not fix the problem, then the tenant may terminate and vacate or may sue for damages. The amount of time the tenant must give the landlord depends on the nature of the noncompliance. A "noncompliance materially affecting health and safety" is subject to a five day notice; absent unusual circumstances, a malfunctioning spa probably does not affect health and safety and probably constitutes (if anything) a "material noncompliance." A "material noncompliance" is subject to a ten days notice. A "material noncompliance" also includes a "material falsification of the written information provided to the tenant." (See ARS Sec. 33-1361(A)). If the tenant rented the subject property because (or at least partly because) of the spa (i.e., therapy for an injury or medical condition), then the landlord’s refusal to fix the spa would probably constitute a material noncompliance. In addition, if the landlord advertised the subject property (i.e., newspaper ad, yard sign, flier, Internet listing, etc.) and one of the features included in the advertisement was the spa, then the landlord’s refusal to fix the spa would probably constitute a material noncompliance. I say "probably" because two judges hearing the same set of facts may reach different conclusion. There is yet another potential argument. Section 33-1363 gives the tenant a "self-help" remedy, allowing the tenant to pay a licensed contractor to make repairs and then deduct the cost of repairs (the Act provides for specific monetary limits) from the next month’s rent, but Section 33-1363 only applies if the inoperative spa constitutes a violation of Section 33-1324. A spa is probably not an "essential service," does not affect health and safety and an inoperable spa does not render the subject property unfit or uninhabitable. (See Section 33-1324). Arguably, the spa constitutes "other facilities" supplied by the landlord (see Section 33-1324(A)(4)), but that is a tenuous argument, at best. So, the best approach is for the tenant to serve a ten day notice of material noncompliance. Whether or not a judge will side with the tenant will depend on: (1) language in the rental agreement, (2) whether the spa was the reason (in whole or in part) the tenant rented that property, and (3) especially if the landlord included the word "spa" in any advertising (i.e., newspaper ad, fliers, sign, etc.).

Comments

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