Constructive/Unlawful Eviction in Arizona

Background

“Constructive eviction has been defined as a substantial and intentional interference by the lessor with the tenant's permanent use and occupancy of the premises.” (See Purvis v. Silva (1963) 94 Ariz. 62, 64 n.2.)

“A.R.S. subsection 33-1367 delineates a tenant's remedies for a landlord's unlawful ouster, exclusion or diminution of services. If the landlord unlawfully removes or excludes the tenant from the premises or willfully 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.” (See Schaefer v. Murphey (1982) 131 Ariz. 295, 298.)

“If the rental agreement is terminated the landlord shall return all security recoverable under subsection 33-1321." (See id.)

General Information for Complaints and Motions

"[I]f there is a noncompliance by the landlord with subsection 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 twenty days after receipt of the notice if the breach is not remedied in ten days . . . (emphasis supplied)." (See Schaefer v. Murphey (1982) 131 Ariz. 295, 298.)

“Unlawful ouster, as defined by statute, occurs in two situations: 1) the landlord removes or excludes the tenant from the premises unlawfully, or 2) the landlord interrupts, or causes the interruption of, essential services.” (See id.)

“Either of these circumstances will preclude a tenant from occupying the rental premises. Thus, the evident intent of subsection 33-1367 is to deal with the wrongful dispossession situation occasioned by the actual removal or exclusion of the tenant or by the willful diminution of services.” (See id.)

Standard of Review and Burdens of Proof

“We review de novo dismissal under Rule 12(b)(6) for failure to state a claim for which relief can be granted.” (See Coleman v. City of Mesa (2012) 230 Ariz. 352, 355, ¶ 7; Wasielewski v. the Kroger Co., No. 1 CA-CV 15-0697, at *3 (Ariz. Ct. App. Feb. 9, 2017).)

“Dismissal under Rule 12(b)(6) is appropriate only if as a matter of law plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.” (See id.)

“We assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but statements of legal conclusions without supporting factual allegations are insufficient to form a basis for relief.” (See id.)

The Court’s Decisions

It is well settled that “constructive eviction occurs through intentional conduct by the landlord which renders the lease unavailing to the tenant or deprives him of the beneficial enjoyment of the leased property, causing him to vacate the premises.” (See Sack v. Tate, No. 2 CA-CV 2016-0078, at *6 (Ariz. Ct. App. Apr. 18, 2017).)

It is also well settled that “constructive eviction, unlike unlawful ouster, is a common law claim and the remedies are governed by equitable principles.” (See id.)