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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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My domestic partner and I recently commenced a lease on

Customer Question

Hello,
My domestic partner and I recently commenced a lease on 8/31/15 which lasted for two years, beginning on 8/01/13. We needed to move out because the Landlord wanted to move back into the townhouse. We found a new home to rent, and moved in on 8/13/15; this gave us plenty of time to not only move, but to professionally clean the townhouse and have the carpets professionally cleaned, as outlined in our lease agreement. We completed these requirements.
After these requirements were completed, we called the property management company on 8/24/15 to schedule a walk-thru. The property management agent was not able to complete the walk-thru until 8/27/15. On 8/27/15, we completed the walk-thru with the property management company, and the only complaint was the colors of the paint in the three bedrooms. Prior to signing our lease, we asked if we were permitted to paint the townhouse, and were advised to "not paint the walls black;" which we did not.
At the time of the walk-thru with the property management company, we requested to be present at the walk-thru with the Landlord, and we were eventually told "No." We wanted to be present in order to address any issues the Landlord had without having to use the deposit to correct the issues. In our opinion, this is a direct violation of the Arizona Residential Landlord and Tenant Act, as it states the following in Article 2, 33-1321, C.: "...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." We were denied this right to conduct the move-out inspection with the Landlord, even though we never cause fear of violence or intimidation...we only wanted the Landlord to be happy with the condition of the townhouse and to retain as much of the security deposit as possible.
We offered to paint the walls back to the original color during the walk-thru with the property management company, and the property management company agent stated she would speak with the Landlord regarding this issue...we never received a response even though we still had three days to remediate the issue, as our lease did not end until 8/31/15.
We have recently found out that the Landlord has repainted the entire townhouse and has removed all of the carpet upstairs. The Landlord is expecting to retain our entire deposit of $1,500.00, and we were never provided the opportunity to dispute the issues she had with the townhouse.
Please advise of the status of our case, as we feel the Landlord and the property management company, are taking advantage of us, as well as the opportunity to use our money to remodel the townhouse.
We appreciate any advice you are able to provide.
Thank you,
Michelle Bourgeois
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I am sorry to learn of this matter.

It appears you already have a firm grasp of the AZ statutes for security deposits and your rights on move out (you have cited them correctly).

To enforce these rights, what you need to do is file a small claims case against the landlord. Here is a link that can get you started: http://www.mohavecourts.com/Justice/Jcss_SmallClaims.html (the link is for Mojave County, but the information is useful statewide (AZ has small claims information listed for each individual county, so you can look up small claims for your county and find the court's link specific to you)).

I recommend paying for a process server to actually serve the complaint on the landlord (they can both locate them and properly serve the complaint). This part of the case is the biggest cause of delay and problems for litigants, and by hiring a professional you will save yourself a lot of trouble (and a huge amount of time). Contact your county bar association for referrals. (Process servers usually don't charge very much for their services).

Short of filing a lawsuit, you can try to mediate the dispute with them - contact your local bar association and request referrals to mediators, a third party neutral can often help you reach a mutually agreeable resolution. Use the bar association's referrals to contact a mediator or two, the mediator will then contact the other party to set up a mediation session, and you can go from there - hopefully resulting in a formal or written settlement agreement, and save yourself the time and expense of litigation.

Customer: replied 1 year ago.
Hello William B. Esq.,Do you feel we have a valid complaint, and our rights have been violated regarding the Landlord/Property Management Agent inspection/s in regards ***** ***** being denied our right to attend the inspection with the Landlord?
Expert:  CalAttorney2 replied 1 year ago.

I believe that the landlord failed to provide you a mandatory inspection.

However, the court is going to focus on the substantive issues (the actual withholding and damage claims).

Based on what you have posted, it is pretty obvious that the landlord is using your deposit to finance their remodel (this kind of abusive withholding is not novel). While the court will certainly look at the failure to provide you an inspection as part of their analysis, the focus of the claim is going to be on the substantive issues as opposed to the inspection issue.

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