Overview - King County Bar Association

Transcription

Overview: Residential
Landlord Tenant Act and
Unlawful Detainer Act
Steve Fredrickson
Advocacy Coordinator
Northwest Justice Project
SteveF@nwjustice.org
Steve Fredrickson is an advocacy coordinator with Northwest
Justice Project and has been a legal services lawyer since 1972. He
received his undergraduate degree from the University of Chicago in
1968 and his law degree from the University of Washington Law
School in 1972. His practice emphasizes landlord-tenant and real
estate law. He is the author or co-author of a number of publications
on landlord-tenant law, including "Tenants' Rights: A Guide for
Washington State," University of Washington Press, 1991;
"Termination of Tenancies and Unlawful Detainer," Vol. 1C, Ch. 88,
Washington Practice, West Publishing Company, 1997; "LandlordTenant Super Seminar XI: Residential Evictions & Condo Conversions,"
Washington Law Institute, 2007, and "Residential Lease Practice,"
Vol. 2, Ch. 19, WSBA Washington Real Property Deskbook Series: Real
Estate Essentials (4th ed. 2009).
Advising and Representing
LowLow-Income Tenants
Facing Eviction
Overview of the
Residential Landlord-Tenant Act &
Unlawful Detainer Act
Steve Fredrickson
January 31, 2014
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1
History of
the World
of Residential LandlordLandlord-Tenant Law:
Part I
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1
Old LandlordLandlord-Tenant Law
Norman
Conquest –
1066 A.D.
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New LandlordLandlord-Tenant Law
Uniform Residential
Landlord And Tenant Act
Adopted by the National Conference of
Commissioners on Uniform State Laws
1972
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2
States Adopting URLTA
Alabama
Alaska
Arizona
Connecticut
Florida
Hawaii
Iowa
Kansas
Kentucky
Michigan
Mississippi
Montana
Nebraska
New Mexico
Oklahoma
Oregon
Rhode Island
South
Carolina
Tennessee
Virginia
Washington
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Washington State
LandlordLandlord-Tenant Laws
Residential Landlord-Tenant Act;
RCW 59.18 – Adopted 1973
Manufactured/Mobile Home LandlordTenant Act; RCW 59.20 – Adopted 1977
Forcible Entry and Forcible and Unlawful
Detainer Act; RCW 59.12 – Adopted
1891
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3
MANUFACTURED/MOBILE
HOME LANDLORDLANDLORD-TENANT
ACT RCW 59.20 (1977)
Covers rental of lot in mobile home park
Mobile Home Park:
- Two or more mobile or manufactured
homes with year-round occupancy in
order to produce income
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MANUFACTURED/MOBILE HOME
LANDLORDLANDLORD-TENANT ACT
RCW 59.20 (1977)
IMPORTANT FEATURES
Must offer tenant one-year rental agreement
Must have good cause to terminate tenancy
(Different notices than RLTA & UDA)
List of prohibited landlord actions
Authorizes sale and transfer of rental agreement
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4
FORCIBLE ENTRY AND FORCIBLE
AND UNLAWFUL DETAINER ACT
RCW 59.12 (1891)
COVERAGE
Residential and commercial landlord-tenant
relationships
EXCLUSIONS
Tenancies at will (excluded by case law)
MODIFICATIONS
RLTA & M/MHLTA add additional procedures
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FORCIBLE ENTRY AND FORCIBLE
AND UNLAWFUL DETAINER ACT
RCW 59.12 (1891)
IMPORTANT FEATURES
Specifies grounds for unlawful detainer and
types of unlawful detainer notices
Service requirements for unlawful detainer
notices
Priority over other civil cases
Right to jury trial
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5
Local Laws
Seattle
SMC 7.20 – Floating Home Moorages
SMC 7.24 – Rental Agreement
Regulation
SMC 7.25 – Third Party Utility Billing
SMC 22.206 – Housing and Building
Maintenance Code
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Local Laws, cont’d.
SMC 22.206.160.C – Just Cause Eviction
SMC 22.210 – Tenant Relocation
Assistance
SMC 22.214 - Rental Housing
Registration and Inspection Program.
Registration requirement phased in
starting 1/1/14.
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6
SMC 22.902 – Cooperative Conversion
SMC 22.903 – Condominium Conversion
SMC 22.904 – Mobile Homes & Mobile
Home Parks
Bellevue
BCC 9.20 – Section 8 Discrimination
BCC 9.21 – Relocation Assistance
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Kirkland
KMC 7.74 – Section 8 Discrimination
Pasco
PMC 5.04.160(a); PMC 5.78. Rental
units must be licensed, registered,
maintained, inspected and certified.
Redmond
RMC 6.38 – Section 8 Discrimination
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7
RESIDENTIAL LANDLORDLANDLORDTENANT ACT
RCW 59.18 (1973)
Covers rental of dwelling unit for residential use
Rights & Obligations:
- Landlord duties, tenant duties, repair remedies,
rent and rule changes, privacy, deposits and
fees, lockouts, utility terminations, property
seizures, evictions, relocation assistance,
attorney's fees
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Coverage & Definitions
RCW 59.18.030
Applies to rental of a dwelling unit for
residential use
“Dwelling unit”: a structure or part of
structure used as a home, residence, or
sleeping place including single family
residences, multiplexes, apartments and
mobile homes
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8
Exempted Living Arrangements
RCW 59.18.040
Institutions where residence is incidental to
provision of services including prisons,
nursing homes, hospitals, convents
Housing under purchase and sale agreements
where residents constitute purchasers
Hotels, motels, or other transient lodging
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Exempted Living
Arrangements, cont’d.
Housing for seasonal agricultural workers
Housing for an employee when the right to
occupancy is conditioned upon employment in
or about the premises
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9
Unlawful Detainer Process
Still Applies!!
RCW 59.12 or RCW 7.28 (ejectment)
still applies.
NO LOCKOUTS! To evict, landlord
must obtain court order enforced by the
sheriff.
Exception: Tenancy at Will – ejectment
action
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Prohibited Lease Provisions
RCW 59.18.230
Lease cannot:
Provide that tenant waives rights or
remedies provided for under the Act
Limit landlord’s liability under the law
Provide that tenant must pay attorney
fees except as authorized by law
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10
Prohibited Lease
Provisions, cont’d.
Provide that landlord may take or detain
tenant property or have a lien against
personal property if tenant owes rent or
other charges
Provide that landlord can sue without
notice to tenant (confession of judgment
clauses)
Cannot designate a specific arbitrator
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Deposits & Fees
Screening Fees
RCW 59.18.257
Holding Fees
RCW 59.18.253
Security Deposit RCW 59.18.260-280
Nonrefundable Fees
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RCW 59.18.285
22
11
Common Law
Remedies Preserved
RCW 59.18.070: … the tenant may, in
addition to pursuit of remedies otherwise
provided him by law, …
RCW 59.18.080: delinquent rent or utilities is
not a bar to pursue civil remedies for
negligent or intentional damages or to
defense that no rent is due and owing in an
unlawful detainer action
Breach of the implied warranty of habitability
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Warranty of Habitability
Foisy v. Wyman, 83 Wn.2d 22 (1973)
Implied warranty of habitability in all
residential landlord-tenant relationships.
Can’t be waived, even in exchange for
reduced rent.
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12
Code Enforcement &
Relocation Assistance
RCW 59.18.085
Tenants who are displaced by code
enforcement may be eligible for cash relocation
assistance of $2000 or three times the monthly
rent, whichever is greater. Includes tenants in
hotels and motels.
See also, Bellevue City Code 9.21
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Rent Increase & Rule Change
RCW 59.18.140
Month-to-Month: 30 days written notice
before end of rental period
except Seattle: 60 days whenever rent
increase is 10% or more than rent
charged during preceding 12 month
period
Lease: ordinarily, cannot increase rent or
change rules during term unless both agree
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13
Late fees
Buchanan v. Kettner, 97 Wn. App. 370
(1999)
A mobile home park late fee of $20 plus
$2 a day is a permissible liquidated
damages clause and not a penalty.
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DV Victim Protection
RCW 59.18.570-585: Protection for victims of
sexual assault, domestic violence, unlawful
harassment, or stalking.
Landlord may not terminate a tenancy, fail to
renew a tenancy or refuse to enter into a rental
agreement based on tenant, applicant or
household member’s status as a victim of
sexual assault, domestic violence, unlawful
harassment, or stalking. Tenants who are
victims may terminate their lease or rental
agreement immediately.
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14
Rent Control
Rent Control
RCW 35.21.830; RCW 36.01.130
Local government is prohibited from adopting
any direct or indirect rent control.
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Consumer Protection Act
Consumer Protection Act
State v. Schwab, 103 Wn.2d 542 (1985).
Tenancies that are covered by the Residential
Landlord-Tenant Act, RCW 59.18, are not
covered by the Consumer Protection Act, RCW
19.86.
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15
Recent Developments
Tenant Screening - Ch. 41, Laws of 2012, SSB 6315 –
Effective June 7, 2012 (RCW 59.18.257)
Landlord must notify the prospective tenant what
types of information will be accessed to conduct
the tenant screening; what criteria may result in
the denial of the application;
If an adverse action is taken, the prospective
landlord must provide this information to the
prospective tenant in writing in a form
substantially similar to the one prescribed by
statute.
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Recent Developments, cont’d.
Tenant Screening – Ch. 54, Laws of 2013, SSB 5568 –
Effective Jan. 1, 2014 (RCW 59.18.257)
A tenant screening service provider may not
(a) disclose a tenant's, applicant's, or
household member's status as a victim of
domestic violence, sexual assault, or stalking,
or (b) knowingly
disclose that a tenant, applicant, or household
member has previously terminated a rental
agreement under RCW 59.18.575.
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16
Landlord Duties – Ch. 35, Laws of 2013, ESHB 1647 –
Effective July 28, 2013
RCW 59.18.060 is amended to provide that the
landlord must maintain and safeguard with
reasonable care any master key or duplicate
keys to the dwelling unit.
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Warranty of habitability claim not superseded by RLTA
The Residential Landlord-Tenant Act did not
supersede common law remedies, including the
implied warranty of habitability recognized in
Foisy v. Wyman, 83 Wn.2d 22 (1973). RCW
59.18.070. Landis & Landis Const., LLC v.
Nation, 171 Wn. App. 157, 286 P.3d 979 (2012)
Div. I, 11/8/12.
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17
Challenges to court’s subject matter unlawful detainer
jurisdiction are limited
Failure to include facsimile number and
necessary party did not deprive trial court of
subject matter jurisdiction and tenant was not
entitled to appellate review of claims that were
not argued before trial court; abrogating Truly v.
Heuft, 138 Wn. App. 913, 158 P.3d 1276 (2007)
and Laffranchi v. Lim, 146 Wn. App. 376, 190
P.3d 97(2008), MHM & F, LLC v. Pryor, 168 Wn.
App. 451, 277 P.3d 62 (2012), Div. I, 5/21/12.
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Eviction Timetable
Day
1
2
-
3
4
5
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Rent due date
Service of three-day
notice to pay or vacate
Payment deadline, unless
Saturday, Sunday, or Holiday
(Does RCW 1.12.040 apply?)
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18
Eviction Timetable, cont’d.
Day
6
7, 8, 9, 10, 11, 12
13
-
-
Service of eviction summons,
complaint, and order to show
cause (OTSC optional)
Eviction summons return
date (7 to 30 days); deadline
for notice of appearance or
answer and deadline for paying
rent to court clerk or filing sworn
statement that rent is not owed
(optional; RCW 59.18.375)
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Day
14
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Show cause hearing; writ of
restitution issued if tenant
fails to deliver written
response to eviction
summons, fails to appear or
loses at show cause hearing,
or fails to pay rent to court
clerk or file sworn statement
if required (optional; .375)
38
19
Day
15
-
16, 17, 18
19
20
21
-
22, 22, 23
24
-
Sheriff serves writ of restitution at
rental property (King County)
First day on which sheriff can
enforce writ
Sheriff's usual, earliest eviction
date (King County)
Sheriff's statutory deadline for
completing eviction
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Grounds for Eviction
& Notices; RCW 59.12.030
3-day pay or vacate
3-day notice for waste, nuisance or
unlawful business
3 day notice for occupying without color
of title
10-day notice to comply or vacate
20-day notice to terminate
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20
Grounds for Eviction
& Notices, cont’d.
Gang-related activity; notice?
Expired term rental agreement; no notice
required unless rental agreement
requires it.
Holdover after nonjudicial deed of trust
foreclosure or real estate contract
forfeiture; additional notice required if
occupied by tenant.
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Service of Unlawful Detainer
Notice – RCW 59.12.040
Attempt personal Service (knock)
Tenant not home
Leave a copy with person of suitable age &
discretion and mail
Post a notice and mail (add 1 day for
mailing)
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21
Eviction Summons &
RCW 59.18.375 Notice
Special Summons Required (RCW 59.18.365);
7 to 30 day return date.
Notice of service of response by facsimile
Separate RCW 59.18.375 Payment or Sworn
Statement Requirement; separate notice
requires filed complaint (.375 language can’t
be included in summons)
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Return Date on Summons
7 - 30 days to appear or answer
Not less than 9 days (alternative service)
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22
Order to Show Cause
RCW 59.18.370
7 to 30 days notice
Mail; service deemed complete 3rd day
following date of mailing, unless Sat.,
Sun., Hol.; CR 5(b)(2)(A)
Striking show cause hearing
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Service of
Summons & Complaint
Personal Service Required; RCW 4.28.080(15)
On tenant or
At the person’s usual abode to a person of suitable
age and discretion residing therein.
filed or unfiled
Alternative Service; RCW 59.18.055
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Due diligence
Court order
Nail and mail
No money judgment
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23
Eviction Defenses
RCW 59.18.380.
Tenants can assert any legal or equitable
defense or set-off arising out of the
tenancy.
Written or oral at show cause hearing;
amending answer – CR 15 w/i 20 days.
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Unlawful Detainer Act –
Strict Construction
Special statutory proceeding
In derogation of the common law
STRICTLY CONSTRUED in favor of the
tenant
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24
Procedural Defenses
Improper court
Improper unlawful detainer notice
Improper service or time of UD notice
Improper summons
Improper service of summons
Improper alternative summons service
Failure to comply with other civil rules
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Substantive Defenses
Possession not at issue
Claim of ownership or no L-T relationship
Retaliation
Discrimination
Breach of warranty of habitability
Just Cause Eviction Ordinance (Seattle)
Public, Subsidized, § 8, LIHTC cause
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SetSet-offs & Counterclaims
Tenants can assert set-offs arising out of
tenancy in RLTA UDA. RCW 59.18.380
Tenants cannot assert counterclaims in UDA.
Housing Authority v. Terry, 114 Wn.2d 558
(1990)
However, if the counterclaim… excuses the
tenant's failure to pay rent (or other breach),
then it is properly asserted in an unlawful
detainer action. See, e.g., Kelly v. Powell, 55
Wn. App. 143 (1989)
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Show Cause Hearing
RCW 59.18.380
Answer orally or in writing; amend w/i 20 days.
CR 15(a)
Court examines witnesses to ascertain merits;
Issue writ if it appears that the plaintiff has right to
be restored to possession; other relief on
summary judgment standard;
If no writ, set for trial.
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Show Cause Hearing
Standard of Review
Material factual issues that determine right to
possession should not be summarily resolved
at a show cause hearing.
See Indigo Real Estate Services, Inc. v.
Wadsworth, 169 Wn. App. 412 (2012); Housing
Authority v. Pleasant, 126 Wn. App. 382
(2005); Hartson Partnership v. Goodwin, 99
Wn. App. 227 (2000); see also Tuschoff v.
Westover, 60 Wn.2d 722 (1962).
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Show Cause Outcomes
Dismiss complaint;
Deny writ & set for trial;
Issue writ;
Issue writ & set for trial on other relief;
Issue writ & enter final Findings,
Conclusions, & Judgment.
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Bonds
RCW 59.18.380
Writ issued before final judgment; plaintiff
“shall” post bond;
Writ issued before final judgment;
defendant may stay writ by paying rent,
etc. w/i 3 days after service;
Additional defendant bond requirement;
RCW 59.18.390.
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Reinstatement Rights
RCW 59.18.410
Right to reinstate if:
Eviction based on nonpayment of rent;
Lease or agreement has not otherwise
expired;
Pay judgment & costs w/i 5 (7?) days.
Relief from forfeiture; RCW 59.12.190.
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Revision of Court Commissioner
RCW 2.24.050
Order of commissioner subject to revision;
File motion within 10 days;
De novo review on the record with
deference to findings based on witnesses;
Motion may operate as stay; (not in King
County; KCLR 7(b)(8)(B)(iv)).
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Limitation on Judgments
UDA judgments limited to rent, damages
for unlawful detainer (reasonable rental
value), court costs & reasonable attorney
fees. RCW 59.18.410.
Judgments are not similarly limited if
UDA converted to ordinary civil action.
Munden v. Hazelrigg, 105 Wn.2d 39
(1985).
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Stay/Vacate
No unique procedure for stay/vacate
motions in unlawful detainer actions;
Governed by CR 60 & CR 62;
“…on such conditions for the security of the
adverse party as are proper,” CR 62(b);
Notice & service; CR 60(e).
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Ejectment
Statutory ejectment action is alternative
to UDA. RCW 7.28.
Ordinary civil action in which parties can
join all claims and counterclaims that
they have against each other.
Commenced with 20-day civil summons
and civil case schedule.
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Bankruptcy (2005)
11 U.S.C. § 101, et seq.
If petition filed before “judgment for
possession” entered, automatic stay
of commencement or continuation of
eviction action until relief from stay
granted or bankruptcy concluded.
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Bankruptcy, cont’d.
If petition filed after entry of “judgment for
possession” stay will apply if:
Debtor discloses judgment;
Debtor certifies that cure allowed after
“judgment for possession;”
Debtor pays rent due within next 30 days to
clerk at filing and certifies payment;
Debtor pays entire amount due within 30
days of filing and certifies full payment.
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Internet Resources
Brochures & Pamphlets on Rental Housing and
Other Topics – www.washingtonlawhelp.org
Information on Tenants' Rights www.tenantsunion.org
Federal Housing Statutes, Regulations, &
Handbooks –
www.hud.gov/offices/adm/hudclips
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Internet Resources,
cont’d.
Washington State Statutes (RCW 59: Code
Reviser, 360.753.6804) - www.wa.gov or
http://access.wa.gov
(Navigation tip: click on “government” + “laws and
rules” + “state legislature laws and agency rules”)
Seattle City Ordinances – www.seattle.gov
(Navigation tip: click on “city departments” + “city
clerk” + “online resources” + “municipal code”)
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Internet Resources,
cont’d.
King County Ordinances
www.kingcounty.gov
(Navigation tip: scroll to “courts, code &
law” + click on “county code”)
Bellevue City Ordinances www.bellevuewa.gov/bellcode
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Internet Resources,
cont’d.
Public & Subsidized Housing Programs www.hud.gov
(Navigation tip: click on “state info” +
“washington” + “rental housing”)
Housing Discrimination - www.hud.gov
(Navigation tip: click on “topic areas” +
“housing discrimination”)
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The End
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34
KING COUNTY BAR ASSOCIATION
HOUSING JUSTICE PROJECT
Low-Income Tenants Facing Eviction
OVERVIEW OF THE
RESIDENTIAL LANDLORD-TENANT ACT
January 31, 2014
Steve Fredrickson
401 Second Avenue South, Suite 407
Seattle, WA 98104
206.464.1519 ext. 248
888.201.1012
Fax: 206.903.0526
stevef@nwjustice.org
STEVE FREDRICKSON is an advocacy coordinator with Northwest Justice Project and has
been a legal services lawyer since 1972. He received his undergraduate degree from the
University of Chicago in 1968 and his law degree from the University of Washington Law
School in 1972. His practice emphasizes landlord-tenant and real estate law. He is the author or
co-author of a number of publications on landlord-tenant law, including "Tenants' Rights: A
Guide for Washington State," University of Washington Press, 1991; "Termination of Tenancies
and Unlawful Detainer," Vol. 1C, Ch. 88, Washington Practice, West Publishing Company,
1997; "Landlord-Tenant Super Seminar XI: Residential Evictions & Condo Conversions,"
Washington Law Institute, 2007, and "Residential Lease Practice," Vol. 2, Ch. 19, WSBA
Washington Real Property Deskbook Series: Real Estate Essentials (4th ed. 2009).
.
This outline is a brief review of the topics it covers. It is not a substitute for legal advice.
Persons with a particular legal problem should consult an attorney. Attorneys should supplement
this outline with their own legal research.
© 2014 – Northwest Justice Project
Tables of Contents
I.
THE RESIDENTIAL LANDLORD-TENANT ACT OF 1973.................................... 1
A.
COVERAGE .......................................................................................................... 1
B.
EXCLUSIONS ....................................................................................................... 1
C.
TYPES OF TENANCIES ...................................................................................... 1
1.
2.
3.
D.
CREATION OF THE LANDLORD-TENANT RELATIONSHIP. ...................... 2
1.
2.
E.
Month to Month Tenancy ....................................................................... 1
Tenancy for Specified Time .................................................................... 1
Tenancy at Will ........................................................................................ 2
Month to Month ....................................................................................... 2
Tenancy for Specified Time .................................................................... 2
DEPOSITS/FEES .................................................................................................. 2
1.
Types of Deposits/Fees ............................................................................. 2
a.
b.
c.
d.
e.
f.
Amount of Deposit ................................................................................... 3
3.
Collection of Deposits .............................................................................. 3
4.
5.
6.
Written Lease or Rental Agreement ...............................................
Checklist ........................................................................................
Trust Account and Interest .............................................................
Receipt ...........................................................................................
3
3
4
4
Transfer of Deposits................................................................................. 4
Refund of Deposits ................................................................................... 4
Remedies of Tenant.................................................................................. 4
LANDLORD DUTIES........................................................................................... 4
i
6.21.13
2
2
3
3
3
3
2.
a.
b.
c.
d.
F.
Application fees .............................................................................
Holding Deposit/Fee ......................................................................
Damage Deposit .............................................................................
Security Deposit .............................................................................
Nonrefundable Cleaning Fee .........................................................
First and Last Months Rent ............................................................
G.
TENANT REPAIR REMEDIES ........................................................................... 5
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Current in Rent ........................................................................................ 5
Written Notice .......................................................................................... 6
Waiting Period ......................................................................................... 6
Completion of Work ................................................................................ 6
Termination of Rental Agreement.......................................................... 6
Court Action or Arbitration ................................................................... 6
Estimate Repair Remedy. ........................................................................ 6
Do-It-Yourself-Repairs ............................................................................ 7
Combining Repair Remedies ................................................................... 7
Rent Escrow .............................................................................................. 7
Utility Termination Remedies ...................................................................8
H.
TENANT DUTIES... ............................................................................................. 8
I.
RENT ...................................................................................................................... 9
1.
2.
3.
4.
5.
Amount....................................................................................................... 9
Receipt .........................................................................................................9
Partial Payments ........................................................................................9
Rent Increases ........................................................................................... 9
Tenant Liability......................................................................................... 9
a.
b.
6.
J.
Mitigation of Damages. ............................................................................. 9
PRIVACY ............................................................................................................. 10
1.
2.
3.
4.
5.
K.
Month To Month Tenancy .............................................................. 9
Tenancy for Specified Time ............................................................ 9
Landlord's Right to Enter ...................................................................... 10
Advance Notice ........................................................................................ 10
Tenant Consent ....................................................................................... 10
Showing to Purchasers or Tenants ........................................................ 10
Damages ................................................................................................... 10
ILLEGAL LANDLORD CONDUCT ................................................................... 10
1.
2.
3.
Lockouts ................................................................................................... 10
Utility Terminations................................................................................ 11
Property Seizures .................................................................................... 11
a.
No Lien for Rent ........................................................................... 11
ii
1.31.14
b.
c.
d.
e.
4.
Renting Units that are Illegal to Occupy .............................................. 12
a.
b.
5.
6.
7.
Month to Month Tenancy ...................................................................... 13
Tenancy for Specified Time ................................................................... 13
Other Grounds for Termination of Tenancy........................................ 13
Termination by Members of Armed Forces ..........................................13
Termination for Drug-Related Activity, Gang-Related Activity,
or Assaults................................................................................................ 13
Termination by Victim of Assault or Domestic Violence .................... 13
Termination in Drug and Alcohol-Free Housing ..................................13
WAIVER OF RIGHTS AND REMEDIES........................................................... 14
1.
2.
Waiver Prohibited ................................................................................... 14
Exemption from Landlord-Tenant Act Coverage................................ 14
a.
b.
II.
Protected Activity ......................................................................... 12
Prohibited Retaliation ................................................................... 12
Presumptions and Rebuttal ........................................................... 12
Remedies ....................................................................................... 13
TERMINATION OF TENANCY….. ................................................................... 13
1.
2.
3.
4.
5.
M.
Condemned or Illegal Units .......................................................... 12
Damages & Relocation Assistance ............................................... 12
Retaliation................................................................................................ 12
a.
b.
c.
d.
L.
Damages ........................................................................................ 11
Abandonment Exception ............................................................... 11
Writ of Restitution Exception ....................................................... 11
Recovery of Property .................................................................... 12
Single-Family Residences ............................................................... 14
Other Exemptions ........................................................................... 14
N.
ATTORNEY FEES ............................................................................................... 14
O.
CONSUMER PROTECTION ACT EXCLUSION .............................................. 14
LOCAL LAWS ...............................................................................................................14
A.
RENTAL HOUSING REGISTRATION PROGRAM .........................................14
B.
LICENSING AND INSPECTION PROGRAM ....................................................15
iii
1.31.14
C.
RENTAL AGREEMENT REGULATION ...........................................................15
D.
MINIMUM HOUSING CODES ...........................................................................15
E.
JUST CAUSE EVICTION ....................................................................................15
F.
CONDOMINUM AND COOPERATIVE CONVERSION .................................15
G.
TENANT RELOCATION ASSISTANCE ...........................................................15
H.
60-DAY NOTICE OF RENT INCREASE ............................................................16
I.
THIRD PARTY BILLING FOR UTILITIES ........................................................16
J.
MOBILE HOMES AND MOBILE HOME PARKS .............................................16
K.
FLOATING HOME MOORAGES........................................................................16
L.
FAIR HOUSING LAWS .......................................................................................16
APPENDIXES
Resources
iv
1.31.14
I. THE RESIDENTIAL LANDLORD-TENANT ACT OF 1973
A. COVERAGE: Most tenants who are renting a dwelling unit for living purposes are
covered by the Residential Landlord-Tenant Act. RCW 59.18. A dwelling unit includes
a mobile home. Tenants renting only the space in a mobile home park are covered by the
Manufactured/Mobile Home Landlord-Tenant Act. RCW 59.20.
B. EXCLUSIONS: The following living arrangements are excluded from coverage under
the Residential Landlord-Tenant Act, unless established primarily to avoid its application.
RCW 59.18.040.
1. Institutional living arrangements in which residence is incidental to other services
such as nursing homes, dormitories, hospitals, jails, and monasteries. See Sunrise
Group Homes v. Ferguson, 55 Wn. App. 285, 777 P.2d 553 (1989).
2. Residents under purchase and sale agreements who constitute purchasers.
3. Residents in hotels, motels, and other transient accommodations as defined in RCW
19.48.010.
4. Residents in single family dwellings on property rented mainly for agricultural
purposes.
5. Seasonal farmworker housing in conjunction with employment.
6. Employees of the landlord whose right to live in the dwelling unit is conditioned upon
their continued employment around the premises.
Note: A tenancy that is excluded from coverage under the Residential- Landlord-Tenant
Act is still governed by the unlawful detainer statute, RCW 59.12.
C. TYPES OF TENANCIES. There are two major types of tenancies. They are a month-tomonth tenancy and a tenancy for years or for a specified time. The general characteristics
of each are as follows.
1. Month to Month Tenancy. A tenant who rents property for an indefinite period of
time with rent payable on a monthly or other periodic basis is considered a periodic
tenant from month to month or from period-to-period on which the rent is payable. A
tenant who pays rent on a weekly basis is a week to week tenant. RCW 59.18.200.
2. Tenancy for Specified Time. The rental of property for a specified time is a tenancy
for years. This type of tenant is often referred to as having a lease. The term "lease"
is not defined in the Residential Landlord-Tenant Act and the term "rental agreement"
refers to the agreement covering both periodic tenants and tenants for a specified
time. RCW 59.18.030(19).
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1.25.13
3. Tenancy at Will. Persons who occupy residential property for an indefinite period of
time without being obligated to pay any rent are generally referred to as tenants at
will. These tenancies would ordinarily not be covered by the Residential LandlordTenant Act. A tenant at will would include an employee whose employment is
terminable at will and who received housing as part of that employment. Najewitz v.
City of Seattle, 21 Wn.2d 656, 152 P.2d 722 (1944).
D. CREATION OF THE LANDLORD-TENANT RELATIONSHIP.
1. Month to Month. A month to month tenancy can be created by nothing more than
the payment and acceptance of rent. The rental agreement can be either oral or
written, unless the landlord collects a deposit. If a deposit is collected, the rental
agreement must be in writing. RCW 59.18.260.
2. Tenancy for Specified Time. A tenancy for specified time or "lease" must be in
writing. A lease for over one-year must be in writing and acknowledged like a deed.
Leases that are not in writing or that exceed one year and are not acknowledged create
a month-to-month tenancy absent any equitable factors that would make them
enforceable for their full term, such as part performance or estoppel. RCW
59.18.210; RCW 59.04.010; RCW 64.04.010-.020; Marriage of Irwin, 64 Wn. App.
38, 822 P.2d 797 (1992); Armstrong v. Burkett, 104 Wash. 476, 177 P. 333 (1918);
Tiegs v. Watts, 135 Wn.2d 1, 954 P.2d 877 (1998).
E. DEPOSITS/FEES
1. Types of Deposits/Fees. Landlords may collect money at the commencement of a
tenancy that is described as a deposit or fee. These sums of money are variously
referred to as application fees, holding deposits/fees, damage deposits, security
deposits, cleaning fees, and first and last months rent. The characteristics of each are
described below.
a. Application fees. A landlord may charge a fee for obtaining background information on a prospective tenant, provided that certain written disclosures are made in
advance. Disclosures include type of information sought, rental criteria, name and
address of consumer reporting agency, right to free copy of report if any adverse
action, and right to dispute accuracy of report. The fee is limited to the costs
incurred. The landlord must also give written notice of any adverse action. There
is a penalty of up to $100 for violations. RCW 59.18.257.
b. Holding Deposit/Fee. A holding fee can be collected after a unit is offered to
the tenant. There must be a written receipt describing its refundability, if any.
If the tenant takes the unit, the holding fee must be applied towards the security
deposit or the first month's rent. There is a penalty of up to two times the fee or
deposit for violations. RCW 59.18.253.
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1.31.14
c. Damage Deposit. This is a sum of money collected by the landlord to indemnify
the landlord for any physical damage to the property caused by the tenant in
excess of normal wear and tear. Whether the deposit can be applied to other
monetary damages sustained by the landlord will depend on the language of the
rental agreement or deposit agreement. RCW 59.18.260.
d. Security Deposit. A sum of money collected by the landlord to indemnify the
landlord for any damages, including physical damage to the property, that the
landlord may sustain because of the tenant's failure to comply with statutory
tenant duties or terms of the rental agreement, e.g., failure to pay rent, utility bills,
etc. RCW 59.18.260.
e. Nonrefundable Cleaning Fee. The landlord may collect a nonrefundable fee.
Although these are usually cleaning fees, types of nonrefundable fees are not
limited. A nonrefundable fee may not be designated as a deposit or as part of any
deposit and the rental agreement must be in writing and clearly specify that the fee
is nonrefundable. RCW 59.18.285. A tenant who has paid a nonrefundable
cleaning fee may not be charged for normal cleaning. RCW 59.18.130(10).
f. First and Last Months Rent. Money collected by the landlord as first and last
months rent is generally not a deposit. It would usually constitute prepayment of
rent and become the property of the landlord at the time it is paid. If it is not a
deposit, it is not subject to the ordinary rules regarding damage and security
deposits.
2. Amount of Deposit. There are no restrictions on the amount of the deposit that a
landlord may collect. A landlord may increase the deposit of a month to month tenant
during the term of the rental agreement by giving written notice of such increase 30
days or more before the beginning of any monthly rental period. RCW 59.18.140.
3. Collection of Deposits. A landlord who collects a sum of money from the tenant as a
deposit or as security for performance of the tenant's obligations in a lease or rental
agreement must meet the following requirements.
a. Written Lease or Rental Agreement. There must be a written lease or rental
agreement that includes the terms and conditions under which all or part of the
deposit may be withheld upon termination of the agreement. RCW 59.18.260.
b. Checklist. The landlord must provide the tenant at the commencement of the
tenancy with a written checklist describing the condition of the premises,
including any existing damages. The checklist must be signed and dated by the
parties and the tenant must receive a copy of the signed checklist or statement.
The tenant is entitled to one free replacement copy. RCW 59.18.260.
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1.31.14
c. Trust Account and Interest. Money collected as a deposit by the landlord must be
placed in a trust account in a bank or with a licensed escrow agent located in
Washington. The landlord is entitled to any interest paid on the deposit unless
otherwise agreed in writing. RCW 59.18.270.
d. Receipt. The landlord must provide the tenant with a written receipt for the
deposit, including the name, address, and location of the depository and any
subsequent changes. RCW 59.18.270.
4. Transfer of Deposits. If the landlord sells the rental property or the status of
landlord is otherwise transferred to another, any money collected as a deposit must
simultaneously be transferred to a trust account of the successor landlord and the
successor landlord must promptly notify the tenant of the transfer and of the name,
address, and location of the new depository. The tenant has additional remedies if the
rental property is foreclosed. RCW 59.18.270.
5. Refund of Deposits. The landlord must refund a deposit or give a written statement
describing the basis for retaining any of the deposit within 14 days after termination
of the rental agreement and vacation of the premises by the tenant or within 14 days
after the landlord learns that the premises has been abandoned in the case of
abandonment. Delivery of the statement or refund can be accomplished by personal
delivery or by depositing in the mail addressed to the tenant's last known address,
postage prepaid, within the 14 day period. RCW 59.18.280.
6. Remedies of Tenant. There is no explicit remedy for collection of a deposit without
a written rental agreement or checklist. Some judges have ruled that failure to
provide the tenant with a written rental agreement or checklist entitles the tenant to
automatic recovery of the full deposit. A landlord who collects a nonrefundable fee
must return it if there is no written rental agreement. RCW 59.18.285. A landlord
who fails to give a statement or refund within the 14-day period is liable to the tenant
for the full amount of the deposit and is ordinarily barred from asserting any claim to
the deposit. In any action brought by the tenant for recovery of the deposit, the
landlord is ordinarily barred from asserting any counterclaim. RCW 59.18.280. The
court may award up to two times the amount of the deposit for intentional refusal of
the landlord to give the statement or refund and the prevailing party is entitled to court
costs and reasonable attorney's fees. RCW 59.18.280.
F. LANDLORD DUTIES.
RCW 59.18.060 requires the landlord to keep the premises fit for human habitation during
the tenancy and, in particular, do the following:
1. Substantially comply with codes, statutes, and ordinances with respect to conditions
that endanger or impair tenant health or safety.
2. Keep the premises structurally sound.
4
1.31.14
3. Keep shared or common areas reasonably clean, sanitary, and safe from defects
increasing the hazard of fire or accident.
4. Provide a reasonable program of pest and infestation control.
5. Keep the premises in as good condition as it was or should have been at the
commencement of the tenancy except for normal wear and tear.
6. Provide reasonably adequate locks and furnish keys to the tenant.
7. Maintain and safeguard master key or duplicate keys to dwelling unit.
8. Maintain all electrical, plumbing, heating, and other facilities and appliances supplied
by the landlord in reasonably good working order.
9. Maintain the dwelling unit in reasonably weathertight condition.
10. Provide trash receptacles and arrange for garbage removal, except in the case of a
single-family residence.
11. Provide facilities adequate to supply heat and water and hot water as reasonably
required by the tenant, unless the building is not equipped for that purpose.
12. Provide smoke detection devices and written notice regarding those devices and
related fire policies and procedures and describing tenant maintenance responsibilities. See RCW 48.48.140.
13. Provide tenants with written information approved by the department of health
about the health hazards of exposure to indoor mold.
14. Designate to the tenant the name and address of the person who is the landlord.
G. TENANT REPAIR REMEDIES.
Most landlord duties concern repair and maintenance of the dwelling unit and the premises of
which it is a part. If the landlord violates a repair duty, the tenant has certain remedies under
the Residential Landlord-Tenant Act. The types of remedies and the procedure for exercising
those remedies are as follows.
1. Current in Rent. The tenant must be current in rent, including any utilities that the
tenant is obligated to pay, before exercising any remedies under the Residential
Landlord-Tenant Act. Delinquent rent or utilities are not a bar to the tenant's pursuit
of civil remedies for negligent or intentional damage or to the tenant's assertion that
no rent is due and owing in an unlawful detainer action. RCW 59.18.080. The tenant
can still pursue common law remedies or remedies outside the Residential Landlord5
1.31.14
Tenant Act, including claims based on breach of the implied warranty of habitability
or breach of contract, even if the tenant is delinquent in rent and utilities. RCW
59.18.070. Additionally, the remedies available through local code enforcement
authorities are not conditioned upon the tenant's current rent payments.
2. Written Notice. Before exercising any remedy under the Residential LandlordTenant Act, the tenant must deliver a written notice to the landlord or to the person
who collects the rent which specifies the premises involved, the name of the owner, if
known, and the nature of the defective condition. RCW 59.18.070.
3. Waiting Period. The landlord must commence remedial action as soon as possible
after receipt of such notice but not later than the following time periods, except where
circumstances are beyond the landlord's control. RCW 59.18.070.
a. 24 hours where the condition deprives the tenant of hot or cold water, heat, or
electricity or is imminently hazardous to life;
b. 72 hours where the condition deprives the tenant of the use of a refrigerator, range
and oven, or major plumbing fixture supplied by the landlord;
c. Not more than ten days in all other cases.
4. Completion of Work. The landlord must see that remedial work is completed
promptly and if completion is delayed due to circumstances beyond the landlord's
control, the condition must be remedied as soon as possible. RCW 59.18.070.
5. Termination of Rental Agreement. If the landlord fails to remedy the defective
condition within a reasonable time after delivery of written notice, the tenant may
terminate the rental agreement and move out immediately without giving the advance
notice that is customarily required. The tenant is discharged from payment of rent for
any period following the quitting date and is entitled to a pro rata refund of any
prepaid rent and any deposit that would otherwise be due. RCW 59.18.090.
6. Court Action or Arbitration. If the landlord fails to remedy the condition within a
reasonable time after delivery of the written notice, the tenant may file a lawsuit or
commence arbitration, if so agreed, for any remedy provided under the Residential
Landlord-Tenant Act or otherwise provided by law. A court or arbitrator may
determine the diminished rental value of the premises as a result of the defective
conditions and may enter a judgment against the landlord for rent paid in excess of
such diminished rental value and may reduce the tenant rent until the conditions are
corrected. The court or arbitrator may also authorize rent deductions for repairs that
have been performed by the tenant and may authorize the tenant to make further
corrective repairs and deduct the cost from the rent. RCW 59.18.110.
7. Estimate Repair Remedy. If the landlord fails to commence repairs within the
required time period, the tenant may submit to the landlord a good faith estimate of
6
1.31.14
the cost to perform the necessary repairs. The tenant may give this notice at the same
time as he or she gives the initial notice of defects.
If the work requires a licensed or registered repairperson or will be done by some
other qualified person or will cost more than one month’s rent, then the tenant can
contract to have the work performed and deduct the repair costs from his rent. Before
contracting to have the work performed, the tenant must deliver his own good faith
written estimate of the repair cost to the landlord or his designated agent. If the
landlord has ten days to start making the repair, then the written estimate must be
given to the landlord at least two days before contracting for the repair work. The
maximum amount that can be deducted by the tenant using this remedy is two
months’ rent for each repair and a maximum of two months rent during any twelvemonth period. RCW 59.18.100.
8. Do-It-Yourself-Repairs: If the repair work need not be performed by a licensed or
registered person, the tenant may make the repair him or her self deduct the cost of
the repair from the rent after giving written notice of the defect and waiting the
required time period. The maximum amount that can be deducted under the do-ityourself repair remedy is one month's rent for each repair and a maximum of one
month’s rent during any twelve-month period. RCW 59.18.100.
9. Combining Repair Remedies. The Residential Landlord-Tenant Act does not
specifically authorize combining of repair remedies. There is, however, nothing in
the Act that prohibits tenant use of both the estimate repair remedy and the do-ityourself repair remedy or that prohibits tenants in a multifamily dwelling unit from
combining their repair deductions to remedy conditions that affect all of them. If
tenants seek to combine their repair deductions, they should all join in the written
notice to repair and they should all wait the required time period.
10. Rent Escrow. RCW 59.18.115 authorizes a tenant to deposit rent in an escrow
account if the dwelling unit is dangerous or substandard and the following has
occurred:
a. The tenant is current in rent;
b. There is a condition on the rental premises that the landlord has a legal duty to
correct;
c. The condition substantially endangers tenant health or safety;
d. The landlord has received written notice of the condition and has failed to start
correcting it after a reasonable time;
e. A local building official has certified the existence and dangerousness of the
condition in writing after notice to the landlord; and
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1.31.14
f. It has been determined by the tenant that other repair remedies are inadequate to
correct the condition. Specific procedures for setting up the escrow account and
arranging for release of the escrowed rent are specified in the Residential
Landlord-Tenant Act.
11. Utility Termination Remedies. City or town utilities must provide electric power
and light or water services to an affected tenant upon request on the same terms and
conditions as other utility customers, without requiring that the tenant pay delinquent
amounts for services billed directly to the property owner or previous tenant. In these
cases, the tenant may deduct from the rent due all reasonable charges paid by the
tenant to the city or town for such services, and a landlord may not take reprisals or
retaliatory action against a tenant who deducts from their rent payments for these
purposes. RCW 35.21.217(5)(a).
H. TENANT DUTIES.
RCW 59.18.130 imposes the following duties on tenants:
1. Pay the rent as required by the rental agreement or as otherwise provided by law;
2. Comply with all obligations imposed upon tenants by applicable state and local codes,
statutes, and ordinances;
3. Keep the part of the premises that he occupies as clean and sanitary as conditions
permit;
4. Properly dispose of all rubbish, garbage, and other waste and assume costs of
extermination and fumigation for infestation caused by the tenant;
5. Properly use all electrical, gas, heating, plumbing, and other fixtures and appliances
supplied by the landlord;
6. Not intentionally or negligently damage the structure, equipment, or appliances or
permit any member of his family, invitee, licensee, or any person acting under his
control to do so;
7. Not permit a nuisance or waste;
8. Not engage in drug related activity at the premises or allow others to engage in drug
related activity at the premises with the knowledge or consent of the tenant. See
RCW 7.43; RCW 7.48; RCW 7.48A;
9. Maintain smoke detection devices including battery replacement as required in RCW
43.44.110(3).
8
1.31.14
10. Not engage in physical assaults or assaults with deadly weapons at the rental premises
which result in an arrest. See RCW 7.48.155;
11. Not engage in gang-related activity at the rental premises;
12. Upon termination of the tenancy and vacation of the premises, restore them to their
initial condition except for reasonable wear and tear.
I. RENT
1. Amount. State law does not restrict the amount of rent that a landlord may charge.
State law prohibits cities, towns, or counties from regulating the amount of rent that a
landlord may charge. RCW 35.21.830; RCW 36.01.130.
2. Receipt. A landlord must provide a written receipt for any cash rental payment and
upon a tenant’s request any other tenant payments. RCW 59.18.063.
3. Partial Payments. Partial payment on a judgment after issuance of a writ of
restitution does not cancel or postpone eviction unless there is a written agreement
signed by the parties. The writ must advise the tenant of this provision. RCW
59.18.390.
4. Rent Increases. Ordinarily, rent cannot be increased during the term of the lease or
rental agreement if the tenant has a tenancy for a specified period of time, unless the
lease or rental agreement specifically authorizes such changes. The landlord may
increase the rent of a month to month tenant by giving written notice of such increase
30 days or more before any rent due date. A rent increase can be implemented upon
completion of the term of the rental agreement. RCW 59.18.140.
5. Tenant Liability.
a. Month To Month Tenancy. A month to month tenant who defaults in the payment
of rent and abandons the premises is liable for rent for the 30 days following
either the date the landlord learns of the abandonment or the date the next regular
rental payment would have become due, whichever occurs first. RCW 59.18.310.
b. Tenancy for Specified Time. When the tenancy is for a term greater than month
to month, the tenant is liable for the lesser of the entire rent due for the remainder
of the term or all rent accrued during the period reasonably necessary to rerent the
premises at a fair rental plus the difference between such fair rental and the rent
agreed to in the prior rental agreement plus actual costs incurred in rerenting and
court costs and reasonable attorney fees. RCW 59.18.310.
6. Mitigation of Damages. The landlord must make a reasonable effort to mitigate
damages that result from a default in rent and abandonment after the landlord learns
9
1.31.14
of the abandonment. RCW 59.18.310.
J. PRIVACY
1. Landlord's Right to Enter. The landlord may enter the tenant's premises for the
purpose of inspection, making necessary or agreed repairs, alterations, or
improvements, supplying necessary or agreed services, or showing the dwelling unit
to prospective purchasers, tenants, or others. RCW 59.18.150. See AGO 1974, No.
10; Seattle v. McCready, 124 Wn.2d 300, 877 P.2d 686 (1994); Cranwell v. City of
Seattle, 77 Wn. App. 90, 890 P.2d 491 (1995). Fire officials also have a right of entry
after obtaining a search warrant upon probable cause. RCW 59.18.150(2).
2. Advance Notice. The landlord must ordinarily give the tenant at least two days’
written notice of his intent to enter the premises, except in the case of emergency or if
it is impracticable to do so. The landlord may only enter at reasonable times and may
not abuse the right of access or use it to harass the tenant. RCW 59.18.150.
3. Tenant Consent. The landlord may only enter the dwelling unit without the consent
of the tenant in case of emergency or abandonment. The tenant shall not
unreasonably withhold consent to entry by the landlord. RCW 59.18.150. However,
once the requisite statutory notice is given, the court has suggested that the tenant has
no reasonable expectation of privacy other than that entry for inspection may occur.
See Kalmas v. Wagner, 133 Wn.2d 210, 943 P.2d 1369 (1997) reversing Kalmas v.
Wagner, 82 Wn. App. 105, 114, 915 P.2d 546 (1996).
4. Showing to Purchasers or Tenants. If the landlord wants to enter the unit to exhibit
it to prospective or actual purchasers or tenants, the landlord must only give one-day
advance notice. The landlord may not unreasonably interfere with the tenant's
enjoyment of the dwelling unit by exhibiting it excessively. RCW 59.18.150.
5. Damages. The landlord or tenant may be liable to the other for either an unlawful
entry or an unreasonable refusal to consent to entry for up to $100 for each violation.
The $100 penalty is available for a violation that occurs after the landlord or tenant
has been served with one written notice listing the date and time of a previous
violation. The prevailing party may recover court costs and reasonable attorney's fees.
RCW 59.18.150.
Damages are also available for civil rights violations resulting from police assistance
to the landlord's unauthorized entry. See Kalmas v. Wagner, 82 Wn. App. 105, 114,
915 P.2d 546, reversed 133 Wn.2d 210 (1997).
K. ILLEGAL LANDLORD CONDUCT
1. Lockouts. A landlord may not use self-help to evict a tenant. A landlord may not
remove a tenant from a rental unit without a court order authorizing the removal. The
10
1.31.14
court order can only be enforced by the county sheriff. A tenant who is illegally
deprived of access to the rental unit may recover possession of the rental unit and the
prevailing party may recover court costs and reasonable attorney fees. RCW
59.18.290.
2. Utility Terminations. A landlord who intentionally terminates a tenant's utility service, except for a temporary interruption to make necessary repairs, may be liable to
the tenant for up to $100 a day in addition to actual damages. The prevailing party
may recover court costs and reasonable attorney fees. RCW 59.18.300.
3. Property Seizures.
a. No Lien for Rent. A landlord has no right to seize or detain a tenant's personal
property, even if the tenant is behind in rent. The common law right of the
landlord of distress for rent is abolished for property covered by the Residential
Landlord-Tenant Act. Any provision in a rental agreement that purports to create
a lien upon a tenant’s personal property is unenforceable. RCW 59.18.230.
b. Damages. Any landlord who takes or detains the personal property of a tenant
without specific written consent and who fails to return the property promptly
after written demand is liable to the tenant for the value of the property retained,
actual damages, and, if the refusal is intentional, may be liable for damages of up
to $500 a day but not to exceed a total of $5000. The prevailing party may
recover court costs and reasonable attorney fees. RCW 59.18.230.
c. Abandonment Exception. A landlord may seize and detain a tenant's personal
property if the tenant is in default in the payment of rent and has abandoned the
premises. The landlord must ordinarily send the tenant written notice of his
intention to sell or dispose of the property not less than 45 days from the date of
such written notice. If the tenant makes a demand for the return of the property
prior to the time it is disposed of or sold, the landlord must return it, but may
condition the return on payment of moving and storage costs. The landlord may
not, however, condition the return of the property upon the payment of delinquent
rent or other damages. RCW 59.18.310; RCW 59.18.230(4). For discussions of
abandonment, see State v. Christian, 26 Wn. App. 542, 613 P.2d 1199 (1980),
affirmed, 95 Wn.2d 655, 628 P.2d 806 (1981); Mike v. Tharp, 21 Wn. App. 1, 583
P.2d 654 (1978); Aldrich v. Olson, 12 Wn. App. 665, 531 P.2d 825 (1975).
d. Writ of Restitution Exception. A landlord may be required to remove and store a
tenant's personal property when a writ of restitution is enforced if the tenant serves
a written request to do so. A request for storage is presumed if the landlord
knows that the tenant has certain disabilities. RCW 59.18.312(1), modifying
Parker v. Taylor, 136 Wn. App. 524, 150 P.3d 127 (2007). Return may be
conditioned upon payment of moving and storage costs. Property may be disposed of or sold after written notice and a waiting period that depends on the
value of the property. RCW 59.18.312.
11
1.31.14
e. Recovery of Property. If the tenant brings an action to recover property that is
taken or detained in violation of certain sections of the Residential LandlordTenant Act, including a replevin action, the court may waive or reduce any bond
requirements that would otherwise be required for immediate delivery or redelivery of the property. RCW 59.18.230.
4. Renting Units that are Illegal to Occupy.
a. Condemned or Illegal Units. A landlord may not rent a dwelling unit that has
been condemned or declared unlawful to occupy by a governmental agency.
RCW 59.18.085.
b. Damages & Relocation Assistance. If a landlord knowingly rents a unit that has
been condemned or declared unlawful to occupy, the tenant shall recover the
greater of three months’ rent or treble actual damages plus court costs and
reasonable attorney fees. If the tenant terminates the tenancy as a result of the
conditions, the tenant shall recover any prepaid deposit and all prepaid rent. If the
premises are condemned after the tenant takes occupancy, then displaced tenants
are ordinarily entitled to the greater of $2,000 or three months’ rent. Tenants in
hotels and motels may also be covered. Local governments may advance the
relocation payments to displaced tenants if the landlord fails to pay in a timely
fashion. RCW 59.18.085.
5. Retaliation.
a. Protected Activity. It is unlawful for the landlord to take or threaten to take
reprisal or retaliation against a tenant because of good faith and lawful complaints
to governmental agencies about conditions that may endanger or impair tenant
health or safety or assertion or enforcement of tenant rights and remedies under
the Landlord-Tenant Act. RCW 59.18.240.
b. Prohibited Retaliation. Reprisal or retaliatory action includes eviction of the
tenant, increasing rent required of the tenant, reducing services to the tenant, and
increasing the obligations of the tenant. RCW 59.18.240.
c. Presumptions and Rebuttal. If the landlord initiates any prohibited action within
90 days after the tenant engages in protected activity, there is a rebuttable
presumption that the action is reprisal or retaliation. A notice of termination of
tenancy is presumed not to be retaliatory if the tenant is in violation of the rental
agreement at the time the notice is served. There is a rebuttable presumption that
a complaint to an enforcement agency was not made in good faith if it was made
within 90 days after a notice of rent increase or other good faith action by the
landlord. A notice of rent increase is not presumed to be retaliatory if the notice
specifies reasonable grounds for the increase. RCW 59.18.250.
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1.31.14
d. Remedies. In any case where the landlord or tenant prevails on a claim or defense
of retaliation, the prevailing party is entitled to recover court costs and reasonable
attorney fees. Neither party may recover attorney's fees to the extent that their
legal services are provided at no cost. RCW 59.18.250.
L. TERMINATION OF TENANCY
1. Month to Month Tenancy. A month to month tenancy is ordinarily terminated by
written notice of 20 days or more before the end of a monthly rental period. RCW
59.18.200(1); RCW 59.12.030. A condominium conversion requires 120 days’
notice. RCW 59.18.200(2)(b).
2. Tenancy for Specified Time. A tenancy for a specified time is deemed terminated at
the end of the specified time. RCW 59.18.220.
3. Other Grounds for Termination of Tenancy. A tenancy may also be terminated for
unlawful detainer purposes by a written 3-day notice to pay rent or vacate, a written 3day notice to vacate for waste, nuisance, or conduct of an unlawful business, a written
10-day notice to comply or vacate, or gang-related activity. RCW 59.12.030.
4. Termination by Members of Armed Forces. Members of the armed forces or their
spouses or dependents may terminate a month to month tenancy with less than 20
days’ notice if reassignment or deployment orders don’t allow a 20-day notice. They
may also terminate a tenancy for a specified time prematurely if orders make that
necessary, provided that a copy of the orders must be provided to the landlord no
more than seven days after their receipt. RCW 59.18.200, .220.
See also, Servicemembers Civil Relief Act, 50 U.S.C. App. § 535.
5. Termination for Drug-Related Activity, Gang-Related Activity, or Assaults. A
tenancy may be terminated on nuisance grounds by service of a written 3-day notice
to vacate. RCW 59.12.030. Certain drug-related activity constitutes a nuisance.
RCW 7.43; RCW 7.48; RCW 7.48A. Unlawful use of a firearm or other deadly
weapon that endangers others in or near the rental premises and results in an arrest
may also be a nuisance. RCW 7.48.155. Final Bill Report and commentary suggest
that the legislature intended a 3-day notice to vacate for nuisance to be the appropriate
termination notice for gang-related activity. Laws of 1998, ch. 276.
6. Termination by Victim of Assault or Domestic Violence. A tenant who is the
victim of certain threats by other tenants, threats or assaults by the landlord, or a
victim of domestic violence, sexual assault, unlawful harassment, or stalking may be
able to terminate the rental agreement immediately and recover prepaid rent and
deposits. RCW 59.18.352; RCW 59.18.354; RCW 59.18.575.
7. Termination in Drug and Alcohol-Free Housing. A landlord of federally assisted
drug and alcohol-free housing that meets certain statutory requirements may terminate
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1.31.14
the tenancy with expedited notice for certain lease or rule violations.
RCW 59.18.550.
M. WAIVER OF RIGHTS AND REMEDIES
1. Waiver Prohibited. No rental agreement may provide that the tenant agrees to waive
or to forego rights or remedies under the Residential Landlord-Tenant Act. Any such
provision is deemed to be against public policy and unenforceable. If a landlord
deliberately uses a rental agreement containing provisions known by him to
prohibited, the tenant may recovery actual damages plus reasonable attorney's fees.
RCW 59.18.230.
2. Exemption from Residential Landlord-Tenant Act Coverage.
a. Single-Family Residences. The Residential Landlord-Tenant Act does not apply
to any lease of a single-family dwelling for a period of a year or more or any lease
of a single-family dwelling with a bona fide option to purchase. In these cases, an
attorney for the tenant has to approve the exemption in writing on the face of the
agreement. RCW 59.18.415.
b. Other Exemptions. A landlord and tenant may agree, in writing, to exempt themselves from other specified provisions of the Act under limited circumstances.
Such exemption must be approved in writing by the prosecuting attorney, the
Consumer Protection Division of the Attorney General's office, or the attorney for
the tenant. RCW 59.18.360.
N. ATTORNEY FEES. A rental agreement may not require a tenant to pay the landlord’s
attorney fees, except as authorized by the Residential Landlord-Tenant Act. RCW
59.18.230(2)(c). RCW 4.84.330 may authorize an award of reasonable attorney fees to
the prevailing party, however, and take precedence over the RLTA limitation. Wright v.
Miller, 93 Wn. App. 189, 963 P.2d 934 (1998).
O. CONSUMER PROTECTION ACT EXCLUSION. Generally, tenancies that are covered
by the Residential Landlord-Tenant Act, RCW 59.18, are not covered by the Consumer
Protection Act, RCW 19.86. State v. Schwab, 103 Wn.2d 542, 693 P.2d 108 (1985).
II. LOCAL LAWS.
Local jurisdictions may have codes, ordinances, or regulations that provide additional
protections for tenants. Bellevue, Seattle, King County, Pasco, Spokane, and Tacoma, for
example, have adopted ordinances that provide additional protections.
A. RENTAL HOUSING REGISTRATION PROGRAM.
Seattle's original Rental Housing Registration Program was repealed by Ordinance No.
118441 on December 9, 1996 (effective January 8, 1997). During the time it was in
effect, SMC Chapter 22.202, required that most rental housing units be registered. Lack
14
1.31.14
of registration was a defense to eviction. SMC 22.206.160.C.4; Margola Associates v.
Seattle, 121 Wn.2d 625, 854 P.2d 23 (1993). Seattle adopted a new Rental Housing
Registration and Inspection Program on October 9, 2012, Ordinance No. 124011. The
registration requirement will be phased in starting on January 1, 2014. SMC 22.214.
B. LICENSING AND INSPECTION PROGRAM.
Pasco requires that rental units be licensed, registered, maintained in accordance with
Uniform Housing Code standards, and inspected and certified at least once every two
years. Ordinance No. 3231, July 7, 1997 (effective January 1, 1998; PMC 5.04.160(a);
PMC 5.78. Ordinance is constitutional. City of Pasco v. Shaw, 161 Wn.2d 450, 166 P.3d
1157 (2007).
C. RENTAL AGREEMENT REGULATION.
Seattle's Rental Agreement Regulation Ordinance, SMC Chapter 7.24, prohibits monthto-month rental agreements which require occupancy for more than one month. The
effective date of the ordinance was October 3, 1993. Landlords were liable for civil
penalties beginning June 3, 1994. Rental agreements must also include a summary of
state and city landlord-tenant laws. Rent increases of 10% or more must be preceded by
60 days notice.
D. MINIMUM HOUSING CODES.
Seattle's Housing and Building Maintenance Code (HBMC), SMC Chapter 22.206,
imposes more specific maintenance duties on landlords than the Landlord-Tenant Act,
particularly in the areas of building and dwelling unit security.
E. JUST CAUSE EVICTION.
Seattle's HBMC prohibits terminations of tenancies or evictions without good cause and
makes it a misdemeanor for a landlord to harass, threaten, or retaliate against a tenant.
SMC 22.206.
F. CONDOMINIUM AND COOPERATIVE CONVERSION.
Seattle has adopted a condominium conversion ordinance which require that tenants
whose incomes are less than 80% of local median income and who elect not to purchase
their converted units are entitled to relocation assistance of $500 per unit. SMC Chapter
22.903. Under state law, tenants in dwelling units being converted to condominiums are
entitled to at least 120 days notice of termination of tenancy and the opportunity to
purchase their units before they are offered to the general public. RCW 59.18.200; RCW
64.34. Seattle has also adopted a city ordinance that provides comparable protections in
the case of cooperative conversions. SMC Chapter 22.902.
G. TENANT RELOCATION ASSISTANCE.
Pursuant to RCW 59.18.440, Seattle has adopted an ordinance that requires relocation
assistance to tenants at or below 50% of county median income who are displaced by
demolition, change of use, substantial rehabilitation, or removal of use restrictions from
assisted low-income housing. The level of assistance is currently $3,002, one-half
payable by the owner and one-half payable by the City. Tenants are also entitled to a
15
1.31.14
minimum of 90 days notice of termination of their tenancy. SMC Chapter 22.210. The
United States District Court, Western District of Washington ruled on August 18, 1995
that the owner payment authorization in the Growth Management Act and the owner
payment requirement in Seattle's Tenant Relocation Assistance Ordinance are
constitutional. Garneau v. City of Seattle, 897 F. Supp. 1318 (W.D. Wash. 1995).
Garneau was affirmed by the Ninth Circuit Court of Appeals. Garneau v. City of Seattle,
147 F.3d 802 (9th Cir. 1998). Bellevue has adopted a relocation assistance ordinance that
provides relocation assistance to low-income tenants who are displaced by certain kinds
of code enforcement. BCC 9.21.
H. 60-DAY NOTICE OF RENT INCREASE.
Seattle requires that any rent increase of 10% or more must be preceded by a minimum of
60 days prior written notice. SMC 7.24.030. The requirement was incorporated in the
Rental Agreement Regulation Ordinance and took effect on October 28, 1998. Ordinance
No. 119171, September 28, 1998.
I. THIRD PARTY BILLING FOR UTILITIES.
Seattle regulates the billing of residential tenants by landlords or third parties for utilities
that are master metered or unmetered. It requires certain disclosures, limits service
charges, and prohibits certain deceptive and fraudulent practices. SMC 7.25. Ordinance
No. 121320, November 13, 2003, effective December 13, 2003.
J. MOBILE HOMES AND MOBILE HOME PARKS.
Seattle imposes minimum health and facility standards for mobile home parks. It also
requires preparation of a relocation report and plan for change of use or closure of a
mobile home park. SMC 22.904.
K. FLOATING HOME MOORAGES.
Seattle regulates floating home moorage rates and limits the grounds for removal of a
floating home from its moorage. Floating home owners are granted a right of first refusal
to purchase their moorage. SMC 7.20.
L. FAIR HOUSING LAWS.
Seattle, King County, and Tacoma have local fair housing ordinances that prohibit
discrimination in rental transactions. SMC 14.08; KCC 12.20; TMC 1.29. Bellevue,
Kirkland, and Redmond prohibit discrimination against Section 8. BCC 9.20; KMC 7.74;
RMC 6.38.
16
1.31.14
HOUSING & REAL ESTATE RESOURCES
Brochures & Pamphlets on Rental Housing and Other Topics.
www.nwjustice.org
Navigation tip:
Click on “law center” + "housing"
Information on Tenants' Rights; Links to Other State L-T Laws.
www.tenantsunion.org
Federal Housing Statutes, Regulations, & Handbooks.
www.hud.gov
Navigation tip:
Click on “Resources”
Washington State Statutes. (RCW 59: Code Reviser, 360.786.7573)
www.wa.gov or http://access.wa.gov
Navigation tip: Click on “Explore Topics” + ““laws and rules”
Seattle City Ordinances.
www.seattle.gov
Navigation tip:
Click on “citizen information” +
“city clerk’s office” + “municipal code”
King County Ordinances.
www.kingcounty.gov
Navigation tip:
Scroll to “local links” + click on “county code”
Public & Subsidized Housing Programs.
www.hud.gov
Navigation tip:
Click on “local info” + “washington, seattle” +
“homes/housing” + “find housing”
Housing Discrimination.
www.hud.gov
Navigation tip:
Click on “rental help” + “housing discrimination”
HOUSING & REAL ESTATE RESOURCES
General Real Estate
WASHINGTON REAL PROPERTY DESKBOOK, 4th ed.
(Wash. State Bar Ass'n 2009)
Housing & Development Reporter (HDR), Warren, Gorham & Lamont, Inc.
Real Estate: Property Law, Stoebuck, Vol. 17, Washington Practice
(West Publishing Co. 1995)
Real Estate: Transaction, Stoebuck, Vol. 18, Washington Practice
(West Publishing Co. 1995)
Landlord-Tenant
Landlord-Tenant Super Seminar XI, Washington Law Institute, 2007
Termination of Tenancies and Unlawful Detainer, Fredrickson, Vol. 1C,
Ch. 88, Washington Practice (West Publishing Co. 1997)
American Law of Landlord and Tenant, Schoshinski
(The Lawyers Cooperative Publishing Co. 1980; Supplement)
Public & Subsidized Housing
HUD Housing Programs: Tenants' Rights 3d ed.,
(The National Housing Law Project 2004; (2010Supplement)
Fair Housing
Housing Discrimination Law and Litigation, Schwemm
(Clark Boardman Co. 1995; Supplement)
Fair Housing - Fair Lending, Prentice Hall (Aspen Publishing)
Consumer & Bankruptcy
Consumer Bankruptcy Law and Practice, 8th ed.,
National Consumer Law Center 2006
Truth-in-Lending, 2d ed.,
National Consumer Law Center 1989; Supplement
EVICTIONS: THE TENANT’S PERSPECTIVE
January 31, 2014
Steve Fredrickson
Seattle, WA 98104
206.464.1519 ext. 248
888.201.1012
Fax: 206.903.0526
Table of Contents
THE UNLAWFUL DETAINER PROCEDURE
A.
GENERAL .............................................................................................................. 1
B.
GROUNDS FOR TERMINATION OF TENANCY .............................................. 1
C.
DEFENDING THE UNLAWFUL DETAINER ACTION ..................................... 2
1.
Governing Principles Favor Preservation of the Tenancy .................... 2
2.
Procedural Defenses.................................................................................. 3
a.
b.
c.
d.
e.
f.
g.
3.
Improper Court ................................................................................ 3
Failure to Serve Proper Unlawful Detainer Notice ......................... 3
Improper Service or Time of Unlawful Detainer Notice ................ 3
Improper Summons ......................................................................... 3
Improper Service of Summons ........................................................4
Improper Alternative Service of Summons .....................................4
Failure to Comply with Other Civil Rules. ..................................... 4
Substantive Defenses................................................................................. 5
a.
b.
c.
d.
e.
f.
g.
Possession Not at Issue ................................................................... 5
Claim of Ownership or No Landlord-Tenant Relationship .............5
Retaliation ....................................................................................... 6
Discrimination................................................................................. 6
Breach of the Warranty of Habitability ........................................... 7
Local Ordinances .............................................................................8
Equitable Defenses: .........................................................................9
(1).
(2).
(3).
(4).
h.
Estoppel or Part Performance ............................................ 9
Acceptance of Rent as Waiver ............................................. 9
a. What constitutes acceptance? ..........................................9
b. Acceptance of current rent ...............................................9
c. Application to earliest defaults ......................................10
d. Acceptance of partial payment.......................................10
e. Acceptance after commencement of action ....................10
f. Acceptance as waiver of prior breaches .........................10
Service of Unlawful Detainer Notice as Waiver ................10
Tender ............................................................................... 10
Set-offs and Counterclaims ...........................................................10
i
1.31.14
4.
Limitations on Unlawful Detainer Judgments ..................................... 11
a.
b.
c.
5.
General .......................................................................................... 11
Claims That Cannot Be Asserted By Landlord ............................. 11
Double Damages ........................................................................... 12
Answering the Unlawful Detainer Complaint ...................................... 12
a.
b.
c.
Applicability of Civil Rules .......................................................... 12
Pleading Affirmative Defenses ..................................................... 13
Pleading Special Matters............................................................... 13
6.
Payment into Court Registry ................................................................. 13
7.
Show Cause Hearing ............................................................................... 14
a.
b.
c.
d.
e.
The Order to Show Cause ............................................................. 14
Issuing the Writ ............................................................................. 15
Granting Other Relief at Hearing .................................................. 15
Review of Court Commissioner's Decision .................................. 15
Bonds ............................................................................................ 16
8.
Pretrial Motions ...................................................................................... 16
9.
Trial .......................................................................................................... 16
10.
Late Fees & Other Charges.....................................................................17
11.
Attorney Fees ............................................................................................17
12.
Bankruptcy ...............................................................................................17
13.
Post-Judgment Relief .............................................................................. 18
14.
Post-Foreclosure & Real Estate Contract Forfeiture Evictions...........19
15.
Distressed Property Conveyances...........................................................19
16.
Ejectment ................................................................................................. 20
Appendixes
Eviction Timetable
Answer
Rent Certification
Stipulation
ii
1.31.14
TABLE OF AUTHORITIES
FEDERAL CASES
Fischer Flouring Mills Co. v. U.S., 17 F.2d 232 (9th Cir. 1927) ......................................10
Radecki v. Joura, 114 F.3d 115 (8th Cir. 1997)...................................................................6
STATE CASES
Adkinson v. Digby, Inc., 99 Wn.2d 206 (1983)....................................................................4
Alaska Pac. v. Eagon Forest Products, 85 Wn. App. 354 (1997) .....................................10
Albice v. Premier Mortgage Services, 174 Wn.2d 560 (2012) ..........................................19
Andersen v. Gold Seal Vineyards, 81 Wn.2d 863 (1973) ..................................................17
Andersonian Investment Co. v. Wade, 108 Wash. 373 (1919).............................................9
Angelo Property Co., LP v. Hafiz, 167 Wn. App. 789 (2012) .......................................5, 11
Armstrong v. Burkett, 104 Wash. 476 (1918) ......................................................................9
Aspen Enterprises, Ltd. V. Bray, 148 Mich. App. 9, 384 N.W.2d 65 (1985) ......................9
Berzito v. Gambino, 63 N.J. 460, 308 A.2d 17 (1973) ........................................................8
Big Bend Land Co. v. Huston, 98 Wash. 640 (1917) ...........................................................3
Bruff v. Main, 87 Wn. App. 609 (1997) ...............................................................................4
Buchanan v. Kettner, 97 Wn. App. 370 (1999) .................................................................17
C & A Land Co. v. Rudolf Investment Corp., 163 Ga. App. 832, 296 S.E.2d 149
(1982) .............................................................................................................................9
Canterwood Place, L.P. v. Thande, 106 Wn. App. 844 (2001) .....................4, 5, 13, 14, 18
Christensen v. Ellsworth, 162 Wn.2d 365 (2007) overruling Christensen v.
Ellsworth, 134 Wn. App. 295 (2006).........................................................................3, 5
Community Investments v. Safeway, 36 Wn. App. 34 (1983) ..............................................3
Council House v. Hawk, 136 Wn. App. 153 (2006) ..........................................................17
Crown Plaza v. Synapse Software, 87 Wn. App. 495 (1997) ..............................................9
1
6.21.13
Dobbins v. Mendoza, 88 Wn. App. 862 (1997) ...................................................................4
Draper Machine Works v. Hagberg, 34 Wn. App. 483 (1983) ...........................................3
Dutch Village Mall v. Pelletti, 162 Wn. App. 531 (2011) .................................................13
Duvall Highlands, LLC v. Elwell, 104 Wn. App. 763 (2001) ...........................................14
EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167, 200 Cal. Rptr. 333
(1984) .............................................................................................................................9
Finch v. King Solomon Lodge No. 60, 40 Wn.2d 440 (1952)............................................11
First Union Management v. Slack, 36 Wn. App. 849 (1984) ........................................9, 17
Fletcher v. Bryan, 76 N.M. 221, 413 P.2d 885 (1966) ......................................................10
Foisy v. Wyman, 83 Wn.2d 22 (1973)..................................................................3, 7, 13, 17
French v. Gabriel, 116 Wn.2d 584 (1991) ..........................................................................4
Gentry v. Krause, 106 Wash. 474 (1919) ..........................................................................11
Glover v. Hanks, 396 S.2d 949 (La. App. 1980)..................................................................9
Griffiths & Sprague Stevedoring Co. v. Bayly, Martin & Fay, Inc., 71 Wn.2d 679
(1967) ...........................................................................................................................13
Harold Meyer Drug v. Hurd, 23 Wn. App. 683 (1979) .....................................................17
Hartson Partnership v. Goodwin, 99 Wn. App. 227 (2000)..............................................15
Heaverlo v. Keico Industrial, 80 Wn. App. 724 (1996) ...................................................11
Himpel v. Lindgren, 159 Wash. 20 (1930).........................................................................16
Hinkhouse v. Wacker, 112 Wash. 253 (1920) ................................................................3, 10
Honan v. Ristorante Italia, 66 Wn. App. 262 (1992) ..................................................12, 20
Housing Authority of City of Everett v. Kirby, 154 Wn. App. 842 (2010) ....................4, 17
Housing Authority of Grant County v. Newbigging, 105 Wn. App. 178 (2001) ...............10
Housing Authority v. Pleasant, 126 Wn. App. 382 (2005) ...................................15, 16, 18
2
6.21.13
Housing Authority v. Silva, 94 Wn. App. 731 (1999) ......................................................2, 9
Housing Authority v. Terry, 114 Wn.2d 558 (1990) ..................................................1, 2, 11
Housing Authority of Seattle v. Bin, 163 Wn. App. 367 (2011) ........................................17
Housing Resources Group v. Price, 92 Wn. App. 394 (1998) ..........................................10
Hwang v. McMahill, 103 Wn. App. 945 (2000) ................................................................10
Income Properties Investment Corp. v. Trefethen, 155 Wash. 493 (1930)..........................9
Indigo Real Estate Services, Inc. v. Wadsworth, 169 Wn. App. 412 (2012) .....................15
Josephinium Associate v. Kahli, 111 Wn. App. 617 (2002) ................................................6
Kelly v. Powell, 55 Wn. App. 143 (1989) ............................................................4, 5, 11, 12
Kelly v. Schorzman, 3 Wn. App. 908 (1970) .......................................................................3
Kennedy v. City of Seattle, 94 Wn.2d 367 (1980) ................................................................8
Kennedy v. McGuire, 38 Wn. App. 237 (1984) ...................................................................3
Kennewick v. Board of Firefighters, 85 Wn. App. 366 (1997) ............................................9
Kessler v. Nielsen, 3 Wn. App. 120 (1970) .....................................................................2, 3
Knight v. Hallsthammer, 29 Cal. 3d 46, 623 P.2d 268 (1981).............................................7
Koegel v. Prudential Mut. Savings Bank, 51 Wn. App. 108 (1988) ..................................19
Landis & Landis Constr., LLC v. Nation, 171 Wn. App. 157 (2012)..................................7
Lee v. Sauvage, 38 Wn. App. 699 (1984) ............................................................................6
Lee v. Weerda, 124 Wash. 168 (1923) ...............................................................................15
Lees v. Wardall, 16 Wn. App. 233 (1976) ...........................................................................5
Lenci v. Owner, 30 Wn. App. 800 (1981) ..........................................................................11
Little v. Catania, 48 Wn.2d 890 (1956) ...............................................................................3
Lloyd Enterprises v. Longview Plumbing, 91 Wn. App. 697 (1998) .................................13
3
6.21.13
Lowman v. West, 8 Wash. 355 (1894)..................................................................................3
MH 2 Company v. Hwang, 104 Wn. App. 680 (2001) ........................................................9
MHM & F, LLC v. Pryor, 168 Wn. App. 451 (2012) ..........................................................4
Margola Associates v. City of Seattle, 121 Wn.2d 625 (1993) ............................................8
Markland v. Wheeldon, 29 Wn. App. 517 (1981) ............................................................2, 3
Marriage of Moody, 137 Wn.2d 979 (1999)......................................................................15
McGary v. Westlake Investors, 99 Wn.2d 280 (1983) .........................................................3
Mead v. Park Place Properties, 37 Wn. App. 403 (1984)...................................................1
Meadow Park v. Canley, 54 Wn. App. 371 (1989)............................................................16
Morris v. Healy Lumber Co., 33 Wash. 451 (1903) ............................................................3
Motoda v. Donohoe, 1 Wn. App. 174 (1969) ......................................................................9
Munden v. Hazelrigg, 105 Wn.2d 39 (1985) ...................................................................5, 9
Najewitz v. Seattle, 21 Wn.2d 656 (1944) .........................................................................20
Neitsch v. Tyrrell, 25 Wn.2d 303 (1946) .............................................................................9
Office Enterprises, Inc. v. Pappas, 19 N.C. App. 725, 200 S.E.2d 205 (1973) ...................9
Olympic Manganese Mining Co. v. Downing, 156 Wash. 686 (1930) ................................2
Owens v. Layton, 133 Wash. 346 (1925) ...........................................................................11
Parks v. Lepley, 160 Wash. 287 (1931) .............................................................................11
Pearson v. Gray, 90 Wn. App. 911 (1998) ..........................................................................6
Peterson v. Crockett, 158 Wash. 631 (1930) .....................................................................16
Petsch v. Willman, 29 Wn.2d 136 (1947) ..........................................................................20
Phillips v. Hardwick, 29 Wn. App. 382 (1981) ...................................................................1
Pine Corp. v. Richardson, 12 Wn. App. 459 (1975) .....................................................5, 12
4
6.21.13
Peoples Nat’l Bank of Washington v. Ostrander, 6 Wn. App. 28 (1971) ..........................19
Port of Longview v. IRM, Ltd., 96 Wn. App. 431 (1999) ....................................................9
Proctor v. Forsythe, 4 Wn. App. 238 (1971) .......................................................................5
Provident Mutual Life Insurance Co. v. Thrower, 155 Wash. 613 (1930) ..........................3
Puget Sound Investment Group, Inc. v. Bridges, 92 Wn. App. 523 (1998) .........................5
Queen v. McClung, 12 Wn. App. 245 (1974) ....................................................................12
Reese Sales Co., Inc. v. Gier, 16 Wn. App. 664 (1977).....................................................13
Reichlin v. First National Bank, 184 Wash. 304 (1935)....................................................11
Roxborough Apartment Corporation v. Becker, 177 Misc. 2d 408, 676 N.Y.S.2d
821 (1998) ......................................................................................................................9
Salts v. Estes, 133 Wn.2d 160 (1997) ..................................................................................4
Savings Bank v. Mink, 49 Wn. App. 204 (1987)..................................................................5
Sheldon v. Fettig, 129 Wn.2d 601 (1996) ............................................................................4
Shoemaker v. Shaug, 5 Wn. App. 700 (1971) .....................................................................9
Skarperud v. Long, 40 Wn. App. 548 (1985).......................................................................7
Snuffin v. Mayo, 6 Wn. App. 525 (1972) .............................................................................5
Soper v. Clibborn, 31 Wn. App. 767 (1982)......................................................................17
Sowers v. Lewis, 49 Wn.2d 891 (1957) .........................................................1, 3, 15, 16, 17
Spedden v. Sykes, 51 Wash. 267 (1908)...............................................................................2
Sprincin v. Sound Conditioning, 84 Wn. App. 56(1996) .............................................11, 12
State v. Lawley, 32 Wn. App. 337 (1982) ..........................................................................15
Stephanus v. Anderson, 26 Wn. App. 326 (1980) ................................................................6
Stevenson v. Parker, 25 Wn. App. 639 (1980) ..............................................................2, 10
Steward v. Good, 51 Wn. App. 509 (1988) .......................................................................18
5
6.21.13
Sullivan v. Purvis, 90 Wn. App. 456 (1998) ....................................................................1, 3
Sundholm v. Patch, 62 Wn.2d 244 (1963) ...........................................................................5
Tacoma Rescue Mission v. Stewart,155 Wn. App. 250 (2010) ...........................................3
Thisius v. Sealander, 26 Wn.2nd. 810 (1946)......................................................................8
Thompson v. Butler, 4 Wn. App. 452 (1971) .....................................................................16
Tiegs v. Watts, 135 Wn.2d 1 (1998).....................................................................................9
Tipton v. Roberts, 48 Wash. 391 (1908) ........................................................................9, 10
Truly v. Heuft, 138 Wn. App. 913 (2007) ......................................................................4, 12
Turner v. White, 20 Wn. App. 290 (1978) .................................................................1, 5, 20
Tuschoff v. Westover, 60 Wn.2nd. 722 (1962) .........................................................5, 15, 16
United Pacific Insurance Co. v. Discount Co., 15 Wn. App. 559 (1976) ...........................4
Verline v. Hyssop, 2 Wn.2d 141 (1940) .............................................................................20
Waggoner v. Ace Hardware Corp, 134 Wn.2d 748 (1998) .................................................6
Walji v. Candyco, Inc., 57 Wn. App. 284 (1990)...............................................................17
Weiss v. Glemp, 127 Wn.2d 726 (1995) ..............................................................................4
Western Stud Welding v. Omark Industries, 43 Wn. App. 293 (1986) ..............................17
Wilson v. Daniels, 31 Wn.2d 633 (1948) ...................................................................1, 2, 10
Wright v. Miller, 93 Wn. App. 189 (1998) ........................................................................17
Young v. Riley, 59 Wn.2d 50 (1961) ..................................................................................10
DOCKETED CASES
Mirador v. Bernardo, Supreme Court of Washington, No. 48844-4 .................................18
OTHER AUTHORITIES
Measure of Damages for Landlord's Breach of Implied Warranty of Habitability,
1 A.L.R.4th 1182 ...........................................................................................................8
6
6.21.13
THE UNLAWFUL DETAINER PROCEDURE
A. GENERAL
The unlawful detainer action is a special statutory procedure for the recovery of rental property.
RCW 59.12. It is summary in nature, in derogation of the common law, and is strictly construed
in favor of the tenant. Housing Authority v. Terry, 114 Wn.2d 558 (1990); Wilson v. Daniels, 31
Wn.2d 633 (1948); Sullivan v. Purvis, 90 Wn. App. 456 (1998). See Stoebuck, Vol. 17
WASHINGTON PRACTICE, Chap. 6 Landlord and Tenant (1995); Fredrickson, Vol. IC
WASHINGTON PRACTICE, Chap. 88 Termination of Tenancies and Unlawful Detainer
(1997).
Because the unlawful detainer action is a special statutory proceeding, limited primarily to the
issue of possession, dismissal in favor of the tenant does not preclude the landlord from bringing
a separate civil action against the tenant for damages arising out of the eviction process. Phillips
v. Hardwick, 29 Wn. App. 382 (1981); Mead v. Park Place Properties, 37 Wn. App. 403 (1984).
B. GROUNDS FOR TERMINATION OF TENANCY
Service of a proper unlawful detainer notice is a jurisdictional prerequisite to commencement of
an unlawful detainer action. Sowers v. Lewis, 49 Wn.2d 891 (1957). The notice must be one of
the notices specified in RCW 59.12.030. Turner v. White, 20 Wn. App. 290 (1978). An improper
notice deprives the court of unlawful detainer jurisdiction and agreement or stipulation of the
parties cannot confer jurisdiction. Sullivan v. Purvis, 90 Wn. App. 456 (1998). The following are
grounds for unlawful detainer pursuant to RCW 59.12.030:
1. Failure to vacate after expiration of a lease or rental agreement for a specified term
(requires no written notice unless the contract itself requires notice);
2. Failure to vacate after service of a notice of termination of tenancy on a month-to-month
tenant twenty days or more before the end of any monthly rental period.
3. Default in the payment of rent and failure to comply with a three-day notice to pay rent
or, alternatively, vacate the premises;
4. Breach of a covenant or term of the rental agreement and failure to comply or vacate after
a ten day notice;
5. Failure to vacate after service of a three day notice for waste, nuisance, or unlawful
business;
6. Failure of a trespasser to vacate after service of a three day notice.
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6.21.13
7. Committing or permitting gang-related activity at the premises in violation of RCW
59.18.130 (no notice specified, but legislative history presumes three-day notice to
vacate).
Expedited unlawful detainer notice procedures may also be available for termination of rental
agreements in federally subsidized, alcohol and drug-free housing covered by RCW 59.18.550.
C. DEFENDING THE UNLAWFUL DETAINER ACTION
1. Governing Principles Favor Preservation of the Tenancy
Three general principles governing unlawful detainer actions favor the tenant:
1. Courts strictly construe unlawful detainer laws in the tenant's favor:
The unlawful detainer statute is in derogation of the common law, and must therefore be
strictly construed in favor of the tenant.
Housing Authority v. Terry, 114 Wn.2d 558 (1990), (citing Wilson v. Daniels, 31 Wn.2d at 643).
See also Housing Authority v. Silva, 94 Wn. App. 731 (1999); Kessler v. Nielson, 3 Wn. App.
120, 123 (1970).
2. The court should avoid the forfeiture of leases if possible. The Court in Stevenson v.
Parker, 25 Wn. App. 639 (1980), made this point when reversing an unlawful detainer judgment
in the landlord's favor. Quoting from Spedden v. Sykes, 51 Wash. 267, 272 (1908), the court
stated the law's strong revulsion to forfeitures of leases:
This court has held the general doctrine that forfeitures are not favored in the law, and
that courts should promptly seize upon any circumstance arising out of the contract or
relations of the parties that would indicate an election or an agreement to waive the harsh
and at times unjust remedy of forfeiture, a remedy which is oftentimes too freely granted
by those who have taken no account of the misfortunes and disappointments which
conditions, unforeseen and beyond a party's control, have raised as a bar to performance,
however honest may be his intent. Equity will enforce forfeitures when it is the contract
of the parties that it shall be so. But before making its decrees it will consider every
agreement, every declaration, and every relation of the parties arising out of the contract;
and if there be anything that warrants a finding that the parties have resolved anew, it will
so decree.
25 Wn. App. at 647.
See also Olympic Manganese Mining Co. v. Downing, 156 Wash. 686, 689
(1930)("Forfeitures are odious and should be avoided when possible."), Markland v. Wheeldon,
29 Wn. App. 517, 520 (1981).
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6.21.13
3. Any ambiguity in the lease must be construed against the landlord that supplied it.
McGary v. Westlake Investors, 99 Wn.2d 280, 287 (1983). This principle acknowledges the
unequal bargaining power between the parties to a residential lease.
2. Procedural Defenses
The procedural requirements for unlawful detainer actions must be carefully followed. The
unlawful detainer action is a special statutory proceeding that is strictly construed. Kessler v.
Nielsen, 3 Wn. App. 120 (1970). Minor irregularities which would typically be either ignored or
easily corrected in an ordinary civil action may result in dismissal of an unlawful detainer action.
a. Improper Court The superior court has exclusive jurisdiction to hear unlawful
detainer actions. Art. 4, § 6 Washington Constitution; RCW 2.08.010.
b. Failure to Serve Proper Unlawful Detainer Notice. Service of a RCW 59.12.030
notice is a jurisdictional prerequisite to bringing an unlawful detainer action. Sowers v. Lewis, 49
Wn.2d 891 (1957); 33 WASH. L. REV. 165 (1958); Community Investments v. Safeway, 36 Wn.
App. 34 (1983). See also, Peck, Landlord and Tenant Notices, 31 WASH. L. REV. 51 (1956).
The form and content of the statutory notice must substantially comply with the requirements of
RCW 59.12.030. Sowers v. Lewis, supra; Provident Mutual Life Ins. Co. v. Thrower, 155 Wash.
613, 617 (1930); Foisy v. Wyman, 83 Wn.2d 22 (1973). Numerous informal notices of lease
violations are not sufficient. Sullivan v. Purvis, 90 Wn. App. 456 (1998). The court did make a
limited exception to the requirement of strict compliance for notice given by the tenant in
Kennedy v. McGuire, 38 Wn. App. 237 (1984). A notice may be insufficient if it doesn’t comply
with the lease and fails to state the reasons for termination with reasonable specificity. Tacoma
Rescue Mission v. Stewart, 155 Wn. App. 250 (2010) (subsidized housing).
c. Improper Service or Time of Unlawful Detainer Notice. A tenant is entitled to
service of notice exactly as required by RCW 59.12.040. Lowman v. West, 8 Wash. 355 (1894);
Hinkhouse v. Wacker, 112 Wash. 253 (1920). An extra day must be added to the notice period
when the notice is mailed. RCW 59.12.040. When the period of time prescribed or allowed by
the unlawful detainer notice is less than seven days, Saturdays, Sundays and holidays are not
excluded in the computation. Christensen v. Ellsworth, 162 Wn.2d 365 (2007), overruling
Christensen v. Ellsworth, 134 Wn. App. 295 (2006). If the last day falls on a Saturday, Sunday,
or holiday, Christensen also says in dictum that the tenant may not have until the following
business day to perform. CR 6(a); RCW 1.12.040. The landlord must plead service of notice.
Little v. Catania, 48 Wn.2d 890 (1956).
d.
Improper Summons. If the summons does not comply with the
strict requirements of RCW 59.12.070 and .080 the court does not have jurisdiction to proceed
under the unlawful detainer act. Kelly v. Schorzman, 3 Wn. App. 908 (1970); Big Bend Land Co.
v. Huston, 98 Wash. 640 (1917); Morris v. Healy Lumber Co., 33 Wash. 451 (1903); Draper
Machine Works v. Hagberg, 34 Wn. App. 483 (1983); Markland v. Wheeldon, 29 Wn. App. 517
(1981). The summons must be returnable on a designated date which shall not be less than seven
nor more than thirty days from the date of service. RCW 59.12.070. A summons that afforded a
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6.21.13
tenant fewer than seven days to respond was void under CR 6 prior to the codification of the
seven day minimum period in 2005. Canterwood Place, L.P. v. Thande, 106 Wn. App. 844
(2001). The RLTA form "Eviction Summons" must contain certain information required by
statute including a street address for delivery of a response and, if available, a facsimile number
for the plaintiff or the plaintiff’s attorney, if represented. RCW 59.18.365. A summons that fails
to inform the tenant of the right to respond by mail or facsimile does not strictly comply with the
statute and does not confer subject matter unlawful detainer jurisdiction. Truly v. Heuft, 138 Wn.
App. 913 (2007) [abrogated by MHM & F, LLC v. Pryor, 168 Wn. App. 451 (2012)]. See also
Housing Authority of City of Everett v. Kirby, 154 Wn. App. 842 (2010).
e. Improper Service of Summons. The summons must be served as in other civil
cases. CR 4; RCW 4.28.080-090. The summons must either be personally served on the
defendant or a copy must be left at the defendant's usual abode with a resident therein of suitable
age and discretion. There must be a delivery of the summons for effective service. United
Pacific Ins. Co. v. Discount Co., 15 Wn. App. 559 (1976). Failure to come to the door to receive
service of process is not evasion of service. Weiss v. Glemp, 127 Wn.2d 726 (1995). "Usual
place of abode" means the center of the defendant's domestic activity and the place where he or
she is most likely to receive notice. Sheldon v. Fettig, 129 Wn.2d 601, 610-611 (1996); Note and
Comment, Sheldon v. Fettig, Interpreting the Substitute Service of Process Statute in
Washington, 72 WASH. L. REV. 655 (1997). "Resident" means someone who is actually living
in the home, not someone who is merely "present" there. Salts v. Estes, 133 Wn.2d 160, 170
(1997). The defense of insufficient service of process is not waived by filing a notice of
appearance (CR 4(d)(5); Adkinson v. Digby, Inc., 99 Wn.2d 206, 210 (1983)) and if it is asserted
in either a responsive pleading or a CR 12(b)(5) motion (CR 12(h)(1)(B); French v. Gabriel, 116
Wn.2d 584, 588 (1991). A tenant may answer orally or in writing at a show cause hearing. RCW
59.18.380. An answer may ordinarily be amended within 20 days after it is served without leave
of court or consent of the adverse party as long as the action has not been set for trial yet. CR
15(a).
f. Improper Alternative Service of Summons. The court may authorize service of
the summons by posting and mailing if certain requirements are met. RCW 59.18.055. The
requirements include an affidavit describing the attempts at service and an affidavit stating the
belief that the defendant can’t be found. The plaintiff must exercise "due diligence" in attempts
to personally serve the defendant. Due diligence requires an honest and "reasonable effort" to
find the defendant. Dobbins v. Mendoza, 88 Wn. App. 862 (1997); See also Bruff v. Main, 87
Wn. App. 609 (1997). Courts have a nondiscretionary duty to vacate void judgments. Dobbins v.
Mendoza, supra. Posting and mailing by regular and certified mail must occur not less than nine
days from the return date in the summons. Alternative service limits the court’s jurisdiction to
restoring possession of the property. No money judgment may be entered against the defendant
until personal jurisdiction is acquired.
g. Failure to Comply with Other Civil Rules. The Superior Court Civil Rules apply,
except when they are inconsistent with statutory requirements in "special proceedings." CR
81(a). RCW 59.12 (and by inference, the eviction-related sections of RCW 59.18) have been
considered "special proceedings." Kelly v. Powell, 55 Wn. App. 143 (1989). Violations of the
4
6.21.13
civil rules that would be defenses to the unlawful detainer action include, improper venue,
improper service, noncompliance with CR 6, etc. A summons or show cause order that afforded
a tenant fewer than seven days to respond was void under CR 6. Canterwood Place, L.P. v.
Thande, 106 Wn. App. 844 (2001); now codified at RCW 59.12.070, RCW 59.18.370. CR 6(a)
does not apply to computation of time for a three-day notice to pay rent or vacate. Christensen v.
Ellsworth, 162 Wn.2d 365 (2007), overruling Christensen v. Ellsworth, 134 Wn. App. 295
(2006)
3. Substantive Defenses
Substantive defenses may be a legal defense (e.g. rent was tendered but refused); an equitable
defense (e.g. landlord waived written rule tenant is being evicted for breaching); or a set-off (e.g.
unpaid rent is less than rent reduction due because of breach of implied warranty of habitability).
RCW 59.18.080, .380 and .400.
a. Possession Not at Issue. The principal purpose of the unlawful action is to
determine the right to possession. Phillips v. Hardwick, supra. If the tenant has moved out prior
to commencement of the action, the complaint should be dismissed. Kessler v. Nielsen, supra;
MacRae v. Way, 64 Wn.2d 544 (1964); Tuschoff v. Westover, 65 Wn.2d 69 (1964); Pine Corp. v.
Richardson, 12 Wn. App. 459 (1975). See also, Lees v. Wardall, 16 Wn. App. 233 (1976).
If the issue of the right to possession is resolved after service or filing of the complaint but before
trial, then the parties can convert the action to an ordinary civil suit in which all of the parties'
claims and defenses may be raised. Munden v. Hazelrigg, 105 Wn.2d 39 (1985). The trial court
exceeded its unlawful detainer jurisdiction when it considered a constructive eviction
counterclaim without first converting the unlawful detainer action into an ordinary civil action
for damages. Angelo Property Co., LP v. Hafiz, 167 Wn. App. 789 (2012) [commercial case].
b. Claim of Ownership or No Landlord-Tenant Relationship. Chapter 59.12 RCW
applies by its terms only to landlord-tenant relationships. RCW 59.12.030; Turner v. White, 20
Wn. App. 290 (1978). In cases where there is no landlord tenant relationship but there is a
dispute as to possession, the party out of possession must ordinarily bring an ejectment action
under RCW 7.28 rather than an unlawful detainer action (e.g. buyer/seller disputes, former
employees who resided on premises as term of employment, family members who never paid
rent). See Puget Sound Inv. Group, Inc. v. Bridges, 92 Wn. App. 523 (1998). Unlawful detainer
is, however, authorized to recover possession after a nonjudicial deed of trust foreclosure or real
estate contract forfeiture. RCW 61.24.060; RCW 61.30.100(2)(c). See Savings Bank v. Mink, 49
Wn. App. 204 (1987).
Although title cannot be quieted in an unlawful detainer proceeding, the defendant can assert an
ownership claim as an affirmative defense in an unlawful detainer action. Proctor v. Forsythe, 4
Wn. App. 238 (1971); Snuffin v. Mayo, 6 Wn. App. 525 (1972); Sundholm v. Patch, 62 Wn.2d
244 (1963). See also Kelly v. Powell, 55 Wn. App. 143 (1989) (requesting specific performance
of an exercised option to purchase). If issues of ownership remain unresolved in a quiet title
action, determining the right to possession in an unlawful detainer action may be premature.
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6.21.13
Pearson v. Gray, 90 Wn. App. 911 (1998).
c. Retaliation. RCW 59.18.240 was amended in 1983 to prohibit landlords from
evicting tenants in retaliation for good faith assertion or exercise of their rights and remedies
under the Landlord-Tenant Act or for making complaints to a government authority regarding
code or repair violations. See Stephanus v. Anderson, 26 Wn. App. 326 (1980) for a review of
the law on retaliation prior to the 1983 amendment. Lee v. Sauvage, 38 Wn. App. 699 (1984)
discusses the defense of retaliation based upon prohibitions in a local ordinance regarding
floating home moorage rentals.
Retaliation usually arises as a defense in an unlawful detainer action based upon a twenty-day
notice to terminate tenancy, RCW 59.12.030(2), or upon failure to pay a rent increase alleged to
be retaliatory.
If the defense is based upon code violation complaints, RCW 59.18.240(1), the complaints must
have been made in good faith and involve the landlord's failure to substantially comply with code
or statutory violations that affect the tenant's health or safety. RCW 59.18.250 creates certain
rebuttable presumptions, some of which apply to the unlawful detainer proceeding:
a. A rebuttable presumption that the eviction notice is retaliatory if given within 90 days
after tenant makes a code violation complaint or asserts other rights under act;
b. A rebuttable presumption that the eviction notice is not retaliatory if tenant is behind
in rent, in violation of other terms of the rental agreement, or complained to a governmental
authority within 90 days after a good faith action by landlord including an action to increase
the rent.
Regardless of any presumptions, the defense of retaliation may depend upon establishing the
landlord's motive for bringing the unlawful detainer action. Proof often depends upon
circumstantial evidence.
d. Discrimination. A tenant who is being evicted for discriminatory reasons or for
failure to comply with a rule or rent increase that is discriminatory is permitted to raise the
defense in an unlawful detainer action. Josephinium Assoc. v. Kahli, 111 Wn. App. 617 (2002).
Discrimination includes a failure to reasonably accommodate a disabled tenant. At least one
court has concluded that a reasonable accommodation can be requested anytime before a physical
eviction occurs. Radecki v. Joura, 114 F.3d 115 (8th Cir. 1997).
Most landlords are prohibited from discriminating against tenants on the basis of sex, marital
status, sexual orientation, race, creed, color, national origin, familial status, honorably discharged
veteran or military status, or the existence of a sensory, mental or physical disability. 42 U.S.C. §
3604 or RCW 49.60.030 and .222. The Washington Law Against Discrimination does not
protect cohabitation or dating under "marital status." Waggoner v. Ace Hardware Corp, 134
Wn.2d 748 (1998). Local ordinances may prohibit other forms of discrimination. For example,
Seattle and King County also prohibit discrimination based on age or Section 8 participation.
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6.21.13
Chapter 14.08 of the Seattle Municipal Code; Chapter 12.20 of the King County Code (Seattle
also prohibits discrimination based on political ideology). Bellevue also prohibits discrimination
against Section 8 participants. Chapter 9.20 of the Bellevue City Code. See generally,
Schwemm, Housing Discrimination Law and Litigation, Thomson West, 2003.
A landlord may not terminate a tenancy or fail to renew a tenancy because of a tenant’s or
household member’s status as a victim of domestic violence, sexual assault, unlawful
harassment, or stalking. RCW 59.18.570-.585.
e. Breach of the Warranty of Habitability. A tenant who is being evicted for
nonpayment of rent may claim that rent is not owing because the landlord failed to make needed
repairs. This defense is referred to as the warranty of habitability defense and is based upon case
law, not the Residential Landlord-Tenant Act. Foisy v. Wyman, 83 Wn.2d 22 (1973); Knight v.
Hallsthammer, 29 Cal.3d 46, 623 P.2d 268 (1981). It can be characterized as either an equitable
defense or a set-off and is permitted under RCW 59.18.400. (See Skarperud v. Long, 40 Wn.
App. 548 (1985) for a discussion of the habitability defense in a nonresidential context.)
The Residential Landlord-Tenant Act did not supersede common law remedies, including the
implied warranty of habitability recognized in Foisy v. Wyman. RCW 59.18.070. Landis &
Landis Const., LLC v. Nation, 171 Wn. App. 157, 286 P.3d 979 (2012).
The warranty of habitability defense is based upon the premise that the landlord has a duty to
provide a livable dwelling which the tenant is not permitted to bargain away, even in exchange
for a lower rent. Therefore, it does not matter whether the tenant knew about the repair problems
at the beginning of the tenancy. Foisy v. Wyman, supra at 28.
In Foisy v. Wyman, supra at 34, the court describes a two-step process the court is to follow if
breach of the implied warranty of habitability is alleged as an affirmative defense to an unlawful
detainer. First, the court must decide whether the unit was totally or partially uninhabitable
during the tenancy. Second, the court must determine what the reduction in the rental value for
the unit should be during the term of the tenancy. If the tenant's obligation to pay rent is totally
off-set by the landlord's breach, then the unlawful detainer action should be dismissed. If the
court finds the repair problems only justify a partial reduction in the rent, and the tenant withheld
more than this amount, judgment for the rent found owed and for possession will be granted in
favor of the landlord.
The defense does not depend on an official inspection or official finding of violations of a
municipal housing code. Reports and testimony from housing code inspectors can, however, be a
very useful and an inexpensive means to prove the tenant's claim of breach at trial. Minor
violations of a housing code that do not affect habitability would not ordinarily entitle a tenant to
a rent reduction. Foisy v. Wyman, supra at 31, fn. 1.
Although the tenant must give written notice of defective conditions to the landlord as a
prerequisite to exercising the repair remedies in the Residential Landlord-Tenant Act, the Act
recognizes that those remedies are “…in addition to pursuit of remedies otherwise provided him
7
6.21.13
by law...” that don’t necessarily require written notice. RCW 59.18.070. Since the implied
warranty of habitability was judicially created after the adoption of the Residential LandlordTenant Act, it could not have been superseded or preempted by the Act and constitutes a remedy
“otherwise provided…by law” that does not require written notice. Nor does the tenant have to
be current in rent to assert the defense of breach of the warranty of habitability. RCW 59.18.080
and Foisy v. Wyman, supra.
A tenant who withholds all of the rent for one month should be able to defend an unlawful
detainer on the basis that the unit has been partially uninhabitable for a number of months as long
as the cumulative reduction in rent exceeds the amount of rent withheld.
EXAMPLE: The monthly rent is $900. Tenant has no heat for the months of January,
February and March. Court reduces the rent by $300 for each month. Tenant withholds $900
for April rent. No rent should be found owing for April.
See Berzito v. Gambino, 63 N.J. 460, 308 A.2d 17 (1973).
The major difficulty in asserting the defense of breach of the implied warranty of habitability is
in accurately determining the amount of rent which the tenant is entitled to withhold. See
generally, Measure of Damages for Landlord's Breach of Implied Warranty of Habitability, 1
ALR 4th 1182; Note, The Great Green Hope: The Implied Warranty of Habitability in Practice,
28 STAN L. REV. 729 (1976).
There are no uniform, objective standards for determining the value of any rent reduction. A
defect that the tenant regards as serious may, to a judge, justify only a minimal rent abatement.
Due to the uncertainties of rent withholding and the serious risks of eviction and liability for
court costs and reasonable attorney's fees, it may be preferable for the tenant to liquidate the
claim for a rent reduction in small claims court or district court before setting it off against the
rent. RCW 59.18.110(1)(b).
While expert testimony regarding reduced rental value and the dollar amount of any rent
abatement might be preferable, opinion testimony of a lay witness may be admissible under ER
701. A tenant should be allowed to testify to the value of a dwelling unit as personal property as
long as there is some reasonable basis for that testimony. See Tegland, Vol. 5B WASHINGTON
PRACTICE, Chap. 7, Evidence Law and Practice § 701.18 (1999).
f. Local Ordinances. Some local governments have adopted regulations that provide
additional protections for tenants and may be the basis for an affirmative defense to an unlawful
detainer action. Kennedy v. City of Seattle, 94 Wn.2d 367 (1980); Margola Associates v. City of
Seattle, 121 Wn.2d 625 (1993). For example, Seattle has adopted a local ordinance that requires
that a landlord have "good cause" to terminate a residential tenancy. Seattle Municipal Code, §
22.206.160.C. Failure to comply with the ordinance justifies dismissal of an unlawful detainer
action. Housing Authority v. Silva, 94 Wn. App. 731 (1999).
8
6.21.13
g. Equitable Defenses: Most of the equitable defenses that can be asserted in an
ordinary civil action may also be asserted in an unlawful detainer action. Defenses such as
estoppel, laches, and waiver are not uncommon. See CR 8(c); CR 12(b).
Equitable defenses are expressly authorized in unlawful detainer actions. RCW 59.18.400. The
court, on a number of occasions, had recognized the right to raise equitable defenses prior to the
passage of the Residential Landlord-Tenant Act. See Andersonian Inv. Co. v. Wade, 108 Wash.
373 (1919); Income Properties Inv. Corp. v. Trefethen, 155 Wn. 493 (1930); Thisius v.
Sealander, 26 Wn.2d 810 (1946); Motoda v. Donohoe, 1 Wn. App. 174 (1969); Shoemaker v.
Shaug, 5 Wn. App. 700 (1971). See also First Union Management v. Slack, 36 Wn. App. 849
(1984); Port of Longview v. IRM, Ltd., 96 Wn. App. 431 (1999)(Commercial).
(1). Estoppel or Part Performance: A landlord may be estopped from asserting
that an oral lease is a month-to-month tenancy. Armstrong v. Burkett, 104 Wash. 476 (1918).
The elements of equitable estoppel are discussed in Crown Plaza v. Synapse Software, 87 Wn.
App. 495, 502 (1997) and Kennewick v. Board of Firefighters, 85 Wn. App. 366, 370 (1997).
Part performance may enable enforcement of a lease that does not comply with the statute of
frauds. Tiegs v. Watts, 135 Wn.2d 1 (1998). It is unclear whether estoppel is available in an
action based on nonpayment of rent where the landlord has frequently accepted the rent late. See
Neitsch v. Tyrrell, 25 Wn.2d 303 (1946); Glover v. Hanks, 396 S.2d 949 (La. App. 1980); 22
WASH. L. REV. 144 (1947).
(2). Acceptance of Rent as Waiver:
a. What constitutes acceptance? Inexcusable delay in returning a rent
check has been held to constitute acceptance. Tipton v. Roberts et ux., 48 Wash. 391 (1908)
(where, in an unlawful detainer action, tenant timely remitted rent to landlord for two months,
landlord’s retention of checks until after commencing action constituted acceptance by the
landlord). Failure to cash a rent check does not negate acceptance. C & A Land Co. v. Rudolf
Investment Corp., 163 Ga. App. 832, 296 S.E. 2d 149 (1982). See also Aspen Enterprises, Ltd. V.
Bray, 148 Mich. App. 9, 384 N.W. 2d 65 (1985); EDC Associates, Ltd. v. Gutierrez, 153 Cal.
App. 3d 167, 200 Cal. Rptr. 333 (1984); Roxborough Apartment Corporation v. Becker, 177
Misc. 2d 408, 676 N.Y.S. 2d 821 (1998); Office Enterprises, Inc. v. Pappas, 19 N.C. App. 725,
200 S.E. 2d 205 (1973).
b. Acceptance of current rent. If a tenant fails to pay rent and the landlord
accepts later rental payments, the landlord has waived a right under the unlawful detainer act to
declare forfeiture for nonpayment. A landlord may declare a forfeiture for an older, continuing
breach or any new breach. Under Munden v. Hazelrigg, 105 Wn.2d 39 (1985) the court could
enter a judgment for the older rents due after ruling for the tenant on the issue of possession. MH
2 Company v. Hwang, 104 Wn. App. 680 (2001)[Commercial case].
c. Application to earliest defaults. A landlord does not waive defaults in
rent by accepting rent after a three-day notice if he applies the receipts to the earliest rent first and
9
6.21.13
there is still some rent owing for the period before the notice. Housing Resources Group v. Price,
92 Wn. App. 394 (1998).
d. Acceptance of partial payment. A landlord does not waive her right to
proceed with an unlawful detainer action by accepting partial payment from a third party that is
late and is applied to unpaid utilities. Hwang v. McMahill, 103 Wn. App. 945 (2000). Under
certain circumstances, however, acceptance of a partial payment may waive the right to proceed
on a previously served unlawful detainer notice. Cf. RCW 59.18.390.
e. Acceptance after commencement of action. A landlord waives its right
to proceed with an unlawful detainer action when it accepts the full amount of rent after the
action is commenced. Housing Authority of Grant County v. Newbigging, 105 Wn. App. 178
(2001).
f. Acceptance as waiver of prior breaches. Acceptance of rent with
knowledge of breaches of a lease or rental agreement may constitute a waiver. Wilson v. Daniels,
31 Wn.2d 633 (1948); First Union Management v. Slack, supra; Stevenson v. Parker, 25 Wn.
App. 639 (1980); 24 WASH. L. REV. 165 (1949); See also Alaska Pac. v. Eagon Forest Prods.,
85 Wn. App. 354, 361 (1997).
(3). Service of Unlawful Detainer Notice as Waiver: Service of an unlawful
detainer notice may constitute a waiver of a previous unlawful detainer notice because it is
inconsistent with the claim that a previous notice extinguished the landlord-tenant relationship.
Hinkhouse v. Wacker, 112 Wash. 253 (1920)(dictum).
(4). Tender: A landlord's refusal of a proper tender of performance may be a
defense to an unlawful detainer action based on the nonperformance. Fletcher v. Bryan, 76 N.M.
221, 413 P.2d 885 (1966). 5A CORBIN, CONTRACTS § 1233 (1964). Tender of rent into the
court is not a defense to an action based upon nonpayment of rent. Young v. Riley, 59 Wn.2d 50
(1961).
h. Set-offs and counterclaims: The Act permits tenants to assert any set-off arising
out of the tenancy. RCW 59.18.400. A set-off is any demand of a like nature that can be
asserted against a party in a civil action upon an express or implied contract. The ability to raise
a set-off as a defense is purely statutory, Fischer Flouring Mills Co. v. U.S., 17 F.2d 232, 235
(9th Cir. 1927), and must be pleaded. RCW 4.32.150. Judgment may be entered on a set-off that
exceeds the plaintiff's demand. RCW 4.56.075.
Although there are few decisions describing the types of claims that can be asserted as set-offs in
unlawful detainer actions, tenants should be able to claim any damages resulting from the
landlord's failure to perform any of its contractual or statutory obligations (e.g. payment of utility
bills which are the landlord's obligation). Foisy v. Wyman, supra; Tipton v. Roberts, 48 Wash.
391 (1908)(tenant repair costs as set-off); Gentry v. Krause, 106 Wash. 474 (1919); Parks v.
Lepley, 160 Wash. 287 (1931); Reichlin v. First National Bank, 184 Wash. 304 (1935).
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Although set-offs that arise out of the tenancy may be asserted in a residential unlawful detainer
proceeding, general counterclaims are still not permitted unless they would prove facts that
excuse the tenant's breach. See, however, Munden v. Hazelrigg, supra, which permits general
counterclaims, cross-claims, etc., when right to possession ceases to be an issue and the matter is
converted to a general civil action.
Ordinarily, a tenant may not assert a counterclaim in an unlawful detainer action. Young v. Riley,
59 Wn.2d 50 (1961). The court may, however, have jurisdiction to decide the merits of a
counterclaim that is essential to determining right to possession. "If the counterclaim,
affirmative defense, or setoff excuses the tenant's failure to pay rent (or other breach), then it is
properly asserted in an unlawful detainer action." Heaverlo v. Keico Indus., 80 Wn. App. 724,
728 (1996) citing Munden v. Hazelrigg, supra. See also, Kelly v. Powell, 55 Wn. App. 143
(1989); Sprincin v. Sound Conditioning, 84 Wn. App. 56, 65 (1996). A counterclaim that was not
based on facts which excused a tenant's breach did not fall within the narrow range of
counterclaims allowed in unlawful detainer proceedings. Angelo Property Co., LP v. Hafiz, 167
Wn. App. 789 (2012) [commercial case].
But See Housing Authority v. Terry, 114 Wn.2d 558 (1990) where the court stated generally that
counterclaims are not permitted in unlawful detainer actions. This language, however, does not
appear to change the general rule. First, it is dicta in a decision that dismissed the action against
the tenant on other grounds. Second, the tenant asserted an "affirmative defense" seeking
"reasonable accommodation" for his handicap in the form of a Section 8 certificate that would
have allowed him to vacate the premises and move to another subsidized unit. In this way, the
affirmative defense would not have excused the breach or even contested possession.
4. Limitations on Unlawful Detainer Judgments
a. General. In defending an unlawful detainer action, it is important to keep in mind
that the damages that can be awarded to the landlord are restricted because of the limited nature
of the proceeding. Judgments are restricted to: (i) Rent found to be owing; (ii) Damages
arising out of the tenancy caused by the tenant's unlawful detention of the premises. (Typically
this is the per diem rental for each day the tenant remains until evicted). RCW 59.18.410.
The damages incurred by the plaintiff because of the unlawful detention are based on the
reasonable rental value of the premises. This may be more or less than the agreed rent. Lenci v.
Owner, 30 Wn. App. 800 (1981); Finch v. King Solomon Lodge No. 60, 40 Wn.2d 440 (1952);
Reichlin v. First National Bank, supra; Owens v. Layton, 133 Wash. 346 (1925). See Peck, A
Comment on Damages in Unlawful Detainer Actions in Washington, 37 WASH. L. REV. 451
(1962).
b. Claims That Cannot Be Asserted By Landlord: In order to avoid filing multiple
actions, landlords may try to assert claims against tenants in unlawful detainer proceedings that
exceed the court's limited jurisdiction. Ordinarily, if right to possession is still an issue these
other claims cannot be litigated in an unlawful detainer action. Little v. Catania, supra. Nor can
judgment be recovered on a lease provision authorizing damages, when the damages are not a
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necessary factor in determining the right of possession. Pine Corp. v. Richardson, 12 Wn. App.
459 (1975); See also Peck, A Comment on Damages…, supra at 452; Honan v. Ristorante Italia,
66 Wn. App. 262 rev. den. 120 Wn.2d 1009 (1992). See however, Munden v. Hazelrigg, supra,
which permits conversion of the action to an ordinary civil action if right to possession is no
longer an issue. The action may not be converted, however, if the tenant disputes the right to
possession and has not relinquished possession prior to issuance of the writ of restitution.
Sprincin v. Sound Conditioning, 84 Wn. App. 56, 68 (1996).
c. Double Damages: The double damages authorized by RCW 59.12.170 are not
available in unlawful detainer actions subject to the Residential Landlord-Tenant Act of 1973.
RCW 59.18.420. However, double damages are still available in actions involving parties not
covered by the Act. Where applicable, the double damage provision of RCW 59.12.170 raises an
issue of what amount of rent is to be doubled. The court in Sprincin v. Sound Conditioning, 84
Wn. App. 56, 63 (1996) ruled that the statute permits only a doubling of the rent that would have
accrued after the termination of the tenancy when the tenant was in unlawful detainer. It does not
permit a doubling of the unpaid rent that accrued during the tenancy. In reaching this conclusion,
the court rejected the contrary conclusion reached in Queen v. McClung, 12 Wn. App. 245, 24748 (1974).
5. Answering the Unlawful Detainer Complaint
The unlawful detainer summons for residential evictions must be in a specific statutory form.
RCW 59.18.365. A summons that fails to inform the tenant of the right to respond by mail or
facsimile does not strictly comply with the statute and does not confer unlawful detainer
jurisdiction. Truly v. Heuft, 138 Wn. App. 913 (2007) [abrogated by MHM & F, LLC v. Pryor,
168 Wn. App. 451 (2012)].
The tenant must appear or answer by the return date in writing. RCW 59.12.120; a faxed
appearance or answer may be permissible. It is only at a show cause hearing that the tenant is
given the option of answering orally. RCW 59.18.380.
If the tenant is being evicted for nonpayment of rent, and the landlord requests that rent be paid
into the court registry pending a final hearing, as provided in RCW 59.18.375, the tenant must
deliver a written response by the return date on the summons in addition to any response
appropriate under RCW 59.18.375. The response regarding payment into the court registry in
some nonpayment of rent cases is separate from the answer required to the summons and
complaint.
a. Applicability of Civil Rules. The Civil Rules for Superior Court govern all suits
of a civil nature unless they are inconsistent with rules or statutes applicable to special proceedings. CR 1; CR 81. At least one court has concluded that unlawful detainer actions are "special
proceedings" within the meaning of CR 81. Kelly v. Powell, 55 Wn. App. 143 (1989). See also
Canterwood Place, L.P. v. Thande, 106 Wn. App. 844 (2001). The rules of practice in civil
actions are expressly applicable to unlawful detainer actions, except in some cases where there is
an inconsistency with RCW 59.12. RCW 59.12.180.
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b. Pleading Affirmative Defenses. Defenses such as lack of jurisdiction over the
person or subject matter, insufficiency of process or service of process, or failure to state a claim
upon which relief may be granted should be set forth in the answer if not made in a motion. CR
12(b) and (h).
An unlawful detainer action must be prosecuted in the name of the real party in interest. CR 17.
If the real party in interest is a corporation or LLC it must be represented by a licensed attorney.
Dutch Village Mall v. Pelletti, 162 Wn. App. 531 (2011); Lloyd Enters. v. Longview Plumbing,
91 Wn. App. 697 (1998). Objections to the capacity of the party initiating the suit should be
raised in the answer. CR 9(a), CR 17. Those objections may include failure of person or entity
conducting business under an assumed name to allege filing of a proper certificate. RCW
19.80.040. See Reese Sales Co., Inc. v. Gier, 16 Wn. App. 664 (1977). But see Griffiths &
Sprague Stevedoring Co. v. Bayly, Martin & Fay, Inc., 71 Wn.2d 679 (1967).
c. Pleading Special Matters: If an affirmative defense or set-off is based on a local
ordinance, it should be specifically pleaded by ordinance number, title, and date of enactment.
CR 9(i); Foisy v. Wyman, 83 Wn.2d 22 (1973).
6. Payment into Court Registry
RCW 59.18.375 was amended in 2008. It provides for payment of rent into the court registry
under certain limited circumstances. As a general rule, the court has no authority to condition the
tenant's right to defend an unlawful detainer upon payment of rent in the court registry, except as
provided in RCW 59.18.375. RCW 59.18.370-410.
RCW 59.18.375 is an optional procedure that the landlord can use only in eviction actions based
upon nonpayment of rent. Under this section, the landlord can request that the tenant be evicted
before a hearing or trial unless the tenant either:
1. Pays into the court registry the amount of rent alleged to be owing and continues to pay
the monthly rent as it becomes due, while the action is pending; or
2. Submits a signed and sworn statement setting forth the reasons why the rent alleged due
in the notice is not owed; the reason provided may be that the amount claimed to be due
is not owed because of a legal or equitable defense or a set-off arising out of the tenancy.
If a landlord intends to use this procedure, the unlawful detainer action must be filed first and the
landlord must serve a separate notice on the tenant that describes how the tenant complies with
RCW 59.18.375. The tenant must either tender the rent into the court or file a sworn statement
that rent claimed due is not owing by the deadline stated in the notice. The deadline must be not
less than seven days after service of the RCW 59.18.375 notice. If the tenant denies that rent is
owing, the written denial must be a sworn statement and must be filed in addition to filing the
answer to the complaint. A sample certification denying that the rent claimed due is owing is
attached. The sworn statement must be filed with the clerk of the court and a copy must be
delivered to the landlord’s attorney (or to the landlord if there is no attorney) by personal
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delivery, mail, or facsimile if a facsimile number is available. The RCW 59.18.375 notice must
be substantially in the form set forth in that section.
If the tenant does not comply with the above requirements, the tenant may still seek a hearing on
the merits of the case and an immediate stay of the writ of restitution pending a hearing. If the
court concludes at the hearing that the tenant has a legal or equitable defense to the eviction, the
court may quash the writ of restitution and restore the tenant to possession. Partially overruling
Duvall Highlands, LLC v. Elwell, 104 Wn. App. 763 (2001). A tenant who fails to comply with
RCW 59.18.375 can still raise defenses that concern personal jurisdiction, sufficiency of process
or service of process, the court’s subject matter unlawful detainer jurisdiction and other legal and
equitable defenses that concern the landlord’s right to possession. The tenant also has the right
to reinstate the tenancy after an eviction based on nonpayment of rent pursuant to RCW
59.18.410.
Tenants who are defending an unlawful detainer on the basis that they do not owe the amount of
rent claimed to be due should not have to pay rent into the court registry as a condition of
obtaining a hearing before a writ of restitution is issued. Under RCW 59.18.375, those tenants
who do not deny that the amount of rent claimed to be due is owing but allege other procedural
defenses, such as service of an improper notice, may have to either tender rent into the court
registry or succeed on a motion to dismiss before the seventh day, to avoid issuance of the writ of
restitution before a hearing or trial.
The only other provision for payment of rent into the court registry is in RCW 59.18.380. This
section is similar to a stay of execution or supersedeas bond and is applicable if a landlord
prevails at a show cause hearing in a nonpayment of rent unlawful detainer action. The tenant
can post a bond to stay execution of any writ until a final judgment is entered after trial except in
the case of some drug-related evictions. RCW 59.18.390.
7. Show Cause Hearing
a. The Order to Show Cause. RCW 59.18.370, et seq. provides for an optional
procedure to have a pretrial hearing to determine if the landlord should be restored to possession
immediately (i.e. have a writ of restitution issued). This procedure is referred to as a show cause
hearing and generally is conducted by a court commissioner, the civil motion judge or the
presiding judge. Only the court can order the tenant to appear at a show cause hearing. RCW
59.18.370.
The order to show cause must specify a hearing date that shall not be less than seven nor more
than thirty days from the date of service on the tenant. RCW 59.18.370. The tenant may answer
orally or in writing. RCW 59.18.380. A show cause hearing scheduled fewer than seven days
from the date of service should be stricken. Canterwood Place v. Thande, 106 Wn. App. 844
(2001). If the court authorizes service of the order to show cause by mail, then service is deemed
complete on the third day following the date of mailing, unless the third day falls on a Saturday,
Sunday, or Holiday. CR 5(b)(2)(A).
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b. Issuing the Writ. The court is required to examine the parties and witnesses
orally at the show cause hearing and ascertain whether the plaintiff has the right to be restored to
possession of the property. The standard which the court must use in making this determination
is not clear. RCW 59.18.380 provides as follows:
". . . and if it shall appear that the plaintiff has the right to be restored to possession of the
property, the court shall enter an order directing the issuance of a writ of restitution . . ."
Defendants should argue that the appropriate standard is the same as summary judgment and that
the only time a writ of restitution may be issued before trial is where the plaintiff can
demonstrate that there is no genuine issue as to any material fact and that the plaintiff is entitled
to a writ as a matter of law. CR 56. This is a reasonable construction of the requirement that the
court find that the landlord has the right to be restored to possession of the property. Issuing a
writ at a show cause hearing is premature when the tenant has placed in issue whether he has
engaged in criminal activity in violation of RCW 59.20.080(1)(f). Hartson Partnership v.
Goodwin, 99 Wn. App. 227 (2000). The issue of whether a tenant has engaged in serious or
repeated violation of the terms or conditions of the lease should not be summarily resolved at a
show cause hearing. Housing Authority v. Pleasant, 126 Wn. App. 382 (2005); Indigo Real
Estate Services, Inc. v. Wadsworth, 169 Wn. App. 412 (2012). The court should not make
rulings at a preliminary hearing which impair the defendant's right to a jury trial or to adequately
present defenses. See Tuschoff v. Westover, 60 Wn.2d 722 (1962).
c. Granting Other Relief at Hearing. The court may also grant or deny other relief
requested by the plaintiff if it determines that the plaintiff is or is not entitled to the relief as a
matter of law. RCW 59.18.380.
The court may also grant or deny the relief requested by the defendant at the show cause hearing
including dismissal of the plaintiff's complaint. RCW 59.18.380.
d. Review of Court Commissioner's Decision.
Many counties conduct the
unlawful detainer show cause hearing before a court commissioner. Either party may request a
revision of a commissioner's ruling by filing a motion within ten days. RCW 2.24.050. Superior
Court Local Rules may prescribe the procedure for seeking revision. The review is de novo on
the record where the record before the commissioner does not include live testimony. See
Marriage of Moody, 137 Wn.2d 979, 991-993 (1999) regarding the review standard. There may
not be a record of a hearing before a court commissioner so it is important to decide what kind of
record you would need for appeal or revision of an adverse decision. You may want to request a
reporter or submit sworn declarations. Filing a motion for revision may operate as an automatic
stay of a court commissioner's order for issuance of a writ of restitution. Cf., State v. Lawley, 32
Wn. App. 337 (1982); but see King County Superior Court Local Rule LR 7(b)(7)(B)(iv)
directing that the commissioner's ruling remains in effect pending review, unless stayed.
e. Bonds.
If a writ of restitution is issued at the show cause hearing in an
unlawful detainer based upon nonpayment of rent prior to entry of a final judgment, the tenant
can stay execution of the writ by paying into the court registry or to the plaintiff the rent
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determined to be owing plus the monthly rent as it becomes due, until a final judgment on the
merits. RCW 59.18.380. This is a separate provision from the prehearing payment provisions of
RCW 59.18.375 described above. The tenant may also stay enforcement of the writ pending trial
by posting a bond in evictions for reasons other than nonpayment of rent, except some drugrelated evictions. RCW 59.18.390. The landlord must post a bond to indemnify the tenant if a
writ of restitution is issued in any unlawful detainer prior to final judgment. See Meadow Park v.
Canley, 54 Wn. App. 371 (1989).
8. Pretrial Motions
CR 12(b) permits a party to optionally raise certain defenses by means of a motion rather than an
answer. Filing a motion in lieu of an answer for the purpose of pointing out jurisdictional defects
in an unlawful detainer proceeding has been implicitly approved without discussion. Sowers v.
Lewis, 49 Wn.2d 891 (1957). One early case, however, refused to approve or disapprove such a
procedure. Lee v. Weerda, 124 Wash. 168 (1923). This procedure is now clearly permissible
with the adoption in 1989 of a statutory summons that expressly authorizes service of a notice of
appearance. RCW 59.18.365.
9. Trial
If the court does not issue a pretrial writ of restitution, the case should be set for trial within 30
days. If the writ of restitution is issued but there is still a dispute regarding possession or there
are still other claims to be reduced to judgment, the case should be set for trial in the same
manner as other civil actions. RCW 59.18.380. The tenant in these circumstances who wishes a
speedy trial would still be able to rely on the statutory priority given to unlawful detainer actions.
RCW 59.12.130. A tenant who is deprived of possession at a show cause hearing but prevails
on a claim of possession at trial can be restored to possession. Meadow Park v. Canley, 54 Wn.
App. 371 (1989).
Factual issues in unlawful detainer actions must be tried by a jury unless a jury is waived. RCW
59.12.130. A jury is waived if the jury demand is not filed before the case is set for trial. The
process of demanding a jury and the conduct of a jury trial are governed by Rules 38 and 39 of
the Civil Rules for Superior Court. Thompson v. Butler, 4 Wn. App. 452 (1971). The court may
direct a verdict as in other civil cases. Peterson v. Crockett, 158 Wash. 631 (1930). If the issues
raised are primarily equitable, the court may exercise its discretion and strike the jury demand.
Thompson v. Butler, supra; See Himpel v. Lindgren 159 Wash. 20 (1930).
It is arguably error for the court to decide material factual issues at either a show cause hearing or
an expedited trial if it deprives the defendant of the opportunity to have the case heard by a jury.
See Tuschoff v. Westover, 60 Wn.2d 722 (1962); Housing Authority v. Pleasant, 126 Wn. App.
382 (2005). See, however, Meadow Park v. Canley, 54 Wn. App. 371 (1989).
10. Late Fees & Other Charges
Although the Manufactured/Mobile Home Landlord-Tenant Act specifically authorizes service of
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6.21.13
a five-day notice to pay or vacate for rent and “other charges,” RCW 59.20.080(1)(b), there is no
case that definitively holds whether late fees or other charges can be included in a three-day
notice to pay rent or vacate or in an unlawful detainer judgment covered by RCW 59.12 and
RCW 59.18. In First Union Management v. Slack, 36 Wn. App. 849, 858, fn. 7
(1984)(construing RCW 59.12.170), the court observed that electric charges were not “rent” for
Unlawful Detainer Act double damages purposes even though the lease characterized the utility
charges as “additional rent.”
Although Foisy v. Wyman, 83 Wn.2d 22, 32 (1973) found that a three-day notice to pay rent or
vacate substantially complied with the Unlawful Detainer Act even though it overstated the
amount of rent due, no fees or charges were demanded in the notice other than rent. Similarly, in
Sowers v. Lewis, 49 Wn.2d 891 (1957) the landlord claimed in the three-day notice to pay rent or
vacate that insurance premiums were delinquent, but only made a demand for payment of the
delinquent rent within the three-day period. Some courts permit inclusion of late fees if the late
fees are not unreasonable and not disproportionate to other allowable sums being sought. The
court has concluded that a mobile home park late fee of $2.00 a day is a permissible liquidated
damages clause and not a penalty. Buchanan v. Kettner, 97 Wn. App. 370 (1999).
11. Attorney Fees
A landlord who prevails in an unlawful detainer action may be awarded costs and reasonable
attorney fees. RCW 59.18.410. A tenant who prevails may be awarded costs and reasonable
attorney fees also. RCW 59.18.290(2); Housing Authority of City of Seattle v. Bin, 163 Wn. App.
367 (2011); Council House v. Hawk, 136 Wn. App. 153 (2006); Soper v. Clibborn, 31 Wn. App.
767 (1982); see, however, Housing Authority of City of Everett v. Kirby, 154 Wn. App. 842
(2010). The defendant may be deemed the prevailing party when the plaintiff takes a voluntary
nonsuit. Council House, supra; Walji v. Candyco, Inc., 57 Wn. App. 284 (1990); Andersen v.
Gold Seal Vineyards, 81 Wn.2d 863 (1973) (long-arm statute); Western Stud Welding v. Omark
Industries, 43 Wn. App. 293 (1986). A party may recover reasonable attorney fees even if legal
services are provided at no cost, except when a tenant prevails on a retaliation defense. RCW
59.18.250). Council House, supra; Holland v. Boeing Company, 90 Wn.2d 384 (1978); Harold
Meyer Drug v. Hurd, 23 Wn. App. 683 (1979). RCW 4.84.330 may also authorize reasonable
attorney fees to the prevailing party if provided in the rental agreement, notwithstanding the
limitations on attorney fees specified in RCW 59.18.230(2)(c). Wright v. Miller, 93 Wn. App.
189 (1998).
12. Bankruptcy
The filing of a bankruptcy petition operates as an automatic stay of the commencement or
continuation of an eviction action. 11 U.S.C. § 362(a)(1), 11 U.S.C. § 362(a)(3). The stay
remains in effect unless the court grants a request for relief from stay or the property is no longer
property of the bankruptcy estate. 11 U.S.C. § 362. In order to get the full benefit of the
automatic stay during the pendency of the bankruptcy, however, the tenant/debtor must file the
bankruptcy petition before a “judgment for possession” is entered.
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A residential landlord may continue an eviction action without seeking relief from stay if a
“judgment for possession” was obtained prior to the filing of the petition. 11 U.S.C. §
362(b)(22). Notwithstanding the entry of a judgment for possession before the filing of the
petition and § 362(b)(22), the automatic stay will continue for 30 days after filing the petition if
the debtor files a certification that state law permits a cure after a judgment for possession (as
does Washington in a nonpayment of rent case; RCW 59.18.410) and deposits rent that will
become due within 30 days after the filing of the petition with the clerk (must be a cashier’s
check or money order payable to the order of the landlord. Local Bankruptcy Rules, Western
District of Washington, RULE 4001-1(b)). The automatic stay will continue beyond the 30-day
period if the debtor completely cures and certifies the complete cure of the monetary default
within the 30-day period. 11 U.S.C. § 362(l).
An action to evict the debtor from residential rental property is not stayed if the eviction action is
based upon the tenant’s endangerment of the property or the illegal use of controlled substances
on the property and the landlord files a sworn certification regarding such endangerment or
illegal use. 11 U.S.C. § 362(b)(23). If the landlord files and serves a sworn certification, then the
eviction is stayed for 15 days to give the tenant an opportunity to file an objection and obtain a
hearing on the objection. The stay will remain in effect if the tenant prevails at a hearing on the
objection. 11 U.S.C. § 362(m).
13. Post-Judgment Relief
A tenant who has been evicted for nonpayment of rent may be restored to possession after
judgment if his lease or agreement has not yet expired by paying the amount of the judgment and
costs into court within five days of the judgment's entry. This relief is also available when
judgment is entered at a show cause hearing. RCW 59.18.410; RCW 59.12.170. The five-day
period presumably excludes Saturday, Sunday, and Holidays pursuant to CR 6 and Canterwood
Place, L.P. v. Thande, 106 Wn. App. 844 (2001). A court may also relieve a tenant from
forfeiture of a lease, after a judgment of forfeiture, if the tenant submits a verified application and
petition for such relief within thirty days after entry of the judgment. RCW 59.12.190.
A tenant can appeal from a final judgment in an unlawful detainer action and file a motion to
supersede the judgment and stay execution of the writ of restitution if the tenant is still in
possession. RAP 8.1(b)(2). The Washington Supreme Court Commissioner has ruled in an
unpublished decision that an appropriate bond to supersede an unlawful detainer judgment is the
amount of the judgment entered, plus payment of the monthly rent when due, but not an amount
for additional unspecified losses exceeding those in the judgment. Mirador v. Bernardo,
Supreme Court of Washington, No. 48844-4, September 13, 1982.
A tenant who appeals from a judgment in favor of the landlord and who does not supersede the
judgment may be restored to possession if he is successful on appeal. RAP 12.8; see also
Housing Authority v. Pleasant, 126 Wn. App. 382 (2005) holding that when the right to
possession is at issue in an unlawful detainer action, the issue is not moot on appeal simply
because the tenant has vacated the premises.
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6.21.13
14.
Post-Foreclosure & Real Estate Contract Forfeiture Evictions
a) Nonjudicial Deed of Trust Foreclosure. The Deed of Trust Act authorizes a purchaser
at a trustee's sale to use RCW 59.12 to recover possession of the property after a nonjudicial
foreclosure. It does not authorize recovery of damages, court costs, or attorney fees. RCW
61.24.060. A trustee's deed containing proper recitals is prima facie evidence of deed of trust
foreclosure compliance and conclusive evidence thereof in favor of bona fide purchasers and
encumbrancers for value. The recitals do not affect the lien or interest of any person who was not
sent required notices. RCW 61.24.040(7).
There are a number of cases that limit the ability of borrowers to challenge nonjudicial deed of
trust foreclosures in post-foreclosure sale unlawful detainer actions. See, e.g., Steward v. Good,
51 Wn. App. 509 (1988); Koegel v. Prudential Mut. Savings Bank, 51 Wn. App. 108 (1988);
Peoples Nat’l Bank of Washington v. Ostrander, 6 Wn. App. 28 (1971). A borrower or tenant
should be able to raise defenses to the eviction, however, where the trustee's sale is void or there
are equitable grounds for setting the sale aside. Albice v. Premier Mortgage Services,174 Wn.2d
560 (2012).
The tenant of property that is purchased at a nonjudicial foreclosure sale is an essential party to
an unlawful detainer action brought by the purchaser of the property and the failure to join the
tenant as a party deprives the trial court of subject matter jurisdiction. An unlawful detainer
action is not moot just because the tenant no longer has possession of the contested premises.
Laffranchi v. Lim, 146 Wn. App. 376 (2008).
No pre-lawsuit unlawful detainer notice is required where the plaintiff purchased the property at
a nonjudicial deed of trust foreclosure sale, the occupant is the former property owner, and the
purchaser has not subsequently entered into a landlord-tenant agreement with the former owner.
(See, however, tenant notice requirements under the Deed of Trust Act, RCW 61.24.146 (60-day
written notice to vacate unless waste or nuisance), and the Protecting Tenants at Foreclosure Act
(PTFA) P.L. 111-22, § 701-704 (2009) as clarified in P.L. 111-203, § 1484 (July 21, 2010)).
b) Real Estate Contract Forfeiture. The Real Estate Contract Forfeiture Act authorizes the
seller to use RCW 59.12 to recover possession of the property after forfeiture plus actual
damages caused by failure to surrender possession after forfeiture and for reasonable attorney
fees and costs. RCW 61.30.100(3).
15. Distressed Property Conveyances
As a result of the increase in foreclosure rescue scams and related abuses, the RLTA was
amended in 2008 to impose special requirements for evictions that involve distressed homes and
conveyances of properties that were in danger of foreclosure. RCW 61.34. RCW 59.18.363
requires that in an unlawful detainer action involving property that was a distressed home: (1)
the plaintiff shall disclose to the court whether the defendant previously held title to the property
that was a distressed home, and explain how the plaintiff came to acquire title; (2) a defendant
who previously held title to the property that was a distressed home shall not be required to
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6.21.13
escrow any money pending trial when a material question of fact exists as to whether the plaintiff
acquired title from the defendant directly or indirectly through a distressed home conveyance; (3)
there must be both an automatic stay of the action and a consolidation of the action with a
pending or subsequent quiet title action when a defendant claims that the plaintiff acquired title
to the property through a distressed home conveyance.
16. Ejectment
Although the unlawful detainer action is the procedure most frequently used for evicting tenants,
it is not the only procedure available. A landlord may also proceed by way of ejectment. Petsch
v. Willman, 29 Wn.2d 136 (1947); Verline v. Hyssop, 2 Wn.2d 141 (1940); Honan v. Ristorante
Italia, 66 Wn. App. 262 rev. den. 120 Wn.2d 1009 (1992).
The procedure for ejectment is contained in RCW 7.28.010 et seq. Although a landlord need not
serve one of the notices specified in RCW 59.12.030 to commence an ejectment action, the
procedure is seldom used. It is commenced with a regular statutory twenty-day summons; there
is no provision for pretrial writs of restitution; there is no statutory priority over other civil
actions, and there is no statutory right to either reasonable attorney's fees or double damages if
the landlord prevails.
Ejectment could conceivably be used where the landlord has substantial monetary claims against
a tenant that could not be recovered in an unlawful detainer action due to the court's limited
jurisdiction. If the landlord could recover possession relatively quickly through the use of
summary judgment or preliminary injunctive relief, then it may be able to avoid the necessity of
bringing successive actions by combining its damage claims with an ejectment action.
Ejectment may be the only procedure available for evicting a tenant at will due to the fact that a
tenancy at will does not fit into any of the notice categories described in RCW 59.12.030 and
therefore a landlord may not utilize an unlawful detainer action. Turner v. White, 20 Wn. App.
290 (1978). See also Najewitz v. Seattle, 21 Wn.2d 656 (1944); 1C Wash. Prac., Methods of
Practice, § 88.8 (4th ed.); 17 Wash. Prac. Real Estate: Property Law, § 6.16 (2d ed.); 20 WASH.
L. REV. 169 (1945).
20
6.21.13
SAMPLE EVICTION TIMETABLE
This is an example of an eviction based on nonpayment of rent when the rent is due on the first day of
the month. The shortest time period for completion of the eviction is approximately four weeks.
Day
1 -
Rent due date
2 -
Service of three-day notice to pay or
vacate
15 -Sheriff serves writ of restitution at rental
property
16
3
17
4
18
5
19 -First day on which sheriff can enforce writ
6 -
Service of eviction summons, complaint,
and order to show cause (show cause
order is at landlord's option)
7
20
21 -Sheriff's usual, earliest eviction date (King
County)
22
8
23
9
24 -Sheriff's statutory deadline for completing
eviction
10
11
12
13 -
14 -
Eviction summons return date (7 to 30
days); deadline for tenant's written
notice of appearance or answer and
deadline for paying rent to court
clerk or filing sworn statement that
rent is not owed (latter requirement
at landlord's option; see below)*
Show cause hearing; writ of restitution
issued if tenant fails to serve written
response to eviction summons, fails
to appear or loses at show cause
hearing, or fails to pay rent to court
clerk or file sworn statement if
required
1.25.13
* In evictions for nonpayment of rent, the
landlord has the option of serving a separate
notice requiring the tenant to pay rent to the
court clerk or file a sworn statement that the rent
claimed due is not owed by a specific deadline
that is not less than seven days from the date of
service of the notice. A writ of restitution may
be issued if the tenant does not comply. RCW
59.18.375.
1
2
3
4
5
6
7
IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
BALTIC STREET APARTMENTS,
8
9
10
Plaintiff,
vs.
I. M. TENANT,
11
Defendant.
12
13
14
15
16
17
18
19
20
21
22
23
)
)
)
)
)
)
)
)
)
)
NO. 12-2-12345-9 SEA
ANSWER, AFFIRMATIVE
DEFENSES, AND SET-OFFS
The defendant, I. M. Tenant, by her attorney, Steve Fredrickson, answers the
plaintiff's complaint as follows:
1.
Admits the allegations contained in paragraphs 1 and 2.
2.
Denies the allegations contained in paragraphs 3 and 4.
3.
Lacks knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraph 5.
4.
Denies the allegations contained in paragraph 6.
Further, as affirmative defenses and set-offs, the defendant alleges as follows:
5.
The plaintiff failed to serve an unlawful detainer notice on the defendant
in the manner required by RCW 59.12.040 and the court lacks unlawful detainer
jurisdiction.
ANSWER, AFFIRMATIVE
DEFENSES, AND SET-OFFS - 1
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
1
2
6.
The plaintiff's unlawful detainer notice is retaliatory in violation of RCW
59.18.240.
3
7.
The defendant is a handicapped and disabled person within the meaning
4
of the federal Fair Housing Act, 42 U.S.C. § 3602(h) and the Washington Law Against
5
Discrimination, RCW 49.60.
6
8.
The plaintiff has failed to make reasonable accommodations in rules,
7
policies, practices, and services necessary to afford the defendant an equal opportunity
8
to use and enjoy her rental unit in violation of 42 U.S.C. § 3604(f)(3)(B) and RCW
9
49.60.222(2)(b).
10
9.
The plaintiff's actions and omissions constitute discrimination against the
11
defendant in the rental of a dwelling because of handicap and disability in violation of
12
42 U.S.C. § 3604 and RCW 49.60.222.
13
10.
The plaintiff has allowed substantial defects to exist on the premises
14
during the term of the defendant's tenancy. These defects include, but are not limited to,
15
broken windows, inadequate door and window locks, holes in the floors, walls, and
16
ceiling, and inadequate heat.
11.
17
18
The plaintiff has had actual notice of these defects since January, 2012
and received written notice of the defects from the defendant on February 2, 2012.
19
12.
The plaintiff's failure to perform its repair duties constitutes a breach of
20
the implied warranty of habitability and relieves the defendant of the obligation to pay
21
rent.
22
23
13.
The actions of the plaintiff constitute a breach of obligations under the
Seattle Housing and Building Maintenance Code SMC 22.200, et seq., which requires
ANSWER, AFFIRMATIVE
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
1
2
3
4
that all buildings be maintained at minimum housing code standards.
14.
The defendant’s damages equal or exceed any rent that is claimed due
and the defendant is entitled to a set-off in the form of a retroactive rent abatement.
5
Wherefore, the defendant requests the following relief:
6
1.
7
8
9
10
That the plaintiff's complaint be dismissed with prejudice and that the
defendant be awarded her costs, disbursements, and reasonable attorney fees;
2.
That the defendant be awarded a set-off for a retroactive rent abatement
in an amount to be proved at trial.
Dated: October 19, 2012.
11
12
_________________________
Steve Fredrickson
WSBA No. 4799
Attorney for defendant
13
14
15
16
17
18
19
20
21
22
23
ANSWER, AFFIRMATIVE
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
1
2
3
4
5
6
7
Plaintiff,
8
vs.
9
I. M. TENANT,
10
Defendant.
11
)
)
)
)
)
)
)
)
)
)
NO. 12-2-12345-9 SEA
CERTIFICATION
12
CERTIFICATION
13
14
15
I, I. M. Tenant, certify that the rent alleged due in the plaintiff's RCW 59.18.375
Payment or Sworn Statement Requirement notice is not owed. The reason the rent
alleged due in the notice is not owed is that I have a legal or equitable defense or set-off
arising out of the tenancy.
16
This certification is made in accordance with RCW 59.18.375.
17
I certify under penalty of perjury under the laws of the State of
Washington that the foregoing statement is true.
18
Dated in Seattle, Washington on October 19, 2012.
19
20
______________________________
I. M. Tenant
Baltic Street Apartments
123 Baltic Street, Apt. B
Seattle, Washington 98144
(206) 800-4321
21
22
23
CERTIFICATION
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
1
2
3
4
5
6
7
Plaintiff,
8
vs.
9
10
I. M. TENANT,
Defendant.
11
12
13
16
3.
21
The plaintiff and the defendant wish to compromise and settle the
pending unlawful detainer action without the expense, delay, inconvenience, or
uncertainty associated with further hearings or trial.
4.
The defendant shall vacate the premises at Baltic Street Apartments, 123
Baltic Street, Apartment B, Seattle, Washington 98144, on or before January 1, 2013.
19
20
STIPULATION
appear below, stipulate and agree as follows:
17
18
NO. 12-2-12345-9 SEA
The plaintiff and the defendant, by their respective attorneys whose signatures
14
15
)
)
)
)
)
)
)
)
)
)
5.
If the defendant fails to vacate the premises by January 1, 2013, then the
plaintiff will be entitled to issuance of a writ of restitution, upon seven (7) days notice to
the defendant, restoring possession of the premises to the plaintiff.
22
6.
Upon vacation of the premises by the defendant, this action shall be
23
STIPULATION - 1
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
1
dismissed with prejudice and without costs or attorney fees to either party.
2
3
7.
The plaintiff shall provide the defendant with a satisfactory oral and
written landlord reference which shall state the following:
4
6
Ms. I. M. Tenant has been a tenant at Baltic Street Apartments, 123
Baltic Street, Apartment B, Seattle, Washington 98144, since October 1,
2008. Ms. Tenant has informed us that she intends to terminate her
tenancy and vacate her apartment on January 1, 2013. Ms. Tenant has
paid her rent on a regular and timely basis during her tenancy.
7
Notwithstanding any release of information or authorization form that Ms. Tenant may
8
sign, the plaintiff will not provide any further information about the defendant or her
9
tenancy without the express consent of the defendant or the defendant's attorney of
10
record. If any inquiry is made about Ms. Tenant's tenancy beyond the terms of the
11
landlord reference described above, the plaintiff and its employees or agents shall
12
respond as follows:
5
We are not authorized to provide any additional information about Ms. I.
M. Tenant's tenancy.
13
14
15
8.
be specifically enforced by either party.
16
17
18
19
9.
22
The promises and agreements contained herein shall not be construed or
interpreted as an admission of rental agreement violations, rule or regulation violations,
or other misconduct or liability, and such violations, misconduct, or liability are
expressly denied by the defendant.
20
21
The terms of this stipulation are contractual and not mere recital and may
10.
This stipulation may be signed in several counterparts, including copies
or facsimiles, each of which shall be deemed an original and all of which shall
constitute one stipulation.
23
STIPULATION - 2
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
1
2
Dated: October 26, 2012.
3
4
5
________________________
Steve Fredrickson
WSBA No. 4799
Attorney for defendant
_________________________
Richard Roe
WSBA No. 50,000
Attorney for plaintiff
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
STIPULATION - 3
1.25.13
401 2d Ave. S., Ste. 407
Seattle, WA 98104
206.464.1519
RECENT DEVELOPMENTS
January 31, 2014
Steve Fredrickson
Seattle, WA 98104
206.464.1519 ext. 248
888.201.1012
Fax: 206.903.0526
.
RECENT DEVELOPMENTS - 2013
RECENT COURT DEVELOPMENTS (By Date)
Landlord liable for personal injuries for failure to repair
A landlord is subject to liability for physical harm to tenants caused by a dangerous condition on
the premises if the landlord has failed to exercise reasonable care to repair the condition and the
existence of the condition is in violation of the implied warranty of habitability or duties under
the Residential Landlord-Tenant Act; Restatement (Second) of Property § 17.6. Martini v. Post,
___ Wn. App. ___, 313 P.3d 473 (2013), Div. II, 11/26/13
Landlord’s sexual harassment of tenant violates Washington Law Against Discrimination
Residential landlord’s sexual harassment of tenant was sufficiently severe and pervasive so as to
affect terms, conditions, and privileges of rental housing, in violation of Washington Law
Against Discrimination. Tafoya v. State Human Rights Com'n., ___ Wn. App. ___, 311 P.3d 70
(2013), Div. II, 10/15/13
Landlord’s denial of transfer of mobile home park rental agreement must be reasonable
The Manufactured/Mobile Home Landlord-Tenant Act (MHLTA) imposes a duty of good faith
and fair dealing on landlords in enforcing rules against a tenant, including consent to transfer of
rental agreement. A tenant who raises a viable legal defense at show cause hearing is entitled to
present evidence in support of that defense. Where writ is denied at show cause hearing,
landlord is only entitled to reasonable attorney fees related to the subsequent hearing that resulted
in a judgment in its favor. Country Manor MHC, LLC v. Doe, 176 Wn. App. 601, 308 P.3d 818
(2013), Div. II, 9/10/13
Public Housing Authority must produce grievance hearing decisions
Public Housing Authority must produce written grievance hearing decisions pursuant to the
redaction requirement of the Public Records Act (PRA), RCW 42.56, produce the responsive
records in electronic format, and establish necessary policies and procedures to ensure
compliance with the PRA. Resident Action Council v. Seattle Housing Authority, 177 Wn.2d
417, 300 P.3d 376 (2013), 5/9/13
1
1.31.14
Public Housing Authority bound by Section 8 hearing officer decision
Hearing officer did not exceed his authority in reinstating low-income tenant’s eligibility for
Section 8 rental assistance and housing authority was bound by the officer's decision. Nichols v.
Seattle Housing Authority, 171 Wn. App. 897, 288 P.3d 403 (2012) Div. I, 11/13/12
Warranty of habitability claim not superseded by RLTA
The Residential Landlord-Tenant Act did not supersede common law remedies, including the
implied warranty of habitability recognized in Foisy v. Wyman, 83 Wn.2d 22 (1973). RCW
59.18.070. Landis & Landis Const., LLC v. Nation, 171 Wn. App. 157, 286 P.3d 979 (2012)
Div. I, 11/8/12.
Court declines to seal eviction record
The tenant in this eviction case lacked a sufficient countervailing interest to override the public's
constitutional right to the open administration of justice and the trial court erred in redacting the
court records. Hundtofte v. Encarnacion, 169 Wn. App. 498, 280 P.3d 513 (2012) Div. I,
7/16/12.
Section 8 lease affords greater protection than unlawful detainer act
Where a lease provides the tenant with greater protection than he or she would receive under the
unlawful detainer statute, the landlord must comply with the lease in any eviction action. A
tenant who properly contests a landlord's allegation of material noncompliance with the lease is
generally entitled to a trial on that issue and that question should not be summarily resolved at a
show cause hearing. Indigo Real Estate Services, Inc. v. Wadsworth, 169 Wn. App. 412, 280
P.3d 506 (2012) Div. I, 7/9/12.
Challenges to court’s subject matter unlawful detainer jurisdiction are limited
Failure to include facsimile number of LLC that owned mobile home park or its attorney,
together with LLC's failure to include mobile home park association as necessary party did not
deprive trial court of subject matter jurisdiction and tenant was not entitled to appellate review of
summons and joinder claims that were not argued before trial court; abrogating Truly v. Heuft,
138 Wn. App. 913, 158 P.3d 1276 (201 ), and Laffranchi v. Lim, 146 Wn. App. 376, 190 P.3d
97(201 ), MHM & F, LLC v. Pryor, 168 Wn. App. 451, 277 P.3d 62 (2012), Div. I, 5/21/12.
2
1.31.14
Tenant is coinsured under landlord’s fire insurance policy
The tenant is a coinsured with the landlord under the landlord’s fire insurance policy, absent a
specific provision in the rental agreement or lease to the contrary. The insurance carrier has no
subrogation claim against the tenant. Trinity Universal Ins. Co. of Kansas v. Cook, 168 Wn.
App. 431, 276 P.3d 372 (2012) Div. III, 5/17/12.
Court exceeded subject matter unlawful detainer jurisdiction
The trial court exceeded the scope of its subject matter jurisdiction under the unlawful detainer
statute when it considered a constructive eviction counterclaim without first converting the
unlawful detainer action into an ordinary civil action for damages. Also, the counterclaim was
not based on facts which excuse a tenant's breach and, thus, did not fall within the narrow range
of counterclaims allowed in unlawful detainer proceedings. Angelo Property Co., LP v. Hafiz,
167 Wn. App. 789, 274 P.3d 1075 (2012) Div. II, 4/17/12 [commercial case].
Section 8 termination should have been enjoined for due process violations
Due process required city housing authority to send notice of termination of claimant's Section 8
Housing Choice Voucher assistance to the jail where she was incarcerated when it knew that only
notice sent to the jail would be reasonably calculated to timely reach the claimant. The court
abused its discretion in denying the motion to preliminarily enjoin the Section 8 termination
during the pendency of the action. Speelman v. Bellingham/Whatcom County Housing
Authorities, 167 Wn. App. 624, 273 P.3d 1035 (2012) Div. I, 4/9/12.
3
1.31.14
Tenant entitled to damages for breach of lease.
Residential tenants were prevailing parties in suit brought against landlord on claim for breach of
lease arising out of landlord’s failure to make timely repairs to wall that was damaged by
motorist’s car. The tenants did not have an actionable claim for emotional distress because they
did not prove a diagnosable emotional disorder. Hawkins v. Diel, 166 Wn. App. 1, 269 P.3d
1049 (2011) Div. II, 11/18/11.
Fire insurer had no subrogation rights against tenants.
Because owners of condominium unit and lessees had no express or implied agreement requiring
lessees to obtain fire insurance, the law presumed that lessees were the owners' coinsured, and
thus, owners' fire insurer had no subrogation rights against lessees for alleged negligent loss to
the leased premises. Community Ass'n Underwriters of America, Inc. v. Kalles, 164 Wn. App. 30,
259 P.3d 1154 (2011), Div. II, 9/20/11.
Park owner’s threat to remove carports and storage sheds violated M/MHLTA.
Mobile home park owner’s letter threatening to remove carports and storage sheds if tenants
declined to take ownership of those structures, violated Manufactured/Mobile Home LandlordTenant Act, RCW 59.20.135. Owners, however, did not have an implied contract to continue to
provide carports and storage sheds to tenants. Tenants were not substantially prevailing parties
for purposes of attorney fees award. Seashore Villa Ass'n v. Hugglund Family Ltd. Partnership,
163 Wn. App. 531, 260 P.3d 906 (2011), Div. II, 9/7/11.
Public housing tenant entitled to attorney fees award.
The housing authority's failure to comply with its own grievance procedures and federal
regulations did not deprive trial court of subject matter jurisdiction to award attorney fees to
tenant as prevailing party in unlawful detainer action. Housing Authority of City of Seattle v.
Bin, 163 Wn. App. 367, 260 P.3d 900 (2011), Div. I, 9/6/11.
LLC had to be represented by a lawyer in rent dispute with tenant.
Shopping center, which was a limited liability company (LLC), had to be represented by a lawyer
in order to litigate dispute with tenant over unpaid rent; sole owner of LLC, who was not a
licensed attorney, was not permitted to represent LLC in action over rent. Dutch Village Mall v.
Pelletti, 162 Wn. App. 531, 256 P.3d 1251 (2011), Div. I, 7/5/11
4
1.31.14
OTHER RECENT COURT DEVELOPMENTS (By Date)
Res ipsa loquitur can raise an inference of negligence.
A tenant could rely upon res ipsa loquitur to raise inference of owners' negligent maintenance of
a dock in an action for personal injury. Curtis v. Lein, 169 Wn.2d 884, 239 P.3d 1078 (2010)
9/16/10.
25-year lease that converts to one-year lease upon assignment doesn’t violate M/MHLTA.
Mobile home park lease, providing that 25-year lease term would convert to a one-year lease
term if lease were assigned, did not violate portion of Manufactured/Mobile Home LandlordTenant Act protecting tenant's right to assign rental agreement and rendering unenforceable any
contract provision that waives that right. Little Mountain Estates Tenants Ass'n v. Little
Mountain Estates MHC LLC, 169 Wn.2d 265, 236 P.3d 193 (2010) 7/22/10, reversing Little
Mountain Estates Tenants Ass'n v. Little Mountain Estates MHC, 146 Wn. App. 546, 192 P.3d
378 (2008), Div. I, 7/21/08 .
Breach of lease may not terminate tenants’ rights under option to purchase.
Whether commercial tenants and landlord intended that tenants' ability to exercise option to
purchase, which did not explicitly refer to lease, depended on tenants' satisfaction of lease, which
did not implicitly or explicitly refer to option to purchase, was a question of fact under the
circumstances and precluded summary judgment. Ledaura, LLC v. Gould, 155 Wn. App. 786,
237 P.3d 914 (2010) Div. II, 4/27/10 [commercial case].
M/MHLTA doesn’t preempt city ordinance that prohibits RVs in mobile home parks.
City ordinance prohibiting placement of recreational vehicle site for occupancy purposes in
mobile home parks did not conflict with, and thus was not preempted by Manufactured/Mobile
Home Landlord-Tenant Act. Lawson v. City of Pasco, 168 Wn.2d 675, 230 P.3d 1038 (2010)
4/15/10.
Part performance and statute of frauds.
Part performance may support enforcement of an agreement concerning an interest in land that is
otherwise invalid under the statute of frauds. Losh Family, LLC v. Kertsman, 155 Wn. App. 458,
228 P.3d 793 (2010) Div. I, 4/12/2010 [commercial case].
Subsidized housing termination notice was insufficient to maintain unlawful detainer action.
Subsidized housing termination notice didn’t comply with lease and was insufficient because it
failed to indicate the date of termination of tenancy as well as the reasons for termination with
enough specificity to enable the tenant to understand the grounds for termination. Tacoma
5
1.31.14
Rescue Mission v. Stewart, 155 Wn. App. 250, 228 P.3d 1289 (2010) Div. II, 3/10/10.
Eviction summons that violates RCW 59.18.365 fails to confer unlawful detainer jurisdiction.
An eviction summons stating that the defendant could respond to the complaint only by personal
delivery violates RCW 59.18.365 and fails to confer subject matter unlawful detainer
jurisdiction. The case must be dismissed without prejudice. The tenant was not entitled to an
award of reasonable attorney fees. Housing Authority of City of Everett v. Kirby, 154 Wn. App.
842, 226 P.3d 222 (2010) Div. I, 3/8/10.
A judgment on an arbitration award under the RLTA is not appealable.
A judgment entered on an arbitration award in favor of the tenant under the RLTA in the amount
of $45,000 plus an additional $31,275.55 in attorney fees and costs is not appealable to the court
of appeals. The rules governing mandatory civil arbitration do not allow direct appeal from a
judgment. Dill v. Michelson Realty Co., 152 Wn. App. 815, 219 P.3d 726 (2009), Div. I,
10/20/09.
The court may redact a court record of a dismissed unlawful detainer action.
GR 15 authorizes a court to redact a defendant's full name from the record of a dismissed
unlawful detainer action available in SCOMIS. In ruling on a motion to redact the court record,
the court on remand must apply the factors in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 (1982)
and decide whether the interests asserted by the defendant are compelling enough to override the
presumption of openness of court records. Indigo Real Estate Services v. Rousey, 151 Wn. App.
941, 215 P.3d 977 (2009), Div. I, 8/31/09.
Tenant entitled to present evidence in support of defense at show cause hearing.
A tenant who raises a viable legal defense, either in written submissions or during the show cause
hearing, is entitled to testify in support of that defense. The rules of evidence apply to unlawful
detainer show cause hearings, and inadmissible evidence may not be considered. Leda v.
Whisnand, 150 Wn. App. 69, 207 P.3d 468 (2009), Div. I, 5/11/09.
Mobile home park owner waives right to evict by accepting rent after third notice.
A mobile home park owner waived the right to file an unlawful detainer action by accepting rent
after serving third notice to comply or vacate. Commonwealth v. Padilla, 149 Wn. App. 757,
205 P.3d 937 (2009), Div. III, 4/16/09.
Tenant is essential party in unlawful detainer action by purchaser at trustee’s sale.
Tenant of property that was purchased at a nonjudicial foreclosure sale was an essential party to
unlawful detainer action brought by purchaser of property and failure to join tenant as a party
deprived trial court of subject matter jurisdiction. An unlawful detainer action is not moot just
6
1.31.14
because the tenant no longer has possession of the contested premises. Laffranchi v. Lim, 146
Wn. App. 376, 190 P.3d 97 (2008), Div. I, 8/18/08.
Public housing authority can’t violate residents’ constitutional free speech rights.
A public housing authority’s rule prohibiting the posting of signs on the exterior of the door to
the residents’ individual apartments violated tenants’ constitutional free speech rights. Resident
Action Council v. Seattle Housing Authority, 162 Wn.2d 773, 174 P.3d 84 (2008).
CR 6 does not apply to computation of time for pre-lawsuit unlawful detainer notices.
The CR 6 time computation rule that excludes weekends and holidays from time periods less
than seven days, does not apply to the three-day notice to pay rent or vacate served prior to the
commencement of an unlawful detainer action. Christensen v. Ellsworth, 162 Wn.2d 365, 173
P.3d 228, (2007), reversing Christensen v. Ellsworth, 134 Wn. App. 295 (2006).
Lease providing for longer notice period is enforceable; show cause hearing can be used in
commercial unlawful detainer action.
A lease that provides for a longer unlawful notice period than the statutory notice period prior to
commencing an unlawful detainer action is enforceable, commencement of an unlawful detainer
action before expiration of the longer notice period is premature, and the court lacks subject
matter jurisdiction. A plaintiff may use a show cause hearing in a commercial case even though
it’s not specifically authorized by RCW 59.12. IBF, LLC v. Heuft, 141 Wn. App. 624, 174 P.3d
95 (2007), Div. I, 7/23/07.
Pasco ordinance requiring code compliance for rental units is constitutional.
A Pasco ordinance that requires landlords to have a current business license and requires an
inspection certificate for rental units showing compliance with health and safety standards as a
condition for the issuance of the license is not unconstitutional. The ordinance does not violate
the tenants’ federal and state constitutional right to privacy.
City of Pasco v. Shaw, 161 Wn.2d 450, 166 P.3d 1157 (2007).
Defective summons deprives court of subject matter unlawful detainer jurisdiction.
An unlawful detainer summons that failed to comply with RCW 59.18.365 by advising the tenant
that she could respond by mail or facsimile was not in strict compliance with that section and did
not confer subject matter unlawful detainer jurisdiction. Truly v. Heuft, 138 Wn. App. 913, 158
P.3d 1276 (2007), Div. I, 6/4/07.
7
1.31.14
Landlord has affirmative duty to store tenant’s property upon execution of writ.
RCW 59.18.312(1) imposes an affirmative duty on a landlord to store a tenant's personal
property in a reasonably secure place upon the execution of a sheriff's writ of restitution, unless
the tenant objects. Parker v. Taylor, 136 Wn. App. 524, 150 P.3d 127 (2007), Div. III, 1/4/07.
Failure to award attorney fees to tenant’s pro bono attorneys is abuse of discretion.
Trial court's denial of tenant's attorney fees request following landlord's voluntary dismissal of
unlawful detainer action was abuse of discretion, notwithstanding fact that tenant's attorneys
were working pro bono. Council House v. Hawk, 136 Wn. App. 153, 147 P.3d 1305 (2006), Div.
I, 12/11/06.
Manufactured/Mobile Home Landlord-Tenant Act rental agreement that automatically reverts to
month-to-month tenancy after initial one-year term violates the Act and gives rise to a Consumer
Protection Act claim.
A form rental agreement that was drafted and disseminated by Manufactured Housing
Communities of Washington and that purported to waive the right of the tenant to automatic
renewal for successive one-year terms violated the Manufactured/Mobile Home Landlord-Tenant
Act. Affected tenants had legal standing to pursue a Consumer Protection Act claim against
MHCW. Holiday Resort Community Ass’n v. Echo Lake Assocs LLC, 134 Wn. App. 210, 135
P.3d 499 (2006), Div. I, 5/22/06, petition for rev. denied.
Court could not enter monetary judgment after alternative service under RCW 59.18.055.
A tenant did not submit to personal jurisdiction by sending a written response requesting further
notice of proceedings after alternative service of an eviction summons pursuant to RCW
59.18.055. The court lacked personal jurisdiction over the tenant for an award of monetary
damages. Negash v. Sawyer, 131 Wn. App. 822, 129 P.3d 824 (2006), Div. I, 3/6/06.
Tenant challenging landlord allegation of material noncompliance with lease terms is entitled to a
trial.
A public housing tenant who challenges her landlord’s allegation of material noncompliance with
her lease terms is entitled to a trial in an unlawful detainer action. The issue of whether the
housing authority had the right to terminate the tenancy should not have been summarily resolved
at a show cause hearing. The tenant’s decision to move out of the property after service of the
writ did not render the case moot. Housing Authority v. Pleasant, 126 Wn. App. 382, 109 P.3d
422 (2005), Div. III, 3/15/05.
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Public housing authority may not lock out residential tenants; tenancies not excluded from
RLTA. 20-day no-cause termination notice may be permissible.
No landlord, including one not governed by the RLTA, may ever use nonjudicial self-help to
remove a tenant. A public housing authority that operates a housing program that includes
educational services is not excluded from RLTA coverage. Use of 20-day notices to terminate
tenancy without cause does not violate due process under the facts and circumstances of this
case. Gray, et al. v. Pierce County Housing Authority, 123 Wn. App. 744, 97 P.3d 26 (2004),
Div. II, 8/31/04.
Assignment of lease raises jurisdictional issue in unlawful detainer action.
Although the court has no unlawful detainer jurisdiction over a tenant that absolutely assigns its
lease to an assignee and thus no longer possesses the premises, it may have unlawful detainer
jurisdiction over that tenant when the assignment is invalid. An assignee may not possess the
rental property under “color of title” when it knows the title is invalid. Bellevue Square
Managers, Inc. v. GRS Clothing, Inc., 124 Wn. App. 238, 98 P.3d 498 (2004), Div. I, 8/23/04
[commercial case].
Mobile home park owner may evict for repeated rental agreement or rule violations without
mediation.
The Manufactured/Mobile Home Landlord-Tenant Act does not impose a mediation requirement
on a mobile home park owner who seeks to evict a tenant for repeated rental agreement or rule
violations under RCW 59.20.080(1)(h). Mediation is only required and its absence is only a
defense in an unlawful detainer action in evictions under RCW 59.20.080(1)(a). See RCW
59.18.080(2). Hartson Partnership v. Martinez, 123 Wn. App. 36, 96 P.3d 449 (2004), Div. I,
8/23/04.
Landlord need not accommodate untrained service animal.
A landlord may not be required to permit a disabled person to have a dog that does not meet the
statutory definition of a “service animal.” Under RCW 49.60.040(23) and WAC 162-26-040, a
“service animal” must be “trained for the purpose of assisting or accommodating a disabled
person’s sensory, mental, or physical disability.” A landlord’s refusal to permit a disabled person
to have an untrained dog is not unlawful discrimination. Timberlane Mobile Home Park, et al. v.
Wash. State Human Rights Comm., 122 Wn. App. 896, 95 P.3d 1288 (2004), Div. II, 8/17/04.
Guilty plea may not have preclusive effect in civil case.
A criminal conviction that results from an Alford plea does not have preclusive or collateral
estoppel effect in a subsequent civil action that concerns the same issues as those in the criminal
case. A plea of guilty is admissible in a subsequent civil action on the independent ground that it
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is an admission. Clark v. Baines, 150 Wn.2d 905, 84 P.3d 245 (2004), Supreme Court, 2/5/04
[civil action for malicious prosecution].
Unlawful detainer action based on illegal lease is subject to dismissal.
The court may decline a judicial disposition of the parties' debts, entitlements, or obligations and
may dismiss an unlawful detainer action for nonpayment of rent when the action is based on a
lease that is void against public policy and illegal. Fallahzadeh v. Ghorbanian, 119 Wn. App.
596 (2004), 82 P.3d 684 (2004), Div. I, 1/5/04. [commercial case].
Tenants have a remedy for personal injury damages under the RLTA.
A tenant may pursue a claim for tort damages for a landlord’s violation of its obligations under
the Residential Landlord-Tenant Act. To the extent that it limited the tenant’s remedies for
violations of landlord obligations under RCW 59.18.060 to only those remedies specifically set
forth in the Act, Dexheimer v. CDS, Inc., 104 Wn. App. 464, (2001) is overruled. Tucker v.
Hayford, 118 Wn. App. 246, 75 P.3d 980 (2003), Div. III, 9/4/03.
A landlord may be liable for damages for breach of the warranty of habitability.
A landlord may be liable for physical harm to a tenant caused by the landlord's failure to make
repairs. Liability may be based on RESTATEMENT (SECOND) OF PROPERTY (Landlord &
Tenant) § 17.6 (1977) if there is a dangerous condition of which he is or should be aware and it
violates either an implied warranty of habitability or a duty created by statute or administrative
regulation. Lian v. Stalick, 115 Wn. App. 590, 62 P.3d 933 (2003), Div. III, 2/11/03.
Tenants have the right to have invitees and guests.
A landlord may not prevent a tenant's invitees or licensees from entering the tenant's premises by
passing through the common areas. An invitee or licensee who does so, even after a specific
prohibition by the landlord, is not a trespasser. City of Bremerton v. Widell, 146 Wn.2d 561, 51
P.3d 733 (2002), 6/6/02.
Discrimination may be a defense in an unlawful detainer action.
A tenant may assert discrimination that arises out of the tenancy as a defense in an unlawful
detainer action, including an unlawful detainer action based on nonpayment of rent.
Discrimination may include the failure to reasonably accommodate a disabled tenant.
Josephinium Assoc. v. Kahli, 111 Wn. App. 617, 45 P.3d 627 (2002), Div. I, 5/6/02.
Public housing authority has discretion to evict innocent tenants for drug activity.
A public housing authority has the discretion under federal law to evict tenants for drug-related
activity engaged in by certain third parties even if the tenants did not personally engage in the
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activity or have knowledge about it. The court did not consider whether state law might provide
an "innocent tenant" defense. Department of Housing & Urban Development v. Rucker, 122 S.
Ct. 1230 (2002) 3/26/02.
Landlord must keep common areas reasonably safe from hazards.
A landlord must exercise reasonable care to keep all common areas reasonably safe from hazards
likely to cause injury, including the removal of ice and snow. The landlord must have actual or
constructive notice of the condition or the condition must be foreseeable and there must be a
reasonable time to alleviate the situation. The tenant's knowledge of the hazardous condition
does not, in itself, relieve the landlord of the duty. Mucsi v. Graoch Assoc. Ltd. Partnership, 144
Wn.2d 847, 31 P.3d 684 (2001), 9/27/01.
CR 6 governs computation of time in an unlawful detainer action.
Civil Rule 6 applies to the computation of time for the return date on an unlawful detainer
summons. The Court stated that an unlawful detainer plaintiff must always use a summons that
is returnable a minimum of seven days from the date of service (8, 9, 10, 11, or 12 days is
acceptable as well). This would apply to orders to show cause as well and presumably to
reinstatement rights under RCW 59.18.410. Canterwood Place L.P., v. Thande, 106 Wn. App.
844, 25 P.3d 495 (2001), Div. I, 6/25/01.
Tenant may recover for personal injuries under common law negligence theories.
While a tenant may not be able to recover damages for personal injury based on breach of the
implied warranty of habitability under the Residential Landlord-Tenant Act, the tenant may still
pursue a claim for damages under common law negligence theories. Lian v. Stalick, 106 Wn.
App. 811, 25 P.3d 467 (2001), Div. III, 6/19/01.
Landlord's duty to protect tenant from criminal conduct may be limited.
The owner of an individual condominium unit as landlord does not have a duty to protect or warn
a tenant about foreseeable criminal conduct on the premises of the complex when the owner of
the condominium has no control over the common areas. Faulkner v. Raquetwood Village, et al.,
106 Wn. App. 483, 23 P.3d 1135 (2001), Div. I, 6/04/01
Landlord's breach of the covenant to repair may give rise to tort liability.
A tenant may recover for personal injuries caused by the landlord's breach of a repair covenant in
the lease if the unrepaired defect created an unreasonable risk of harm to the tenant. Brown v.
Hauge, 105 Wn. App. 800, 21 P.3d 716 (2001), Div. III, 4/19/01
[commercial case].
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Acceptance of rent waives right to proceed with unlawful detainer action; moving party may be
awarded terms on a motion to vacate default.
A landlord waives its right to proceed with an unlawful detainer action when it accepts rent after
the action is commenced. The primary factors in a motion to vacate are a prima facie
meritorious defense and a failure to timely appear due to mistake, inadvertence, surprise, or
excusable neglect. The moving party may be awarded terms if successful. Housing Authority of
Grant County v. Newbigging, 105 Wn. App. 178, 19 P.3d 1081 (2001), Div. III, 3/08/01.
Premises liability.
Court need not decide whether a residential landlord is legally obliged to protect its tenants from
the foreseeable criminal acts of third persons when a jury has found that the landlord's negligence
was not a proximate cause of the tenant's injuries. Reversing Griffin v. West RS, Inc., 97 Wn.
App. 557, 984 P.2d 1070 (1999). Griffin v. West RS, Inc., 143 Wn.2d 81, 18 P.3d 558 (2001),
2/22/01.
Mobile home park owner may violate CPA by blocking sale of tenant's mobile home.
A mobile home park owner may be found liable for damages under the Mobile Home LandlordTenant Act, the Consumer Protection Act, and tort law by unreasonably refusing to permit the
sale of a tenant's mobile home. Ethridge v. Hwang, 105 Wn. App. 447, 20 P.3d 958 (2001), Div.
I, 2/12/01.
A landlord waives the right to forfeit a lease for nonpayment by accepting later rental payments.
If a tenant fails to pay rent and the landlord accepts later rental payments, the landlord has waived
a right under the unlawful detainer act to declare forfeiture for nonpayment. A landlord may
declare a forfeiture for an older, continuing breach or any new breach. Under Munden v.
Hazelrigg, 105 Wn.2d 39 (1985) the court could enter a judgment for the older rents due after
ruling for the tenant on the issue of possession. MH 2 Company v. Hwang, 104 Wn. App. 680,
16 P.3d 1272 (2001), Div. III, 2/01/01,
[commercial case].
A tenant's claim against the landlord must be based on either the rental agreement, the common
law, or the Residential Landlord-Tenant Act.
A tenant's claim against the landlord for personal injuries must be based either on the rental
agreement (breach of contract), the common law, or the Residential Landlord-Tenant Act.
Monetary damages are not available for a breach of the landlord's duties under RCW 59.18.060.
Dexheimer v. CDS, Inc., 104 Wn. App. 464, 17 P.3d 641 (2001), Div. III, 1/25/01.
Landlord is entitled to immediate issuance of a writ of restitution when a tenant fails to comply
with RCW 59.18.375.
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1.31.14
A mobile home park landlord is entitled to issuance of a writ of restitution at a show cause
hearing when the mobile home park tenant fails to comply with the requirements of RCW
59.18.375 by either submitting to the court a sworn statement that the rent alleged due is not
owed, or paying at least the undisputed rent and charges to the court clerk. [The court's further
statement that the landlord was entitled to a judgment in addition to the writ conflicts with the
express language of RCW 59.18.375(3) that a tenant has a right to a hearing to contest the
amount of rent alleged to be due]. Duvall Highlands LLC v. Elwell, 104 Wn. App. 763, 19 P.3d
1051 (2001), Div. I, 1/8/01.
Mobile Home Landlord-Tenant Act does not bar changes in fees, charges, rules, or regulations.
The Mobile Home Landlord-Tenant Act does not prohibit a park owner from increasing or
adding fees or charges, including utility charges, after an initial lease is signed or prohibit a
landlord from changing rules and regulations when the rules signed by the tenant reserve the right
to amend the rules upon written notice. McGahuey v. Hwang, 104 Wn. App. 176, 15 P.3d 672
(2001), Div. I, 1/8/01.
Acceptance of partial payment did not waive right to proceed with eviction; tenant lacked basis
for vacating default judgment.
A landlord did not waive her right to proceed with an unlawful detainer action by accepting a
payment that covered only partial rent when the payment was sent by a third party, received after
expiration of the pay or vacate notice, and applied to unpaid utility charges. A tenant's claim that
she was upset and could not understand the summons and complaint was an insufficient basis for
vacating a default judgment. Hwang v. McMahill, 103 Wn. App. 945, 15 P.3d 172 (2000), Div.
I, 12/26/00.
Tenants' right of first refusal to purchase mobile home park violates state constitution.
The right of first refusal to purchase their mobile home parks granted to park tenants by RCW
59.23 violates the eminent domain provisions of the Washington State constitution. Those
provisions are more protective of private property rights than the Fifth Amendment to the United
States Constitution. Manufactured Housing Communities of Washington v. State, 142 Wn.2d
347, 13 P.3d 183 (2000), 11/9/00.
Nuisance claim may require knowledge, consent, or involvement of tenant.
Abatement of a drug-related nuisance may violate the constitutional rights of a property owner if
the drug activity did not occur with the owner's knowledge, consent, or involvement [Not a
landlord-tenant case, but discusses vicarious liability of commercial property owner for nuisance
and related constitutional issues]. City of Seattle v. McCoy, 101 Wn. App. 815, 4 P.3d 159
(2000), Div. I, 7/17/00.
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Eviction from mobile home park for criminal activity.
Eviction for criminal activity under the Mobile Home Landlord-Tenant Act is limited to eviction
of the person who committed the crime. Forfeitures are not favored in unlawful detainer
proceedings. Issuance of the writ of restitution at a show cause hearing was premature when the
tenant had placed in issue the question of whether he was personally engaged in criminal activity.
Hartson Partnership v. Goodwin, 99 Wn. App. 227, 991 P.2d 1211 (2000), Div. I, 1/31/00.
Expiration of lease and just cause eviction and retaliation.
The City of Seattle's Just Cause Eviction Ordinance and the rebuttable presumption of retaliatory
eviction do not apply to a lease for a specified time that expires at the end of its term. Unlawful
detainer show cause hearings do not violate a tenant's right to a jury trial or procedural due
process. Carlstrom v. Hanline, 98 Wn. App. 780, 990 P.2d 986 (2000), Div. I, 1/10/00.
Premises liability.
A special relationship exists between a residential landlord and tenant giving rise to a duty to
protect the tenant from the foreseeable criminal acts of third persons on the premises. The duty
includes the duty to maintain common areas safely. Griffin v. West RS, Inc., 97 Wn. App. 557,
984 P.2d 1070 (1999), Div. I, 10/4/99.
Late charges.
A mobile home park late fee of $2.00 a day is a permissible liquidated damages clause and not a
penalty. Buchanan v. Kettner, 97 Wn. App. 370, 984 P.2d 1047 (1999), 8/13/99.
Proof of service of unlawful detainer notice.
A landlord must strictly comply with the statutory requirements for service of unlawful detainer
notices. A hearsay affidavit of service of the unlawful detainer notice is admissible at trial to
establish compliance with the service requirements contained in RCW 59.12.040 when receipt of
the notice is not disputed. Marsh-McLennan Building, Inc. v. Clapp, 96 Wn. App. 636, 980 P.2d
311 (1999), 7/19/99.
Lease terms and holdover tenancies.
Absent an agreement to the contrary, the terms of an expired written lease, including terms
regarding attorneys’ fees, apply to an oral month-to-month tenancy commenced after termination
of the written lease. Marsh-McLennan Building, Inc. v. Clapp, 96 Wn. App. 636, 980 P.2d 311
(1999), 7/19/99.
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1.31.14
Equitable defenses.
A commercial tenant may assert an affirmative equitable defense in an unlawful detainer action
that its eviction by its governmental landlord was in retaliation for its exercise of its First
Amendment free speech rights. Port of Longview v. IRM, Ltd., 96 Wn. App. 431, 979 P.2d 917
(1999), 7/9/99 [commercial case].
Tenant’s right to exclude others.
Where one spouse is the sole tenant, his or her right to exclusive possession of leased premises
and the right to exclude others including a spouse, is not affected by the fact that the premises
may later be determined to have some community property character.
City of Bellevue v. Jacke, 96 Wn. App. 209, 978 P.2d 1116 (1999), 6/21/99.
Just cause eviction.
A Seattle public housing tenant is entitled to dismissal of an unlawful detainer action based on
habitual failure to comply with material lease terms when he has only received two 10-day
notices to comply or vacate within a 12-month period. Seattle’s just cause eviction ordinance
requires three such notices within a 12-month period. Housing Authority v. Silva, 94 Wn. App.
731, 972 P.2d 952 (1999), 3/15/99.
Fair Debt Collection Practices Act.
A three-day rent demand notice issued by a landlord’s attorney as a prerequisite to a summary
eviction proceeding is a “communication” to collect a debt within the meaning of the Fair Debt
Collection Practices Act. Romea v. Heiberger & Assoc., 163 F.3d 111 (2nd Cir. 1998), 12/9/98.
Eviction by purchaser at tax foreclosure sale.
The purchaser at a tax foreclosure sale was required to establish title superior to the taxpayer’s
“color of title” under a statutory warranty deed before proceeding with an unlawful detainer
action under RCW 59.12.030(6). The foreclosure sale purchaser’s appropriate remedy is an
action for ejectment and quiet title under RCW 7.28. Puget Sound Inv. Group, Inc. v. Bridges,
92 Wn. App. 523, 963 P.2d 944 (1998), 9/28/98.
Attorney fees.
RCW 4.84.330 may authorize an award of reasonable attorney fees to the prevailing party,
notwithstanding the limitations on attorney fees specified in RCW 59.18.230(2)(c). Wright v.
Miller, 93 Wn. App. 189, 963 P.2d 934 (1998), 9/14/98.
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1.31.14
Pro se landlords.
A corporation may not appear in court unless it is represented by a person who is licensed to
practice law. Probably applies to partnerships and associations as well. Lloyd Enters. v.
Longview Plumbing, 91 Wn. App. 697, 958 P.2d 1035 (1998), 7/20/98.
Acceptance of rent as waiver.
A landlord does not waive defaults in rent by accepting rent after a three-day notice if he applies
the receipts to the earliest rent first and there is still some rent owing for the period before the
notice. Housing Resources Group v. Price, 92 Wn. App. 394, 958 P.2d 327 (1998), 5/18/98.
Subject matter unlawful detainer jurisdiction.
Court lacks subject matter unlawful detainer jurisdiction to adjudicate an eviction based on
breach of a lease agreement when the notice issued by the landlord did not contain a 10-day
alternative to cure the alleged lease violations. The parties cannot confer subject matter
jurisdiction by agreement or stipulation. Sullivan v. Purvis, 90 Wn. App. 456, 966 P.2d 912
(1998), 3/23/98.
Oral modification of lease.
A lease clause prohibiting oral modification is unenforceable. Pacific Northwest Group A v.
Pizza Blends, Inc., 90 Wn. App. 273, 951 P.2d 826 (1998), 3/2/98.
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1.31.14
LANDLORD-TENANT LEGISLATION – 2013
Tenant Screening – Ch. 54, Laws of 2013, SSB 5568 – Effective Jan. 1, 2014
A tenant screening service provider may not (a) disclose a tenant's, applicant's, or household
member's status as a victim of domestic violence, sexual assault, or stalking, or (b) knowingly
disclose that a tenant, applicant, or household member has previously terminated a rental
agreement under RCW 59.18.575.
Landlord Duties – Ch. 35, Laws of 2013, ESHB 1647 – Effective July 28, 2013
RCW 59.18.060 is amended to provide that the landlord must maintain and safeguard with
reasonable care any master key or duplicate keys to the dwelling unit.
Tenant Screening - Ch. 41, Laws of 2012, SSB 6315 – Effective June 7, 2012
Prior to screening a prospective tenant and charging a screening fee the prospective landlord
must first notify the prospective tenant what types of information will be accessed to conduct the
tenant screening; what criteria may result in the denial of the application; and the name and
address of the consumer reporting agency, if used; and the prospective tenant's right to obtain a
free copy of the consumer report in the event of an adverse action and to dispute the accuracy of
information in the consumer report. If an adverse action is taken, the prospective landlord must
provide this information to the prospective tenant in writing, in a form substantially similar to the
one prescribed by statute.
Manufactured/Mobile Home Landlord-Tenant Act Amendments
Ch. 213, Laws of 2012, SHB 2194 – Effective June 7, 2012
The required contents of a rental agreement are expanded to include a written description of the
tenant's responsibility for utility hook-ups. A specific statement is added that any prohibited
provision that is included in a rental agreement is unenforceable. A landlord may not prohibit a
tenant from posting on the tenant's home or lot a commercially reasonable "for sale" sign. A
landlord may enforce reasonable rules on signage. A landlord may not prohibit tenants from
distributing information or holding meetings in a tenant's home to discuss issues relating to
mobile home living and affairs. In addition, a landlord may not evict a tenant or fail to renew a
rental agreement where a tenant files a complaint with the federal government regarding a
landlord's violation of statutes or rules.
A tenant who sells his or her home and assigns the rental agreement must notify the purchaser of
all taxes, rent, and reasonable expenses due on the manufactured/mobile home or park model and
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1.31.14
the mobile home lot. When a landlord notifies a tenant that the tenancy will be terminated unless
the tenant ceases to engage in a nuisance or other conduct that endangers the health, welfare, or
safety of residents, the notice must describe the particular nuisance or harmful conduct and what
the tenant must do to cease the nuisance or harmful conduct. A provision is added explicitly
stating that a tenancy may be terminated for rules violations only with respect to enforceable
rules.
The requirement that a landlord commence remedial action within 48 hours after receiving notice
of his or her failure to provide water or heat is revised by removing the reference to heat and
including electricity and sewer or septic service. Definitions of "mobile home park," "park
model," and "recreational vehicle" in the chapter governing the Manufactured/Mobile Home
Dispute Resolution Program are amended to be consistent with the definitions of those terms in
the MMHLTA.
Ch. 132, Laws of 2011, SHB 1266 – Effective July 22, 2011
These are selected amendments. Review the session law for all amendments.
Landlord cannot rent premises that lack adequate facilities to supply heat, water, and hot water.
RCW 59.18.060(10).
Long-arm jurisdiction now available in small claims court in actions against out of state owners
for violations of RCW 59.18, including recovery of damage deposits. RCW 59.18.060(14).
Landlord required to give receipt for all cash payments by tenant. RCW 59.18.063 (Note:
identical change made to M/MHLTA, 59.20.134).
Landlord must provide a copy of any written rental agreement to each tenant who signs it. The
tenant may request one free replacement copy during the tenancy. RCW 59.18.065.
Doubles the amount a tenant can deduct from rent under “repair and deduct” section to two
months’ rent for contract repairs and one month’s rent for self-help repairs. RCW 59.18.100(2),
(3).
Removes one month’s rent limit on cost of repairs that a court or arbitrator can authorize a tenant
to make and deduct from rent. RCW 59.18.110(1)(b).
Landlord must provide written notice indicating specific times for landlord’s entry. RCW
59.18.150(6).
Landlord who deliberately includes a provision in the rental agreement that he or she knows is
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1.31.14
prohibited by RCW 59.18.230(2) may be liable for statutory damages up to $500 in addition to
actual damages, costs of suit, and reasonable attorney fees. RCW 59.18.230(3).
Damages for the intentional detention of a tenant’s property increased from $100 to $500 a day
up to a maximum of $5,000 in addition to actual damages. RCW 59.18.230((4).
Landlord may not withhold a tenant’s holding fee or deposit if the unit fails a Section 8 or other
tenant-based housing assistance inspection. RCW 59.18.253(3)(c). Penalties for violations of
RCW 59.18.253 increased from $100 to two times the fee or deposit. RCW 59.18.253(4).
Tenant has right to request one free replacement copy of move-in checklist. RCW 59.18.260.
A landlord who is foreclosed upon and who does not transfer the tenant’s deposit to the new
owner or return the deposit to the tenant, is liable to the tenant for double the damage deposit.
RCW 59.18.270.
Landlord is liable to the tenant for any nonrefundable fee collected if the landlord fails to provide
a written rental agreement. RCW 59.18.285.
In case of abandonment by a tenant, the landlord may sell or dispose of a tenant’s property after
seven days’ notice if the property has a cumulative value of $250 or less
(increased from $50). RCW 59.18.310(2)(b).
Property stored when a writ of restitution is enforced may be sold after 30 days’ notice if the
property has a value that is more than $250 (increased from $100) and disposed of or sold after
seven days’ notice if it has a cumulative value of $250 or less (increased from $100). RCW
59.18.312(3).
Defendant may stay writ issued prior to final judgment by paying all rent found to be due and
continue paying monthly rent pending final judgment (eliminates requirement that the defendant
pay all of the costs of the action). RCW 59.18.380.
Court must consider rent due and other relevant factors in setting the amount of the bond to stay
the writ of restitution where the LL used alternative service under RCW 59.18.055 and no
judgment was entered. RCW 59.18.390.
Tenant also has a right to reinstate a tenancy in an eviction based upon nonpayment of rent when
the writ of restitution is issued pursuant to final judgment at a
show cause hearing. RCW 59.18.410.
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Ch. 135, Laws of 2010 - Effective June 10, 2010
RCW 35.21 is amended to provide that a city or town utility must provide electric power and
light or water services to an affected tenant upon request on the same terms and conditions as
other utility customers, without requiring that the tenant pay delinquent amounts for services
billed directly to the property owner or previous tenant. In these cases, the tenant may deduct
from the rent due all reasonable charges paid by the tenant to the city or town for such services,
and a landlord may not take reprisals or retaliatory action against a tenant who deducts from their
rent payments for these purposes. Utility lien rights against some rental properties are modified.
Ch. 148, Laws of 2010 – Effective June 10, 2010
RCW 59.18 is amended to provide that local municipalities may require that landlords obtain a
certificate of inspection of rental property as a business license condition. Fire officials may
obtain search warrants for inspection of common areas or individual dwelling units upon
probable cause.
SHB 1663 – Relocation assistance for tenants in transient accommodations.
Effective July 26, 2009
Extends relocation assistance benefits for tenants displaced by code enforcement to tenants in
hotels, motels, and other transient accommodations. Prohibits waiver of rights and interruption
of occupancy to avoid protections.
SHB 1856 – Protecting tenants from unwanted harassment.
Effective July 26, 2009.
Provides protection for tenants who are victims of unwanted harassment including special
protections who are victims of unwanted harassment by the landlord or its employees or agents.
ESB 5810 – Protection for residential tenants in foreclosed property.
Amends the deed of trust act to provide additional notice to tenants of the consequences of a
nonjudicial deed of trust foreclosure on residential property and requires the purchaser at the
trustee’s sale to either offer the tenant a rental agreement or give a 60-day notice to vacate to
tenants after the trustee’s sale.
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1.31.14
Public Law 111-22, Title VII – Protecting Tenants at Foreclosure Act of 2009.
Effective May 20, 2009.
Purchaser at foreclosure sale of federally-related mortgage must honor bona fide lease for the
remainder of the lease term or provide a bona fide tenant without a lease a minimum notice to
vacate of 90 days, unless the purchaser intends to occupy the premises as a primary residence.
Section 8 tenants are provided with additional protections. The law does not preempt state or
local laws that provide additional protections for tenants
E2SHB 1621 – Preserving manufactured/mobile home communities. Effective
June 12, 2008.
http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/Session%20Law%202008/1621S2.SL.pdf
Provides for a real estate excise tax exemption for park owners who voluntarily sell the
community to tenant organizations. The community owner required to provide a notice to the
tenants within 14 days after the property is put up for sale.
ESHB 1865 – Disposition of tenant’s property after execution of writ of
restitution.
Effective June 12, 2008.
http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/Session%20Law%202008/1865S.SL.pdf
RCW 59.18.312 is amended to authorize the tenant to make written request to the landlord in
order to require the landlord to store the tenant’s property after a writ of restitution is issued.
Additional protections for tenants who are “disabled”, i.e., a duty to store is imposed on the
landlord who knows of the disability. If tenant does nothing, landlord has the option of storing
the property or putting it on the street.
SHB 2014 – Condominium conversions.
Effective August 1, 2008.
Increases the time period for notice of a conversion and dispossession to 120 days. Allows local
jurisdictions to require relocation assistance in an amount not to exceed three months of the
tenant’s rent. Limits construction work that can be done while tenants are still in occupancy.
21
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HB 2791 – Concerning distressed property conveyances – foreclosure rescue
scams. Effective date: June 12, 2008.
http://apps.leg.wa.gov/documents/billdocs/200708/Pdf/Bills/Session%20Law%202008/2791.SL.pdf
Provides protections for homeowners who are parties to distressed home conveyances. In an
unlawful detainer action involving a distressed home, the plaintiff (purchaser) must disclose to
the court whether the defendant previously held title to the distressed home and explain how the
purchaser came to acquire title. There may not be a rent escrow requirement pending trial and
there should be a stay pending consolidation with a quiet title action.
SSB 6060 – Unlawful detainer process involving non-payment of rent.
RCW 59.18.375 is amended to require that the notice requiring the tenant to pay the disputed rent
into the court registry or file a sworn statement must be in a separate pleading document. This
notice can only be used in filed cases. If a writ of restitution is issued for noncompliance with
this section, the tenant has the right to seek an immediate stay of the writ as long as the tenant
can show that the landlord is not entitled to possession of property due to a legal or equitable
defense. The tenant retains the right to reinstate the tenancy under RCW 59.18.410.
E2SHB 1461 – Addressing manufactured/mobile home community
registrations and dispute resolution. Effective July 22, 2007 (partial veto).
http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/Session%20Law%202007/1461S2.SL.pdf
A new program for resolving manufactured/mobile home disputes is established in the Attorney
General’s Office. The Attorney General will take complaints from manufactured/mobile home
tenants and landlords; investigate complaints; and attempt to negotiate an agreement. If no
agreement can be reached, the Attorney General may make written determinations about whether
a violation has occurred and deliver a citation, if necessary, to any violator. The Attorney
General may issue a fine up to a maximum of $250 a day per violation until the violation is
corrected. Determinations, citations, fines, other penalties and orders to cease and desist may be
contested through an administrative hearing before an administrative law judge.
22
1.31.14
SHB 1805 – Increasing the homestead exemption to $125,000.
The value of the real property homestead exemption limit is increased to $125,000.
Manufactured homes are specifically added as a type of homestead property in the provision that
sets the exemption limit. The homestead exemption does not apply to debts for sales and use
taxes that are collected and held in trust by the property owner but not remitted to the
Department. A Department tax warrant for unpaid taxes becomes a lien on the value of the
homestead property in excess of the homestead exemption limit from the time the tax warrant is
filed in superior court.
SSB 6157 – Offender reentry. Effective July 22, 2007.
http://www.leg.wa.gov/pub/billinfo/2007-08/Pdf/Bills/Senate%20Passed%20Legislature/6157S.PL.pdf
Part IV of the bill directly addresses housing for offenders. Sec. 602 protects landlords from
liability for renting to offenders where they disclose that they rent to offenders to all their
residents; and take immediate steps to report or halt any criminal activity that they have
knowledge of. Sec. 603 encourages PHAs to review admission policies as they relate to
offenders. Sec. 604 creates a CTED pilot project to provide transitional housing assistance to
offenders which is funded in the budget at $3.6M.
SSB 6572 (C 51 L 06) Amending RCW 59.18.365 and RCW 59.18.375.
http://www.leg.wa.gov/pub/billinfo/2005-06/Pdf/Bills/Session%20Law%202006/6572-S.SL.pdf
Clarifies that a tenant has seven days after being notified that an unfiled unlawful detainer action
has been filed in which to comply with RCW 59.18.375 by either paying the amount of rent
alleged due in the complaint to the court clerk or, alternatively, filing a sworn statement with the
court clerk denying that the amount of rent alleged due in the complaint is owed. The notice of
payment or sworn statement may be served on the landlord or landlord’s attorney, if represented,
by facsimile.
SSB 6851 (C 296 L 06) Revising notice requirements for closure of mobile
home parks and manufactured housing communities. Effective June 7, 2006
Landlords must meet additional requirements for the notice of mobile home park closures or
23
1.31.14
conversions sent to the state Department of Community, Trade, and Economic Development
(CTED). The notice must include a list of the names and mailing addresses of the current
registered park tenants and must be sent by the landlord to CTED within 10 business days. After
receiving the landlord's notice, CTED is required to send every tenant an application and
information on relocation assistance within 10 business days. In addition to the existing statutory
requirements, rental agreements for mobile home tenancies must also include the following
statement verbatim: "The park may be sold or otherwise transferred at any time with the result
that subsequent owners may close the mobile home park, or that the landlord may close the park
at any time after the required notice." This statement must be in bold and located directly above
the tenant's signature on the rental agreement.
ESHB 2661 (C4 L 06) The Washington Law Against Discrimination is
amended to prohibit discrimination based on sexual orientation, including
discrimination in rental transactions. Effective June 7, 2006
The Law Against Discrimination is expanded to prohibit discrimination based on a person's
sexual orientation. "Sexual orientation" is defined as heterosexuality, homosexuality, bisexuality,
and gender expression or identity. "Gender expression or identity" is defined as having or being
perceived as having a gender identity, self-image, appearance, behavior, or expression, whether
or not that gender identity, self-image, appearance, behavior, or expression is different from that
traditionally associated with the sex assigned to that person at birth. Real estate transactions that
include the sharing, rental, or sublease of a dwelling unit when the dwelling unit is to be
occupied by the owner or subleasor are exempted from the Law Against Discrimination
(Synopsis from Final Bill Report).
SHB 1393 (C 399 L 05) Regulating movement of older mobile homes and
increasing the relocation assistance cap. Effective July 24, 2005.
A certificate from the Department that mobile homes constructed before June 15, 1976 meet
Department safety rules is required before movement of the mobile home on public highways.
There are two exceptions: first, an exception to this requirement, in the form of an affidavit
signed under penalty of perjury by the owner, is made for mobile homes being transferred for
disposal; second, an exception is made for owners who sign an affidavit at the county treasurer's
office at the time of the application for the moving permit that they are moving the home for their
continued occupation or use. No change is made with respect to the timing of an installation
inspection. The amended bill requires that by January 1, 2006, the Department adopt procedures
to notify destination local jurisdictions about the arrival of mobile homes that failed safety
inspections.
24
1.31.14
Increases the relocation assistance cap available from the Department of Community, Trade and
Economic Development to mobile home owners who are forced to move their homes due to park
closure or conversion to another use from $7,000 for a double-wide home to $12,000, and from
$3,000 for a single-wide to $7,500.
ESHB 1640 (C 429 L 05) Providing a dispute mechanism for manufactured/
mobile home landlord and tenant disputes. Effective May 13, 2005.
This law: (1) temporarily expands the existing ombudsman service provided to mobile home
park owners and mobile home park tenants and managed by the Department of Community,
Trade and Economic Development (DCTED) to resolve disputes between landlords and tenants;
(2) requires manufactured/mobile home communities to register with the DCTED; (3) imposes a
registration fee on manufactured/mobile home communities to fund the expanded ombudsman
program; (4) the expanded ombudsman program, the registration program, and all reporting
requirements sunset on December 31, 2005 with the exception that the DCTED may continue
after this date to collect any uncollected registration fees.
By December 31, 2005, the DCTED will submit a summary report of its activities during the
period after the effective date of this act, and December 31, 2005, to the House Housing
Committee and the Senate Committee of Financial Institutions, Housing and Consumer
Protection. This report will include:
•
•
•
•
•
•
number of complaints received;
nature and extent of complaints received;
actions taken by the DCTED on each complaint;
recommendations on future changes in law;
recommendations on resources necessary to retain or improve the ombudsman
program; and
recommendations on whether and how an administrative hearing process should be
adopted.
SSB 5479 (C 130 L 05) Changing provisions relating to the unlawful detainer
process under the residential landlord-tenant act. Effective July 24, 2005.
Under this law, in an unlawful detainer action, a summons, as well as an order to show cause, must
provide a return date on a specified date, which is at least 7 and not more than 30 days from the date
of service. Defendants may serve, in reply to an eviction summons, a copy of an answer, notice of
appearance, or a sworn statement regarding non-payment of rent by fax. Service by fax is complete
upon successful transmission to the number provided on the summons.
25
1.31.14
ESSB 5577 (C 364 L 05) Requiring relocation assistance payments to tenants
displaced by code enforcement. Effective July 24, 2005.
Under the RLTA, a statutory procedure is created to provide relocation assistance to tenants of
dwellings that fail to meet the health and safety standards. This procedure provides that, if a
landlord has been notified that a dwelling is to be condemned or is uninhabitable due to conditions
in violation of applicable health and safety laws, the landlord is required to pay relocation assistance
to the displaced tenants. Relocation assistance will be the greater of 2,000 dollars per dwelling unit
or three times the monthly rent. Landlords are not required to pay relocation assistance in the event
the damage resulting in the condemnation or no occupancy order is: (1) directly the result of a
tenant or third party's illegal conduct of which the landlord had no prior knowledge; (2) due to
natural disasters; or (3) the result of an eminent domain action. Between the time a landlord is
given notice of a violation under these provisions to the time the relocation assistance is paid or the
conditions leading to the violation are corrected, the landlord should not: (1) evict, harass, or
intimidate tenants, (2) reduce tenant services, or (3) materially increase or change tenant
obligations.
Relocation assistance, along with any deposit or prepaid rent, must be paid to the tenant within
seven days of government notice of condemnation, eviction, or displacement. This may be paid to
the tenants individually or in a lump sum to the government agency issuing the notice. If the
amount is not paid within seven days, the local government may advance the relocation costs to the
tenants.
A local government that advanced relocation costs will assess a penalty of 50 dollars per day for
each tenant that the government has advanced and collect interest, if the landlord has failed to repay
such amounts within 60 days from the advance. The local government is entitled to attorney's fees
and costs associated with any legal actions necessary to collect unpaid funds.
Any funds that displaced tenants receive under these provisions are not considered income for the
purposes of determining eligibility to state assistance programs and are not to reduce those
payments. These payments are also not subject to any excise tax.
SB 5713 (C 80 L 05) Assisting tenants in multiple-unit housing proposed for
rehabilitation. Effective July 24, 2005.
http://www.leg.wa.gov/pub/billinfo/2005-06/Pdf/Bills/Session%20Law%202005/5713.SL.pdf
Current law provides a property tax exemption as an incentive to encourage the rehabilitation or
construction of new multifamily housing in certain urban centers, with the intended additional
effects of promoting community development, affordable housing, neighborhood revitalization, and
limiting urban sprawl. Under this law, it is no longer required that a property proposed for
rehabilitation be vacant 12 months prior to application for the exemption. However, if such a
building is not vacant, the property owner must provide all existing tenants with comparable
housing and a reasonable opportunity to relocate.
26
1.31.14
FEDERAL DEVELOPMENTS – 2004
Rev. Rul. 2004-82
Low Income Housing Tax Credit projects may
only evict tenants for good cause.
Excerpted text, Rev. Rul. 2004-82:
IRS Revenue Ruling 2004-82
Answering 12 Questions About Low-Income Housing Credit Under I.R.C. Section 42
This revenue ruling is scheduled to appear in Internal Revenue
Bulletin 2004-35, dated Aug. 30, 2004.
Part I
Section 42.--Low-Income Housing Credit
(Also §§1.42-5, 1.42-15, 1.103-8.)
Rev. Rul. 2004-82
PURPOSE
This revenue ruling answers certain questions about the low-income housing
credit under 42 of the Internal Revenue Code.
LAW AND QUESTIONS AND ANSWERS
Q-5.
Must the extended low-income housing commitment prohibit the actions described in subclauses
(I) and (II) of §42(h)(6)(E)(ii) only for the 3-year period described in §42(h)(6)(E)(ii)?
A-5.
No. Section 42(h)(6)(B)(i) requires that an extended low-income housing commitment include a
prohibition during the extended use period against (1) the eviction or the termination of tenancy
(other than for good cause) of an existing tenant of any low-income unit (no-cause eviction
protection) and (2) any increase in the gross rent with respect to the unit not otherwise permitted
under §42. When Congress amended §42(h)(6)(B)(i) to add the language emphasized above,
§42(h)(6)(E)(ii) was already part of §42. As a result, Congress must have intended the
amendment to § 42(h)(6)(B)(i) to add an additional requirement beyond what was contained in §
42(h)(6)(E)(ii), which already prohibited the actions described in that section for the 3 years
following the termination of the extended use period. Because the requirements of
§42(h)(6)(B)(i) otherwise apply for the extended use period, Congress must have intended the
addition of the prohibition against the actions described in subclauses (I) and (II) of §
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1.31.14
42(h)(6)(E)(ii) to apply throughout the extended use period.
If it is determined by the end of a taxable year that a taxpayer's extended low-income housing
commitment for a building does not meet the requirements for an extended low-income housing
commitment under §42(h)(6)(B) (for example, it does not provide no-cause eviction protection
for the tenants of low-income units throughout the extended use period), the low-income housing
credit is not allowable with respect to the building for the taxable year, or any prior taxable year.
However, if the failure to have a valid extended low-income housing commitment in effect is
corrected within 1 year from the date of the determination, the determination will not apply to the
current year of the credit period or any prior year.
Pursuant to this revenue ruling, each housing credit agency is required to review its extended
low-income housing commitments for compliance with the interpretation of § 42(h)(6)(B)(i)
provided in this question and answer. This review must be completed by December 31, 2004. If
during the review period the housing credit agency determines that an extended low-income
housing commitment is not in compliance with the interpretation of §42(h)(6)(B)(i) provided in
this question and answer, the 1-year period described under §42(h)(6)(J) will commence on the
date of that determination.
Websites:
Washington State Housing Finance Commission:
Good Cause Packet
www.wshfc.org
Internal Revenue Service:
Internal Revenue Bulletins
www.irs.gov/irb
National Council of State Housing Agencies:
Directory of State Housing Agencies
www.ncsha.org
28
1.31.14
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6

Overview - King County Bar Association

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