CHAPTER 2 - LANDLORDS AND TENANTS: MUTUAL DUTIES AND REMEDIES
Landlord and tenant obligations and remedies in the residential rental context are largely statutory in nature. RCW 59.18.060 sets forth specific duties for landlords and RCW 59.18.130 sets forth specific duties required of tenants. The duties specified in these two statutes are the minimum requirements for landlords and tenants. RCW 59.18.140 authorizes landlords to impose reasonable rules and restrictions. The statutes specify specific landlord duties regarding maintenance and safety. Tenant duties govern the requirement to pay rent and obligations to properly use and care for the facilities and fixtures and avoid certain unlawful activities such as drug-related activities and assaults.
A. Landlord Repair/Maintenance Duties
RCW 59.18.060 lists the basic Landlord Duties. Landlord duties pertaining to maintenance and repair under RCW 59.18.060 include:
·Keep the premises fit for human habitation at all times during the tenancy.
·Comply with all building codes and laws governing health and safety.
·Maintain the structure and keep it good repair.
·Keep any shared or common areas reasonably clean, sanitary, and safe from defects that might increase the hazards of fire or accident.
·Provide a reasonable program for the control of infestation by insects, rodents, and other pests at the initiation of the tenancy and, except in the case of a single family residence, control infestation during tenancy except where such infestation is caused by the tenant.
·Except where the condition is attributable to normal wear and tear, make repairs and arrangements necessary to put and keep the premises in compliance with codes and ordinances and in as good repair (excepting ordinary wear and tear) as the premises were in at the commencement of the tenancy.
·Provide reasonably adequate locks and furnish keys to the tenant.
Maintain all electrical, plumbing, heating, and other facilities and appliances supplied by the landlord in reasonably good working order.
·Maintain the dwelling unit in reasonably weather-tight condition.
Except in the case of a single-family residence, provide and maintain appropriate receptacles in common areas for trash removal and provide for periodic trash removal.
·Provide for adequate heat and water as reasonably required by the tenant.
·Designate to the tenant the name and address of the person who is the landlord by a statement on the rental agreement or by a notice conspicuously posted on the premises. Immediately notify the tenant in writing of any changes by certified mail or by updated posting. Someone residing in the county must be designated to act as an authorized agent for the landlord if the landlord resides out of state for the purpose of service of notices and process. If there is no designation, then the person to whom rent payment is made shall be considered the agent
Under RCW 59.18.063, a landlord shall provide, upon the request of a tenant, a written receipt for any payments made by the tenant.
A landlord has no duty to repair defective conditions, and the tenant has no defense or remedy if the tenant, the tenant’s family or guests cause the defective condition. Furthermore, the landlord has no duty to repair if the tenant unreasonably fails to allow the landlord access to the property. RCW 59.18.060. In all other situations, a landlord is required to make repairs after receipt of written notice within the following time periods unless the circumstances for failure to make repairs are beyond the landlord’s control (RCW 59.18.070):
·Within twenty-four hours, where the defective condition deprives the tenant of hot or cold water, heat, or electricity, or is imminently hazardous to life.
·Within seventy-two hours, where the defective condition deprives the tenant of the use of a refrigerator, range and oven, or a major plumbing fixture supplied by the landlord.
·Within ten days in all other cases.
In each instance the landlord is responsible to ensure that repairs are completed promptly. If completion is delayed due to circumstances beyond the landlord's control, including the unavailability of financing, the landlord shall remedy the defective condition as soon as possible.
Smoke Detection Device and Fire Safety Notice
In addition to the repair and maintenance duties specified above, under RCW 59.18.060(11), the landlord must provide a written notice to all tenants disclosing certain fire safety and protection information. In 2002, the Washington State Legislature substantially modified and expanded the duty. The landlord must provide a written notice to the tenant that the dwelling unit is equipped with a smoke detection device as required in RCW 43.44.110. The notice must inform the tenant of the tenant's responsibility to maintain the smoke detection device in proper operating condition and of penalties for failure to comply with the provisions of RCW 43.44.110. It must be signed by the landlord and the tenant, and copies must be provided to both parties.
In multi-unit rental properties (as opposed to single-family residences), the written notice must also disclose (i) Whether the smoke detection device is hard-wired or battery operated; (ii) Whether the building has a fire sprinkler system; (iii) Whether the building has a fire alarm system; (iv) Whether the building has a smoking policy, and what that policy is; (v) Whether the building has an emergency notification plan for the occupants and, if so, provide a copy to the occupants; (vi) Whether the building has an emergency relocation plan for the occupants and, if so, provide a copy to the occupants; and (vii) Whether the building has an emergency evacuation plan for the occupants and, if so, provide a copy to the occupants. The Legislature authorized landlords to provide the information to multi-unit buildings tenants in a “checklist” fashion.
Indoor Mold Disclosure
In 2005, the Legislature amended RCW 59.18.060 by adding a new section pertaining to indoor mold. RCW 59.18.060(12) requires landlords to provide tenants with information that is provided or approved by the Department of Health about the health hazards associated with exposure to indoor mold.
The required information may be provided in written format individually to each tenant, or may be posted in a visible, public location on the rental property. The information must detail how tenants can control mold growth in their dwelling units to minimize the health risks associated with indoor mold. The required information may be found on the Department of Health Website .Furthermore, the Department of Health provides quantities of a booklet printed by the federal Environmental Protection Agency entitled, “A Brief Guide to Mold, Moisture, and Your Home” on line at a reasonable price. This booklet is available in both English and Spanish.
Mold disclosure information must be provided to all tenants or posted in a visible public location no later than January 1, 2006. RCW 59.18.060(13) specifically holds landlords, agents and employees immune from civil liability for failure to provide the mold disclosure information except “where the landlord and his or her agents and employees knowingly and intentionally do not comply with subsection (12) of this section.”
Lead Based Paint Disclosure
To protect families from exposure to lead from paint, dust, and soil, Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992, also known as Title X. (42 U.S.C. § 4852d). Section 1018 of this law directed HUD and EPA to require the disclosure of known information on lead-based paint and lead-based paint hazards before the sale or lease of most housing built before 1978.
In short, at the time property is rented, landlords must provide to the tenant an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards ("Protect Your Family From Lead In Your Home") and disclose any known information concerning lead-based paint or lead-based paint hazards. The landlord must also disclose information such as the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces; provide any records and reports on lead-based paint and/or lead-based paint hazards which are available to the landlord (for multi-unit buildings, this requirement includes records and reports concerning common areas and other units, when such information was obtained as a result of a building-wide evaluation); include an attachment to the contract or lease (or language inserted in the lease itself) which includes a Lead Warning Statement and confirms that the landlord has complied with all notification requirements. This attachment must be provided in the same language used in the rest of the contract. Landlords and tenants, must sign and date the disclosure notice.
The requirements apply to virtually all residential units constructed before 1978, and there is no exclusion for properties subsequently remodeled to remove all lead based paint. Landlords must retain a copy of the disclosures for no less than three years from the date of the rental contract.
With regard to civil enforcement actions, Congress authorized the Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD) to assess an administrative civil penalty in the maximum amount of $11,000 for each violation (for violations occurring after January 31, 1997). Although the Act provides no authority for judicial civil penalties, it does authorize injunctive relief for violations of the Act.
Landlords and management agents with a history of lead poisoned children, lead-based paint correction orders, housing code violations or other reports of poor physical maintenance or management, which are often indicators of lead hazards, are most likely to be selected for a compliance review.
Specific rules and enforcement provisions may be found at 24 CFR part 35, subpart A.
B. Tenant Remedies
If the landlord fails to remedy the defective condition after receipt of written notice and expiration of the applicable period of time (RCW 59.18.070) the tenant has a number of options.
Terminate the Tenancy
Under RCW 59.18.090(1), if the landlord fails to make timely repairs the tenant may elect to terminate the tenancy, seek reimbursement for prepaid rents and seek return of the damage and security deposit.
Sue the Landlord for Damages
A tenant can sue the landlord in accordance with RCW 59.18.090(2). RCW 59.18.110 provides for a number of specific judicial remedies. For example, a judge or arbitrator can determine that the landlord has failed to carry out his duties and a reasonable time has passed for the landlord to remedy the condition. The court or arbitrator may determine the diminution in rental value of the premises due to the defective condition and can render judgment against the landlord for the rent paid in excess of such diminished rental value. The judge or arbitrator can only award judgment for diminished rental value plus repair costs paid by the tenant from the time of notice of such defect to the time of decision for which no deduction has been previously made. Such decisions may be enforced as other judgments at law and may be available to the tenant as a set-off against any existing or subsequent claims of the landlord.
If a court or arbitrator determines a defective condition is so substantial that it is unfeasible for the landlord to remedy the defect within the time allotted by RCW 59.18.070, and that the tenant should not remain in the dwelling unit in its defective condition, the court or arbitrator may authorize the termination of the tenancy. The court or arbitrator must set a reasonable time for the tenant to vacate the premises.
Escrow Proceeding
The law provides a procedure for tenants to have premises certified as “substandard and dangerous” and to establish an escrow account to make repairs. RCW 59.18.115. The process is similar to having a receiver appointed. The procedures are complicated and are rarely if ever utilized.
Repair and Deduct
Tenants also have “self help” or “repair and deduct” remedies under RCW 59.18.100.
If the landlord fails to carry out his or her duties, and the tenant notifies the landlord of the defects in writing, the tenant may submit to the landlord by certified mail or in person a good faith estimate by the tenant of the cost to perform the repairs necessary to correct the defective condition. If the landlord does not complete repairs after written notice within the time limitations provided for in RCW 59.18.070, the tenant may pay for the repairs and deduct the amount of the repairs from the rent subject to a number of limitations.
RCW 59.18.100 (2) and (3) limit the amount a tenant can deduct. If after expiration of the applicable time limitation, a tenant may obtain an estimate from a licensed contractor (or other qualified person if a license is not required) to make the repairs. If after the landlord still fails to conduct repairs, the tenant may have the contractor perform the repairs. The repairs must comply with all building codes and statutes, and the landlord has the right to inspect the repairs. The amount that a tenant may withhold is the actual costs of the repairs not to exceed one month’s rent. The total costs of repairs a tenant can deduct in any twelve-month period cannot exceed the amount of two months’ rent.
If a tenant is capable of making the repairs himself, he or she can make the repairs if the costs of repair (including labor and materials at the prevailing community rate) do not exceed one-half month’s rent. The tenant cannot make the repairs if the law requires that a licensed or registered professional make the repairs. The total costs of tenant repairs (as opposed to repairs made by a licensed contractor) deducted in any twelve-month period cannot exceed one month's rent. This remedy is not available if the “defect” is the landlord’s failure to provide a trash receptacle or a fire safety device.
A landlord and a tenant may enter into an agreement for the tenant to make repairs in exchange for cash payment or a partial or full rent abatement. This agreement, however, cannot alter the landlord's obligations under the Landlord-Tenant Act. These types of agreements “muddy the water” if there is a disagreement as to the party’s responsibilities under the contract and the landlord attempts to terminate the tenancy for failure to pay rent.
C. Tenant Duties
Specific tenant duties may be found at RCW 59.18.130. Perhaps the most important duty (at least from the landlord’s perspective) is that tenants must pay rent in the amount due and at the time it is due. Furthermore, according to RCW 59.18.080, a tenant must be current in the payment of rent (including all utilities that the tenant has agreed in the rental agreement to pay) before exercising any of the remedies accorded him under the provisions of the Landlord-Tenant Act. This does not limit the tenant’s civil remedies for negligent or intentional damages, and the tenant can still defend an unlawful detainer action by asserting that the rent is not due and owing (e.g. because of diminished rental value).
Additional tenant duties under RCW 59.18.130 predictably require the tenant to keep the premises clean and sanitary, properly dispose of rubbish and garbage and assume the cost of fumigation/extermination for infestations caused by the tenant, properly use fixtures and appliances supplied by the landlord, not vandalize the property, commit waste or engage in nuisance (or allow family members or invitees to do so), maintain fire safety devices, not engage in gang-related activity, and return to the premises to their original condition excepting wear and tear or conditions caused by the landlord’s failure to comply with his or her duties.
Drug-Related Activity and Assault
RCW 59.18.130(6) specifically prohibits tenants from engaging in drug-related activity at the rental premises, or to allow others to engage in drug-related activity at the rental premises with the knowledge or consent of the tenant. Likewise, RCW 59.18.130(8) prohibits tenants from engaging in any activity that is “imminently hazardous to the physical safety of others and entails use of deadly weapon which results in an arrest or entails physical assault upon another person on the premises which results in an arrest.”
Under RCW 59.18.075, law enforcement agencies are obligated to send a notice to the landlord when it seizes illegal drugs or when it makes an arrest for an assault on the premises. Furthermore, law enforcement has an affirmative duty under RCW 59.18.075 to research the name and address of the landlord in order to provide this notice. As a practical matter, the landlord or the landlord’s attorney is well advised to obtain this notice from the law enforcement agency if law enforcement agency does not provide the notice as required by statute. In Spokane County, I advise my client to contact the geographically appropriate Community Oriented Policing substation (COPS) or Sheriff’s Community Oriented Policing substation (SCOPE) Neighborhood Resource Officer (NRO). The landlord should confirm that in fact there was drug related activity or that the person was arrested for assault (as opposed to being arrested on an outstanding warrant for example).
Additional Contractual Tenant Duties
Additionally, the tenant must comply with all the reasonable terms, obligations or restrictions of the rental agreement whether denominated by the landlord as rules, rental agreement, rent, or otherwise, concerning the use, occupation, and maintenance of the unit. The terms and obligations must not violate any law or be otherwise contrary to law. The terms and conditions must be agreed upon by the tenant at the inception of the tenancy.
Under RCW 59.18.140, except for termination of tenancy (which requires twenty (20) day notice), changes to the terms and conditions of the tenancy (including the amount of rent) may become effective after thirty (30) days written notice prior to the completion of the term of the rental agreement. Of course, changes may become effective sooner if agreed to by both the landlord and the tenant.
If the tenant replaces the locks, the tenant is required to provide a key to the landlord. RCW 59.18.100(1).
D. Landlord Remedies
If after written notice (see RCW 59.18.170), the tenant fails to remedy a defective condition caused by the tenant within a reasonable time, the landlord may make the repair and charge the tenant, sue the tenant for money damages or may bring a legal action to evict the tenant.
Particular attention must be paid to RCW 59.18.180 if the landlord intends to evict the tenant. If the tenant fails to comply with his or her statutory or contractual duties, and the failure can substantially affect the health and safety of the tenant or other tenants (or substantially increase the hazards of fire or accident that can be remedied by repair, replacement of a damaged item, or cleaning) the landlord must provide a thirty day written notice to the tenant that specifies the noncompliance and demands that the tenant remedy the situation. In the case of an emergency, the thirty days may be shortened.
If the tenant fails to remedy the noncompliance within the thirty days, the landlord may enter the dwelling unit and cause the work to be done and submit an itemized bill of the actual or reasonable cost of repair. The tenant must pay for the repairs on the next date when periodic rent is due or on mutually agreeable terms.
Any substantial noncompliance by the tenant of RCW 59.18.130 or RCW 59.18.140 constitutes a ground for commencing an action in unlawful detainer in accordance with the provisions of chapter 59.12 RCW, and a landlord may commence an eviction action after service of a ten-day notice to comply or vacate.
Tenants have a defense to an unlawful detainer action filed solely on the non-compliance if it is determined by the judge that the tenant was in compliance or if the landlord failed to provide the notice required by RCW 59.18.180.
If drug-related activity is alleged to be a basis for termination of tenancy underRCW 59.18.130 (6), 59.12.030(5), or 59.20.140(5), the compliance provisions RCW 59.18.080 do not apply and the landlord may proceed directly to an unlawful detainer action. Additionally, if activity on the premises that creates an imminent hazard to the physical safety of other persons on the premises (RCW 59.18.130 (8)) is alleged to be the basis for termination of the tenancy, and the tenant is arrested as a result of this activity, the compliance provisions of the law do not apply. The landlord may proceed directly to an unlawful detainer action (eviction) against the tenant who was arrested for this activity.
According to RCW 59.18.190, whenever the landlord learns of a breach of the tenant duties under RCW 59.18.130 or has accepted performance by the tenant which is at variance with the terms of the rental agreement or rules enforceable after the commencement of the tenancy, he may immediately give notice to the tenant to remedy the nonconformance. This notice expires by operation of law after sixty days unless the landlord pursues any remedy under the Landlord-Tenant Act.
E. Armed Forces Considerations
UnderRCW 59.18.200(1)(b) and RCW 59.18.220(2) any tenant who is a member of the armed forces and his or her spouse and family, may terminate a rental agreement with less than twenty days notice if the service person receives reassignment or deployment orders that do not allow twenty day notice of the intention to terminate a tenancy. The tenant is required to provide a copy of the reassignment or redeployment order to the landlord no later than seven days after receipt.