Washington Rental Housing Washington Rental Housing Law:Law: A Brief OverviewA Brief Overview

December 18, 2008

Eric Dunn, Staff AttorneyNorthwest Justice Project401 Second Ave. S., Ste. 407

Seattle, Washington 98104Tel. 206-464-1519, ext. 234

EricD@nwjustice.org

Rules governing landlords & tenants . . .

Federal Statutes

State Laws & Court Decisions

Local Ordinances & Codes

Rental Agreement (Lease)

A Few Statutes Relavent to Rental Housing in Washington

• Federal– Fair Housing Act, 42 USC 3601 et seq.– Fair Credit Reporting Act, 15 USC 1681 et seq.

• State– Residential Landlord Tenant Act, RCW 59.18 – Manufactured/Mobile Home LL-T Act, RCW 59.20– Unlawful Detainer Act, RCW 59.12– Wash. Law Against Discrimination, RCW 49.60– Wash. Fair Credit Reporting Act, RCW 19.182

• Local– Seattle Open Housing Ordinance, SMC 14.08– Seattle Just Cause Evictions Ordinance, SMC 22.206.160(C)– Auburn Rental Licensing Ordinance, ACC 5.22

Other sources of Landlord-Tenant Law

• Common Law – Rules established by judicial opinions– Foisy v. Wyman, 83 Wn.2d 22 (1973)– Wilson v. Daniels, 31 Wn.2d 633 (1949)– Byrkett v. Gardner, 35 Wn. 668 (1904)

• Rental Agreement (a.k.a. “lease”)– But not necessarily: “all agreements which establish

or modify the terms, conditions, rules, regulations, or any other provisions concerning the use and occupancy of a dwelling unit.” RCW 59.18.030(11).

Landlords

• “’Landlord’ means the owner, lessor, or sublessor of the dwelling unit [and] any person designated as representative of the landlord.” RCW 59.18.030(6).

• Duties of Landlords: – “at all times during the tenancy keep the premises fit

for human habitation,” RCW 59.18.060– Not interfere with tenant’s use of premises, RCW

59.18.150 (called “quiet enjoyment” at common law)– Not discriminate on the basis of membership in any

protected class, RCW 49.60.222; 42 USC 3604

Who is a “Tenant?”• “A ‘tenant’ is any person who is entitled to

occupy a dwelling unit primarily for living or dwelling purposes under a rental agreement.” RCW 59.18.030(13)

• Exceptions: (RCW 59.18.040)– Residence incidental to services (e.g.,

hospital, jail, nursing home, etc.)– Transient Lodging (e.g., hotel)– Agricultural, employment-related housing– Occupancy pursuant to purchase contract

Duties of Tenants, RCW 59.18.130• “pay the rental amount at such times and in such

amounts as provided for in the rental agreement or as otherwise provided by law”

• “comply with all obligations imposed upon tenants by applicable provisions of all municipal, county, and state codes, statutes, ordinances, and regulations”

• “Not intentionally or negligently destroy, deface, damage, impair, or remove any part of the structure or dwelling”

• Upon termination and vacation, restore the premises to their initial condition except for reasonable wear and tear

Duties of Tenants (in plain English)

• Pay the rent on time

• Obey relevant laws

• Avoid causing damage (“waste”)

• Move out at the end of the tenancy

Enforcement

Repairs—Statutory Remedies• Tenant’s written demand, RCW 59.18.170

– Must give LL written notice specifying defect– Landlord must commence repair within:

• 24 hours if water, heat, electricity, or safety hazard• 72 hours for major appliance or plumbing fixture• 10 days “in all other cases”

– LL must complete repair in “reasonable time”

• If LL does not make repairs, Tenant may:– Break lease & move out, RCW 59.18.090(1)– Sue LL for damages, RCW 59.18.090(2)– “Repair & deduct,” RCW 59.18.100– Inspection & rent escrow, RCW 59.18.115

Repairs: Withholding Rent• Theory:

– Rent is payment for value of rental premises– If LL fails to maintain rental premises in habitable

condition, then premises are not worth promised rent– Tenant should not have to pay the promised rent if the

LL is not delivering promised rental premises

• Law:– Rental premises come with an “implied warranty of

habitability,” Foisy v. Wyman, 83 Wn.2d 22 (1973)– If LL violates warranty, tenant may withhold difference

between contract rent and actual value of premises

• Note: withholding rent seldom a wise approach for tenants due to procedural disadvantages

Lock-Outs and Other Interference with “Right of Quiet Enjoyment”

• “unlawful for the landlord to remove or exclude . . . tenant thereof except under a court order so authorizing. RCW 59.18.290

• “unlawful … to intentionally cause termination of … tenant's utility services, including water, heat, electricity, or gas,” RCW 59.18.300– “Locked-out” tenant “may recover possession of the property or terminate

the rental agreement and, in either case, may recover the actual damages sustained.” RCW 59.18.290

– Landlord who shuts-off utilities liable for ”actual damages sustained by [tenant[ and , and up to one hundred dollars for each day or part thereof the tenant is thereby deprived of any utility service, “ RCW 59.18.300

• “No landlord, including one not governed by the RLTA, may ever use non-judicial, self-help methods to remove a tenant.”

– Gray v. Pierce Cty. Hsg. Auth., 123 Wn. App. 744 (Div. 2, 2004)• Inspections:

– “landlord shall not abuse the right of access or use it to harass the tenant. Except in the case of emergency or if it is impracticable to do so, the landlord shall give the tenant at least two days' notice of his or her intent to enter and shall enter only at reasonable times . . . landlord has no other right of access except by court order, arbitrator or by consent of the tenant,” RCW 59.18.150

Fair Housing Overview• Unlawful to discriminate on the basis of membership in

“protected class;” different acts protect different classes• Protected classes under WLAD (State):

– Race– Creed– Color– National origin– Families with children– Sex– Marital status– Sexual orientation– Age– Honorably discharged veteran or military status– Disability (sensory, mental, physical, use service animal)

Types of Discrimination• Disparate Treatment

– One rule for members of protected class (MPCs), different (i.e., better) rule for others

– Includes “hostile environment” discrimination

• Disparate Impact– One rule for everyone, but– effect of rule is

worse for MPCs than for others, and rule is not required by “business necessity”

– Includes failure to make reasonable accommodations for persons w. disabilities

Fair Housing Enforcement• Reasonable accommodations: interactive process

– Reasonable accommodation in rules, policies, practices or services to allow equal access

– Reasonable modifications necessary to allow equal use and enjoyment of premises

• Victim of prohibited discrimination may:– Lodge civil rights complaint with gov’t agency– File civil lawsuit vs. LL for discrimination– Break lease & move (“constructive eviction”)

• DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996) et al.

– Assert civil rights claim defensively• Josephinum Assoc. v. Kahli, 111 Wn. App. 617 (Div. 1, 2002)

Retaliation/Reprisals

• RCW 59.18.240: Unlawful to take or threaten retaliatory action against tenant because of “good faith and lawful:”– Complaint or report to government about LL’s failure to

properly maintain premises;– Tenant’s assertion or enforcement of any right

protected by Residential Landlord Tenant Act;– Retaliation presumed if LL takes adverse action against

tenant within 90 days of complaint. RCW 49.18.250

• Retaliation for housing discrimination complaints prohibited by RCW 49.60.210

Tenant Screening• Fees (RCW 59.18.257):

– Landlord may only charge for (i) actual costs of obtaining background information about applicant; or (ii) costs incurred for using tenant-screening service (if any)

– Landlord may not charge tenant-screening fees without first notifying prospective tenant in writing of (i) what the screening entails, (ii) the applicant’s right to dispute the accuracy of information provided to the landlord, and (iii) name and address of the tenant screening service used, if any.

• Adverse Action (RCW 19.182.110):– LL may inform applicant of denial—not required to give the reason– LL must give applicant “name, address, and telephone number of

the consumer reporting agency that furnished the [screening] report” – LL need not provide a copy of the actual report

– Only Fair Housing laws seriously affect LL’s rental decisions– Tenant Screening Agencies subject to FCRA, RCW 19.182 et seq.

Lease Termination & Eviction

Tenancy Termination• Written “Lease for a Specified Time”

– Terminates without notice at end of term• May “convert” to month-to-month (by own terms)

– Cannot terminate except for cause until then• Periodic Tenancy (a.k.a. “month-to-month”)

– Either landlord or tenant may terminate on at least 20 days’ notice to other party

– Tenant never needs good cause to terminate – Generally, landlord does not need good cause

to terminate a periodic tenancy• But may not terminate for illegal reason, such as

retaliation or unlawful discrimination

Eviction for Cause, Pt. 1• Non-Payment of Rent

– LL must give “3-Day Notice to Pay or Vacate”– Tenant must pay rent within 3 days or leave– If tenant fails to pay or vacate, LL may sue– If unexpired lease term, may “reinstate” by paying

full amount of judgment within 5 days

• Material Violation of Lease– LL must give “10-Day Notice to Comply or Vacate”– Tenant must cure violation within 10 days or leave– If tenant fails to cure or vacate, LL may sue– 3+ “10-day notices” in 1 year also grounds for suit

Eviction for Cause, Pt. 2• Waste/Nuisance

– LL must give “3-Day Notice to Vacate”– Tenant must leave, no chance to cure– LL may sue if tenant remains– Requires serious damage or criminal activity

• In any eviction for cause, tenant may dispute grounds and present any legal defenses– LL has burden of proof to establish the grounds– Tenant may also present “affirmative defenses”

Steps in Unlawful Detainer (Eviction) CaseStep 1: Landlord serves eviction notice

Time for tenant to cure or vacate must run out

Step 2: Landlord serves tenant summons & complaint Summons: notice that you are being sued Complaint: sets forth the Landlord’s claims and allegations

Step 3: Tenant answers summons Tenant specifies what defenses he has to the eviction lawsuit

Step 4: Show Cause Hearing (Motion for Writ of Restitution) Court decides whether the property should be restored to the LL, remain in the tenant’s possession, or whether a trial is necessary

Step 5: Trial Factual disputes decided, possession awarded to LL or tenant

Step 6: (If LL prevails) Writ of Restitution Court orders sheriff to physically remove tenant from the property Sheriff can conduct removal at any time 72 hours after posting a notice

Eric Dunn, Staff Attorney

Northwest Justice Project

401 Second Ave. S., Ste. 407

Seattle, Washington 98104

Tel. 206-464-1519, ext. 234

EricD@nwjustice.org