[WSBARP] Mold in Rental Unit

Wed Jun 17 09:51:06 PDT 2015

Paul:
Mr. Herman is correct there is an exception.  However, based upon your facts mold is not a defense to failure to pay rent unless they gave written notice of the defect, then expended funds to clean it up (say spent $500 and rent is $500).  Which aren’t facts in this case.  The tenant is trying to get the best of both worlds, complain about substandard conditions (i.e presence of mold) and not follow the procedures outlined in RCW 59.18.115 (which by the way require the tenant to still pay rent or place the rent into escrow pending the government investigation).  Again, based upon the below facts the alleged presence of mold or any other defect for that matter cannot be raised as defense to no rent due.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Howard Herman
Sent: Wednesday, June 17, 2015 9:20 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Mold in Rental Unit

Please see the exception to 59.18.080 bold and underlined below.

Howard Herman
Herman Jolley PS
509.220.5810

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Wednesday, June 17, 2015 8:15 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Mold in Rental Unit

Whether it is mold or little green aliens in the fridge (I had that case once), a tenant must be current in rent to raise the defenses.  Having mold in one’s home is not an offset for rent.  I knock out tenants all the time who have withheld rent for a complaint regarding the condition of the premises.  Generally what happens at the SC hearing is the judge asks the tenant if she/he has the rent to bring themselves current.  The tenant says no (of course not because they have spent it on other things), and the judge grants the writ.

59.18.080
Payment of rent condition to exercising remedies — Exceptions.
The tenant shall be current in the payment of rent including all utilities which the tenant has agreed in the rental agreement to pay before exercising any of the remedies accorded him or her under the provisions of this chapter: PROVIDED, That this section shall not be construed as limiting the tenant's civil remedies for negligent or intentional damages: PROVIDED FURTHER, That this section shall not be construed as limiting the tenant's right in an unlawful detainer proceeding to raise the defense that there is no rent due and owing.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
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P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Howard Herman
Sent: Wednesday, June 17, 2015 12:17 AM
To: 'scott scottgthomaslaw.com'; 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Mold in Rental Unit

I think the starting point is that the LL has a statutory and common law obligation to maintain the premises in an habitable condition. The presence of mold will render the premises uninhabitable to some degree. Also, if the building was built prior to 1978, it probably has lead based paint in it which could also be the source of the child’s illness. See RCW 70.103.010.
The statutory duty of the LL is in the first line of RCW 59.18.060. “The landlord will at all times during the tenancy keep the premises fit for human habitation….” The common law duty arises from the case law: Foisy v Wyman 83 Wn.2d 22 Supreme Court 1973 and “A tenant may premise an action against a landlord under any of three legal theories: the act, the rental agreement or the common law.” Landis & Landis v Nation Div. 1 2012.
Under Foisy, the court will determine the degree of uninhabitably and abate the rent proportionally for the period of habitation. If the court determines that the premises are completely uninhabitable, the tenant gets all his rent back and there would be no basis for either a 3 or 10 day notice. (I had a case, based on expert testimony, where the court found the premises totally uninhabitable.)
In Landis, the tenant was able to rescind the lease even before he took possession. (Rodents)
Your LL might want to think in terms of relying on his 20 day notice to vacate and give the tenant some money to make a deposit somewhere else. (I had that case just recently based on bed bugs.) I think the flip side of the tenant having to move if the premises are uninhabitable is constructive eviction. Either way the LL is the loser.

Howard Herman
Herman Jolley P S
509.220.5810

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of scott scottgthomaslaw.com
Sent: Tuesday, June 16, 2015 2:58 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Mold in Rental Unit

I had a case like this, in which tenant immediately complained to the air pollution control agency and to the lender on the project.  Long story short, it helps to have a good idea of whether or not the spots are mold, or something else.  Hiring an industrial hygienist to take cultures might save a lot of trouble.
On June 16, 2015 at 11:33 AM Paul Neumiller <pneumiller at hotmail.com<mailto:pneumiller at hotmail.com>> wrote:
I represent a LL where the T is arguing that mold/mildew in 900 sq. ft. house has caused T’s daughter’s respiratory illness and “contaminated” all of T’s possessions in the unit.  T hasn’t paid rent in 2 months and loudly demands that LL clean up unit and clean/replace all of T’s possessions (“or I’ll see you in court.  My ex-husband is very very rich”).  There were black spots when the T pulled up the rugs  (mold/animal urine?).  LL has evidence and proof that T was a chain smoker, had multiple long haired animals in the house (and urinating in the house) AND T constantly had blankets and quilts hung over the windows of the house.  In other words, the house was kept closed up tight (on wet Whidbey Island) with multiple people living there and taking showers.

LL wants them out and gone but needs to be in the best position if T can make good on T’s promise to sue.   T refuses to remove anything from the house because T demands that LL clean/replace everything.   It is a month-to-month lease.  LL has already taken multiple photographs and video of inside condition of house and heard from neighbors about the stench of cigarette smoke coming from the house.  Since LL has time before the deadline for a combined 3, 10, and 20 day notice, I plan to send to T a letter giving T the chance to move out of the house and remove all of T’s possessions.   Any suggestions before I bring the standard unlawful detainer action?

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Scott G. Thomas
Law Office of Scott G. Thomas
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