[WSBARP] Mold in Rental Unit

Thu Jun 18 09:29:29 PDT 2015

Marcus,

As a Spokane practitioner I've had the opportunity/pleasure to be opposite
Howard Herman (very much a gentleman) on many eviction matters and at least
one contested eviction trial. I can attest that the Foisy defense is
occasionally successfully raised in Spokane County evictions.

I must also congratulate Howard Herman as the 2015 Spokane County Bar
Association Housing Justice Project Lawyer of the Year.

Please note that effective May 15, 2015, my new address is 7 South Howard
St., Suite 218, Spokane, WA 99201.  All other contact information remains
the same.

*Robert R. Rowley* | Attorney at Law

7 S. Howard St, Suite 218

Spokane, WA  99201

Telephone: (509) 252-5074

Mobile: (509) 994-1143

Facsimile: (509) 928-3084

Email: rob at rowleylegal.com

Web Site: www.rowleylegal.com

Practice concentrated on business, real estate and general legal matters in
Washington and Idaho.

<https://www.facebook.com/rowleylegal>
<https://www.linkedin.com/pub/rob-rowley/11/172/b20>
<https://twitter.com/ROBERTRROWLEY>
<http://www.yelp.com/biz/robert-r-rowley-spokane>

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*From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Marcus Fry
*Sent:* Thursday, June 18, 2015 8:55 AM
*To:* 'WSBA Real Property Listserv'
*Subject:* Re: [WSBARP] Mold in Rental Unit

I respectfully disagree.  Foisy was started in 1971 and therefore was not
decided under the RLTA which was enacted in ’73.  Under the RLTA there is a
procedure that a tenant must follow to give an opportunity to a landlord to
remedy a defect.  Merely alleging that the rental is uninhabitable in
response to an eviction is not a defense if the statutory procedures were
not followed by the tenant.  I recognize Northwest Justice Project proffers
Foisy as a case to use to try to avoid a rent eviction, but in my
experience this hasn’t got past a SC hearing because of the failure of the
tenant to follow statutory procedures when they believe there was a defect.

I think this dialogue has been helpful for those of you practicing in the
landlord-tenant arena.

Marcus J. Fry

Lyon, Weigand & Gustafson, P.S.
Adoption Attorney*

P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

*NOTICES:*

 *Adoption Attorney reflects election as a Fellow of the American Academy
of Adoption Attorneys, an invitation based organization of 300+ attorneys
nationwide, under its criteria of experience, ethics and peer
recommendation. Washington's Supreme Court has not yet developed or
recognized a credentialing process for specialties, and
certification/fellowship is not required to practice law in this state.

*Confidentiality: *This e-mail transmission may contain information which
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*From:* wsbarp-bounces at lists.wsbarppt.com [
mailto:wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>]
*On Behalf Of *Howard Herman
*Sent:* Thursday, June 18, 2015 12:35 AM
*To:* 'WSBA Real Property Listserv'
*Subject:* Re: [WSBARP] Mold in Rental Unit

The argument advanced by Marcus assumes there is rent due. But we won’t
know that until the defense has been tried on the merits. The allegation
that there is mold on the premises is a question of fact which must be
tried by a jury unless waived by the parties. RCW 59.12.130. *City of Pasco
v Pleasant* 126 Wn.App. 382 Div. 3 2005

Since the affirmative defense of breach of implied warranty of habitability
goes directly to the issue of rent due and owing, which is one of the basic
issues in an unlawful detainer action as the above statutes indicate, we
now hold said defense is available in an unlawful detainer action of this
nature.  *Foisy v. Wyman*, 83 Wn.2d 22, 515 P.2d 160 (Wash. 1973)

The court or jury could find there is toxic mold on the premises, and
determine there is no rent due. If there is no rent due, there is no
unlawful detainer. Win or lose, the practical aspect is that the cost of
taking such a case to trial far out- weighs any benefit to the landlord and
therefore some kind of offer of settlement is more attractive.

Howard Herman

*From:* wsbarp-bounces at lists.wsbarppt.com [
mailto:wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>]
*On Behalf Of *Marcus Fry
*Sent:* Wednesday, June 17, 2015 9:51 AM
*To:* 'WSBA Real Property Listserv'
*Subject:* Re: [WSBARP] Mold in Rental Unit

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.

*Confidentiality: *This e-mail transmission may contain information which
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*From:* wsbarp-bounces at lists.wsbarppt.com [
mailto:wsbarp-bounces at lists.wsbarppt.com <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 <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.
Adoption Attorney*

P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

*NOTICES:*

 *Adoption Attorney reflects election as a Fellow of the American Academy
of Adoption Attorneys, an invitation based organization of 300+ attorneys
nationwide, under its criteria of experience, ethics and peer
recommendation. Washington's Supreme Court has not yet developed or
recognized a credentialing process for specialties, and
certification/fellowship is not required to practice law in this state.

*Confidentiality: *This e-mail transmission may contain information which
is protected by attorney-client, work product and/or other privileges.  If
you are not the intended recipient, you are hereby notified that any
disclosure, or taking of any action in reliance on the contents, is
strictly prohibited.  If you have received this transmission in error,
please contact us immediately and return the e-mail to us by choosing Reply
(or the corresponding function on your e-mail system) and then deleting the
e-mail.

*From:* wsbarp-bounces at lists.wsbarppt.com [
mailto:wsbarp-bounces at lists.wsbarppt.com <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 <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> 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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WSBARP at lists.wsbarppt.com
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Scott G. Thomas
Law Office of Scott G. Thomas
1204 Cleveland Avenue
Mount Vernon, WA 98273
(360) 503-1042
www.scottgthomaslaw.com

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