[WSBARP] Mold in Rental Unit

Fri Jun 19 07:49:00 PDT 2015

I haven’t forgotten Rob Wilson-Hoss commenting last year that this listserve was better than any CLE. The dialog between Mr. Herman and Marcus on the mold question is another shining example. Thanks for sharing your experience guys! 

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

Rodgers, Kee & Card

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

Phone: 360-352-8311

Facsimile: 360-352-8501

Email: tjw at buddbaylaw.com

Skype: thomas.westbrook

www.buddbaylaw.com

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Howard Herman
Sent: Thursday, June 18, 2015 11:08 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Mold in Rental Unit

At the risk of beating a dead horse, I think I can harmonize the positions taken by Marcus and myself by saying that Washington follows the common law except where it is superseded by statute. However, the case of Landis & Landis v Nation 286 P.3d 979 (Wash.App. Div. 1 2012) holds that in unlawful detainer, the common law and the statute can coexist as alternative remedies.

To avoid taking the language out of context, I have copied a long section of the case below:

11 Nation contends that Landis had to proceed under the Residential Landlord Tenant Act and give her notice and an opportunity to eliminate the rodents before suing for breach of contract. She argues that the Residential Landlord Tenant Act superseded common law remedies.

          ¶ 12 The act did not supersede common law remedies. By its plain language, the act preserves other tenant remedies against a landlord. The statutory notice and remedy process is provided to the tenant " in addition to pursuit of remedies otherwise provided him or her by law." RCW 59.18.070. A tenant may premise an action against a landlord under any of three legal theories: the act, the rental agreement, or the common law. Dexheimer v. CDS, Inc., 104 Wash.App. 464 <http://lawriter.net/getCitState.aspx?series=Wash.App.&citationno=104+Wash.App.+464&scd=WA> , 467, 470, 17 P.3d 641 <http://lawriter.net/getCitState.aspx?series=P.3d&citationno=17+P.3d+641&scd=WA>  (2001).

13 One common law theory available to a tenant is the implied warranty of habitability. Our Supreme Court first recognized this theory in October 1973, three months after the Residential Landlord Tenant Act went into effect, in Foisy v. Wyman, 83 Wash.2d 22,515 P.2d 160 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=515+P.2d+160&scd=WA>  (1973). In Foisy, the tenant argued that the landlord's violation of an implied warranty of habitability excused his failure to pay rent and provided him an affirmative defense to the landlord's unlawful detainer action. The court agreed, reasoning that any " realistic analysis of the lessor-lessee or landlord-tenant situation leads to the conclusion that the tenant's promise to pay rent is in exchange for the landlord's promise to provide a liveable dwelling." Foisy, 83 Wash.2d at 27, 515 P.2d 160 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=515+P.2d+160&scd=WA> . The court held that " in all contracts for the renting of premises, oral or written, there is an implied warranty of habitability," and that breach of this implied warranty could be employed by the tenant as a defense to unlawful detainer. Foisy, 83 Wash.2d at 28, 515 P.2d 160 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=515+P.2d+160&scd=WA> . The court's belief that " public policy demands such a result" was " reinforced" by the new statute. Foisy, 83 Wash.2d at 28, 515 P.2d 160 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=515+P.2d+160&scd=WA> . Because the act and the Foisy decision developed independently, " we cannot presume that the Legislature intended the act to restrict application of the implied warranty of habitability."Aspon v. Loomis, 62 Wash.App. 818 <http://lawriter.net/getCitState.aspx?series=Wash.App.&citationno=62+Wash.App.+818&scd=WA> , 825, 816 P.2d 751 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=816+P.2d+751&scd=WA>  (1991), review denied, 118 Wash.2d 1015, 827 P.2d 1011 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=827+P.2d+1011&scd=WA>  (1992).

   ¶ 14 Nation contends that the implied warranty of habitability is only available in disputes that arose before the Residential Landlord Tenant Act went into effect and also that the implied warranty is limited to the context of unlawful detainer. Nothing in Foisy indicates such limitations.

         ¶ 15 Nation contends the act was intended to modify and supersede the implied warranty of habitability found in Foisy because the act preceded Foisy, this contention is inaccurate. Nation relies on an opinion that states, erroneously, that the implied warranty of habitability governed Washington tenancies even prior to the adoption of the act and that the act " codified" the implied warranty of habitability. Howard v. Horn, 61 Wash.App. 520 <http://lawriter.net/getCitState.aspx?series=Wash.App.&citationno=61+Wash.App.+520&scd=WA> , 524, 810 P.2d 1387 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=810+P.2d+1387&scd=WA>  (1991). The erroneous chronology in Howard originated in a misleading statement in an earlier case, where the court implied that the legislature was following the " lead" of Foisy when it enacted the Residential Landlord Tenant Act. Lincoln v. Farnkoff, 26 Wash.App. 717 <http://lawriter.net/getCitState.aspx?series=Wash.App.&citationno=26+Wash.App.+717&scd=WA> , 719-20, 613 P.2d 1212 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=613+P.2d+1212&scd=WA>  (1980). The legislature may have been following a general trend in the law, but obviously the legislature was not following the lead of Foisy, which had not yet been decided.

          ¶ 16 In short, the implied warranty of habitability recognized in Foisy has not been superseded by statute. The implied warranty of habitability recognized in Foisy is available to a tenant as a basis for legal action against a landlord under the common law, independent of the Residential Landlord Tenant Act.

NOTICE AND OPPORTUNITY TO CURE

          ¶ 17 Nation next contends that a defective condition cannot be an actionable breach of the implied warranty of habitability until the landlord receives notice of the alleged defect and fails to remedy it after a reasonable time. Nation supports this argument by citing Franklin v. Fischer, 34 Wash.2d 342, 348-49, 208 P.2d 902 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=208+P.2d+902&scd=WA>  (1949), a case from the era of caveat emptor.

         ¶ 18 In Franklin, lessees of a commercial property claimed the landlord had breached an express covenant to keep the water supply and roof in repair. Their claims for damages were denied because the lessors made the repairs as rapidly as possible after being notified of the problem. Franklin, 34 Wash.2d at 348-49, 208 P.2d 902 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=208+P.2d+902&scd=WA> . Franklin, however, does not apply because it pertains to a commercial lease and, as well, because it predates Foisy.

         ¶ 19 A treatise cited by Nation addresses in general terms what amounts to a breach of the implied warranty. Nation relies on the author's statement, " it would seem that the landlord should not be deemed to be in breach of his duty unless he fails to make the necessary repairs within a reasonable time after receiving notice ..." WILLIAM B. STOEBUCK & DALE A. WHITMAN, THE LAW OF PROPERTY § 6.38, at 307 (3d ed. 2000).

         ¶ 20 But Nation omits the remainder of the sentence, which reads " — at least where the defective condition(s) only arise, or become patent, after the tenancy begins." Here, the evidence of rodent infestation was patent at move-in. Thus Professor Stoebuck's statement does not mean that Landis had to wait upon Nation's efforts at extermination in order to have an actionable claim. There was no evidence that the presence of rodents was due to conduct by the Landis crew.

         ¶ 21 The Supreme Court of Hawaii has persuasively rejected the argument that a new tenant who encounters a rodent infestation on the first day of the tenancy must endure the infestation while waiting for the rodents to be eliminated:

While it is not clear where the rats came from, assuming that they did originate from outside of the premises, the defendant had it within her power to keep them out by proper and timely screening and extermination procedures. Indeed this was done before the next tenant moved in.

But to begin such procedures after the plaintiff had occupied the dwelling and to expect that he have the requisite patience and fortitude in the face of trial and error methods of extermination was too much to ask.

Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 <http://lawriter.net/getCitState.aspx?series=P.2d&citationno=462+P.2d+470&scd=WA> , 475 (1969). Consistent with Foisy, Lemle adopted the view that " a lease is essentially a contractual relationship with an implied warranty of habitability and fitness," so that a tenant may resort to " basic contract remedies of damages, reformation, and rescission" instead of being constrained by rigid rules originating in the law of property. Lemle,462 P.2d at 475.

         ¶ 22 Nation notes that in Lemle, the tenants stayed in the rat-infested rental for three days and vacated the premises only after the landlord's early attempts to get rid of the rats failed. But the Lemle court did not hold that the tenants' right to relief depended upon giving the landlord time to fix the problem. Rather, the court said that each case " must turn on its own facts." Lemle, 462 P.2d at 476. Taking into consideration " the seriousness of the claimed defect and the length of time for which it persists" as relevant factors, the court concluded the evidence was sufficient to support judgment for the tenants. Lemle, 462 P.2d at 476.

         ¶ 23 Similarly here, we conclude there is sufficient evidence for a trier of fact to find a material breach of the implied warranty of habitability, justifying rescission of the rental agreement and immediate vacation of the premises. The decision by Landis to move out immediately without giving Nation a chance to address the problem was not fatal to the claim.

I think the Landis case reinforces the holding in Foisy and clarifies that common law is an alternative to statutory remedies. It appears that the standard of duty of the landlord is set out in the statute and the common law provides an alternative method of enforcement insofar as habitability is concerned.

I realize that unlawful detainer is not everyone’s cup of tea and so further your affiant sayeth not.

Howard Herman

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.

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From: wsbarp-bounces at lists.wsbarppt.com [mailto: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] 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 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] 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] 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] 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] 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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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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