[WSBARP] Tenant remedy for LL failure to repair - restricted to repair & deduct from rent?

[Eric Nelsen]

In the particular case I have, it’s failure of an oven/range and it hasn’t been replaced for weeks. Thanks Kaitlyn—looks like RCW 59.18.090 answered my question, in preserving court action as a remedy if the tenant doesn’t want to deduct from rent.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Kaitlyn Jackson
Sent: Tuesday, October 26, 2021 1:26 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Tenant remedy for LL failure to repair - restricted to repair & deduct from rent?

It depends on the defect, in my opinion and based on some review of some case law. With a particular eye at case law, the Landlord Tenant Act has been amended several times since 2010 so I think some case law on this topic is out-dated and overridden by new terms in the Act. That said,  I think it depends on what the defect is - is it a habitability issue or is it a broken dishwasher? Did it cause personally injury or inconvenience to the tenant? I think the devil is in the details on that front.

RCW 59.18.090<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.090>
Landlord's failure to remedy defective condition—Tenant's choice of actions.
If, after receipt of written notice, and expiration of the applicable period of time, as provided in RCW 59.18.070<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.070>, the landlord fails to remedy the defective condition within a reasonable time the tenant may:
(1) Terminate the rental agreement and quit the premises upon written notice to the landlord without further obligation under the rental agreement, in which case he or she shall be discharged from payment of rent for any period following the quitting date, and shall be entitled to a pro rata refund of any prepaid rent, and shall receive a full and specific statement of the basis for retaining any of the deposit together with any refund due in accordance with RCW 59.18.280<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.280>;
(2) Bring an action in an appropriate court, or at arbitration if so agreed, for any remedy provided under this chapter or otherwise provided by law; or
(3) Pursue other remedies available under this chapter.
[ 2010 c 8 § 19020<http://lawfilesext.leg.wa.gov/biennium/2009-10/Pdf/Bills/Session%20Laws/Senate/6239-S.SL.pdf?cite=2010%20c%208%20%C2%A7%2019020>; 1973 1st ex.s. c 207 § 9<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1973ex1c207.pdf?cite=1973%201st%20ex.s.%20c%20207%20%C2%A7%209>.]


RCW 59.18.100<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.100>
Landlord's failure to carry out duties—Repairs effected by tenant—Procedure—Deduction of cost from rent—Limitations.
(1) If, at any time during the tenancy, the landlord fails to carry out any of the duties imposed by RCW 59.18.060<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.060>, and notice of the defect is given to the landlord pursuant to RCW 59.18.070<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.070>, the tenant may submit to the landlord or his or her designated agent by first-class 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 repair is to be done by licensed or registered persons, or if no licensing or registration requirement applies to the type of work to be performed, the cost if the repair is to be done by responsible persons capable of performing such repairs. Such estimate may be submitted to the landlord at the same time as notice is given pursuant to RCW 59.18.070<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.070>. The remedy provided in this section shall not be available for a landlord's failure to carry out the duties in *RCW 59.18.060<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.060> (9) and (14). If the tenant utilizes this section for repairs pursuant to RCW 59.18.060<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.060>(6), the tenant shall promptly provide the landlord with a key to any new or replaced locks. The amount the tenant may deduct from the rent may vary from the estimate, but cannot exceed the two-month limit as described in subsection (2) of this section.
(2) If the landlord fails to commence remedial action of the defective condition within the applicable time period after receipt of notice and the estimate from the tenant, the tenant may contract with a licensed or registered person, or with a responsible person capable of performing the repair if no license or registration is required, to make the repair. Upon the completion of the repair and an opportunity for inspection by the landlord or his or her designated agent, the tenant may deduct the cost of repair from the rent in an amount not to exceed the sum expressed in dollars representing two month's rental of the tenant's unit per repair. When the landlord must commence to remedy the defective condition within ten days as provided in RCW 59.18.070<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.070>(3), the tenant cannot contract for repairs for ten days after notice or two days after the landlord receives the estimate, whichever is later. The total costs of repairs deducted in any twelve-month period under this subsection shall not exceed the sum expressed in dollars representing two month's rental of the tenant's unit.
(3) If the landlord fails to carry out the duties imposed by RCW 59.18.060<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.060> within the applicable time period, and if the cost of repair does not exceed one month's rent, including the cost of materials and labor, which shall be computed at the prevailing rate in the community for the performance of such work, and if repair of the condition need not by law be performed only by licensed or registered persons, and if the tenant has given notice under RCW 59.18.070<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.070>, although no estimate shall be necessary under this subsection, the tenant may repair the defective condition in a workmanlike manner and upon completion of the repair and an opportunity for inspection, the tenant may deduct the cost of repair from the rent. Repairs under this subsection are limited to defects within the leased premises. The cost per repair shall not exceed one month's rent of the unit and the total costs of repairs deducted in any twelve-month period under this subsection shall not exceed one month's rent of the unit.
(4) The provisions of this section shall not:
(a) Create a relationship of employer and employee between landlord and tenant; or
(b) Create liability under the workers' compensation act; or
(c) Constitute the tenant as an agent of the landlord for the purposes of **RCW 60.04.010<http://app.leg.wa.gov/RCW/default.aspx?cite=60.04.010> and 60.04.040<http://app.leg.wa.gov/RCW/default.aspx?cite=60.04.040>.
(5) Any repair work performed under the provisions of this section shall comply with the requirements imposed by any applicable code, statute, ordinance, or regulation. A landlord whose property is damaged because of repairs performed in a negligent manner may recover the actual damages in an action against the tenant.
(6) Nothing in this section shall prevent the tenant from agreeing with the landlord to undertake the repairs himself or herself in return for cash payment or a reasonable reduction in rent. Any such agreement does not alter the landlord's obligations under this chapter.
RCW 59.18.120<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.120>
Defective condition—Unfeasible to remedy defect—Termination of tenancy.
If a court or arbitrator determines a defective condition as described in RCW 59.18.060<http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.060> to be so substantial that it is unfeasible for the landlord to remedy the defect within the time allotted by RCW 59.18.070<http://app.leg.wa.gov/RCW/default.aspx?cite=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: PROVIDED, That the court or arbitrator shall set a reasonable time for the tenant to vacate the premises.

On Mon, Oct 25, 2021 at 10:20 AM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
Tenant has an option to deduct from rent the cost of repair that the landlord has failed to do, if they follow the procedure under RCW 59.18.100<https://app.leg.wa.gov/RCW/default.aspx?cite=59.18.100>.

Can the Tenant, instead of following the procedure, elect to complete the repair without deduction of rent, and then sue the landlord for the cost of the repair? Assuming of course that the Tenant has previously notified the Landlord of the needed repair and the Landlord has not timely responded.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

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Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
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