AyudaLegalWashington.org

• Should I read this?
• Where can I get more info or help?
• What if I get an eviction (unlawful detainer) notice?
• What are the landlord's repair and maintenance duties?
• My rental needs repairs. What should I do?
• What must the landlord do after getting notice?
• What can I do if the landlord does not make repairs?
• The landlord refuses to make repairs. What can I do?
• Can I withhold rent?
• What is "Repair and Deduct?" Can I use it to make repairs?
• Can I use "Repair and Deduct" to make repairs myself?
• Can building code enforcement/government inspection help with repairs?
• What is rent escrow? Can I use it to get repairs made?
• What is the Warranty of Habitability?
• How does the Warranty of Habitability apply to my landlord?
• How does the Warranty of Habitability apply to me?
• Can I use the Warranty of Habitability as a defense to an eviction action?
• What evidence will back up my claim?
• Can I sue the landlord for a rent reduction?
• What if the landlord tries to get back at me for complaining to the city?
• For sample letters and case law, download the printer-friendly version.

 

Should I read this?

This publication has information on repair remedies under federal, state and local laws for tenants who live in the state of Washington. We explain:

• the tenant repair remedies provided in the Residential Landlord-Tenant Act ("the Act"), found at RCW 59.18

• the Warranty of Habitability

• how to get unsafe or uninhabitable premises inspected

Where can I get more info or help?

Call Northwest Justice Project's CLEAR line at 1-888- 201-1014, apply online for help with CLEAR, or visit http://www.washingtonlawhelp.org for more landlord-tenant publications, including:

• Eviction and Your Defense

• Your Rights as a Tenant in Washington

• Can I Get My Security Deposit Back?

• Public Housing Evictions

• HUD Housing Evictions

• Tenants' Rights Under the Mobile Home Landlord Tenant Act

• When a Tenant Who Lives Alone Dies

• Landlord/Tenant Issues For Survivors of Domestic Violence, Sexual Assault, and/or Stalking

• Tenant Screening: Your Rights

*To use the Act's repair remedies, you must be up-to-date in rent and any utilities in your name.

*Both you and the landlord must perform duties and use remedies under the Act in good faith.

*Under the Act, you cannot withhold rent, even if the landlord has not made repairs. (See "Can I Withhold Rent," and "What is the Warranty of Habitability," below.)

What if I get an eviction (unlawful detainer) notice?

Talk with a lawyer right away. Have all paperwork relating to your tenancy with you, including your lease or rental agreement, rent receipts, and any notices you have given to or gotten from the landlord. (Keep copies of all documents.)  You should also read our publications Your Rights as a Tenant in Washington and Eviction and Your Defense.

What are the landlord's repair and maintenance duties?

• Note: This publication only explains the landlord's duties under the Act related to repair and keeping up the premises.  Our publications called Your Rights as a Tenant in Washington and Eviction and Your Defense explain other landlord duties, such as the duties not to discriminate and not to do unlawful lockouts, utility shutoffs, or property seizures. Our Your Rights as a Tenant in Washington publication explains the tenant's duties. You can find the law online at http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18 (landlord's duties here, tenant's duties here) or at your local law library.

The Landlord Must:

• Keep the place fit for you to live in at all times during the tenancy.

• Maintain the place to comply substantially with all state and local laws sub­stantially affecting your health and safety.

• Keep all structural components (chim­ney, roof, floors, and so on) in reasonably good repair.

• Keep any shared or common areas rea­sonably clean and safe.

• Provide a reasonable program for control of insects, rodents and other pests, except when you caused the infestation. (The landlord of a single-family residence does not have to control pests that show up after you move in.)

• Make repairs and arrangements needed to put and keep the place in as good condition as the law or rental agreement says it should have been at the start of your tenancy, except where the condition is due to normal wear and tear.

• Provide reasonably adequate locks and keys.

• Maintain all electrical, plumbing, heating, and other facilities and appliances sup­plied by the landlord.

• Keep the place in a reasonably weather-tight condition.

• Provide garbage cans and arrange for regular removal of waste, except in the case of a single-family residence.

• Provide facilities adequate to supply heat and water (including hot water) as you reasonably re­quire.

• Give you written notice that the rental unit is equipped with smoke detectors and of your duty to keep them up.

The Landlord Must Not:

• Rent out premises that have been condemned or declared unlawful to occupy by a government agency responsible for code enforcement.

• Intentionally shut off any of your utility services including water, heat, electricity or gas, except temporarily for needed repairs. (See our Eviction and Your Defense publication.)

• Retaliate against you for good faith complaints concerning health and safety issues to government authorities OR good faith attempts to enforce your rights under the Act. (See "Retaliation," below.)

The Landlord's Potential Liability

• The landlord may be liable for damages and penalties for intentionally renting a place that has been condemned or declared unlawful to occupy.

• The landlord is not liable for defective conditions caused by you, your family, or your guests.

• The landlord is not liable for defective conditions caused by your unreasonable refusal to allow the landlord to enter to make repairs.

My rental needs repairs. What should I do?

You must provide written notice! First you must give the landlord written notice of what needs fixing, even if s/he already knows about the needed repairs and/or you have already told him/her verbally. A sample notice asking for repairs is at the end of this publication. If you use this letter, attach a copy of RCW.18.060 to it. (You can find it at http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18.060.)

In your notice, put your name, the date, the owner's name, your address, and a description of what needs repair. Go through the entire place, listing needed repairs room-by-room, and any repairs needed to the outside or common areas.  You may include a copy of the landlord's duties under the Act.

The Act requires you to "deliver" a notice asking for repairs.  To prove "delivery," you should either:

• send the notice by certified mail AND regular U.S. mail OR

• personally give it to the landlord or the person who collects the rent (try to have a neutral witness to the delivery so you can prove it in court later)

You should keep, for your records, copies of all notices delivered to the landlord, if possible in a file along with the lease, any rent receipts, and any written notices or letters from the landlord.

What must the landlord do after getting notice?

S/he must start making repairs as soon as possible after getting your written notice and no later than:

• 24 hours to start to restore heat, hot or cold water, electricity, or fix a very hazardous condition.

• 72 hours to begin to fix a refrigerator, range and oven, or major plumbing fixture supplied by the landlord.

• 10 days to start making repairs in all other cases.

If the landlord cannot meet these timelines due to circumstances beyond his/her control, s/he must still have the repairs finished as soon as possible.

What can I do if the landlord does not make repairs?

If the landlord does not make repairs within a reasonable time after getting your written notice, and after the 24 hour, three-day or ten-day period to start repairs is up, you can:

• Move out:  You may terminate the rental agreement by giving the landlord written notice and moving out immediately without further obligation under the rental agreement. You will be entitled to a refund of any prepaid rent and the security deposit under the security deposit rules. (See our Your Rights as a Tenant in Washington and Can I Get My Security Deposit Back? publications.)

• File a lawsuit: You may sue the landlord in state court for any remedy provided by the Act or other law.

• Arbitration or mediation:  If the landlord agrees, you may try to settle the dispute through arbitration or mediation.

• Try other remedies:  There are other remedies under the Act. (See next section, and the sections "What is Repair and Deduct" and "What is Rent Escrow".)

The landlord refuses to make repairs. What can I do?

You may use the remedies we describe in "What is Repair and Deduct" and "What is Rent Escrow," but only if:

• you are current in rent and utilities

AND

• the landlord does not start repairs within the required time period after getting your written notice

Can I withhold rent?

No. The Act says you cannot withhold rent, even if the landlord has not made repairs. If you do:

• You lose the right to use the limited repair remedies under the Act.

• The landlord can issue a three-day "pay or vacate" notice and to start an unlawful detainer (eviction) action in court. (See our Eviction and Your Defense publication.) 

What is "Repair and Deduct"?

It is a remedy under the Act when your landlord does not make repairs even after you have given proper written notice. If the landlord has not started the repair within the required time period after getting your proper written notice, or does not promptly finish the repairs (and you cannot or do not want to move out), you may have the repair done and then deduct the actual costs from future rent payments. You can deduct up to two months' worth of rent. You could pay no rent for two months in a row, if you paid the maximum amount on repairs.

Example 1: Your rent is $750 a month. You made a repair in March costing $1,500. You could deduct $750 from the April rent and another $750 from the May rent.  You would not have to pay any rent for April or May. 

Example 2: Your rent is $750 a month. The repair cost $1,000. You could deduct $750 from April's rent and $250 from May's rent. 

To use the Repair and Deduct remedy, you must:

• Be current in rent and any utilities in your name.

• Deliver a written notice to the landlord or person who collects the rent. There is a sample notice at the end of this publication.

• Wait until the applicable period (24 hours, three days, or ten days) is up before going ahead with the repair and deduct remedy. (See "What Must the Landlord do After Getting Notice," above.)

• Give the landlord, by first class mail or in person, your own good faith written estimate of the repair cost and written notice of the need for repair if a licensed or registered repair person must do it OR the repair cost will be more than two months' rent.

If the landlord must start the repair within ten days (See "What must the landlord do after getting notice," above), you may not enter into a contract for repairs for two days after delivering the written estimate. You should serve the written estimate at the same time as the written notice asking for repairs or as soon as possible afterwards. This two-day period does not apply to repairs that must be made within 24 hours or within three days.

You may have the repair made if the landlord does not start repairs within the required time periods after getting your written notice of the needed repair and estimate. You must arrange to pay the repair person.

You must let the landlord inspect the work. You should give the landlord written notice that the repairs have been finished and are available for inspection within a reasonable time.

After the landlord has inspected the work or been given a reasonable chance to do so, you may deduct the cost of repairs from the next month's rent.

Can I use "Repair and Deduct" to do the repairs myself?

Yes, if:

• the cost of the repair is not more than one month's rent AND

• the repair does not require a licensed repair person

If you make the repairs yourself, you can deduct a maximum of one month's rent from the next month's payment of rent. Example: Your rent is $800 a month. In March, you made four separate repairs, each costing $200. You could deduct $800 from April's rent. You would not pay any rent in April.

You cannot deduct more than one month's rent for each self-help repair. You cannot deduct more than one month's rent in any twelve-month period.

To use Repair and Deduct, you:

• Must be current in rent and any utilities in your name.

• Must deliver a written notice to the landlord or the person who collects the rent. (There is a sample notice at the end of this publication.)

• Must wait until the proper period (24 hours, three days, or ten days) has run before starting the repair and deduct remedy. (See "What must the landlord do after getting notice," above.)

• Do not have to give the landlord a separate written estimate of the cost of repairs for a self-help repair.

• Must make the repair in a workman-like manner.

• Must give the landlord a chance to inspect the work. You should give the landlord written notice that the repairs have been finished and are ready for inspection. The written notice may suggest a date for an inspection. You may also put that if the landlord does not reply by that date or suggest another date for the inspection, you will assume the landlord approves of the work without inspection.

After the landlord has inspected the work or has been given a reasonable chance to do so, you may deduct the cost of repairs from the next month's rent.

Can building code enforcement/government inspection help with repairs?

If you are worried about the conditions of the place where you live, you may notify the city or county office that enforces the housing and building code and ask for an inspection. If they  agree to inspect, they may conduct the entire inspection OR do a preliminary inspection, then refer the rest to another agency, such as the health department.

If the inspection finds problems or defects in violation of the building code, the city or county can make the landlord make needed repairs OR vacate the building. Many code violations do not require this. But if the place is in very bad condition, the city or county may require you to move on very short notice.

How local government officials respond to your request for inspection or code enforcement will vary dramatically depending on the city or county where you live. This is because of available resources; government policy choices on how to spend limited resources; a building code's language (or whether the local government has adopted a building code); and whether the dwelling unit is in an urban or rural area.

What is rent escrow? Can I use it to get repairs made?

If you cannot make repairs using Repair and Deduct (example:  if the repairs would cost more than one month's rent), AND the unit's conditions substantially endanger or impair your health and safety, you may deposit rent payments into an escrow account instead paying the landlord.

RCW 59.18.115 governs rent escrow accounts. An escrow account is an account maintained by someone authorized by law to hold money until certain conditions are met, in this case - the landlord fixes the defects.

The rent escrow remedy is technical and complicated. To use it, you must meet certain conditions and carefully follow the steps below.

• You must be up-to-date in rent and any utilities in your name.

• The landlord must have failed to start repairs within the required time period (see "What must the landlord do after getting notice," above) after getting your written notice of a needed repair. (See "You must provide written notice," above.)

• You must determine in good faith that other repair remedies (example:  repair and deduct) will not work.

• A local government representative must certify in writing that the defect exists and substantially endangers your health or safety.

• You may ask the city or county inspection office to do a "rent escrow inspection" and certify the results in writing within five days. (See Rent Escrow Inspection Request form at the end of this publication.)

• You should attach to your letter to the inspection office a copy of your notice to the landlord asking for repairs.

• How your local governments will respond to a request for rent escrow inspections will depend on where you live. In some parts of the state you cannot get the necessary certification from the local government. (Without a government certification, you cannot use the rent escrow remedy.) 

• The inspector must give the landlord 24 hours' notice before the inspection date and time. The landlord can be present during the inspection. The landlord cannot keep the inspector from entering the premises.

• The inspector must certify in writing that the conditions at your place can be a "substantial risk" to health and safety OR make the premises "substantially unfit for human habitation."  Such conditions may include, but are not limited to:

• Structural problems. Examples: the house falling down, walls sagging, exposure of tenants to the weather because the roof leaks, or broken windows or doors.

• Inadequate plumbing and sanitation that directly exposes you to risk of illness or injury.

• Lack of water, or of hot water.

• Heating or ventilation systems are not working or are hazardous.

• Substantial problems with wiring and electrical service, defective or inadequate exits, and conditions that increase the risk of fire.

• Notice of Escrow:  You must mail first-class or hand-deliver to the landlord written notice of the rent escrow AND the city's/county's written certification no more than 24 hours after depositing your rent in escrow. (See Notice to Landlord of Rent Escrow at the end of this publication.)

• After the inspector has certified the place eligible for escrow but before depositing your rent in an escrow account, TALK TO A LAWYER.

• Either you or the landlord may file a lawsuit asking the court (or an arbitrator) to release the rent money deposited in escrow. The court/arbitrator may determine whether to reduce past, present, or future rent because of any defects.

• A rent escrow account can be hard and expensive to set up. It is often best to use this remedy to motivate the landlord to make repairs without actually taking the final step of depositing your rent into the account.

What is the Warranty of Habitability?

It is the concept that by putting a place up for rent, the landlord makes an unspoken promise (warranty) that it is in fact fit for you to live in. If the place is not in fact fit to live in, the landlord has violated the warranty.

A warranty of habitability is implied by law in all residential tenancies. It is not written into your lease agreement. It does not need to be.  Any language in your (written or verbal) lease agreement saying the warranty does not apply violates state law. You cannot waive or bargain it away in exchange for lower rent.  

The implied warranty of habitability was independently created by the Washington Supreme Court in the case of Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973).  A copy of this case is at the end of this publication.

Washington State's Residential Landlord Tenant Act also has a warranty of habitability. It says landlords must "keep the premises fit for human habitation at all times during the tenancy" and keep the premises in a way that complies substantially with all state and local laws substantially affecting your health and safety. (See "What are the Landlord's Repair and Maintenance Duties," above.)

How does the Warranty of Habitability apply to my landlord?

Basically, it is the landlord's guarantee that the place is safe enough for you to live in.

No landlord can require you to waive (give up) this warranty as a condition of your tenancy. Any part of a rental agreement that states that the premises are not governed by the warranty of habitability, or tries to limit the landlord's duties under the Act and housing codes to maintain and repair the rental, is unlawful. The landlord cannot hold you to it. (It is unenforceable.)

How does the Warranty of Habitability apply to me?

If the place is partially or totally uninhabitable because the landlord did not make needed repairs, you may be able to claim a partial or total rent reduction for the period it was uninhabitable.  

But: The repairs must be major, affecting your ability to live in the place safely. Minor housing code violations may not violate the warranty of habitability if they do not affect your safety.

Can I use the Warranty of Habitability as a defense to an eviction action?

Maybe. The Landlord's breach of the implied warranty of habitability may be a defense to an unlawful detainer (eviction) action for nonpayment of rent. This defense relies on the Foisy case, not the Residential Landlord-Tenant Act. ( "What is the Warranty of Habitability," has more on Foisy.)

If you claim a "breach of the warranty of habitability" defense in an eviction action for non-payment of rent, the court will decide: 

• Whether the unit was totally or partially uninhabitable (unlivable) during your tenancy.

• What the reduction in the rental value for the unit should be during the term of your tenancy.

Courts find deciding these issues very hard without expert testimony. It is also hard to make such decisions at an unlawful detainer show cause hearing where the court can only give your case a few minutes.  

If the amount of unpaid or withheld rent (the amount due minus what you actually paid) is less than the amount of reductions the court will allow, the court should dismiss the  eviction action.

A court that decides you owe some rent (even just one dollar) and you did not tender what you owed within three days of getting a pay or vacate notice could order the issuance of a writ of restitution giving the landlord back the premises AND a money judgment for the rent it decides you owe, plus court costs and attorney fees. (See our Eviction and Your Defense publication.)

Examples of what the court might do: Under your rental agreement, you pay $600 rent each month. For six months, you have paid that amount ($3,600 altogether). You then miss one month's payment. The landlord files an eviction action for nonpayment of rent.

The court decides the apartment is only worth $400 a month because of problems or defects affecting habitability. That means you owe only $2,800 total over the seven-month period (the six months you paid and one month you did not). You have already paid $3,600. You do not owe rent. The court should not evict you. In fact, the landlord would have to lower the rent to $400 a month until the apartment is fixed.

If the court found the apartment was worth more than you actually paid ($3,600 total payments divided by seven months equals $514 a month), the court would probably rule in favor of the landlord, order your eviction, and award the landlord a judgment for unpaid rent, court costs and attorney's fees. (See our Eviction and Your Defense publication.)

What evidence will back up my claim?

• Housing code inspectors' reports and testimony. (See "Can building code enforcement/government inspection help with repairs," above.)

• Photos.

• A witness who can testify about rental values in your area, and what the rental unit was actually worth considering the defects.

• Testimony from someone with experience in property valuation. Examples: building inspectors, some housing authority employees, or real estate agents. Estimating the proper rental value will be hard for a judge. S/he may appreciate any help you can offer through a witness.

Can I sue the landlord for a rent reduction?

Maybe. You can use a breach of the warranty of habitability claim to sue your landlord for a court-ordered rent reduction, even when the landlord has not filed an eviction action. But courts have a hard time determining the seriousness of the defects and the proper amount of the rent reduction.

If you believe the needed repairs are bad enough to justify a rent reduction, you can:

• Sue in Small Claims Court to try to force the landlord to return rent you have already paid. (See the "Small Claims Court" publication available at washingtonlawhelp.org.)

• Sue in Superior Court for past and future reduction of rent.

A breach of the warranty of habitability claim can be a defense to eviction for nonpayment of rent. But it can be risky. You generally should not withhold part or all of the rent. A court may not agree with you how much the apartment was actually worth. If you guess wrong and the court thinks you withheld too much, you may be evicted without the chance to make up the difference.

What if the landlord tries to get back at me for complaining to the city?

Under state law, the landlord cannot retaliate (get back at) or threaten to retaliate against  you for your good faith complaints to government agencies about conditions endangering your health or safety, or for exercising any of your rights under the Act. Sending a written notice requesting repairs is an exercise of your rights under the Act.

Examples of retaliatory actions include: 

• Filing an eviction, or threatening to

• Raising the rent

• Reducing services

• Increasing your obligations

If the landlord tries to do any of these things within 90 days of your complaint to a government agency or other exercise of your rights under the Act, the action is presumed retaliatory. The landlord may rebut (prove wrong) this presumption.

A notice issued by the landlord is presumed not retaliatory if you are behind in rent or not in compliance with the rental agreement. You may rebut (prove wrong) this presumption.