Home Table of Contents

WPI 130.01 Duty of Landlord—Latent or Obscure Defect—Rented Premises

6 WAPRAC WPI 130.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 130.01 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part X. Owners and Occupiers of Land

Chapter 130. Landlord and Tenant

WPI 130.01 Duty of Landlord—Latent or Obscure Defect—Rented Premises

A landlord who knew or should have known of a latent or obscure defect on the premises at the time of renting has a duty to notify the tenant of its existence if the tenant has no knowledge of the defect [and is not likely to discover it by a reasonably careful inspection].

NOTE ON USE

The bracketed phrase is to be used in cases involving non-residential tenancies.

WPI 130.04 (Nonresidential Tenancies—Limitations on Landlord's Duty to Repair), may be used with this instruction.

Use with WPI 130.06 (Duty of Landlord to Tenant—Residential Tenancies) if the case involves a residential tenancy.

This instruction is not intended for use when an incident occurs on the part of the premises reserved for use by all the tenants, such as hallways or stairs. In that case, WPI 130.02 (Duty of Landlord—Common Areas) should be used.

COMMENT

Absent a contractual or statutory requirement, such as the Residential Landlord Tenant Act, a landlord's duty is only to warn tenants about latent or obscure defects on the premises, not to cure them.

In Aspon v. Loomis, 62 Wn.App. 818, 816 P.2d 751 (1991), a case involving a rented residence, the court discussed the “latent defect theory” in detail. The court stated:

Under Washington common law, a landlord has no duty to repair noncommon areas absent an express covenant to repair. Lincoln v. Farnkoff, 26 Wn.App. 717, 719, 613 P.2d 1212, 1213 (1980). However, a landlord is liable to a tenant for damages caused by a concealed, dangerous condition known to the landlord. Younger v. United States, 662 F.2d 580, 582 (9th Cir.1981); see Thomas v. Housing Auth. of Bremerton, 71 Wn.2d 69, 426 P.2d 836 (1967). Known otherwise as “the latent defect theory,” a claim based on a concealed, dangerous condition known to the landlord is comprised of the following elements:
(1) latent or hidden defects in the leasehold
(2) that existed at the commencement of the leasehold
(3) of which the landlord had actual knowledge
(4) and of which the landlord failed to inform the tenant.
Younger, at 582. The latent defect theory does not impose upon the landlord any duty to discover obscure defects or dangers. Nor does it impose any duty to repair a defective condition. Under the latent defect theory, the landlord is liable only for failing to inform the tenant of known dangers which are not likely to be discovered by the tenant. Flannery v. Nelson, 59 Wash.2d 120, 123, 366 P.2d 329, 330 (1961).

Aspon v. Loomis, 62 Wn.App. at 826–27.

Earlier cases required actual knowledge on the part of the landlord. See, e.g., Frobig v. Gordon, 124 Wn.2d 732, 881 P.2d 226 (1994); Aspon v. Loomis, 62 Wn.App. 818, 816 P.2d 751 (1991); Charlton v. Day Island Marina, Inc., 46 Wn.App. 784, 732 P.2d 1008 (1987).

However, in Tucker v. Hayford, 118 Wn.App. 246, 75 P.3d 980 (2003), Division III of the Court of Appeals concluded that a “should have known” standard should be applied, “since we have eased the strict requirement of actual knowledge.” Tucker v. Hayford, 118 Wn.App. at 255 (citing Taylor v. Stimson, 52 Wn.2d 278, 280–81, 324 P.2d 1070 (1958), which held that actual knowledge of the landlord is not required if he has knowledge of facts that would lead a reasonable man to suspect the defect actually exists).

In 1967 the Washington Supreme Court issued an opinion suggesting that it might consider adopting a constructive knowledge standard. In that opinion, Thomas v. Housing Auth. of Bremerton, 71 Wn.2d 69, 426 P.2d 836 (1967), the Supreme Court noted that the Restatement (Second) of Torts § 358(1) (1965) uses a constructive knowledge standard, and the court noted further that the Restatement (Second)'s position seems to be supported in more states nation-wide, but the court applied the actual knowledge standard after “assuming” that it still represented the law in our state. Thomas v. Housing Auth. of Bremerton, 71 Wn.2d at 74–76. Although not discussed in detail, the Supreme Court applied the “should have known” standard in Curtis v. Lein, 169 Wn.2d 884, 892, 239 P.3d 1078 (2010); accord, Mucsi v. Graoch Ass'n Ltd. P'ship No. 12, 144 Wn.2d 847, 855 P. 364 (2001). The instruction was revised in 2012 to add language regarding constructive knowledge

Although the general rule is that the landlord's duty applies only to latent defects, Washington courts have applied the exception of Restatement of Torts (Second) § 343A (1965) in the landlord-tenant context. See Sjogren v. Properties of Pac. N.W., L.L.C., 118 Wn.App. 144, 149–50, 75 P.3d 592 (2003); Williamson v. Allied Group, Inc., 117 Wn.App. 451, 72 P.3d 230 (2003). That is, a landlord is liable even for an open and obvious dangerous condition if the landlord should have anticipated that the tenant (or a guest of the tenant) would make use of the common area in spite of the open and obvious condition. See also Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 139, 875 P.2d 621 (1994). For a more detailed discussion of Restatement of Torts (Second) § 343A and guidelines for drafting a supplemental instruction, see the Comment to WPI 120.07 (Liability to Business and Public Invitees—Conditions of Premises—Condition Not Caused by the Owner or Occupier).

[Current as of September 2018.]

End of Document