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WPI 130.06 Duty of Landlord to Tenant—Residential Tenancies

6 WAPRAC WPI 130.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 130.06 (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 130.06 Duty of Landlord to Tenant—Residential Tenancies

A landlord is liable for damages proximately caused by a condition on the rented property if:

(1) the condition was dangerous, and violated one or more of the following statutory duties:

(here insert whichever subsections of RCW 59.18.060 are alleged to have been violated);

(2) the landlord was aware of the condition or had a reasonable opportunity to discover the condition; and

(3) the landlord failed to exercise ordinary care to repair the condition [in a reasonable period of time].

[A landlord has no duty to repair a defective condition where the defective condition complained of was caused by the conduct of the tenant, the tenant's family, invitee, or other person acting under the tenant's control, or where a tenant unreasonably fails to allow the landlord access to the property for purposes of repair.]

NOTE ON USE

This instruction is for residential tenancies. For nonresidential tenancies, see WPI 130.01 (Duty of Landlord—Latent or Obscure Defect—Rented Premises), 130.01.01 (Nonresidential Tenancies—Duty of Landlord—Rented Premises—Promise to Put and Keep in Repair), and 130.04 (Nonresidential Tenancies—Limitation on Landlord's Duty to Repair).

This instruction does not contain guidance as to whether guests of the tenant are entitled to bring an action under the Residential Landlord Tenant Act (RLTA).

This instruction applies to that part of the premises that is rented. For that part of the premises reserved for common use and over which the landlord retains control, use WPI 130.02 (Duty of Landlord—Common Areas).

Use bracketed material as appropriate.

COMMENT

RCW 59.18.060, as amended by Laws of 2013, Chapter 35, § 1.

Caveat: As discussed below, a cause of action based on a violation of the warranty of habitability as contained in RCW 59.18.060 is well-established in Division III jurisprudence. However, Division II has declined two invitations to adopt this theory, finding it unnecessary in those cases, and Division I has not yet directly addressed the issue.

Source of law. In Martini v. Post, 178 Wn.App. 153, 167, 383 P.3d 473 (2013), Division II of the Court of Appeals summarized the three distinct theories on which a tenant may base a claim for personal injury. These are the landlord's breach of duty under “(1) the rental agreement, (2) the common law, or (3) the RLTA.”

This instruction is based on the formulation of Restatement (Second) of Property (Landlord & Tenant) § 17.6 (1977), in Lian v. Stalick, 115 Wn.App. 590, 595, 62 P.3d 933 (2007). Restatement (Second) § 17.6 provides:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.

This instruction differs from the test put forth in Restatement (Second) of Property (Landlord & Tenant) § 17.6 (1977) in several ways. First, RCW 59.18.060 is an express warranty of habitability. Second, RCW 59.18.060(1) provides that a landlord is required to maintain property “to substantially comply with any applicable code, statute, ordinance, or regulation … if such condition endangers or impairs the health or safety of the tenant.” (Emphasis added.) The broader statement of subsection (2) of Restatement (Second) of Property (Landlord & Tenant) § 17.6 is not warranted under Washington law.

In addition, the final paragraph of the instruction is based on RCW 59.18.060.

Historical background. As summarized by the court in Lincoln v. Farnkoff, 26 Wn.App. 717, 719–20, 613 P. 2d 1212 (1980):

At common law under the principle of caveat emptor, the landlord had no duty to repair rental property, the tenant taking it as he found it. Hughes v. Chehalis School Dist. 302, 61 Wash.2d 222, 225, 377 P.2d 642 (1963). With time, however, this legal position gave way to modern realities and residential tenants were afforded the protection of an implied covenant of habitability. Foisy v. Wyman, 83 Wash.2d 22, 25–8, 515 P.2d 160 (1973), and cases cited. Following this lead, the legislature enacted the residential landlord-tenant act in 1973. This act “modified the common law so as to require decent, safe and sanitary housing,” and “adds … a covenant to repair” to most residential rental agreements. O'Brien v. Detty, 19 Wn.App. 620, 621–22, 576 P.2d 1334, 1335 (1978); see RCW 59.18.060(2).

RCW 59.18.060 is the statutory codification of the warranty of habitability.

Lincoln, which held that tort damages were available for a violation of the RLTA, was then abrogated by a subsequent case from the same division. In Dexheimer v. CDS, Inc., 104 Wn.App. 464, 17 P.3d 641 (2001), Division III concluded that the only remedies available under the Act were set forth in RCW 59.18.090 (basically rescission and repair and deduct rent) and that the RLTA did not provide any authority for generalized tort damages. Just two years later, Division III again reversed itself, concluding that tort damages are available for a violation of the RLTA. Tucker v. Hayford, 118 Wn.App. 246, 75 P.3d 980 (2003). See also Lian v. Stalick, 106 Wn.App. 811, 25 P.3d 467 (2001).

Warranty of habitability and Restatement (Second) of Property, Landlord & Tenant, § 17.6 (1977) as providing a basis for damages for personal injury. The case law is quite confusing in this area. In Aspon v. Loomis, 62 Wn.App. 818, 816 P.2d 751 (1991), Division I concluded that the duties enumerated in the RLTA were comprehensive and thus exclusive, such that there could be no recovery under the RLTA for burns received by a tenant who brushed up against a hot pipe in a non-common area, as insulation of pipes is not one of the specific duties enumerated in RCW 59.18.060. The court, however, implicitly determined that under the appropriate fact-pattern coverage would lie for a breach of the warranty of habitability. The court did not address the applicability of Restatement (Second) of Property (Landlord & Tenant) § 17.6 (1977). But see Wright v. Miller, 93 Wn.App. 189, 200, 963 P.2d 934 (1998) (trial court properly dismissed claim under RLTA for damages resulting from a fall down a stairwell that lacked handrails required by the housing code, as such lapse did not render the home uninhabitable).

Division II has twice declined an invitation to adopt the provisions of Restatement (Second) of Property, Landlord & Tenant, § 17.6 (1977), both times finding it unnecessary to do so in those cases. See Pruitt v. Savage, 128 Wn.App. 327, 115 P.3d 1000 (2005) (non-tenant injured by falling garage door; court declined to adopt Restatement (Second) of Property § 17.6 as to non-tenants because the policy implications had not been sufficiently addressed by the parties); Sjogren v. Properties of Pac. N.W., L.L.C., 118 Wn.App. 144, 149–150, 75 P.3d 592 (2003) (applying principles of Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 875 P.2d 621 (1994), to an injury to a non-tenant occurring in a common area of a tenancy—an obviously dark staircase).

In contrast, Division III has both adopted the warranty of habitability of the RLTA as providing a basis for liability and specifically adopted Restatement (Second) of Property § 17.6. See Tucker v. Hayford, 118 Wn.App. 246, 75 P.3d 980 (2013) (warranty of habitability); Lian v. Stalick, 115 Wn.App. 590, 594, 62 P.3d 933 (2003) (specifically adopting Restatement (Second) of Property § 17.6); Lian v. Stalick, 106 Win. App. 811, 822, 25 P.3d 467 (2001). In a thorough and exhaustively researched trial court opinion, Judge Pechman, of the federal District Court for Western Washington, applied Restatement (Second) of Property § 17.6 in a case governed by state law, but removed to federal court. Pinckney v. Smith, 484 F.Supp.2d 1177 (W.D. Wash. 2007).

Statutory warranty of habitability. RCW 59.18.060 provides in relevant part:

The landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:
(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition endangers or impairs the health or safety of the tenant;
(2) Maintain the structural components, including but not limited to, the roofs, floors, walls, chimneys, fireplaces, foundations, and all other structural components, in reasonably good repair so as to be usable;
(3) Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident;
(4) Provide a reasonable program for the control of infestation by insects, rodents, and other pests at the initiation of the tenancy and, except in the case of a single-family residence, control infestation during tenancy except where such infestation is caused by the tenant;
(5) Except where the condition is attributable to normal wear and tear, make repairs and arrangements necessary to put and keep the premises in as good condition as it by law or rental agreement should have been, at the commencement of the tenancy;
(6) Provide reasonably adequate locks and furnish keys to the tenant;
(7) Maintain and safeguard with reasonable care any master key or duplicate keys to the dwelling unit;
(8) Maintain all electrical, plumbing, heating, and other facilities and appliances supplied by him or her in reasonably good working order;
(9) Maintain the dwelling unit in reasonably weathertight condition;
(10) Except in the case of a single family residence, provide and maintain appropriate receptacles in common areas for the removal of ashes, rubbish, and garbage, incidental to the occupancy and arrange for the reasonable and regular removal of such waste;
(11) Provide facilities adequate to supply heat and water and hot water as reasonably required by the tenant;
(12) (a) Provide a written notice to all tenants disclosing fire safety and protection information. The landlord or his or her authorized agent must provide a written notice to the tenant that the dwelling unit is equipped with a statutory detection device as required in RCW 43.44.110 …;
(13) Provide tenants with information provided or approved by the department of health about the health hazards associated with exposure to indoor mold. … The information must detail how tenants can control mold growth in their dwelling units to minimize the health risks associated with indoor mold. …;
…

RCW 59.18.060(12)(a) requires the landlord to maintain smoke alarms and incorporates the provisions of RCW 43.44.110. Under the facts of a particular case, some of the language from RCW 43.44.110 may need to be incorporated into (1) of this instruction.

Scope of the warranty of habitability in action for damages. Not all violations of the RLTA support a recovery for damages under Washington law, at least as currently developed. The condition must be one that makes the premises dangerous. Restatement (Second) of Property § 17.6 (1977); Lian v. Stalick, 115 Wn.App. 590, 62 P.3d 933 (2003). In part, this is to avoid a conflict with RCW 5.40.050. Accord, Restatement (Second) of Property § 17.6. As indicated, the language of RCW 59.18.060(1) specifically provides that a code violation implicates the warranty of habitability only when the violation creates a condition that substantially “endangers or impairs the health or safety of the tenant”; at the very least, such violation must present a substantial danger. That is, a purely aesthetic or trivial violation does not implicate the warranty. Lian v. Stalick, 106 Win. App. 811, 818, 25 P.3d 467 (2001).

Division I may require more, at least for violations not specifically covered by RCW 59.18.060(1) to (13). In Wright v. Miller, 93 Wn.App. 189, 200–01, 963 P.2d 934 (1998), the court affirmed a trial court order dismissing a claim for damages resulting from a fall down a stairwell that lacked a handrail required by code, because such lack did not render the home “uninhabitable.” The question of whether a code violation implicates the warranty of habitability must be decided on a case-by-case basis. Atherton Condo. Apartment-Owners Ass'n Bd. v. Blume Dev. Co., 115 Wn.2d 506, 799 P.2d 250 (1990).

Under Pinckney v. Smith, 484 F.Supp. 2d 1177 (W.D. Wash. 2007), the question of whether a code violation is sufficient to create a substantial danger to human health or safety was assumed to be a question for the jury. However, whether a building code requirement is intended to prevent injury to persons, and thus implicate the warranty of habitability, may be a question of law. See generally DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 1.2 (4th ed.).

Division II, in both Pruitt and Sjogren, declined to apply the warranty of habitability to an action brought by a non-tenant.

Evidence of negligence. Until further development in the case law, it is difficult to determine how RCW 5.40.050 (statutory violation as evidence of negligence) will be applied in actions based on a violation of RCW 59.18.060.

Residential tenancies not covered by RCW 59.18.060. For residential tenancies not covered by RCW 59.18.060 (e.g., RCW 59.18.040), there is an implied warranty of habitability. See Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973) (holding that in all contracts, oral or written, for the renting of premises, there is an implied warranty of habitability and breach of this warranty constitutes a defense in an unlawful detainer action). Breach by the landlord may also relieve the tenant of an obligation to pay some or all of the rent due. Foisy does not discuss an action for damages by a resident who suffers physical harm from a dangerous condition maintained on a premises covered by RCW 59.18.040.

[Current as of September 2018.]

End of Document