Before attempting to exercise any of the remedies described in this publication, the tenant should read this publication carefully.
To use the repair remedies provided in the Act, the tenant must be current in rent and any utilities the tenant is obligated to pay.
Both the tenant and the landlord must perform duties and exercise remedies under the Act in good faith.
Under the Act, tenants are not entitled to withhold rent even if the landlord has not made repairs. (See Remedies Under the Act discussed below; See also Warranty of Habitability discussed below.)
Tenants who receive an unlawful detainer (eviction) notice should consult an attorney and read our publications Landlord/Tenant Law and Eviction and Your Defense. When an attorney is consulted, it is very important to have all written materials relating to the tenancy available, including the lease or rental agreement, rent receipts, and any written notices given to or received from the landlord. (Keep copies of all documents.) Low income tenants who do not live in King County may phone the CLEAR intake line at 1-888-201-1014 to request assistance.
The landlord's duties under the Act related to repair and maintenance of the premises are summarized below, and a copy of RCW 59.18.060 accompanies this publication. Other landlord duties, including the duty not to discriminate and the duty not to conduct unlawful lockouts, utility shutoffs, or property seizures, are discussed in the Landlord/Tenant Law and Eviction and Your Defense publications available from CLEAR. The tenant's duties under the Act are discussed in the Landlord/Tenant Law publication. Click on the following links for the complete text of the Act's listing of landlord duties (RCW 59.18.060) and tenant duties (RCW 59.18.130).
The Landlord Must:
Keep the premises fit for human habitation at all times during the tenancy.
Maintain the premises to comply substantially with all state and local laws that substantially affect the tenant's health and safety.
Maintain all structural components (chimney, roof, floors, etc.) in reasonably good repair.
Keep any shared or common areas reasonably clean and safe.
Provide a reasonable program for the control of insects, rodents and other pests, except when infestation is caused by tenant. (In the case of a single-family residence, the landlord does not have to control infestation that occurs after the beginning of tenancy.)
Make repairs and arrangements necessary to put and keep the premises in as good condition as by law or rental agreement it should have been at the beginning of the tenancy, except where the condition is due to normal wear and tear.
Provide reasonably adequate locks and give keys to the tenant.
Maintain all electrical, plumbing, heating and other facilities and appliances supplied by the landlord.
Maintain the dwelling in a reasonably weathertight 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, hot water and water as reasonably required by the tenant.
Provide the tenant with written notice that the rental unit is equipped with smoke detectors and that it is the tenant's duty to maintain them.
The Landlord Must Not:
Enter into a rental agreement for premises that have been condemned or declared unlawful to occupy by a government agency responsible for code enforcement.
Intentionally shut off any of the tenant's utility services including water, heat, electricity or gas, except for a temporary interruption for necessary repairs. (See Eviction and Your Defense)
Retaliate against the tenant for: (a) good faith complaints concerning health and safety issues to government authorities or (b) good faith attempts to enforce his or her rights under the Act. (See Retaliation discussed below.)
The Landlord's Potential Liability
The landlord may be liable for damages and penalties for intentionally renting property that has been condemned or declared unlawful to occupy.
The landlord is not liable for defective conditions caused by the tenant, or by the tenant's family or guests.
The landlord is not liable for defective conditions caused by the tenant's unreasonable refusal to allow the landlord to enter the residence to make repairs.
The first step to getting the landlord to make repairs is to give the landlord a written notice of what needs to be fixed. A written notice is required even if the landlord knows about the needed repairs and even if the tenant has told the landlord verbally. A sample notice requesting repairs is included at the end of this publication as Attachment #3. You must Download this Document to view the attachments.
The notice should include the name of the tenant, the date, the name of the owner, the address of the premises, and a description of what needs to be repaired. The notice may also include a copy of the landlord's duties under the Act.
In preparing a notice of needed repairs, it may be helpful to go through the entire rental premises, listing needed repairs room by room and adding any repairs needed to the exterior or common areas.
"Delivery" of a notice requesting repairs is all that the Act requires. In order to prove "delivery" it is advisable that the tenant either (1) send the notice by certified mail and by regular U.S. mail or (2) personally give it to the landlord or to the person who collects the rent. (A neutral witness to the method of delivery can be helpful in proving delivery of the notice.)
If the owner is different from the manager, sending copies of the notice to both may be helpful but is not required.
Tenants should keep, for their records, photocopies of all notices delivered to the landlord, preferably in a file along with the lease, any rent receipts and any written notices or letters received from the landlord.
Time Period for Landlord to Begin Repairs after Written Notice
The landlord must start making repairs as soon as possible after receiving a written notice and no later than the following time limits:
24 hours to begin to restore heat, hot or cold water, electricity, or to 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 begin making repairs in all other cases.
If the landlord cannot meet these timelines because of circumstances beyond his or her control, the repairs must still be completed as soon as possible.
Reporting to Government Agencies
Tenants may notify local health or building departments of possible health or building code violations. (See Building Code Enforcement/Government Inspection and Rent Escrow below.) So long as the tenant is in compliance with the act, the landlord must not retaliate against the tenant for good faith complaints to government authorities. (See Retaliation below and our Landlord/Tenant Law publication.) If the landlord fails to remedy a defective condition after receiving written notice of the problem, a report to a local code inspector with a request for an inspection may provide the motivation the landlord needs to correct the problem. A report will also help to document the existence of the condition and the landlord's knowledge of it. In the event of an injury caused by a hazardous condition on the premises, or of retaliatory action by the landlord against the tenant, such proof is usually vitally important. If the inspector finds a violation of the building codes, the inspector will usually send the landlord a letter explaining the obligation to comply with all applicable codes. Sometimes fines or other penalties may be imposed on the landlord. If a dwelling is in sufficiently poor condition, it is possible that the city will condemn some or all of the building and may require tenants to move out often on very short notice.
Choice of Remedies if the Landlord Doesn't Make Repairs
If the landlord fails to remedy a defective condition within a reasonable time after receiving written notice from the tenant, and after the applicable 24 hour, 3 day or 10 day period to begin repairs has expired, the tenant has the following options:
1. Move out: The tenant may terminate the rental agreement by giving written notice to the landlord and moving out immediately without further obligation under the rental agreement. The tenant will be entitled to a refund of any prepaid rent. The tenant will also be entitled to a refund of the security deposit in accordance with the usual security deposit rules. (See our Landlord/Tenant Law and Recovering Your Security Deposit publications.)
2. File a lawsuit: The tenant may sue the landlord in state court for any remedy provided by the Act or otherwise provided by law.
3. Arbitration or mediation: The tenant may, if the landlord agrees, try to settle the dispute through arbitration or mediation.
4. Pursue other remedies: The tenant may pursue other remedies available under the Act. (See below.)
The following remedies may be used only if the tenant's rent and utilities are current and the landlord does not start repairs within the required time period after receiving written notice:
1. No Right to Withhold Rent
Under the Act, tenants are not entitled to withhold rent even if the landlord has not made repairs. A tenant who withholds rent loses the right to use the limited repair remedies provided by the Act, and gives the landlord the right to issue a three-day pay or vacate notice and to start an unlawful detainer (eviction) action in court. (See Eviction and Your Defense publication.)
2. Repair and Deduct
If the landlord has not started the repair within the required time period following receipt of a proper written notice, or does not complete the repairs promptly (and if the tenant cannot or does not want to move out), the tenant may have the repair done and then deduct the actual costs (never more than 1 month's rent) from the next month's rent. In order to use the Repair and Deduct remedy:
The tenant must be current in rent and any utilities the tenant is obligated to pay.
The tenant must deliver a written notice to the landlord or to the person who collects the rent as described above.
The tenant must wait until the applicable period, 24 hours, 3 days, or 10 days, has expired before proceeding with the repair and deduct remedy. (See Time Period for Landlord to Begin Making Repairs above.)
The tenant must serve, by certified mail or in person, the tenant's own good faith written estimate of the cost of having the repair performed(in addition to the written notice) if:
the repair must be performed by a licensed or registered repair person; or
the cost of the repair will be more than one month's rent.
The written estimate may be submitted at the same time as the written notice of a needed repair.
If the specific needed repair requires the landlord to begin the repair within 10 days (See Time Periods above), the tenant may not enter into a contract for repairs for 5 days after delivering the written estimate. Therefore, it is a good idea to serve the written estimate at the same time as the written notice requesting repairs, or as soon as possible afterwards. This 5 day period does not apply if the repairs must be made within 24 hours or within 3 days.
The tenant may have the repair made if the landlord fails to start repairs within the required time periods after receipt of the written notice of the needed repair and written estimate.
The tenant must make arrangements to pay the repair person.
The tenant must give the landlord an opportunity to inspect the work. It is generally a good idea to provide the landlord with a written notice that the repairs have been completed and are available for inspection within a reasonable time.
After the landlord has inspected the work or has been given a reasonable opportunity to inspect the work, the tenant may deduct the cost of repairs from the next month's rent.
The deduction for each repair cannot exceed one month's rent and no more than two months' rent can be deducted in any 12-month period.
3. Self-Help Repair and Deduct
If the cost of the repair is not more than one-half month's rent and the repair does not require a licensed repair person, the tenant may make the repair himself or herself . In order to use Self-Help Repair and Deduct:
The tenant must be current in rent and any utilities the tenant is obligated to pay.
The tenant must deliver a written notice to the landlord or to the person who collects the rent as described above. (See sample letter Attachment 2 - Download this Document)
The tenant must wait until the applicable period, 24 hours, 3 days, or 10 days, has expired before proceeding with the repair and deduct remedy. (See Time Period for Landlord to Begin Making Repairs above.)
The tenant is not required to provide a separate written estimate of the cost of repairs for a self-help repair.
The tenant must perform the repair in a workman-like manner.
The tenant must give the landlord an opportunity to inspect the work. The tenant should provide the landlord with a written notice that the repairs have been completed and are ready for inspection. The written notice may suggest a date for an inspection.
The tenant may also state in writing that if the landlord does not reply by that date or suggest an alternative date for the inspection, it will be assumed that the landlord approves of the work without inspection.
After the landlord has inspected the work or has been given a reasonable opportunity to inspect the work, the tenant may deduct the cost of repairs from the next month's rent.
The deduction for each self-help repair cannot exceed one-half month's rent and no more than one month's rent can be deducted in any 12-month period.
4. Building Code Enforcement/Government Inspection
Any time the tenant is worried about the conditions of the dwelling unit, the tenant may notify the city or county office that enforces the housing and building code and request an inspection. If the city or county office agrees to an inspection, the inspector 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 require the landlord to make necessary repairs or vacate the building.
Although many code violations do not require vacating the building, if the dwelling unit is in very bad condition, it is possible that the city or county will require the tenants to vacate the building on very short notice.
The response of local government officials to a tenant's request for inspection or code enforcement varies dramatically depending on the particular city or county in which the tenant resides. This variety in local government response is caused by many factors including: available resources; government policy choices on how to spend limited resources; specific language of building codes (or whether the local government has adopted a building code); and whether the dwelling unit is in an urban or rural area.
5. Rent Escrow
If repairs cannot be made using Repair and Deduct (for example, if the repairs would cost more than one month's rent), and if the conditions of the dwelling unit substantially endanger or impair the tenant's health and safety, the tenant may deposit rent payments into an escrow account instead of giving it to the landlord. The section of the Act governing rent escrow accounts, RCW 59.18.115, and is also attached to this publication.
An escrow account is an account maintained by a person authorized by law to hold money until certain conditions are met, in this case, until the landlord corrects the defects.
The rent escrow remedy is technical and complicated. To use the rent escrow remedy, the tenant must meet certain conditions and carefully follow the steps outlined below.
The tenant must be current in rent and any utilities the tenant is obligated to pay.
The landlord must have failed to start repairs within the required time period (See Time Periods above) after receipt of a written notice of a needed repair (See Written Notice Required above.)
The tenant must determine in good faith that other repair remedies (such as repair and deduct) are inadequate to correct the problems.
A local government representative must certify in writing that the defect exists and substantially endangers the tenant's health or safety.
a. The tenant may ask the city or county inspection office to do a "rent escrow inspection" and to certify the results in writing within 5 days. (See Rent Escrow Inspection Request form, Attachment 5. You must Download this Document to view the attachments. ) b. A copy of the notice requesting repairs that was given to the landlord should be attached. c. As with requests for building code inspections, the response of local governments to requests for rent escrow inspections varies considerably. In some parts of the state it is not possible to obtain the necessary certification from the local government, and without a government certification, the rent escrow remedy cannot be used.
The inspector must give the landlord 24 hours' notice before the inspection date and time. The landlord is entitled to be present, but cannot prohibit the inspector from entering the premises.
The inspector must certify in writing that the conditions found can be a "substantial risk" to health and safety or make the premises "substantially unfit for human habitation." Such conditions may include, but aren't limited to:
a. Structural problems, such as the house falling down, walls sagging, exposure of the tenants to the weather because the roof leaks, or broken windows or doors. b. Inadequate plumbing and sanitation that directly expose the tenants to risk of illness or injury. c. Lack of water, or of hot water. d. Heating or ventilation systems are not working or are hazardous. e. Substantial problems with wiring and electrical service, defective or inadequate exits, and conditions that increase the risk of fire.
Notice of Escrow: The tenant must mail first-class or hand-deliver to the landlord a written notice of the rent escrow along with the written certification by the city or county, not later than 24 hours after the tenant first deposits rent in escrow. (See Notice of Rent Escrow, Attachment 6.)
It is advisable for the tenant to consult an attorney once the inspector has certified the dwelling unit as eligible for escrow before placing rent in an escrow account.
Either the tenant or the landlord may file a lawsuit to obtain the release of rent money deposited in escrow and the court or arbitrator may determine whether past, present, or future rent should be reduced because of any defects.
Because a rent escrow account can be difficult and sometimes expensive to set up, this remedy is often best used to motivate the landlord to make repairs without actually taking the final step of depositing your rent into the account.
A warranty of habitability is implied by operation of law in all residential tenancies. The implied warranty of habitability trumps contrary language in any oral or written rental agreement. It cannot be waived or bargained 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 attached to this publication. You must Download this Document to view the attachments.
A statutory warranty of habitability was also created when the Washington Legislature enacted the Residential Landlord Tenant Act, which requires landlords to "keep the premises fit for human habitation at all times during the tenancy" and to maintain the premises to comply substantially with all state and local laws that substantially affect the tenant's health and safety. (See the Landlord's Repair and Maintenance Duties above)
Application to the landlord
The warranty of habitability is, in effect, the landlord's guarantee that residential rental premises are safe enough to live in.
No landlord can require any residential tenant to waive (give up) this warranty as a condition of tenancy.
Any provision of a rental agreement that states that the premises are not governed the warranty of habitability or attempts to limit the landlord's duties to maintain and repair the dwelling unit below that required by the Act and housing codes is unlawful and unenforceable.
Application to the tenant
If the premises are partially or totally uninhabitable because the landlord failed to make needed repairs, the tenant may be able to claim a partial or total rent reduction for the period that the premises were uninhabitable.
The repairs must be major, however, affecting the safety and livability of the residence. Minor housing code violations will not necessarily amount to a breach (violation) of the warranty of habitability if they do not affect the tenant's ability to live safely in the residence.
Rent withholding is usually a very dangerous and unwise strategy, particularly for month-to-month tenants. For the reasons stated below, it is generally impossible to predict how much rent a tenant could safely withhold.
As a Defense to Eviction
The Landlord's breach of the implied warranty of habitability may be a defense to an unlawful detainer action based on nonpayment of rent. This defense relies upon the Washington Supreme Court decision Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973) (Attachment 7), and not on the Residential Landlord-Tenant Act. You must Download this Document to view the attachments.
If a breach of the warranty of habitability defense is asserted in an unlawful detainer action based on alleged non-payment of rent, the court will look at two things.
It will decide whether the unit was totally or partially uninhabitable (unlivable) during the tenancy.
It will decide what the reduction in the rental value for the unit should be during the term of the tenancy.
Courts find that making such decisions is extremely difficult unless expert testimony is presented. Making such a decision becomes even more difficult when it must be made at an unlawful detainer show cause hearing where the court can probably devote only a few minutes to the case.
There is no agreed upon standard for calculating the appropriate reduction in rental value, and different judges may treat the same set of facts in different ways.
If the amount of unpaid or withheld rent (the amount of rent due under the rental agreement minus the amount actually paid) is less than the amount of reductions allowed by the court, the court should dismiss the landlord's eviction action.
If the court determines that some amount of rent is owed, even if it is as little as $1.00, and was not tendered within three days of service of a three day pay or vacate notice, the court could order that a writ of restitution restoring the landlord to possession of the premises be issued and enter a judgment for the amount of rent determined to be owed, plus court costs, plus attorney fees. (See our Eviction and Your Defense publication.)
Example of What the Court Might Do
Imagine that the rental agreement requires a rent payment of $600 each month, and that the tenant has paid that $600 for six months ($3,600 altogether), but then missed one month's rent payment, causing the landlord to initiate an eviction action alleging nonpayment of rent.
If the court decides that the apartment is only worth $400 a month because of problems or defects affecting habitability, the tenant would owe a total of $2,800 over the 7 month period (the six months the tenant paid and the one month the tenant did not). Since the tenant has already paid $3,600, the tenant does not owe rent, and the court should not evict. In addition, the landlord would have to decrease the rent to $400 a month until the apartment is fixed.
If the court found that the apartment was worth more than the tenant actually paid ($3,600 total payments divided by 7 months equals $514 a month), the court would probably rule in favor of the landlord, order that the tenant be evicted, and give the landlord a judgment for the unpaid rent, court costs and attorney's fees. (See our Eviction and Your Defense publication.)
Evidence That Will Support the Tenant's Claim
Although a warranty of habitability claim does not depend on an official inspection or official finding of violations of housing codes, a very useful and inexpensive way to prove a claim of the landlord's breach (violation) of the warranty of habitability is to obtain reports and testimony from housing code inspectors. (See Building Code Inspection/Government Inspection above.)
Photographs are also very helpful.
It is best to have a witness testify regarding rental values in the community, and what the rental unit was actually worth considering the defects.
Because the major difficulty in using the breach of warranty of habitability claim is estimating the proper rental value, the judge may appreciate any help that can be offered in the way of testimony from a person experienced in property valuation. Potential witnesses likely to have such expertise include building inspectors, some housing authority employees, or real estate agents.
It is important to know what a witness will say before having him or her say it in court or in a statement submitted to the court.
Suing the Landlord for a Rent Reduction
It is possible to use a breach of the warranty of habitability claim to start a lawsuit against the landlord and seek a court-ordered rent reduction, even when the landlord has not started an eviction action. However, because of the problems courts have in determining the seriousness of the defects and the proper amount of the rent reduction, this may be difficult.
If the tenant believes the needed repairs are bad enough to justify a rent reduction, the tenant can start an action in Small Claims Court to attempt to force the landlord to return rent that has already been paid (See the "Small Claims Court" publication), or the tenant can start an action in Superior Court for past and future reduction of rent.
Although tenants have the right to present a breach of the warranty of habitability claim as a defense to an eviction for nonpayment of rent, it can be risky. It is generally not a good idea for tenants to withhold part or all of the rent on the assumption that a court will agree with the tenant on how much the apartment was actually worth. If the tenant guesses wrong and the court thinks too much was withheld, the Tenant may be evicted without the chance to make up the difference.
The landlord is prohibited from retaliating or threatening to retaliate against (getting even with) the tenant for good faith complaints to government agencies about conditions that endanger the tenant's health or safety, or for exercising any of his or her rights under the Act. Sending a written notice requesting repairs is an exercise of the tenant's rights under the Act.
Retaliatory actions can include:
Threatening or commencing an eviction
Increasing rent
Reducing services
Increasing the tenant's obligations
If the landlord attempts any of these actions within ninety (90) days of the tenant's complaint to a government agency or exercise of his or her rights under the Act, the action is presumed to be retaliatory. This presumption may be rebutted (proved wrong) by the landlord.
A notice issued by the landlord is presumed not to be retaliatory if the tenant is behind in rent or not in compliance with the rental agreement. This presumption may be rebutted (proved wrong) by the tenant.
This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of the date of its printing, January 2003.
Information, Not Legal Advice. We are providing this information as a public service. We try to make it accurate as of the date noted in the materials. Sometimes the laws change. We cannot promise that this information is always up-to-date and correct. Most of the information provided on this web site is specific to Washington State law.
We do not intend this information to be legal advice. By providing this information, we are not acting as your lawyer. If you need legal advice, you should contact a lawyer through your local legal aid organization. Always talk to a competent lawyer, if you can, before taking legal action.
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